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OUR CONSTITUTIONAL MONARCHY – PART 1 by Phillip Benwell MBE National Chair of the Australian Monarchist League
It is now 19 years since the republic referendum of 1999 and with talk of an early election in April 2019, it seems highly possible that Labor will form the next government after which we fully expect to face the commencement of a formal move towards a republic referendum beginning with a series of voluntary postal surveys with calculated questions designed to finagle a ‘yes’ vote.
With a lack of resources and manpower on the monarchist side to effectively oppose the sort of manipulative campaign we anticipate republicans to mount, it is highly possible that the survey could well go their way. This paper is the first in a series published to provide some information on our constitution and our monarchical system of governance, both of which are even now coming under increasing attack.
THE REPUBLICAN DEBATE:
The Australian Labor Party has as a formal objective the reform of the Australian Constitution and other political institutions to ensure that they reflect the will of the majority of Australian citizens and the existence of Australia as an independent republic.12
The fact that the majority of the Australian people decided in 1999 to reject a republic seems not to have influenced their wording: “they reflect the will of the majority of Australian citizens.” Obviously, the people’s ‘will” is only accepted if it is in line with their warped thinking.
Insurrection against the Crown in Australia actually began with the Irish rebels transported by Britain39 following the Irish Rebellions of 1798 and 180340. Many poor Irish were deprived of their dwellings and livelihood when Irish small-holdings were bought out and consolidated into larger more viable estates as a result of the potato famine and this, coupled with resentment of the King and all symbols of authority, ensured a hatred of the English. That it was the Famine41 which was originally responsible is forgotten.
This hatred was nurtured for decades and honed into a republican attitude predominately by the American republicans who migrated to Australia, in the 1850s to seek gold at Ballarat42. New migrants from non-Commonwealth nations have joined their ranks which have now expanded to incorporate people from all communities, regardless of their heritage. When the first organised republicans were agitating for self-government in the 1850s, it was always assumed that the eventual form of government would be based on the British pattern with the Governor replacing the Monarch and an elected local Assembly in place of the British parliament.
The Bulletin magazine43, established in 1880 by two journalists, John F. Archibald and John Haynes, became the flagship of anti-monarchist sentiment in Australia. In 1887 it carried the first published poem of Henry Lawson44 entitled ‘A Song of the Republic’ in which Lawson, inspired by the American Republic, expressed the view that the ‘signs of the times’ foretold that the day of the republic was near. Lawson was also influenced by his mother, who was one of Australia’s first suffragettes. Lawson eventually came to appreciate the values inherent within the Westminster system and its capacity to incorporate a nationalistic fervour within a loyalty to the Crown and, in spite of his family connection to Labor stalwart Jack Lang45, he eventually shook off his republican upbringing and became a strong proponent of the British Empire.
The Bulletin magazine ceased publication in 2008 after 128 years due to a continued lack of circulation.
In 1958, at a dinner organised by Geoffrey Dutton46, Malcolm Muggeridge47, then visiting Australia, raised the issue of a republic to which a young Rupert Murdoch9 is rumoured to have responded: Well I think it’s ridiculous there’s not a republican movement here.79 in 1999 The Murdoch newspapers were the flagship for a republic but have now lessened their ardour with the leftist Fairfax newspaper group increasing theirs.
In September 1989, Neville Wran48, former Premier of New South Wales, held a Sunday brunch at his Woollahra mansion in Sydney at which, according to the writer Thomas Keneally49, his host leaned over the table and said The other thing I want to see happen before I bloody well die is an Australian Republic72.
It was as a consequence of this meeting that the Australian Republican Movement was launched on the 7th July 1991. Neville Wran died in 2014 without seeing his beloved republic.
For well over thirty years republican governments, both State and Federal, both Labor and Liberal, have stripped away all semblance of our monarchical system of government, resulting in allegiance to the Monarch being replaced by a pledge to the State, pictures of the Queen and crown insignia have been removed, the title ‘Royal’ surreptitiously erased whenever possible and even our colonial history rewritten. However, even though these nihilists may obliterate everything that is a reminder of our British heritage; they can never remove the essence of our constitutional stability, which is the Crown, without having to go to the people.
On the 28th April 1993, the then prime minister, Paul Keating, announced the establishment of a Republic Advisory Committee11 which was to be chaired by merchant banker and lawyer, Malcolm Turnbull53. On the 16th August 1993, the Australian Republican Movement54, in its submission to the Committee stated that The president should be elected by a two-thirds majority of both Houses of Parliament.
On the 11th of March 1996, the election was won by the Coalition and John Winston Howard became Australia’s 25th prime minister.
Howard continued on with the moves towards constitutional change and organised a Constitutional Convention55 which comprised 76 delegates elected in a non-compulsory postal vote held in November 1997 (in which less than 50 percent of eligible voters actually bothered to vote) together with a further 76 appointed personally by the prime minister himself. The Convention met in Old Parliament House, Canberra and adopted the model put forward by the Australian Republican Movement; and this was put to the people, in November 1999 in a referendum8. However, despite having undergone eight years of debate and having the active support of the Australian Labor Party and its affiliated unions, in addition to the Greens and the Democrats, big business and in particular the entirety of the print and visual media, the referendum failed to gain a majority both nationwide and in all six states.
Former High Court Justice Michael Kirby,78 had expanded on the defeat of the 1999 referendum in a speech in March 2000:
On Saturday 6 November 1999, 12.3 million electors of the Commonwealth of Australia participated in a constitutional referendum. Two questions were asked. One of them concerned the introduction into the Constitution of an additional Preamble, although one which would have no binding legal force. More important was the question which asked whether the electors approved a proposed amendment to alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and the Governor-General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament.
Both proposals were defeated. The national vote of the electors in favour of Australia's becoming a republic was 45.13% with 54.87% against. The proposed Preamble was lost even more decisively. It could muster only 39.34% in favour with 60.66% against. The proposed republic was rejected in every State. It secured a majority only in the Australian Capital Territory. However, whilst the votes of the electors in that Territory counted towards the national aggregate, they were not relevant to the other requirement of the Constitution concerning amendment. Under s 128, to secure the passage of a proposal to alter the Australian Constitution it is necessary to obtain not only a majority of the electors nationally but also an affirmative vote in a majority of the States. Far from obtaining a majority of the (six) States, every State rejected the proposed republic. The margins varied. The only other self-governing mainland Territory of the Commonwealth, the Northern Territory of Australia, also voted against the republic.68
A former Clerk to the Senate, Mr Harry Evans, who openly supported a republic, had written in his 1996 article ‘Putting Republicanism into the Republic’:
The problem is that official republicanism is only a nationalist and anti-hereditary movement to remove the British monarchy from Australia. It does not seek to foster or to build upon a republican culture. Historically there have been two essential ingredients of republican theory and practice: institutions so structured as to provide a balanced system of government capable of avoiding the growth of monarchical power, and a reliance on the people as a whole as the only repository of sovereignty.
A republican culture is one which recognises these central tenets of republicanism, and seeks to build upon them. Australian official republicanism, however, is characterised by a neglect of questions of institutional structure and constitutional balance, and by a positive aversion to involving the people in government to a greater extent than they are now involved. It is in relation to the head of state issue that these characteristics are most clearly exposed.82
Republicans can do little but accept that there is no real interest amongst the people in constitutional change. The problem that they face is that our system of constitutional monarchy has been so successful that all attempts to bring on a republic, including the 1999 referendum, have not simply failed, but have failed miserably.
There are two main reasons motivating those who promote a republic, The first is a fanatical hatred of the English and the Queen and the other is that of those who genuinely felt the need for a ‘national identity’ together with a mistaken belief that a republic will result in a greater democracy - being ‘free from ties to the UK’ .
The rationale of the latter often lead them to make statements that are essentially in support of the Constitution, such as the caution by the Republican Professor Greg Craven50 then of Curtin University of Technology in Western Australia: the world has many more wrecks of constitutions than it has constitutions.76
Professor Craven has also written:
Australia has a constitution that is not perfect, but which is very good indeed. The only rational basis upon which to make such a judgment is a comparative one. Australia’s Constitution has presided over one of the oldest continuous constitutional democracies in the world, a performance in stark contrast to that of the constitutions of many other nations. Specifically in terms of executive arrangements, the Constitution has produced only one major crisis. that of 1975, which was in any event largely attributable to factors other than its executive provisions, and was peacefully resolved. In a world where constitutions typically fail, this one, including its executive arrangements, works well.76
Former Hawke and Keating Cabinet Minister, Gareth Evans51, said in 1982 that the egalitarian strand in Labor's democratic socialist ideology was one of the underlying considerations behind the labour movement's broadly republican sympathies. There are serious points that can be made about the role of elites and social hierarchies in reinforcing stereotypes about class and status in our society.
The Republic in 2018
The fact is, the Republic debate in 2018 is exactly the same as the Republic debate of the 1990s. Nothing has changed except the Australian Republican Movement is better organised with plenty of money and the ability to gain national publicity whenever it wishes whereas media releases from the Australian Monarchist League are generally binned. On average we send up to ten media releases a month to around 1,000 journalists with the full knowledge that most will never be read, but some are and it shows that the Australian Monarchist League is a force to be reckoned with.
The current leader of the opposition Bill Shorten, has promised that he will hold several plebiscites/postal surveys and a referendum should he win government next year (2019) as is widely expected.
Like Paul Keating, the prime minister who commenced the debate in earnest in the 1990s, Shorten is a committed republican but unlike Keating who talked and agitated but never proceeded to a referendum, he will move ahead to dismantle our constitutional arrangements without any regard for the consequences.
The columnist and writer, Peter FitzSimons (he of the red bandana) became the chairman of the Australian Republican Movement in July 2015. I warned at the time that he would re-energise their almost dead organisation butwas met with “you don’t need to worry about him. He’s a fool” and the suchlike. The fact is, he plays the fool, particularly with that red rag on top of his head, but he has the contacts in the media and in business and was able to promote a republic on TV and radio and strong arm a number of businessmen into donating substantially to the republican cause.
Using their funds he has employed top level professionals who now work full-time on increasing their membership and promoting their cause.
The lack of civics education in schools, amongst new Australians and generally in the community continued to produce an almost total ignorance amongst people on how the system of constitutional monarchy can guard our democracy far more than any model of republic. Most know nothing about the Crown, the Constitution or the role of both the Queen and the Governor-General in our system of governance.
There are those - not all of them republicans, who would have us deny and avoid all mention of our British past and heritage. Indeed, some supposed monarchists would even have us not mention the Queen at all. The Australian Monarchist League has always held that we must never be ashamed of our past or what we are today.
The republicans push to great extent that the Queen is a foreigner and lives on the other side of the world. The fact the Her Majesty is Queen of Australia is ignored with media continually calling her ‘the Queen of England’ assuming that that term would put their viewers off the monarchy. Also ignored is the fact that the Queen is present in the person of the Governor-General who, once appointed, assumes the constitutional role and person of the monarch in Australia as well as separate powers vested in him or her by the Constitution. It might seem unwieldy, but no more than most constitutions of today’s global world.
If republicans are so insular, why do so many go to the United Kingdom for work? Do republican bankers and businessmen do business only within Australia? Does the republican head of Qantas shun the business opportunities Britain opens to the airline (Alan Joyce said he is a republican because he is Irish). Why do republican politicians spend so much time overseas if they are so much against our Sovereign residing in the United Kingdom, which after all is the source of our basic culture, our language, our laws and our modern heritage?
Through the Queen, as Head of the Commonwealth, we have the potential for close relations with almost a third of the world. There are so many advantages in our monarchical association, not the least of which is that we get all of this without paying anything to the Queen for the performance of her duties as Queen of Australia.
The constitutional preamble established Australia as a ‘Nation Under the Crown’:
Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:
Whilst the legal competence of a Preamble is arguable, its inclusion in a constitution such as ours provides a clear intent and should not be ignored. If we ever become a republic however, the Preamble will be removed. Should that occur, Australia would no longer be identified as a Christian Nation. It is also probable that a new Preamble might ensure that the federal aspects of indissolubility would be imprecise enough to facilitate the increasing centralisation of government and the lessening of sovereignty in the States.
The Crown is simply described in dictionaries as ‘government under a constitutional monarchy’, but it is far, far more and this simplistic explanation does little to illustrate its real meaning.
All nations have an immense power which is made up of its land and the people who inhabit it. It incorporates the law and those who uphold it. An individual controlling this power is called a dictator. The world has seen many aggressive and destructive dictatorships, recently the Republic of Zimbabwe and currently the Republic of North Korea and the Republic of Syria to name just a couple.
Over the past few hundred years, a system was developed to better control this ‘power’ with various checks and balances. This system is called a constitutional monarchy where the Monarch, or Governor-General is checked by the Parliament and the Parliament is checked by the Monarch/Governor-General and the Courts and where all are checked by the people.
It is a system that has been refined over the centuries and, whilst there are many inadequacies, it does work as has been proven in Australia, which has had no civil wars or major constitutional crises in its hundred and seventeen years of existence as a constitutional monarchy.
Walter Bagehot wrote in 1867:
The best reason why monarchy is a strong government is, that it is an intelligible government. The mass of mankind understand it, and they hardly anywhere in the world understand any other.77
Under our system, neither the prime minister nor the Parliament can seize control of the nation, simply because the power is permanently vested in the Crown which is subject only to the will of the people. Some people, who agree that this arrangement works, say: Why can’t we keep the system but do away with the Queen? The problem is that a constitutional monarchy cannot work without the monarch, who is, remember, above politics; whereas where participants are elected, the election process lends itself to the possibility of corrupting the participants in one way or another.
In the United States of America, the President is elected by the populace. To achieve an election he has to raise millions of dollars for his campaign52 This means that he is indebted to major campaign contributors, both corporate and individuals, who may well expect to be rewarded with favourable treatment or even ambassadorships. In Australia, the prime minister or ministers may act in this corrupt manner but the Governor-General is hardly worth bribing because he exercises no government authority and the prime minister can request the Sovereign that he be dismissed if he is found to act beyond his ceremonial and constitutional duties, whereas if we had a President elected by the people, he, or she, would be a far more politically powerful individual, at risk of possible corruption, and we could well experience constitutional crisis after crisis.
If our constitutional system was not working, then that would be the time to risk a republic, but is it really worth throwing away what we have, just because many people do not understand our system, or worse because a small number hate the Queen or carry some age-old grudge against the British?
THE MATTER OF AN AUSTRALIAN HEAD OF STATE
When we federated into one nation in 1901, the term ‘head of state’ was relatively unknown. However, over the past seventy years or so it has been commonly used to describe presidents in whom the sovereignty, or power, of their republics is vested. The reason why there is some confusion is because, in Australia, our system is different from republics because ours is one of many checks and balances where those in authority and in power keep a watch each on the other to safeguard the interests of the people.
It was actually sometime around the 1970s or perhaps a little earlier, that the term ‘head of state’ began to be used as a description of the Queen’s and latterly, the Governor-General’s position. At the time no one really cared about who was or who was not called ‘head of state’. The term was to be found neither in Australian terminology nor in Australian dictionaries, however, it gradually came to be more accepted as international diplomatic parlance. Australians, however, continued to be comfortable with the nomenclature of the Queen and the Queen’s representative, the Governor-General.
When republicans hit upon the phrase ‘An Australian for head of state’ some monarchists were thrown into a complete panic and came up with all sorts of absurd suggestions, such as changing the name of the Governor-General to President and even the contention that the Governor-General and not the Queen was head of state. There is a background to all this and that background is essentially based on not having a proper understanding of our constitutional and monarchical system of government and perhaps even lacking the courage to openly admit that we are a nation established ‘under the Crown’
The Australian Constitution makes no mention of the term ‘head of state’. Furthermore, there is absolutely nothing in the constitutional debates leading up to federation to imply that he is the supreme, sole and legal head of state that some would have us believe. On the other hand, the Constitution itself supports totally the status of the Queen as head and the Governor-General as her representative and, by assumption – and only by assumption, executive head of state.
Those who tend to play politics and promote some sort of downplayed role of the Monarch continually fail to appreciate that Australia IS a kingdom and that the Queen IS the head of that kingdom.
It has been argued that a High Court judgment delivered in 190783 is proof that the Governor-General is head of state. It is not. What the judgment74 of Griffith6, Barton7, O'Connor, Isaacs30 and Higgins10, who, incidentally, were all involved in the formulation of the Constitution, actually says is: ...the officiating Constitutional Head of the Commonwealth, the Governor-General.
‘Officiating’ means performing the duties of an office or acting as an officer and reliance on this term to assert that the Governor-General is sole and absolute head of state is totally erroneous.
What the judgment means is that the Governor-General is the ‘officiating’ (i.e. in the name of the King - as it then was) ‘Constitutional Head of the (Australian) Commonwealth’ and, whilst it is interesting that they used this term within the Westminster system long before it came into popular usage, it is a long bow to use this as the basis of what I believe is a flawed argument that the Governor-General is the supreme, ultimate and legal head of state.
Furthermore, in 1907 the convention was that Governors-General were appointed by the King on the advice of the British Colonial Secretary and, as such, reported to the British Government in much the same manner as the Colonial Governors had earlier done. This convention continued for almost three decades following Federation until 1926 as confirmed in the Statute of Westminster of 1931, when the position of the Governors-General of what were then termed the ‘Dominions’, but which are now called ‘Realms’, was changed.
The High Court, at the time, was not the final court of jurisdiction, for appeals were allowed to the Privy Council, a situation which continued right up until 1975. Appeals from State courts ended with the Australia Acts of 1986, and Australian appointments to the Privy Council ceased in practice in 1983 and in law with the Australia Acts in 1986. The last appeal heard by the Privy Council was in 198084.
As mentioned previously, the main republican argument is exactly the same as in the 1990’s with ‘We want an Australian as head of state’, the Queen does not reside in Australia, she is a ‘foreigner’, no one else can become the head of state and that the Queen is not solely Queen of Australia but also of the United Kingdom and fourteen other Realms.
All these jingoisms are repeated incessantly by republicans as a means of camouflaging all detail on what sort of republic they propose to subject us to. They prefer us to 'trust them'.
During a recent debate with republicans in February 2018 the Greens representative had actually said that monarchists demanding detail of exactly what republicans are proposing was not only a distraction but ‘fear mongering’.
In 1999, traditional monarchists, whether Labor or Liberal, were never concerned about ‘which model’, but voted for the Queen, as it is in Her Majesty that they place the trust of maintaining the Constitution. These voters were not influenced by the catchphrase ‘An Australian for head of state’.
After all, most consider the fuss about a ‘head of state’ to be a giant public-relations furphy. Heads of state within the Westminster system are not so particularly important. They do not execute treaties or other similar agreements as designated plenipotentiaries, who are usually the relevant Ministers of State, do. Furthermore, we in Australia have an unobtrusive monarchy which means that the Queen does not interfere in the governance of the country.
Under our system, it is the prime minister, as head of government, who makes the day-to-day decisions. Temporary power is vested in him as leader of the political party which has the confidence of the House of Representatives, but he is always subject to constitutional checks by the Governor-General, himself subject to the check of appointment and dismissal by the Queen, herself subject to the will of the people. These checks and balances are the whole basis upon which our system of constitutional monarchy rests, always ensuring that it is the people who ultimately make the final decision.
Liberal and National Party republicans generally opt for what they call a minimalist republic, which merely removes the Queen and the Governor-General and replaces them with the office of president. Peter FitzSimons, the head of the Australian Republican Movement has even suggested keeping the title ‘Governor-General’ following along the lines of a former NSW premier who also said that that would be an ‘an easy way to get a republic65’. In reality, these people want to retain our constitutional monarchy, but without the Queen at its head; a ‘crowned republic’ without the Crown.
Former Governor-General Bill Hayden wrote in his autobiography:
The predominant objective of the republican movement is to eliminate reference to the Crown in the Constitution and with that to change the title of head of state from Governor-General to President.66
In the early 1990s, at the commencement of the republican campaign, it was felt by some that the difficulties experienced by members of the Royal Family (in the words of the Queen, an ‘Annus Horribilis60’) would prove to be a hindrance. They felt that having to acknowledge that we are a constitutional monarchy and using the terms, ‘Queen’, ‘Crown’ and ‘Monarchy’ would disadvantage their campaign.
Whilst our system of governance is far more important than the actual individuals involved, it is nevertheless true to say that people are undoubtedly influenced by personalities and our campaign must take account of this, but instead of running away from this and other similar issues, we should rather be true unto ourselves and not only face these criticisms full on, but more importantly, turn them to our advantage.
The rationale to downplay the role of the Crown and the Queen was the underlying reason for the polling booth material which made no mention of either but: This Republic: Don’t risk it’ ‘if you want to vote for the President Vote No to the Politician's Republic67, which we believed opened wide the doorway for republicans to counter that the 1999 vote was not for the status quo but merely against ‘This Republic'. This thinking has ever since played an underlying part in the contention that it is ‘NOT the Queen but the Governor-General who is head of state.’
However, it became clear from the voting patterns of the 1999 referendum that the bulk of the ‘no’ vote came from monarchists (mainly National and traditional Liberal and Labor voters) with only a smaller number of direct electionists and others not happy with the model.
Republicans say ‘why do we need the Queen; and why cannot the prime minister simply nominate and the parliament appoint the Governor-General?’ The reason is that by removing the monarchy, the parliament and particularly the prime minister would become all-powerful.
Whilst it is practice for the Monarch to accept the nomination of the prime minister, this does not mean that if a totally unsuitable nomination is made, it cannot be questioned. The procedure is a part of the checks and balances which make up our constitutional arrangements for the protection of the democracy of the people.
PLEBISCITES & POSTAL SURVEYS
On the 7th October 2000, the then Leader of the Opposition, Kim Beazley56, and later Patron of the Australian Republican Movement and now Governor of Western Australia designate,, outlined proposals for a new referendum, should he become prime minister, in a paper delivered at the Notre Dame University.
In this paper, he outlined the Labor plans for a three-step consultative process:
To begin with, a plebiscite would be held on the threshold question: do we want a republic in which an Australian is the head of state, or do we want to continue as a constitutional monarchy in which the head of state must be the British monarch.
If a majority of people wants a republic, a second plebiscite would follow to determine the preferred model.
Finally, a constitutional referendum would be held based on the outcome of the two plebiscites.85
Plebiscites have their origin in early Roman times, before the establishment of the empire when Rome was ruled by two groups, the Patricians, or nobles, and the Plebeians, or commoners. Their council was called the ‘Concilium Plebis’ or ‘plebiscita’.
The first plebiscite held in Australia was in 1916, during World War 1, on the subject of conscription58 for service overseas. Since this was a matter of amending the Defence Act, which only allowed for conscription within Australia, there was no need to amend the Constitution and thus no requirement for a formal referendum. All that was actually necessary was simply the passage of an amending Act through the House of Representatives and the Senate. However, the then prime minister, Billy Hughes64, lacked control of the upper house and intended using what was termed an ‘Advisory Referendum’ or plebiscite win to force the Senate into accepting his legislation but the vote was lost by around 2% (49% for and 51% against).
In 1917, Hughes had the numbers in the Senate but felt obliged to put the matter again by plebiscite to the people, but on this occasion the numbers were even higher against and it was thus that Australia had no conscription for overseas service in the Great War.58
There was thereafter only one more plebiscite put to the people, although, in 1974, the Whitlam government conducted a public opinion poll and, following the results, changed the National Anthem from ‘God Save the Queen’ to ‘Advance Australia Fair’.
The poll was not a plebiscite as it was voluntary with no formalities of voting - much the same as the voluntary postal survey on same-sex marriage was. However, in 1977, at the same time as four referendum proposals, the Fraser Government conducted a formal plebiscite, termed a ‘National Song Poll’, which resulted in a clear majority for ‘Advance Australia Fair’, which was then adopted as the National Anthem59.
Although there have been plebiscites held by state and local governments, only the three plebiscites mentioned herein have been held on a federal basis.
Malcolm Turnbull stated on New Year’s Day 2018 that instead of a plebiscite there should be several postal surveys. He was quickly pulled into line by his conservative Cabinet colleagues but it nevertheless remains for him ‘unfinished business’.
Arranging a postal survey is a ministerial, not a parliamentary decision. Nothing goes before the Parliament for debate and it is the government, or rather the prime minister, who decides the question to be asked. There is no funding for a yes or no case. Indeed, there is no yes or no case other than that managed and funded outside the government. A legal challenge on the use of a survey not approved by the parliament was rejected by the High Court in the same-sex marriage issue on the basis that the government is perfectly entitled to seek the opinion of the populace.
Plebiscites and certainly voluntary postal ballots are fairly alien to the Westminster system, where the procedure of governance rests with the constitutionally-elected parliaments and not through a continuous participation of the people, as is the case in Switzerland. Australia is an exception to the rule, as our constitution can only be changed by a vote of the people at referendum.
However, it was never meant that postal ballots would be used - particularly those with a trick question - to manipulate the people into giving a mandate for a government to introduce formal moves so radically change the Constitution.
In fact, when the Constitution Act of 1900 was passing through the British parliament, the inclusion of Section 128, the referendum process, was questioned as not being true to the spirit of Westminster.
However, nearly fifty years earlier, in 1852, the then prime minister of Britain, W. G. Gladstone57, had said that the British character of the colonies did not depend on a close imitation of British institutions.
Therefore, whilst plebiscites and voluntary postal surveys are in themselves a legal method by which a government can test the mood of the electorate; since they are not governed by any provision in the Constitution, the process is open to abuse.
A republican voluntary postal survey will be held on a national, not state, basis (as are referendums), and will not be compulsory. It will be dependent on people actually receiving a ballot in the mail and will be overwhelmingly biased against older voters and will most likely favour voters in the major populated cities of Sydney and Melbourne.
Plebiscites, let alone postal surveys, have never been used as a preliminary to a federal referendum for the following, very good, reasons:
Amending the Constitution is a very serious act and should in no way be taken lightly. A simple, general, question in the form of a voluntary postal survey could never, in any way, convey the potential implications of a proposed change which is why the Constitution sets out, in Section 128, a process by designed referendum for the amending of the Constitution.
The Australian Constitution is the article which unites the six States into the federation of the Commonwealth of Australia. It is for this reason that it can only be amended by a vote of the people counted dually as a nation-wide vote and a vote in each of the States, whereas plebiscites have only hitherto been counted on a nation-wide basis. A survey question would therefore give undue weight to voters in the cities of the major States and completely disregard constitutional arrangements for change.
If a survey question were to attain a simple majority but a resultant referendum defeated, due either to an initial lack of understanding of the consequences of the proposed change to the Constitution, or because a majority of State votes may be in the negative - the Constitution would remain ‘as is’, but with a perceived vote of no confidence which could well detract from its continuing effectiveness. Not only would the position of the Monarch and the Governor-General be made untenable, the integrity of the federation could be called into question and the Government itself could well find it difficult to continue.
The Constitution underwrites the very governance of this nation and it is a very dangerous pathway for a Government to subvert the prescribed process for constitutional change.
It is possible that a voluntary postal survey will succeed in getting over a 50% vote, because we could never match the funding of republicans in getting our case into every household. Furthermore, many voters would not understand the significance of a ‘yes’ vote because it would be a simple, emotional question with no detail of constitutional change put before them. A voluntary postal survey is also dependent on people bothering to return the form.
In the same-sex voluntary postal survey a number of people were concerned that the barcode on the form would provide information to government on how they voted. We do know that the barcode enabled the Department to ascertain age, demographics and other information. This is totally contrary to the secrecy of the ballot.
In this day and age, if a survey produced a ‘yes’ majority, many monarchist politicians will ‘accept the decision of the people’, however manipulated, and vote or abstain on the subsequent referendum legislation. Whilst legislation for a referendum on a republic would always have the support of Labor, the Greens and many Liberals, it is important to maximise the number of politicians who vote against the legislation as it will be that vote which will most likely determine both the composition of the ‘no’ case and the funding allocated, if any.
OUR CONSTITUTIONAL MONARCHY
The Westminster system is continually evolving to meet the exigencies of changing times. The first Federation Parliament did not want full independence from Britain, even though that was actually what they had.
The former colonies on becoming the States, retained separate links to the British Government. This was why the new Federal Government accepted that the Governor-General was to be the formal channel of communication between the British and Australian Governments. The procedure was for the British Colonial Secretary to nominate a person (or persons) of his choosing and for the formal appointment to be made by the King.
It took over twenty years for the Australian Government to start to cut loose from these ties and to make an ultimatum to Britain that it must be acknowledged as an independent, sovereign nation in its own right.
This evolvement resulted from the part that Australia played in the First World War; it was because of this realisation that led to Australia expressing its desire for a greater independence at the Imperial Conference of 1926 leading to the acceptance that it alone had the right to choose its own Governor-General
Republicans may argue that since we elect politicians, surely they are more deserving to act as the repository of power than an absent monarch? However, what they fail to appreciate is that, constitutionally, the ‘monarch’ is not absent, but present in the form of the Governor-General. Under our system politicians are elected by a majority of votes cast in an electorate, but our system is far from perfect. In the first instance preferential and preferential proportional voting will see a vote directed to a candidate the voter never intended to vote for.
Furthermore, the evolvement of the political party system has meant that strong control is exercised over the individual decisions of members of that party in the Parliament most certainly at times resulting in a member being required to vote against the interests of his electorate. Whilst a member of parliament cannot be forced to vote against his or her conscience, the power of a party machine is enormous, and can ensure that a recalcitrant member is not promoted to a front bench position and may even lose his or her preselection.
The fault, of course, ultimately lies with the elector who will vote for a political party regardless of the worthiness – or unworthiness - of the individual candidate, let alone of the party itself.
There are many areas in which the political system is corrupt. The quest for power will, in many cases, override one’s principles. Similarly those who provide campaign funding will require a quid pro quo, which ethically means a corrupting of the process, even if a substantial donation only results in ready access to a minister.
Very few politicians can actually withstand the pressures placed on them by the current political system without a diminution of principles in one way or another. However, neither the Queen nor the Governor-General can be bought. In fact, no one would bother even to try because under our Westminster system, the administrative power resides in the prime minister and not in the Governor-General who is, in effect, a benign overseer of the Constitution. It is a system which works and works well, however difficult it may be to understand, but surely no more incomprehensible than the powers held and not held by a United States President?
The Hon. Beryl Evans38, who sadly died in 2008, was a Member of the NSW Legislative Council and a Patron of the Australian Monarchist League. She had said, in a debate on a republic in the NSW Parliament:
Why demolish a system that is working perfectly and replace it with an unknown quantity? It is because I love this country that I believe democracy, justice, equality and liberty need to be safeguarded by an institution that is trusted by the people and is above the sordid level of daily politics. That is why I support the Crown and say proudly that I am a monarchist. 75
In the century since Federation, there has only been one major crisis and that was in 1975 when the then prime minister refused to resolve a deadlock by going to the people in a double dissolution of the Parliament. There is a tremendous confusion over what actually occurred and this is not the place to debate the rights and wrongs of the deadlock. However, it resulted in Sir John Kerr, a Labor appointee, using the powers vested in him, as Governor-General under Section 64 of the Constitution withdrawing the Commission of the prime minister, Gough Whitlam. The Parliament was then prorogued on November 11th and elections were held on December 13th 1975. Had Gough Whitlam agreed to a double dissolution, he would never have been dismissed and the festering lesion of 1975 would never have occurred. However, ultimately the matter was sent to the people to decide at a fair election. That is our system. To be otherwise would not be true to our democracy.
Whilst our monarchy reaches back for over a thousand years, our system of constitutional monarchy is far more modern and relevant today than the concept of a republic. Most former British colonies, including the United States of America, have adopted the British Westminster system, but have corrupted it by removing the Crown, thus removing the sort of people’s democracy we continue to enjoy in Australia.
Whilst it may be said that, over the years, the machinations of politicians have led to a diminishing of the constitutional role of the Crown, the Crown continues to remain constitutionally important because, apart from every other aspect, it still keeps total power and authority from being exercised in an absolute sense by politicians. Dr Eugene Forsey wrote in his ‘Essays on the Canadian Constitution’:
But if a prime minister tries to turn parliamentary responsible government into unparliamentarily irresponsible government, then only the Crown can keep Government responsible to Parliament and Parliament to the people; only the Crown can prevent parliament from degenerating into a rubber stamp for the prime minister... - only the Crown can prevent the prime minister, prime servant, from degenerating into a prime despot, the whole process into an elaborate farce, swindling the public at the public expense, with the people helpless to protect itself. The Crown is the embodiment of the interests of the whole people, the indispensable centre of the whole parliamentary democratic order, the guardian of the constitution, ultimately the sole protection of the people... 81
THE ROLE OF THE MONARCH
A part of the development of our constitutional system has been the changing perception of the Monarch as solely the sovereign of the United Kingdom, which embraced Australia, to the Monarch separately of Australia. Most point to the Royal Style and Titles Act of 197380 as the defining Act creating the Queen of Australia but when King George VI was crowned in 1937, the Coronation Oath specifically named Australia as well as the other Realms (or Dominions as they were then termed). A Realm is a nation of which the Queen is sovereign.
Following the Queen’s coronation, each of the Realms enacted a Royal Style and Titles Act. Australia’s, dated 1953, declared the Queen to be:
Elizabeth the Second, by the grace of God, of the United Kingdom, Australia and her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.
Sir Robert Garran13 was involved for all of his working life, firstly in the formulation of Australia’s Constitution, and then as it evolved into the system of governance we enjoy today. He wrote on the occasion of the first visit of the Queen in 1954:
Our Queen comes to us, not as Queen of a far-off country, representing authority exercised over us from the other side of the world, but as one of ourselves: as our own Queen of Australia, who reigns here, not in accord with her despotic will, but by and with the advice of her Australian Ministers.14
The 1973 Royal Style and Titles Act was clear in that the designation of the Queen in Australia was thereafter to be: Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.
As Queen of Australia, Her Majesty is not advised by her ministers in the United Kingdom but only by her Australian ministers. Indeed, there has been no constitutional direction by the British Government for close on a hundred years.
The Westminster system is also called government by the rule of law. This means that laws should be imposed by the majority and not by the minority, but fairly and for the benefit of all. However, the party political system which now pervades our parliaments, often abuses the trusteeship of governance causing the enactment of legislation which may not be in the best interests of the nation as a whole, but only of the party or its financial backers.
This is one of the reasons why the system facilitates a change of government at election times and does not hold the new parliament accountable for the actions of the past parliament. The convention is that ‘No one parliament can bind another’.
The political party which obtains the most seats in the lower House of a newly elected parliament is called upon to form the Government. As long as it has the confidence of the majority of the parliament, it retains the authority to govern as it wishes within the confines of the Constitution. Any individual who disputes the actions of a government has the right to seek redress from the High Court, the only impediment being the horrendous costs involved.
The reason why the alternative party of government is formally termed ‘Her Majesty’s Loyal Opposition’ is because, even though that party may have lost the election, they, being the next largest party in the parliament, have the responsibility of ensuring the Government acts in accordance with the Constitution and its conventions. It is termed ‘Her Majesty’s Loyal Opposition’ not because it is in opposition to the State or to the Crown, but rather because they are, or should be, allegiant to the Crown which far surpasses party politics.
THE ROLE OF THE GOVERNOR-GENERAL
Our Constitution requires that there shall be a Governor-General who will: be Her Majesty's representative.15
The system of constitutional monarchy with an absent monarch is not perfect by any means, but it provides a better protection of the freedoms of the people of the Commonwealth Realms outside the United Kingdom than any other system yet devised.
At the time of Federation, the British empire spread around a quarter of the world. Each country, or State was administered by a governor. Sometimes a governor was called an Administrator and, in the case of the supreme governor of India, a Viceroy. In 1901, each State in Australia had a parliament and a governor who was appointed by the British monarch. The Governors each reported back to the British Government as well as to the Monarch.
When the States federated into the one nation of Australia, a Governor-General was appointed by the Monarch but on the nomination of the British Government. This was normal practice and was accepted by the Australian Government and parliament of the time. It was never envisaged that Australia would sever all links as occurred with the American colonies just over a hundred years earlier.
There was only one clause in the new Australian Constitution which left a residual power outside the competence of the Australian parliament and that was Section 59 which states: the Queen may disallow any law within one year from the Governor-General’s assent...
This clause was inserted to ensure the protection of the States within the new Federation, It should not be forgotten that in 1901 the Australian States were still somewhat protective of their own interests in the new Federation. This provision never having been used and can be said to be dormant and most constitutionalists do not defend its continued inclusion. Most governments have felt that it is simply not worthwhile to hold a referendum to remove it.
The Australian Constitution provides for an appointed Governor-General and an elected parliament which, once elected, assumes the administration of the nation. In ensuring a fair election, the major proactive constitutional role of the Governor-General has been completed. Thereafter he must accept the advice of the Government, providing it accords with the terms of the Constitution, although he has the right to be advised and to caution.
A president, however, elected by the people could well assume a mandate on his or her own. We have had governors-general who have pursued their own social agendas which may have been somewhat contrary to the attitudes of the incumbent government. In a similar manner it could well be the case that a president faced with a moral dilemma, might openly oppose the political agenda of the elected government and thereby create a constitutional crisis. A prime minister has the authority to require the dismissal of a rogue Governor-General.
To rid the country of a rogue president elected by the people would not be such an easy task and the sheer difficulty of dismissal would undoubtedly embolden a recalcitrant holder of the Office.
Under our Constitution (section 61), The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative...
Our Constitution does not mention a prime minister or cabinet because the Governor-General is advised by what is termed an Executive Council established by section 62 of the Constitution. The Executive Council, which he formally chairs, is the equivalent of the Privy Council16 in the UK and comprises ministers and parliamentary secretaries but not (as is the case in the UK) the Leader of the Opposition.
As is the case with the Queen in the United Kingdom, the Governor-General is bound to accept the advice of the Government. Also, as with the Queen, he has the right as expressed by Bagehot4 to be informed, to be consulted and to warn. The Governor-General’s decisions are the Governor-General’s and the Queen has no part in them. There is no appeal to the Queen from any decision of a Governor-General.
Whilst there are reserve powers which come to the Governor-General through the Crown, these powers are difficult to define and their use is arguable. There is debate on whether our Governor-General can actually by himself refuse Assent to a Bill which has properly passed through the parliament. Of course, any contested legislation can be brought before the High Court for a determination on whether it is constitutional or not. Sir David Beattie17 , a former Governor-General of New Zealand, had, however, held that a prime minister without a majority in the House has lost the authority to insist that his advice to give Assent to a Bill should be accepted18.
In December, 1974 the then prime minister, Gough Whitlam19, together with three of his ministers, Cairns20, Murphy21 and Connor22, declared themselves to be an Executive Council and resolved to borrow a sum not exceeding four thousand million dollars in the currency of the United States of America for temporary purposes.23
The holding of an Executive Council without the Governor-General or the cabinet minister (Frank Stewart24) who was Vice President, broke convention and when the Governor-General, Sir John Kerr25, was required to endorse the Executive Council Minute, he was faced with a dilemma. As Governor-General he had to be advised by his ministers, but he was being asked to sign what was arguably an illegal action to borrow funds decided upon by a possibly improper meeting. However, he considered that the matter was justiciable, which meant that it was open to be corrected in the courts, and accepting the advice of his ministers, signed the Minute.
Australian Governors-General have returned Acts back to the parliament for amendment on no less than fourteen occasions, but at all times this has been done on the advice of the attorney-general, although due to defects most probably found by the vice regal representatives themselves.
The Governor-General also has numerous ceremonial duties, Bagehot describes them as the discharge of the dignified role of the Monarch. Those republics which have a politically elected President, such as France and the USA, often find that such ceremonial responsibilities interfere with the administration of the State and downgrade them.
As the Australian parliament found its feet and the Government became more competent in administering the nation, it, together with Canada started to negotiate for a greater independence from the British Government. Regular meetings of representatives from Australia, Canada and the other former British colonies which had their own constitutions, were held. These were called ‘Imperial Conferences26’. One very important aspect of the 1926 Imperial Conference was the deliberation that:the Governor-General of a Dominion is the representative of the Crown, holding in all essential respects the same position in relation to the administration of public affairs in the Dominion as is held by His Majesty the King in Great Britain, and that he is not the representative or agent of His Majesty's Government or of any Department of that Government71.
In other words, the Governor-General would thereafter adopt the role of the constitutional monarch within Australia, but would no longer have an imperial role.
Professor J.R. Mallory27 had written in his treatise: ‘Responsible Government, Autonomy, and the Royal Prerogative’:
Thus, the Imperial Conference of 1926 (leading to the Statute of Westminster), while providing for the new status of the Governor, felt it necessary to add that 'a Governor-General should ... be kept as fully informed as is His Majesty the King in Great Britain of Cabinet business and public affairs.28
In 1930, there was some dissent on the nomination by prime minister Scullin29 of the High Court judge and former state and federal politician, Sir Isaac lsaacs30. King George V2 was of the opinion that the Governor-General should not be a local personage as he would experience difficulty in remaining neutral. King George actually came up with a very novel suggestion, which unfortunately was not carried through, and that was for distinguished persons from one Realm to be appointed Governor-General of another. If this had occurred it would have brought together those nations under the Crown into a closer union.
One of the great mistakes of the past century has been the way in which those nations which were settled by the British and which now remain under the Crown, such as Canada, have not continued the close relationship which once existed. Canada, like us, has developed from a series of colonies to a great nation and we have much still to learn from each other.
It was at the Imperial Conference of 1930 that it was resolved that henceforth the Governor–General would be appointed by the Monarch acting on the advice of the ministers of the dominion concerned. Since that time, the Governors-General have been nominated by the prime minister of the Realm, with the appointment being formally made by the Monarch.
Whilst Federation gave us independence, it was as a result of the Imperial Conferences and the Statute of Westminster that that independence matured.
Many question the necessity of the Monarch appointing the Governor-General when it is now always on the advice of the prime minister. However, this process takes the power to do so from the actual hands of the prime minister, and whilst his recommendation will ultimately succeed, the formality ensures that the nomination becomes public prior to appointment making possible any public reaction which may give cause for reflection. For instance should a prime minister nominate his own son or wife (which is far from unknown in many republics) the resultant public outcry would bring the wisdom of such an appointment into question.
Prior to this, by consensus of both the British and the Australian Governments, the Governor-General was recognised as their link between each other, but now the Governor-General was to assume the constitutional and ceremonial role of the Monarch in Australia. The British Government was to have no jurisdiction over the Governor-General who was to accept the formal advice tendered to him now by the Australian Government.
Thereafter a High Commissioner, another term for an ambassador serving within the Commonwealth, was appointed to represent the interests of the British Government and to liaise with the Australian authorities. The first British Commission was established in Canada in 1928 and in Australia, eight years later, in 1936.
This agreement was put into an Act of the British parliament called the Statute of Westminster3. This Statute was also later legislatively adopted by all Realms, including Australia in 1942.
Whilst Australia could well have opted to have its own king, it was thought that this was not necessary as, under the Westminster System, the administration of the nation is in the hands of the prime minister and his government. The Governor-General does not play an active role in administering the Nation but one similar to an umpire, ensuring that the rules, that collectively speaking is our Constitution, are kept. To have our own king, or as America does, our own president, was simply not worth the cost and could well lead to interference in the running of the country by its elected government. After all, under our system, it is the parliament which is elected to govern, not the Monarch or the Governor-General.
It is in this way that the Government can effectively manage the nation subject to the confidence of the elected parliament.
The state governments however, continued - in theory if not in practice - with the custom of state governors being appointed on the formal advice of the British and not the State governments. However, in 1986, the Australia Acts1 ensured that this advice shall be tendered by the Premier of the State31.
As intimated, the Australian Constitution designates that the Governor-General is the representative of the Queen. This does not mean that he reports everything to Her Majesty, but that, as her representative he assumes the role of head of state. In fact the Governor-General does not report to the Queen on matters of State nor does the Queen give instructions or even unasked advice to the Governor-General.
The Governor-General, as representative of the Queen, also has powers vested directly in him by the Constitution, including the position of Commander in Chief of the Armed Forces.
The Queen can only visit Australia on the invitation of the Government, but there is no constitutional requirement for the Monarch to actually physically be in the country. This is because once the Monarch has appointed the person nominated by the prime minister as Governor-General, as well as receiving other powers specifically designated under the Constitution, as has already been described, he assumes the role of the Monarch, and executive head of state, in the country.
It was not until the Queen visited Australia in 1954 that it was found that once the Governor-General had been appointed by the Monarch, the powers vested in him under the Constitution became uniquely his and the Monarch had no authority to play any further part in the constitutional affairs of the Nation.
The 1954 visit was the first ever by a reigning Monarch – although George V and the Queen’s father George VI had each visited the country prior to their accessions32.
When in preparation for the visit it was found that the powers of giving Assent, and even the formal Opening of the Parliament, fell within the province of the Governor-General. The prime minister Mr Menzies33 (later Sir Robert), had to enact special legislation empowering the Queen personally to perform constitutional duties in Australia. The consequential Royal Powers Act 195334, stipulated that:
When the Queen is personally present in Australia, any power under an Act exercisable by the Governor-General may be exercised by the Queen.
As is the case with the Monarch in the United Kingdom, the Governor-General has the right to dissolve parliament. Whilst most dissolutions occur on the recommendation of the prime minister, the Governor-General can on his own dissolve a sitting parliament if he considers it necessary to resolve a deadlock by holding an election. The only public occasion on which this has occurred was in 197535, but, of course, we know not what private discussions behind closed doors may have occurred before, or since, that time.
The Governor-General also has the right to refuse a dissolution and whilst this is known to have occurred only three times, in (1904, 1905 and 190836) it is most probable that there have been other occasions on which an indication has been given in private discussion that a formal request, if made, would be refused.
This process provides a prime minister with little opportunity of abusing the system for his own ends, for he must produce evidence of a legitimate need for a fresh election, other than that it would provide a better opportunity for his party to win.
On the 2nd May 1950, an authoritative letter was published in the Times under the pseudonym Serex stating that:
No wise sovereign ... will deny a dissolution to his prime minister unless he was satisfied that: (1) the existing parliament was still vital, viable and capable of doing its job; (2) a general election would be detrimental to the national economy; (3) he could rely on finding another prime minister who could carry out his government for a reasonable period, with a working majority in the House of Commons. It was an open secret at the time that ‘Serex’ was Sir Alan Lascelles37, then private secretary to The King.
There are a number of ceremonial and social duties which are the responsibility of a Governor-General and a number of charities which depend on the Governor-General’s patronage and support.
However, there are also the constitutional duties which are the more important, because the constitutional role of the Governor-General is similar to that of a trustee, ensuring that all the parties participating in the governing of the nation play fair by the rules.
As Commander-in-Chief, the Governor-General has an important ceremonial role to play. He attends military parades and special occasions such as Anzac Day306 at the Australian War Memorial36, and presents colours and other insignia to units of the Australian Defence Force.
In simple terms it can be said that the Governor-General presides over the nation whilst the prime minister is the one who actually runs it.
THE HEREDITARY MONARCH
Many people support a republic because they do not believe in the hereditary principle. They would prefer the head of state to be elected, failing to appreciate is that it is the hereditary factor which ensures that absolute power is kept from the hands of politicians for they, the politicians, have no say or influence whatsoever in who is the Monarch. The Monarch cannot be corrupted, whether for material gain or for the offer of a continuation of power. Furthermore, our system of governance, in so far as the Queen and the Governor-General are concerned, is exceedingly cost-effective.
We do not pay the Queen an allowance, nor do we cover her day-to-day expenses in dealing with Australian matters. The cost of our Governors-General is absurdly small, especially when compared with that of presidents of other nations with a similar GDP and particularly in comparison with the budget of our own prime minister.
Whilst the Queen is Queen of fifteen other Realms, these positions are now all totally separate. The Royal Style and Titles Act of 1973276 changed the title set by the 1953 Act describing Queen Elizabeth as: ‘Queen of Australia’. The Schedule on page 1 states the new form in full as:
Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.
The Queen is accepted, indeed welcomed, as head of state in all of her Realms, except by some people in Australia. Granted, our Constitution is unique in the powers it devolves upon the Governor-General, but we should never be ashamed to acknowledge the Queen as our sovereign head of state.
In 2004, Major-General Michael Jeffery69, then Governor-General, made the following comment:
Her Majesty is Australia's head of state but I am her representative and to all intents and purposes I carry out the full role. (Bruce Stannard: Canberra Times 6/11/04)
In an interview by Greg Turnbull on the Ten Network’s ‘Meet The Press’ dated the 29th May, 2005 Mr Turnbull asked:
Governor-General, we’re just about out of time. I thank you for your time. But help me out with this one just before you go. Are you in fact our head of state or in fact a representative of our head of state? General Jeffery responded: Well, the Queen is the Monarch and I represent her, and I carry out all the functions of head of state.
The December 1999 fact sheet of the Constitutional Centenary Foundation Series 2: head of state pronounces that:
The formal head of state of Australia is Queen Elizabeth II, in her role as Queen of Australia. But the effective head of state in terms of power is the Governor-General, who performs his or her tasks on the advice, or instruction, of the Australian prime minister.
The reason for the success of our democracy in this country is not that constitutional power is ultimately vested directly in the Governor-General, but because we are a constitutional monarchy which is vested in the people and not in politicians.
THE QUEEN AND CONSTITUTION GIVE ABSOLUTE POWER TO THE PEOPLE
In Australia, the people’s democracy is absolute for they have the power to remove a government at election and they can remove the monarchy at a referendum.
Our written Constitution is exceptionally logical and makes it very clear that the Governor-General is the representative of the Queen. When we talk about ‘the Queen’ we are actually talking about the Queen as the institution or ‘body politic’ of the Crown. Whilst the Constitution does empower the Governor-General with specific powers not available to the person of the Queen, he is so empowered as the Queen’s representative and not as though he were an appointed President. It is in this capacity, not as an ultimate head of state nominated by, and responsible to, the prime minister, that the Governor-General ensures that responsible government works and intercedes when it does not, as Sir John Kerr did in 1975.
The Constitution sets out quite clearly in its Preamble that we are established ‘under the Crown’ and under para 2, that the Constitution is vested in ‘the sovereignty of the United Kingdom’.
Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.
The Crown was something of which Sir Robert Menzies had a perfect understanding. In his book Afternoon Light he wrote, The Crown remains the centre of our democracy70. I do not believe that, at any time during the entirety of his political career, Sir Robert ever made any reference to the Governor-General being our head of state, whether effective or absolute. He did, however, on several occasions make reference to the Monarch as head of state63
As can be seen from the following extracts from the Australian Constitution, it is a monarchical constitution establishing the Monarch as the embodiment of the nation as a whole:
Section 3 empowers the Queen to proclaim that the people of the colonies shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia and further empowers her to appoint a Governor-General for the Commonwealth.
Part I 1. specifies that the Federal Parliament shall consist of the Queen, a Senate, and a House of Representatives, and Part 1 2 states that the Governor-General shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.
Part 4 42. requires Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.
The schedule reads: OATH. I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD! (There is provision for an affirmation of this Oath).
Part 4 44v talks about the Queen's Ministers of State: and the Queen's navy or army and Part 4 58 states that the Governor-General assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure.
Above all, Chapter II 61. specifies that: The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
Part 4 58 empowers the Governor-General to reserve a bill for the Queen’s assent was inserted as a precautionary measure and is only used now in the event the Government wishes the Queen to give assent personally when in Australia. The last Australian bill to be so reserved was the Royal Style and Titles Act 1973.
DUTIES OF THE GOVERNOR-GENERAL AS THE QUEEN’S REPRESENTATIVE
In addition to being the Queen’s representative in Australia, the Governor-General also has specific constitutional and statutory powers. In fact, since the passage of the Australia Act in 1986, the only action performed by the Queen under the Constitution is the appointment of the Governor-General, on the advice of the Australian prime minister.
In 1975 the then Commonwealth Solicitor-General, Mr Maurice Byers (later Sir Maurice Byers QC) gave the following legal opinion in relation to the powers of the Governor-General:
‘The Constitution binds the Crown. The constitutional prescription is that executive power is exercisable by the Governor-General although vested in the Queen. What is exercisable is original executive power: that is, the very thing vested in the Queen by Section 61. And it is exercisable by the Queen’s representative, not her delegate or agent. The language of Sections 2 and 61 had in this respect no contemporary parallel ...’
The schedule concludes that: ...the Governor-General’s role is to protect the Constitution and to facilitate the work of the Commonwealth Parliament and Government.
THE QUEEN IS THE PEOPLE’S GUARDIAN.
THE GOVERNOR-GENERAL ADMINISTERS THE CONSTITUTION.
What is explained above are the two separate and distinct roles of the Governor-General, namely that of the Queen's representative and that of the occupier of what actually becomes, following appointment, an office independent of the person of the Queen, but always at the Queen’s pleasure.
At ‘the Queen’s pleasure’ means that the term of office of the Governor-General is not fixed and can be terminated at any time, although only at the request of the prime minister. Although an Australian Governor-General has never previously been dismissed, the power to do so is, nevertheless, a vital check within our constitutional arrangements.
‘The Queen’s pleasure’ does not mean, as earlier explained, the person of the Queen, but the Queen as the body politic or institution of the Crown. As an individual, the Queen obviously has likes and dislikes, but the Queen, as body politic, can have no personal opinion.
To the non-legal mind, this may appear to be somewhat complicated, but do not forget that, even after nearly thirty years of debate, republicans have still not been able to duplicate the checks and balances which are an integral (and non-negotiable) part of the current Australian Constitution.
The proceedings and memoranda of the 1926 Imperial Conference26 &71 is a report of the Conference at which it was recognised that:
...it is an essential consequence of the equality of status existing among the members of the British Commonwealth of Nations that the Governor-General of a Dominion is the representative of the Crown, holding in all essential respects the same position in relation to the administration of public affairs in the Dominion as is held by His Majesty the King in Great Britain, and that he is not the representative or agent of His Majesty's Government in Great Britain or of any Department of that Government.
The King at the time being, of course, King George V who, with Queen Mary as Duke and Duchess of Cornwall had opened the Federation Parliament in Melbourne twenty five years earlier. These principles were enshrined in the Statute of Westminster37 of 1931, adopted by Australia in 1942.
That the Governor-General has specific constitutional powers which only he can exercise is unquestioned, as is the fact that, in terms of protocol, the position of Governor-General is higher than any Australian Office, other than the Queen herself.
When Sir John Kerr25 dismissed the Whitlam Ministry in 1975, he said that he did so without consulting the Queen and using, not reserve powers of the Crown, but the specific powers vested in him, as Governor-General, under Section 64726 of the Constitution.
On the 12th November, 1975, the day following the dismissal, Mr Gordon Scholes wrote to the Queen to ask: that you act in order to restore Mr Whitlam to office as prime minister in accordance with the expressed resolution of the House of Representatives
On the 17th November 1975 the Queen’s Private Secretary, at the command of Her Majesty, replied that:
. . . the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of the Queen of Australia. The only person competent to commission an Australian prime minister is the Governor-General, and the Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.73
However, these powers, which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act, do not, in any way, add up to the Governor-General being the sole and ultimate head of state. All powers emanate from appointment as the Queen’s representative in an office which he holds at ‘the Queen’s pleasure’
Whilst he conducts his duties without any reference to, or interference from, the Queen, the powers he exercises are nevertheless the powers of the (body politic) of the Queen. The fact is, we could have no Governor-General without the Queen. His appointment does not somehow catapult him, after his nomination, into the role of ultimate head of state but he assumes the position of effective head of state as the Queen’s representative.
LACK OF CIVICS EDUCATION
There is an almost total lack of knowledge of our constitutional system of governance under the Crown. This is not merely due to a virtual lack of civics education among schools and communities but a misunderstanding of how our constitutional system actually works. This lack of understanding affects not just the general public but even such supposedly literate personalities as some High Court judges who had made pathetic comments such as ‘we should be free of England’. Possibly these, as so many are, influenced by their hatred of the English. No change to a constitution should be based on hatred and such eminent people as High Court judges should know better than to allow their emotions to influence their thinking.
It seems to be incredible how many politicians, lawyers and the suchlike fail to appreciate how our Constitution has evolved into a complete and sovereign independence.
Successive governments over the past fifty years have deliberately withheld the teaching of our history to school students so as to keep the population ignorant that Australia is a free and independent nation, sovereign in its own right and that its people have chosen to retain their system of constitutional monarchy under the Crown.
There is a wealth of sayings that every student and new Australian should properly be able to quote by heart, but few would be aware of Henry Parkes's5 famous comment: Surely what the Americans have done by war, Australia can bring about in peace61, nor would most be able to quote from Edmund Barton7 when he said: For the first time in history, we have a nation for a Continent, and a Continent for a Nation.62 More than likely most Australians would not even know who Henry Parkes or Edmund Barton were!
There are many treatise and booklets written on the republic debate providing lengthy legal arguments, most of which are incomprehensible to the average person. Goodness knows how many trees have been sacrificed to accommodate all the writings on the proposals for and against constitutional change yet the benefits of our Constitution can be simply defined in a few words such as ‘it’s a system that works’ and ‘if it ain’t broke, why fix it?’ The below slogan can well apply to what the republicans are trying to do to our Constitution.