October 19

Why the Crown still matters


The YWCA Hotel Conference Centre
Sydney, Australia
Transcript as released by the Office of Research and Education

PROFESSOR FLINT: During the nineties, a survey undertaken by the Australian government showed that not many Australians knew much about their Constitution.

This may have since improved, but the peoples’ understanding is not helped by republican experts who denigrate it as a ‘horse and buggy’ constitution. It is interesting that few American authorities criticise the US constitution in similar terms, although it is twice as old as ours.
What is particularly unfortunate is that some of these critics, even professors of law, criticise our Constitution because it does not refer to such matters as the Cabinet or the office of the Prime Minister.

It is as if they are saying the Constitution should be a stand-alone text or book on civics. As they full well know, the Constitution was intended to be the articles of association between the people of the six colonies who had decided to federate. The document therefore makes many assumptions, including that of responsible government and that the colonies were to continue as states in the new federation.
What is the Constitution?
On one view our constitution is the document to be found in section 9 in the Commonwealth of Australia Constitution Act, 1900(UK). But of course the constitution is wider than that.
Bolingbroke once defined a constitution as ‘that assembly of laws, institutions and customs …according to which the community has agreed to be governed’

This is a particularly apt definition for Australia. It includes the document which is central to our governance, the first federal constitution in history to be approved by the people, and one incidentally drafted in Australia by Australians. It was not designed in the British Foreign Office, as former Prime Minister Paul Keating once claimed.
Moreover this definition includes the constitutional customs, or conventions, which are regarded as binding, as well as other important constitutional documents, including the State constitutions, the Balfour Declaration, the Statute of Westminster,1931 and the Australia Act,1986.
Liberal Constitutionalism
In response to the question, does the nation’s oldest institution still matter, it is essential to understand the concept of liberal constitutionalism. This concept has come to the fore in the debate over the future governance of Iraq. Eminent authorities, such as Fareed Zakaria , in a recent book which is attracting much attention in the USA, The Future of Freedom, have pointed to the weakness of installing the trappings of democracy without the widespread adherence of the population to the principles of constitutional liberalism – the rule of law, the concepts of limited government and of the provision of adequate checks and balances on the exercise of power.

The experience of Latin America and Africa demonstrate the need to sow democratic institutions in fertile ground if they are to work over the longer term.

To understand constitutional liberalism, we must go back to the Greek philosophers, Plato and Aristotle.
Plato’s Republic envisages a state in which the best people, the elite, become its guardians, invested with full powers. This is, on first glance, a plausible proposition. But even if you could find the best, how could you ensure that they would not be corrupted by power. Aristotle challenged this, arguing that it was dangerous to give full powers to a group of men, precisely because they would tend to abuse it.

As Acton later famously said, power tends to corrupt, and absolute power corrupts absolutely. This sceptical approach assumes that no matter how gifted a man is, the lack of checks and balances on any power assigned to him will lead to abuse.

So in Athens and later in the Roman republic, government was conducted under systems which placed considerable checks and powers on authority. In more modern times, it was the English who unconsciously developed a form of government which was stable but contained adequate checks and balances.
The debate between the Platonists and the Aristotelians is not merely a matter of historical interest. The idea of finding the best people, an elite who could constitute a perfect government and then to endow them with full powers, was adopted by the Jacobins in the French revolution and then by both of the terrible ideologies of the twentieth century, nazism and communism.
Together they took millions and millions of innocent lives, and imposed terrible suffering on most of the others. But let us return to the Anglo-Saxon models.

England and the USA
A French writer, Montesquieu, first noticed that the central theme of the English constitution of the eighteenth century was the separation of the powers, that is between the executive, legislative and judicial powers. There was, however, a growing link between the executive and the legislature, which would develop into the doctrine of responsible government – that a government must be accountable to parliament, in particular the House of Commons whose confidence it must enjoy.

By 1688, the long dispute between Parliament and the King had been settled.

The King could not legislate alone, only the King in Parliament could do that. And The King’s power of veto was to fall into disuse. In the meantime, the judiciary’s independence was confirmed.
But The King was still to play an active role in the executive. This would only go, or almost go, in the nineteenth century as the present form of constitutional monarchy evolved.
Montesquieu’s interpretation of the English (then British model) strongly influenced the Founding Fathers of the United States. They were also influenced by their colonial structures where the Governor was obviously not responsible to the representative assembly.
They decided on a strict separation between the executive and legislature. The often adversarial relationship between the three institutions is more rigid and adversarial then the Westminster model, but it does provide the necessary checks and balances to ensure against abuse of power. And like Westminster, both provide stable government. In brief they both work and have been tested over time. We can say this about few constitutional models. Anyone, almost anyone can write a constitution, designing one which works is a rare talent.
By the middle of the nineteenth century, most of the Australian colonies were self governing, with constitutional models incorporating the Westminster system. All had the Crown at their very centre. This, Australia’s oldest legal institution, was represented by a Governor as a sort of local constitutional monarch.
The move to federation involved an overwhelming wish to continue this Westminster model, attenuated by borrowings from the US and Switzerland, as well as Australian innovations, to reflect the Federal nature of the new nation.
The point is that at the very centre of the Australian constitutional system, we have a vast institution which is above politics. Foiled in their attempts to remove it, the strategy of the republicans is to trim it back, and by removing its symbols, to hide it from the Australian people.This is the secret vice of ‘creeping republicanism’, attempting to change the constitutional system by hiding the Crown, and without seeking the consent of the people.
It is clear from the two publicly funded highly flawed republican models,that it is impossible to graft a republic on to the present constitional system and maintain its integrity-you really have to start from scratch.And the polls tell us that if-and I stress if- Australians really wished to change the fundamental features of our constitution,they, and not the politicians,will choose the president. But it is equally obvious that the people do not want change -as Malcolm Turnbull wrote in his diary months before the referendum, nobody is interested. (It is a pity he waited until after the referendum to tell us, we need not have gone through that expensive, divisive and distracting exercise.)
The Australian Crown
As Churchill once said, the Crown is important not so much for the power it wields, but for the power it denies others.No republic has been able to design such an institution. This may explain why, according to the UN human development index, the best countries to live in are mainly constitutional monarchies.
The Australian Crown gradually emerged from the Imperial Crown as the British Empire evolved into the Commonwealth of Nations.
As Dr Evatt wrote in his magisterial work, The King and His Dominion Governors, the Imperial Crown was one and indivisible.
But as a result of the Balfour Declaration of 1926 and the Statute of Westminster, 1931, the full and complete independence of the Dominions, now the Realms, was confirmed.The result was that the Crown separated into an entirely separate Crown for each Realm, a proposition confirmed unanimously by our High Court.

The Realms have, as we know, the same Sovereign. This is a ‘personal union’ of the Crowns, a concept well known to international law.
Thus the Australian Crown is both vast and old.It is manifested by The Queen as sovereign, and the Governor General in the right of the Commonwealth of Australia, and The Queen and the Governors in the right of the States.
The Australian Crown constitutes each of the executive governments (State or Federal) and is part of each legislature. The Crown, through the Governor General provides the command in chief of the armed forces of the Commonwealth.It is the spine of the judiciary, State and Federal.It is the employer of the police, the public service and the statutory office holders. Consequently,they, the judges and the armed forces owe allegiance to the non-political Crown, and not to the politicians or party who may have recommended their appointment. This allegiance to anentity above politics, a trustee for the people, can be crucial in a political crisis -as we have seen both here and in other countries.
The Crown is the constitutional referee , and acts without being bound by the advice of the ministers.This power is exercised more often than most people realise.

And even where the Crown normally acts, by convention, on the advice of the ministers, the Crown is not -as one academic recently wrote in the press- a mere ‘rubber stamp’. The Crown needs to ensure that any advice tendered is lawful-that there is legal power to do what is proposed and that any conditions on the exercise of that power have been fulfilled.
This auditing role is an important check on the executive government, and can be crucial when a government proposes to act illegally. Sadly this does happen, as we have seen. Fortunately this is not frequent, but we cannot guarentee that desparate men and women will not try to repeat this.
The Crown is also an important bulwark in protecting the States from federal control . The States, throughout the seventies and eighties resisted, strongly, the proposal that recommendations concerning the appointment of the Governors be channelled through Canberra. Now, under the Australia Act,1986, the Premier of the relevant State- and not the Prime Minister- is the source of advice to The Queen. It was strange that having fought so hard to achieve this, their successors were so prepared to surrender this right in their support of the referendum proposal in 1999.

The Crown is also a significant link with the other Realms, especially those closest to us, the UK, Canada, New Zealand and New Guinea.
The Crown is Australia’s oldest institution. It is the vast non-political heart of the nation’s constitutional system. It provides stability and an important check and balance on the exercise of power, one which could never be achieved in this way in a republic.
Republican attempts to change this by designing models to be grafted onto the existing system have been abject failures . Both contained significant design faults which suggests the authors either did not understand what they proposed to dismantle or they just did not appreciate the subtleties of our constitutional system.

Moreover, these expensive exercises were underwritten by the Australian taxpayer. Surely, the public funding of this activity by Australian republicans, many of them of endowed with considerable private resources should no longer be subsidised from the public purse.Those funds can be far better employed.


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