Nothing is more important to the health of democracy than religious liberty. Hosted by Dave Pellowe & featuring special guests each week, The Church & State Show speaks to important cultural & political issues with a Biblical Christian perspective. Watch ‘The Church and State Show’ live and on-demand at ADH TV Fridays at 6pm AEST.
Monarchy Australia is managed by Australians for Constitutional Monarchy. ACM. is the nation’s oldest and largest organisation dedicated to the defence of our constitutional system of government. Founded and incorporated in 1993, ACM has been audited every year and provided the engine room for the landslide victory in the 1999 referendum. ACM, alone of organisations, monarchist or republican, has held a national conference each year and has consistently attached to the fundamental principles in the debate. Interested persons can join ACM at www.norepublic.com.au
Watch Australia’s leading voice, Alan Jones, share his unique take on the events and issues facing the nation and abroad. Watch ‘Alan Jones’ live and on-demand at ADH TV, Tuesdays and Wednesdays at 8pm AEST.
The Spectator Australia is dedicated to freedom of expression and is vehemently opposed to the censorious nature of modern ‘woke’ politics and cancel culture. If you are keen to hear the views and ideas of experts who do not belong to the expert class, journalists and commentators who do not pander to their media owners, and political thinkers capable of transcending the party system to view the issues for what they are. The Spectator Australia is the only place for you. We are committed to offering provocative, insightful, and engaging writing from our astonishing stable of contrarian conservative thinkers. From high life to low, from outraged to amused, from local to international, we delight in providing the most stimulating and enjoyable viewpoints in the Australian media. Enjoy!
Nothing is more important to the health of democracy than religious liberty. Hosted by Dave Pellowe & featuring special guests each week, The Church & State Show speaks to important cultural & political issues with a Biblical Christian perspective. Watch ‘The Church and State Show’ live and on-demand at ADH TV on Fridays at 6pm AEST.
The Aussie incarnation of the iconic British journal of politics and culture.
Prof. David Edward Flint AM
He is an Australian legal academic known for his leadership of Australians for Constitutional Monarchy and for his tenure as head of the Australian Broadcasting Authority.
The colonisation of Australia is an important part of the secondary History curriculum. This series introduces two early settlements of Sydney and Melbourne and discusses the impact of colonisation on Indigenous Australians.
Magna Carta Libertatum (Medieval Latin for "Great Charter of Freedoms"), commonly called Magna Carta or sometimes Magna Charta ("Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the Archbishop of Canterbury, Cardinal Stephen Langton, to make peace between the unpopular king and a group of rebel barons, it promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons. Neither side stood behind their commitments, and the charter was annulled by Pope Innocent III, leading to the First Barons' War.
After John's death, the regency government of his young son, Henry III, reissued the document in 1216, stripped of some of its more radical content, in an unsuccessful bid to build political support for their cause. At the end of the war in 1217, it formed part of the peace treaty agreed at Lambeth, where the document acquired the name "Magna Carta" to distinguish it from the smaller Charter of the Forest, which was issued at the same time. Short of funds, Henry reissued the charter again in 1225 in exchange for a grant of new taxes. His son, Edward I, repeated the exercise in 1297, this time confirming it as part of England's statute law. The charter became part of English political life and was typically renewed by each monarch in turn. However, as time passed and the fledgling Parliament of England passed new laws, it lost some practical significance.
A common belief is that the Magna Carta was a unique and early charter of human rights. However, nothing about the Magna Carta was unique in either its content or form for 12th–13th century Europe. At the end of the 16th century, there was an upsurge in interest in Magna Carta. Lawyers and historians at the time believed that there was an ancient English constitution, going back to the days of the Anglo-Saxons, that protected individual English freedoms. They argued that the Norman invasion of 1066 had overthrown these rights and that the Magna Carta had been a popular attempt to restore them, making the charter an essential foundation for the contemporary powers of Parliament and legal principles such as habeas corpus. Although this historical account was badly flawed, jurists such as Sir Edward Coke used the Magna Carta extensively in the early 17th century, arguing against the divine right of kings. Both James I and his son Charles I attempted to suppress the discussion of the Magna Carta. The political myth of the Magna Carta and its protection of ancient personal liberties persisted after the Glorious Revolution of 1688 until well into the 19th century. It influenced the early American colonists in the Thirteen Colonies and the formation of the United States Constitution, which became the supreme law of the land in the new republic of the United States.
Research by Victorian historians showed that the original 1215 charter was concerned with the medieval relationship between the monarch and the barons rather than the rights of ordinary people. Still, the charter remained a powerful, iconic document, even after almost all of its content was repealed from the statute books in the 19th and 20th centuries. None of the original 1215 Magna Carta is currently in force since it was repealed; however, four clauses of the original charter (1 (part), 13, 39, and 40) are enshrined in the 1297 reissued Magna Carta and still remain in force in England and Wales (as clauses 1, 9, and 29 of the 1297 statute).
In the 21st century, four exemplifications of the original 1215 charter remain in existence: two at the British Library, one at Lincoln Castle and one at Salisbury Cathedral. There are also a handful of the subsequent charters in public and private ownership, including copies of the 1297 charter in both the United States and Australia. Although scholars refer to the 63 numbered "clauses" of the Magna Carta, this is a modern system of numbering introduced by Sir William Blackstone in 1759; the original charter formed a single, long, unbroken text. The four original 1215 charters were displayed together at the British Library for one day, 3 February 2015, to mark the 800th anniversary of the Magna Carta.
The Royal Coronation links us to our past and our future.
God save the King
The Coronation of the King and the Queen Consort signifies the unerring obligation of their Majesties to the Commonwealth, dedicating their lives to serve the nation, declared His Majesty’s Australian Deputy Prime Minister, the Hon. Richard Marles.
As if he were reading from an ACM-prepared script, he continued, ‘The bestowal of the Crown and the investiture of regal power exemplifies the pledge of their Majesties to a life of total dedication, duty and sacrifice.’
So, is talk of another republic referendum in the second term now passé?
With this volte-face, Australians would not be surprised were the Executive Council to revoke the gratuitous insult to the late queen and the present king in the appointment of a parliamentary secretary as assistant minister for ‘the’ republic.
The fact is this coronation, the ninth since the 1788 settlement, recalls the golden thread that goes from the Magna Carta through the Glorious Revolution, the settlement itself and the formation of our federal commonwealth under the Crown.
Notwithstanding today’s serious problems, the Australian Commonwealth remains one of the half-dozen oldest continuing democracies in the world.
The coronation is not some curious, quaint and superfluous ceremony. It is directly relevant to the past, present and future, including the still unrealised potential of the Australian Commonwealth.
There was a fortunate conjunction in 1788. Great Britain was by far the most benign, civilised and advanced colonial power that the world had seen or indeed would see.
Do not think for a moment that imperialism is dead. The most hideously brutal empires were all twentieth-century creations: the NaziReich, the USSR transmogrifying into Putin’s Russia and the Maoist monstrosity, which, with the treason of Western elites, also transmogrified into the superpower rival of the United States now under a presidential family funded by Beijing’s vast riches.
But in 1788, the two key personnel were civilised men of strength and compassion. First, Home Secretary Thomas Townshend, 1st Viscount Sydney, an outspoken opponent of the misguided war with the American colonies. The other was his choice as NSW governor, Arthur Phillip, a choice rightly described as inspired.
He brought with him those sound institutions, which are the reason why, despite the more recent depredations of the politicians, Australia soon became one of the world’s oldest continuing democracies.
Although founded as a penal colony, Lord Sydney insisted New South Wales not be a military prison.
Accordingly, Phillip came with what are still the foundation pillars of Australia – the rule of law, the English language, leadership beyond politics through the Crown and our Judeo-Christian values. Surprisingly, soon, representative democracy, with a responsible government and constitutional system, would be gifted by colonial power. Finally came the federation, almost all our own work.
As to our Judeo-Christian values, these remain the very basis of our civil society, without which the very best constitution cannot function. Note the reference is to ‘values’ and not religion. In fact, Australia has long welcomed those from other religions and, indeed, no religion.
But it was precisely those values that led the British not only to lead the outlawing of that abominable and unfortunately worldwide institution, slavery, but also to have the Royal Navy, then the world’s most powerful, police the British-imposed ban on the trans-Atlantic trade.
With an extraordinary and unique heritage, this is why Australians must continue to do what they have always done. Reject proposals for constitutional change that have been made, as the founders warned, in haste or by stealth. Rather, they should only accept change where the proponents have provided credible evidence that the change proposed is ‘desirable, irresistible and inevitable’.
Australians must do two things to save this nation. Cling to what we have and work to significantly improve the governance of the nation, a nation which delinquent politicians seem so determined to set on the path of decline. That is why the coronation is important.
It confirms, at significant points, what the pillars of this nation are, pillars which we must preserve and clearly build on.
We see these in the various parts of the ceremony, from the opening Recognition through the Oaths, the centrepieces, the Anointing and Crowning, and the conclusion, the Enthronement and the Homage.
The Oaths recall the centrality of the Crown in our system of representative democracy and responsible government, as the new NSW Liberal Democrat MP John Ruddick recalled in a recent ADH.TV interview, the Crown is important not for the power it wields but for the power it denies others.
Yet all three constitutional models proposed over the last three decades by the politicians’ mouthpiece, the Australian Republican Movement, were for politicians’ republics. In each one, the power of the politicians would be singularly and unnecessarily enhanced.
A consecration or setting apart, the Anointing is considered so sacred that it is conducted under a canopy. It can, therefore, be neither seen nor filmed.
In it, the Archbishop intones the blessing that ‘…as Solomon was anointed king by Zadok the priest and Nathan the Prophet, so be you anointed, blessed and consecrated King over the Peoples, whom the Lord thy God hath given thee to rule and govern’.
We are thus conscious throughout of the links to the past; we should, however, also remind ourselves of the links to the future. As the great Burke observed, society is a partnership ‘not only between those who are living, but between those who are living, those who are dead, and those who are to be born’.
The Coronation, with its ancient language, dress and accoutrements, thus links us back beyond Federation and the settlement of 1788 to the Magna Carta and also forward to reigns yet to come, under the heirs apparent, William and George, and beyond.
God save the King!
[David Flint, Spectator Australia 6 May 2023]
Politicians’ republic expires with the Coronation.
Unintended consequences from the republican ‘silver bullet’
The ailing politicians’ republic has finally given up the ghost.
Australia’s future now seems assured as a crowned republic with an Australian as head of state.
Curiously, it was the Australian Republican Movement’s (ARM’s) very own silver bullet that made the politicians’ republic unachievable.
In saying he didn’t want to ‘rush’ a republic referendum, regular royal oath swearer, Prime Minister Albanese, seems to be backing away from a second referendum.
So, what is the ARM? Is Australia already a republic with an Australian as head of state? And what was the silver bullet that made the politicians’ republic unachievable?
While all of Labor’s truly great leaders were constitutional monarchists, today’s leaders usually claim they are ‘life-long republicans’. Perhaps that’s because they tend to be life-long politicians without any significant prior real job.
In any event, the 1975 Dismissal increased so-called republicanism in the Labor Party. But it is not republicanism, and it is anti-constitutionalism.
The honest will admit that Sir John Kerr was right.
As opposition leader, Gough Whitlam had Lionel Murphy table in the Senate a list of 169 occasions when Labor took exactly the same position as Sir John did on what a PM must do when unable to deliver supply. He must either advise an election or resign.
Otherwise, the governor-general will have to act under the reserve powers. Wanting to stop resorting to the reserve powers, Labor decided the answer was not a republic – we already had that – it was a politicians’ republic, one removing significant checks and balances on politicians.
Formed following Labor’s 1991 adoption of republicanism in its platform, the ARM effectively became Labor’s republican arm (pun intended). As indicated in this column, this can be seen from the way ARM policy is incorporated into Labor’s platform through the LFAR (Labor For an Australian Republic) ginger group. The ARM today has even put pushing for a Republican referendum on hold while they join Labor in pushing the Voice referendum.
As to Australia already being a republic, Sir Thomas Smith, Elizabeth I’s secretary of state, described England as a republic in his 1583 book, De Republica Anglorum; the Manner of Government or Policie of the Realme of England. The fact that the principal officer in a state is normally filled on the hereditary principle is no barrier to it being described as a republic.
A hereditary office can be found even in a state specifically named a republic. This was the case with William of Orange, hereditary stadtholder of Holland in the Dutch Republic. He was invited to reign with his wife, Mary, as King and Queen of England in 1688. It is surely of particular relevance that our first constitutional monarch came from a crowned republic.
As Professor Brian Galligan observes in A Federal Republic (1995), eighteenth-century republican theorists did not see constitutional monarchy as incompatible with genuine republicanism.
Indeed, Montesquieu declared England to be a disguised republic and one of the freest countries in the world, her constitution an ideal model for republican government. He identified there an important check and balance against the abuse of power, the then-unusual separation of the judicial power from the legislative and executive powers achieved under the 1688 Glorious Revolution.
Similar views were expressed in nineteenth-century Australia, with Sir Henry Parkes writing, ‘Every constitution is in reality a republic. There is just as much a republic in England as there is in the United States, the only difference being that in the one case, the word is not used, and in the other, it is.’
Cardinal Moran, leader of Australia’s Catholics during the final phase of the nineteenth-century federation movement, described our pre-federation constitutional system as the ‘most perfect form of republican government’. This thinking was followed by the overwhelming decision of our Founders and the approval of the people that Australia should be described as a ‘Federal Commonwealth under the Crown’, that is a crowned republic.
As the eminent judge, Michael Kirby, wrote in the 1993 Australians for Constitutional Monarchy (ACM) charter, ‘Some of us believe’ that Australia is already a form of republic under the Crown: a ‘crowned republic’ with the nation enjoying all the ‘desirable features of a republican government and a constitutional monarchy without any disadvantages. Agitation for change, he wrote, is ‘unnecessary, irrelevant, divisive and distracting’.
As to having an Australian as head of state, this is a diplomatic, not a constitutional law term. Since 1926, governors-general have been accorded this status. In 1987, governor-general Sir Ninian Stephen, acting on the advice of the Hawke government, cancelled arrangements to visit Indonesia because he was not to be received as head of state. The Indonesian government subsequently apologised. Every Australian government, Coalition or Labor, holds out the governor-general as head of state.
As to the silver bullet that finally killed off the politicians’ republic, in the early Nineties, the ARM had increasing difficulties in explaining why Australia should become a republic. When ridicule greeted Al Grassby’s blaming the Crown for unemployment and claiming a republic would cure it, republicans realised they needed a new argument. This was found in co-opting the term ‘head of state’. But it wasn’t enough against ACM’s nationwide No campaign, which relied on expert opinion.
Finally, I encountered a last-ditch silver bullet from the ARM delivered by former premier Neville Wran: A No Vote is a Yes Vote for King Charles and Queen Camilla. Handbills with caricatures and no authorisation appeared. They had no effect. Relied on ever since as a silver bullet, the new reign has not unleashed the slightest serious indication that this could deliver victory.
By the Coronation, the politicians’ republic was finally shown to be unachievable.
[David Flint, Spectator Australia 13 May 2023]
Proclamation of Accession of Charles III
Charles III acceded to the throne of the United Kingdom and the thrones of the other Commonwealth realms upon the death of his mother, Elizabeth II, on the afternoon of 8 September 2022. Royal succession in the realms occurs immediately upon the death of the reigning monarch. The formal proclamation in Britain occurred on 10 September 2022, at 10:00 BST, the same day on which the Accession Council gathered at St James's Palace in London.[1][2] The other realms, including most Canadian provinces and all Australian states, issued their own proclamations at times relative to their time zones, following meetings of the relevant privy or executive councils. While the line of succession is identical in all the Commonwealth realms, the royal title as proclaimed is not the same in all of them.
Australia
The proclamation in Australia took place in front of the Parliament House, Canberra, on 11 September and was read out by Governor-General David Hurley after being approved by an Australian Executive Council meeting at the Government House. The proclamation was signed by Hurley and countersigned by Prime Minister Anthony Albanese. An Indigenous Australian dance ceremony followed the proclamation along with a 21-gun salute.[97][98][99][100][101] Similar proclamations took place on the same day in all the states of Australia, except Victoria, which issued its proclamation on Monday, 12 September, reflecting each state's separate relationship to the crown.
Text of proclamation
The proclamation was read by Governor-General David Hurley at Parliament House.[102]
Whereas because of the death of our blessed and glorious Queen Elizabeth II, the Crown has solely and rightfully come to Prince Charles Philip Arthur George.
We, therefore, General the Honourable David Hurley AC DSC (Retd), Governor-General of the Commonwealth of Australia, and members of the Federal Executive Council, do now proclaim Prince Charles Philip Arthur George to be King Charles III, By the Grace of God, King of Australia and his other realms and territories, Head of the Commonwealth, and with hearty and humble affection, we promise him faith and obedience. May King Charles III have long and happy years to reign over us.
Given at Canberra, this 11th day of September 2022, and in the first year of His Majesty's reign.
Signed by me, as Governor-General and counter-signed by my command, by the Honourable Anthony Albanese MP, Prime Minister of the Commonwealth of Australia.
God Save the King
State proclamations
New South Wales
The proclamation ceremony in New South Wales took place on the steps of the New South Wales Parliament House, Sydney, on 11 September[103] and was read out by Governor Margaret Beazley. The ceremony was followed by a 21-gun salute from the grounds of the Government House. Public transport was made free for the day of the ceremony.[104] The New South Wales Police Force estimated that approximately 5,000 had attended the ceremony.[105]
The proclamation occurred after a meeting of the New South Wales Executive Council earlier that day, which was presided by the state Governor Margaret Beazley at the Government House. In the meeting, state premier Dominic Perrottet and other state ministers recommended that the Governor proclaim Charles III as King of Australia, which the Governor accepted.[103][106]
WHEREAS because of the death of our blessed and glorious Queen Elizabeth the Second, the Crown has solely and rightfully come to Prince Charles Philip Arthur George:
We, therefore, Her Excellency the Honourable Margaret Beazley AC KC, Governor of the State of New South Wales in the Commonwealth of Australia, and members of the Executive Council, do now proclaim Prince Charles Philip Arthur George to be King Charles the Third, by the Grace of God King of Australia and his other Realms and Territories, Head of the Commonwealth, and, with hearty and humble affection, we promise him faith and obedience: May King Charles the Third have long and happy years to reign over us.
Given at Sydney, this eleventh day of September, Two thousand and twenty-two, and in the first year of His Majesty’s reign.
GOD SAVE THE KING!
Queensland
The proclamation in Queensland was held first at the Government House and later at the Parliament House in Brisbane on 11 September. It was read out by Governor Jeannette Young.[107] Premier Annastacia Palaszczuk attended both of the ceremonies and delivered a tribute to Queen Elizabeth II. An estimated 2,300 Queenslanders attended the ceremony at the Government House, according to the state government.[108][109]
WHEREAS because of the death of our blessed and glorious Queen Elizabeth the Second, the Crown has solely and rightfully come to Prince Charles Philip Arthur George:
We, therefore, DR JEANNETTE ROSITA YOUNG AC PSM, Governor of Queensland and its dependencies in the Commonwealth of Australia, and members of the Queensland Executive Council, do now proclaim Prince Charles Philip Arthur George to be King Charles the Third, by the Grace of God King of Australia and his other Realms and Territories, Head of the Commonwealth, and, with hearty and humble affection, we promise him faith and obedience:
May King Charles the Third have long and happy years to reign over us.
Given at Brisbane this eleventh day of September, two thousand and twenty-two, and in the first year of His Majesty's reign.
South Australia
The proclamation in South Australia took place outside the South Australian Parliament House in Adelaide on 11 September and was read by Governor Frances Adamson. The ceremony was attended by Premier Peter Malinauskas, Speaker of the House of Assembly Dan Cregan, President of the Legislative Council Terry Stephens, and other officials. An estimated 8,000 South Australians gathered to witness it.[110][111][112]
WHEREAS because of the death of our blessed and glorious Queen Elizabeth the Second, the Crown has solely and rightfully come to Prince Charles Philip Arthur George:
We, therefore, Her Excellency the Honourable Frances Jennifer Adamson, Companion of the Order of Australia, Governor in and over the State of South Australia, and members of the Executive Council, do now proclaim Prince Charles Philip Arthur George to be King Charles the Third, by the Grace of God King of Australia and his other Realms and Territories, Head of the Commonwealth, and, with hearty and humble affection, we promise him faith and obedience:
May King Charles the Third have long and happy years to reign over us. Given at Adelaide this eleventh day of September, Two thousand and twenty-two, and in the first year of His Majesty’s reign.
Tasmania
The proclamation in Tasmania took place at the Government House in Hobart on 11 September. The text was read out and signed by Governor Barbara Baker and Premier Jeremy Rockliff. Anglican Bishop of Tasmania Richard Condie later read the Collect for the Monarch from the 1662 Book of Common Prayer.[113][114][115]
WHEREAS because of the death of our blessed and glorious Queen Elizabeth the Second, the Crown has solely and rightfully come to Prince Charles Philip Arthur George:
We, therefore, Her Excellency THE HONOURABLE BARBARA BAKER AC, Governor of Tasmania, and members of the Executive Council, do now proclaim Prince Charles Philip Arthur George to be King Charles the Third, by the Grace of God King of Australia and his other Realms and Territories, Head of the Commonwealth, and, with hearty and humble affection, we promise him faith and obedience:
May King Charles the Third have long and happy years to reign over us.
Given at Hobart this eleventh day of September, Two thousand and twenty-two, and in the first year of His Majesty's reign.
Victoria
The proclamation in Victoria took place at the Government House in Melbourne on 12 September and was read out by Governor Linda Dessau, who re-swore Lieutenant-Governor James Angus and acting Supreme Court chief justice Karin Emerton to their posts under a constitutional requirement. The ceremony was also attended by Premier Daniel Andrews and Opposition Leader Matthew Guy.[116]
The proclamation was jointly signed by Dassau, Andrews, Emerton, Legislative Assembly speaker Maree Edwards and the President of the Legislative Council, Nazih Elasmar.[117][118]
On 13 September, Edwards read out the proclamation in the Parliament of Victoria, following which all Legislative Assembly MPs were asked to swear their allegiance to King Charles. Samantha Ratnam, the leader of the Victorian Greens party, criticised this policy as absurd.[119]
We, the undersigned, do hereby proclaim our late Sovereign Queen Elizabeth the Second, by the Grace of God, Queen of Australia and Her other Realms and Territories, Head of the Commonwealth, is deceased and that by the death of our late sovereign, the Crown has solely and rightfully come to His Royal Highness Prince Charles Philip Arthur George, Prince of Wales, Knight of the Order of Australia who is now His Majesty King Charles the Third, by the Grace of God, King of Australia and His other Realms and Territories, Head of the Commonwealth. God save the King!
Given at Melbourne this 12th day of September in the Year of our Lord Two thousand and twenty-two and in the first year of the reign of His Majesty King Charles the Third.
Western Australia
The proclamation in Western Australia took place at the Government House in Perth on 11 September and was read out by Governor Chris Dawson. It was signed by Premier Mark McGowan and Dawson.[120][121]
Whereas because of the death of our blessed and glorious Queen Elizabeth the Second, the Crown has solely and rightfully come to Prince Charles Philip Arthur George:
We, therefore, His Excellency the Honourable Christopher John Dawson APM, Governor of the State of Western Australia, and members of the Executive Council do proclaim Prince Charles Philip Arthur George to be King Charles the Third, by the Grace of God King Australia and his other Realms and Territories, Head of the Commonwealth, and, with hearty and humble affection, we promise him faith and obedience:
May King Charles the Third have long and happy years to reign over us.
Given at Perth this eleventh day of September 2022 and in the first year of His Majesty’s reign.
Sovereign Accession
Accession describes the event of a new Sovereign taking the throne upon the death of the previous King or Queen.
A new Sovereign succeeds to the throne as soon as his or her predecessor dies and is proclaimed as soon as possible at an Accession Council in St James's Palace.
Formed of certain Privy Counsellors, Great Officers of State, the Lord Mayor and High Sheriffs of the City of London, Realm High Commissioners, some senior civil servants and certain others invited to attend. The Council is held (without the Sovereign) to formally announce the death of the Monarch and proclaim the succession of the new Sovereign, and to make certain consequential Orders of the Council mainly relating to the Proclamation.
Following the proclamation, the Sovereign reads a declaration and takes the oath to preserve the Church of Scotland. The oath known as the accession declaration - an oath to maintain the established Protestant succession - is normally made at the next State Opening of Parliament.
In London, the public proclamation of the new Sovereign is first read out at St James's Palace.
The proclamation is also read out publicly in Edinburgh, Cardiff and Belfast. In each city, the accession is traditionally proclaimed at several different spots.
If the monarch is under 18 upon succeeding to the throne, there is provision for a regent to be appointed to perform the Royal functions. This can also happen if the monarch is totally incapacitated.
The Sixth Pillar: Federation
This is an edited version of a speech Professor Flint delivered to the Order of Australia Association. The themes here are developed in Give Us Back Our Country, How to Make the Politicians Accountable … on Every Day, of Every Month, of Every Year, by David Flint and Jai Martinkovits (Connor Court).
In addressing you as “ladies and gentlemen”, it appears I am in breach of the instructions given to schoolchildren under the Safe Schools program. This decrees that phrases such as “ladies and gentlemen” and “boys and girls” should be avoided.
That is what is being taught or proposed to be taught to our children. Now, let us consider what is no longer being taught to our children—our heritage.
In 2006, a report about the teaching of history in Australian schools found that three-quarters of school students surveyed did not know why we celebrated Australia Day. The New South Wales Minister for Education argued that, at least in that state, the teaching of history was of the requisite standard. Asked by a radio presenter why we celebrate Australia Day, the minister replied, “Because that’s the day when it became a nation, the day the states joined together.”
Whether or not students (and a minister of the Crown) know why we celebrate Australia Day, they have been taught little about that crucial golden thread that comes to us through the Magna Carta, the Glorious Revolution, settlement and what has transpired since. Even the story of Anzac is under attack, according to Mervyn F. Bendle’s account of what he describes as “the history war on Australia’s national identity”.
The result is that our children know little about our heritage. The picture appears just as bleak in significant areas of tertiary education, where free speech is under attack, bureaucracy is dominant, and too many students are admitted to courses for which they are unprepared and which are inappropriate for their aspirations.
Yet record sums of money are being poured into education, and students are amassing substantial debt even before they work out how they will acquire the house which was once considered the birthright of all Australians. Add to that the fact that they are the generation who will pay the increasing interest on increasing government debt and will also be liable for the eventual repayment of that debt.
Australia’s youth are being denied the opportunity to know, understand and appreciate their heritage. But that is not all. This failure in educational administration is, I believe, but another example of a serious decline in the quality of the governance of this country.
Let us examine the failure to educate our children about our heritage. Young people are not being given the opportunity to understand and learn from those things which have made Australia such an exceptional nation.
Why has Australia been so successful? Are Australians racially superior? Is it our weather? Is it geographical? Or is it that we are endowed with such rich natural resources that we could never fail?
The latest research, such as that by MIT professor Daron Acemoglu, Harvard professor James A. Robinson, and Harvard and Oxford professor Niall Ferguson, concludes that not one of these factors is definitive. Otherwise, they ask, how can we explain why Botswana has become one of the fastest-growing countries in the world while other African nations are mired in poverty and violence? Or why is North Korea a failure and South Korea a success? They conclude that political and economic institutions determine economic success or failure.
The truth of their thesis can be illustrated by recalling that at the time of our federation, Australia and Argentina were the world’s richest countries. Argentina did not then engage in the two world wars and did not suffer the enormous losses, both in terms of human potential and wealth, that Australia did. So Argentina should have been more successful than Australia. However, the twentieth-century history of Argentina was one of instability, periods of brutal dictatorship, and economic decline.
Why is this? As a former minister in Argentina’s Menem government observed on ABC’s Four Corners in 2002, there is one important difference between the two countries: “Australia has British institutions. If Argentina had such strong institutions, she would be like Australia in ten or twenty years.”
In 1788, Captain Arthur Phillip not only brought people and provisions—he brought four institutions that we have adapted, institutions that are still with us today and which, with two others, have made this nation.
The first was the English language. We were extraordinarily fortunate that this was the language not only of Britain but also of its successor as the world’s dominant power, the United States. Only those who have lived for long in a foreign country will know the enormous advantage we enjoy because we speak what is without serious challenge to the language of the world.
The second institution Phillip brought was the rule of law. This means two things. First, everyone, including and especially the executive arm of government, is subject to the law. To understand how unique this proposition is, you really have to go back to at least the Magna Carta. The second aspect of the rule of law is that while citizens may do anything not prohibited by the law, the executive government may only do those things authorised by the law.
To describe the colony as a British gulag, as one senior Australian politician has, is completely erroneous. Phillip came with a Charter of Justice, which, unlike the Soviet Constitution, was actually applied. The very first civil case in Australia can be found in the law reports, Cable v Sinclair. The Court of Civil Jurisdiction sat in Sydney on July 1, 1788, to hear this case brought by two convicts, Henry and Susannah Cable (or Kable). How they met and what brought them together is a wonderfully romantic story, one which is a great tribute to Lord Sydney as the minister responsible for establishing the colony. The case was brought against Duncan Sinclair, who was the master of Alexander, one of the ships in the First Fleet. It concerned a valuable shipment which had been sent from England. Not only did the Judge Advocate hear the case, he found the convicts and made a substantial award in their favour. That is not what happens in a gulag.
There is another aspect of the rule of law which is important. This was about slavery. Both Phillip and Lord Sydney would have been well aware of a celebrated case in 1772 concerning a runaway slave from the American colonies, James Somersett. In a case brought by his owner, Lord Mansfield is said to have concluded his judgment with the words, “The air of England is too pure for a slave to breathe; let the black go free.”
Americans, especially in the South, were appalled by this decision, which freed 15,000 slaves and left slave owners who had gone to England with their slaves without any legal recourse. Worse, they feared the precedential value of this decision in the colonial courts. The slave owners soon saw the advantages of American independence, as did those who wished to seize lands reserved to the Indians under George III’s Great Proclamation. The mantra “No taxation without representation”, in protest at taxing the colonies to help pay for the long war defending them against the French, was not the only reason for the American revolt.
Phillip was determined that the American experience should not be repeated in the new land. Before leaving England, he wrote:
The laws of this country will, of course, be introduced in [New South Wales], and there is one that I would wish to take place from the moment His Majesty’s forces take possession of the country: That there can be no slavery in free land and consequently no slaves.
As Keith Windschuttle observed in 2007, “The idea that slavery was an affront to humanity that had no place in a free land was part of the original definition of what it meant to be an Australian.”
Although Arthur Phillip’s anti-slavery declaration was well-known to earlier generations of students, historians today rarely mention it. Schoolchildren are deprived of the pride in knowing that theirs is the only continent in the world that has never known slavery.
The third institution Philip brought was constitutional government. Although Phillip had considerable powers, the penal colony was only an interim measure. It proved to be extraordinarily successful, the world’s most successful experiment in criminal rehabilitation. Phillip was not a dictator—he was subject to the law and answerable for his actions. Phillip brought with him our oldest institution, the Crown. But this was not an absolute monarchy, which was by far the dominant model in Europe, where it illustrated the maxim that power corrupts and absolute power corrupts absolutely. The Crown operated under the separation of powers, which Montesquieu identified as uniquely English. Constitutional government, as Phillip knew it, was emerging as the Westminster system we know today. The king was subject to the laws, and the laws could only be changed by Parliament. It was becoming accepted that the executive government, the ministry, could only survive if it enjoyed the confidence of the House of Commons. Above all, and completely consistent with the English concept of the rule of law, people were free to do whatever was not prohibited by the law. Consequently, government, rather than being absolute, was limited to performing what was essential and in particular, defending the realm and maintaining the King’s Peace—that is, law and order.
The fourth institution which Philip brought to Australia was civil society. This consists of all of those institutions separate from government—above all, the family and the church—together with those values which are essential in a civilised society and without which neither constitutional government nor democracy can survive. The values Phillip brought can best be described as Judeo-Christian, and in particular, that version which produced the great campaign led by Wilberforce to end the institution of slavery. These values include truth, courage, love, and loving your neighbour as yourself. Even with the decline of organised religion, these Judeo-Christian values continue today to permeate our laws, our language, and our fundamental institutions. They are part of our broad Australian culture.
This does not mean Australia should not welcome those from other religions, nor does it mean that there is any obligation for an Australian to belong to any of these religions, or indeed any religion. This openness was stressed in the very first sermon preached in this land on Sunday, February 3, 1788, by the Rev. Richard Johnson. He began:
I do not address you as Churchmen or Dissenters, Roman Catholics or Protestants, as Jews or Gentiles … But I speak to you as mortals and yet immortal … The gospel … proposes a free and gracious pardon to the guilty, cleansing to the polluted, healing to the sick, happiness to the miserable and even life for the dead.
Over one century later, in the public consultations on the draft of our Constitution, more supporting petitions were received than for any other concerning a proposal that the preamble recognises what one delegate called the “invisible hand of providence”. This is reflected in the preamble of the Constitution Act, a provision which summarises, succinctly, the very pith and substance of our federation. This is that the people of each of the several states, “humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown … and under the Constitution hereby established”.
These institutions—the English language, the rule of law, constitutional government and civil society—Phillip brought to Australia, where they became the first four pillars of our nation. There were to be two more.
The fifth pillar of the nation was self-government under the Westminster system and within a surprisingly short period. The French, the Spanish and the Portuguese did not transmit the parliamentary concept to their colonies, as the British did to their American colonies long before independence and as they did to Australia.
Initially, the power of the colonial governor was restricted by the law and carried out under written instructions from London. This power was tempered by granting an increasing role to the people, culminating in legislation in 1850, which empowered the various colonies to draft their own constitutions, although they were still to be approved by the Colonial Office in London before being presented for the Queen’s Assent. The New South Wales and Victorian Constitutions received Royal Assent on July 16, 1855. These constitutions were not imposed by London. They were, as Professor Patrick Lane put it, “essentially home grown”.
To strike down another myth, the bills were approved in London well before the rebellion at Eureka Stockade. Whatever Eureka Stockade achieved, it was not self-government under the Westminster system.
The sixth great pillar of our nation was the Federation. This was never inevitable. We could have easily become several countries. In fact, when the British first suggested a federation, the local politicians were outraged. The assertion by former Prime Minister Paul Keating that it was imposed on Australia by the British Foreign Office is manifestly untrue. It was drafted in Australia by Australians and approved by the Australian people. When it happened, it was different from any other federation.
There were no deaths, no violence, no threats of war. Those great Founding Fathers Sir John Quick and Sir Robert Garran described this great achievement this way:
Never before have a group of self-governing, practically independent communities, without external pressure or foreign complications of any kind, deliberately chosen of their own free will to put aside their provincial jealousies and come together as one people from a simple intellectual and sentimental conviction of the folly of disunion and the advantages of nationhood.
The States of America, Switzerland, and Germany were drawn together under the shadow of war. Even the Canadian provinces were forced to unite by the neighbourhood of a great foreign power.
But the Australian Commonwealth, the fifth great Federation of the world, came into voluntary being through a deep conviction of national unity.
We may well be proud of the statesmen who constructed a Constitution which—whatever may be its faults and its shortcomings—has proved acceptable to a large majority of the people of five great communities scattered over a continent and proud of a people who, without the compulsion of war or the fear of conquest, have succeeded in agreeing upon the terms of a binding and indissoluble Social Compact.
These six pillars are the institutions which have made Australia an exceptional nation, both internally and in our role in the world. According to the International Human Development Index, our standards of health, wealth and education result in our being ranked the second nation in the world, very close to the first country, Norway. But with declining educational standards, not telling the young and the newly arrived about our heritage, and an inability to control increasing government debt, we are relying on the achievements of earlier times. How long will we stay near the top?
As to our role in the world, Australia has been involved in a remarkable way in defending the freedom and liberty of others. In the Second World War, we were one of a handful of countries that fought from the beginning to the end. As a percentage of the population, almost twice as many Australians gave their lives as Americans: 0.57 per cent to 0.32 per cent. In the First World War, more than ten times as many Australians gave their lives as Americans, 1.25 per cent to 0.11 per cent.
If we do not tell our young people about this heritage and how we have achieved it, they will not appreciate it. Worse, they may succumb to other theories, fashionable beliefs and new values which will in no way advance their welfare or that of the nation.
The mind is not a vacuum. In my view, man is programmed to believe. There is a warning about religious belief attributed to G.K. Chesterton along these lines: “When a man stops believing in God it is not that he believes in nothing. It’s that he will believe in anything.”
Putting aside religious belief, if we do not pass on to the next generation the facts about our heritage, what ideas, what propaganda will be pumped into their receptive minds?
I argued earlier that the failure in education is just one example of a broader problem concerning the quality of the governance of this country.
Unlike the situation that prevailed when I was young, university education is almost the sole responsibility of federal authorities, who now also preside over school, preschool, and vocational education. This entails a vast duplicate bureaucracy and massive financial resources, an increasing part of which is borrowed.
This is manifestly contrary to the carefully considered constitutional arrangements which the people approved and under which this country was formed. We should never forget that the federal Parliament is a parliament of limited powers set out in the Constitution. All powers not specifically granted by the Constitution to the Commonwealth are saved or reserved to the states under the Constitution.
There was a time when the people were regularly asked to give more powers to the federal Parliament. In fact, they have been asked to vote to transfer nine powers to the Commonwealth. Three of these votes have been given to the people on five occasions: monopolies, corporations, and industrial matters. All of these proposed transfers were rejected by the people.
It is an appalling fact that most of these referendums would not need to be repeated today. Through a re-interpretation of the Constitution by the High Court of Australia, they are no longer necessary. As a result, the Commonwealth enjoyed powers which the people denied it. The High Court has even said that in the interpretation of the Constitution, they cannot and will not be guided by a previous No vote in a referendum.
The late American judge Antonin Scalia was celebrated for proceeding from the commonsense view that the Constitution means what reasonable people at the time believed that it meant. He held that it was not for judges to change this original intention. If there was a need for change, this should be achieved by a constitutional amendment voted by the people. He believed any other approach, for example, that the Constitution had to be adapted to current values or that it was a “living document”, effectively meant the judges were saying that the Constitution meant what they wanted it to mean.
So, most of the constitutional barriers to vastly increasing the role and function of the federal government have been removed without the people’s consent. In the meantime, the people are constantly told by the establishment that uniformity in almost every sphere of government is overwhelmingly desirable. This is linked to a second theme: Canberra can be trusted to choose the best system to administer any sphere of government, which must be made uniform. This is invariably achieved by appointing expensive consultants who produce a report supported by vast amounts of modelling, which inevitably concludes that there is one very expensive solution to whatever problems the consultants have discovered. This solution requires a vast new Canberra-based bureaucracy to administer it.
That, of course, is not how the federation is intended to work. It is contrary to the experience and wisdom of all those who have lived under successful federal systems. It is contrary to the proposition first established by the American founding fathers that a large country can only be successful as a free democracy if the government is devolved to the lowest possible level.
We federated on the basis that the new federal entity would have limited powers, with other powers being reserved to the states. The states were to be principally dependent on their own sources of income. They would be responsible to the people of their state for the spending of that income.
The federation would thus encourage competition between the states. People would then see when one state does something well, for example, with its hospitals or its roads, and another state does it badly. People would, for example, say, “I have been to South Australia and they do this so much better than in New South Wales.”
The much-maligned former Premier of Queensland, Sir Johannes Bjelke-Petersen, demonstrated this. In 1977, against the strong objections of his Treasurer, he abolished death duties, a move that cost his state $30 million in revenue. As a young articled clerk, I had seen what evil tax death duties were, imposing heavy and inequitable burdens on farming and small business families, precisely when they were in no position to respond adequately. The result of Queensland’s abolition of death duties was that vast numbers of Australians from other states, especially the elderly, moved to Queensland. They voted with their feet. Within months, every other state had abolished this tax, and even Canberra followed by abolishing estate duty. We have forgotten this example of how a federation can and should work.
For some time now, Canberra has been trying to take over, at a very high cost, areas of government for which it is manifestly unsuited. Education is an egregious example. The more the Commonwealth becomes involved in education, the more standards seem to decline. The founding fathers knew this. That is why education was neither an exclusive nor even a concurrent power to be exercised by the Commonwealth. Yet the Commonwealth has been able to get away with what is a breach of the Constitution.
The founding fathers were also no doubt aware that if the Commonwealth were to undertake tasks best left to the states, it would neglect and mismanage those tasks, which were the very reasons why we federated. Take, for example, the defence of the Commonwealth, including the protection and maintenance of our borders. The acquisition of the Collins-class submarine fleet and now its replacement represents one of the most appalling and continuing failures in government administration in our history. And remember, there is no more important role for the federal government than defence. (This means the government should be concerned about the true defence of the Commonwealth and not be distracted by such peripheral issues as the provision of advice on Islamic matters to the navy and gender fluidity in the armed forces.)
We see a similar problem at the state level. This is probably the result of the states being converted into clients of the Commonwealth and forced to exercise too many of their powers under the tutelage and direction of Canberra.
Probably the most important function of any state government is protecting us against crime. There was a time when the states were effective in exercising this power. But in 2005, in the Sir Ninian Stephen Lecture, New South Wales’s prominent Crown prosecutor Margaret Cunneen said something no one else at her level would say but something which in lay terms was being repeated over and over in the lounge rooms and in the pubs of the nation: “Perhaps it is time for us to consider whether public confidence in the courts is now being eroded by the perception that the pendulum has swung rather too far in the direction of the protection of the rights of the accused person.”
There is a continuing decline in the delivery of government in this country. The solution, I believe, lies in making politicians more accountable. In the United States, we see a magnificent example of democracy in action in choosing the candidates of each of the parties for election. This operates not only at the level of the President but at every level of government. The contrast in Australia is dramatic. With exceptions, it is hard to imagine a more closed system, one which ensures candidates are chosen not so much on their merits as on their allegiance to some faceless powerbroker. In return for the cornucopia of legal, financial, and branding privileges that the parties enjoy, they should at least be required by law to be open, transparent, and democratic.
We should be looking to other countries for ways in which we can make our democracy more accountable and more responsive to the wishes of the people.
It is time for a convention to be held to consider the reform of government in this country and to make recommendations to the people. After all, that was the only way we could have achieved federation. Such a move would not involve turning our backs on the federation or pulling it down but instead building upon it.
We should not only recall those wise words of the great Irish statesman Edmund Burke, but we should also apply them:
It is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society or on building it up again without having models and patterns of approved utility before his eyes.
Society is indeed a contract … It is a partnership between those who are living, those who are dead, and those who are to be born.
Emergence Of Nationhood And Constitutional Conventions
An understanding of the gradual development of the role of the crown, including the governor-general and the queen, requires such developments to be viewed in the context of the development of Australia as an independent nation. The developments involved changes in convention and, less often, statutes. By convention, we mean those usages or customs that are not to be found in the statute books but nevertheless are binding. In jurisdictions governed by a written constitution, there is a greater reluctance to acknowledge the role played by convention than there is where no such document exists, as in the United Kingdom.
THE AUSTRALIAN CONSTITUTIONAL SYSTEM
At the moment, our principal concern is directed to the conventions governing the relations between the governments of what were formerly referred to as dominions, now realms, and that of the United Kingdom and those governing the role of the governor-general. The federal constitution is concerned primarily with the division and separation of powers within Australia. It is not expressly concerned with resolving questions of nationhood or independence. A survey of Australian constitutional history reveals that Australia acquired independence by a gradual process – although the late Justice Lionel Murphy held that because Australians could change our constitution, we became independent in 1901.
A gauge by which independence may be measured is the willingness of foreign national governments to enter into treaties with Australia. Justice Barry O'Keefe reminds us that after the First World War, Australia was represented independently at the peace negotiations by Prime Minister Billy Hughes. He presses the argument that Australia was a self-governing country, not subordinate to the parliament at Westminster, but rather a partner with equality of status, not necessarily (at that time) equality of stature. That argument was accepted as a hard practical fact by the nations, including Britain, that took part in the peace negotiations. Independence was well established in the international scene by 1920.
Australian independence came to be recognised at the Imperial Conferences of Dominion, and British prime ministers convened in 1917, 1926 and 1930. According to the Balfour Declaration, the dominions were autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the crown and freely associated, as members of the British Commonwealth of Nations.
This result was explained at the 1992 conference in these words:
The rapid evolution of overseas dominions during the last fifty years has involved many complicated adjustments of old political machinery to changing conditions. The tendency towards equality of status was both right and inevitable. Geographical and other conditions made this impossible of attainment by way of federation. The only alternative was by the way of autonomy, and along this road, it has been steadily sought. Every self-governing member of the Empire is now the master of its destiny. In fact, if not always in form, it is subject to no compulsion whatever.
The Balfour Declaration recognised conventions that had already been developed. The Declaration was given statutory effect when the parliament at Westminster passed the Statute of Westminster, 1931, which recognised the full emancipation of the dominion parliaments. Now they could enact laws repugnant to the law of England (section 2), and give "extraterritorial" effect to any legislation (section 3). The statute limits the competence of the United Kingdom to legislate for the dominions to circumstances in which the relevant parliament requested and consented to such imperial legislation (section 4). The act stipulated that the operation of the dominion constitution was not affected in any way (section 7 and section 8). It also stipulated that, unlike the Canadian provinces to which it would apply, the act would not apply to the Australian states. This was at their request (section 9). Finally, the act would not have any effect in Australia until the parliament of the Commonwealth of Australia adopted the act itself by means of an adopting act (s10). In fact, the commonwealth parliament did not adopt the statute until 1942, at which time the act was given a retrospective operation "as from the commencement of the war between His Majesty the King and Germany".
The precise point at which independence was attained remains a moot point. Was it the political compact? Was it the formal offer by the mother parliament? Or was it the formal acceptance of the offer by the newly independent dominion parliament? In a fairly recent judgement, Lord Denning MR maintains independence came as a matter of evolving usage and convention rather than by means of enactment:
Hitherto I have said that in constitutional law, the crown was single and indivisible. But that law was changed in the first half of this century, not by statute, but by constitutional usage and practice. (R vs Secretary of State for Foreign and Commonwealth Affairs ex parte Indian Association of Alberta, 1982, 2 WLR, 641, at 651)
The passage highlights the role conventions have played in the evolving relationship between governments within the British Empire and the subsequent Commonwealth of Nations. Were such relations governed by the rigidity of statute such developments could not occur so naturally as need requires. The gradual emergence of full Australian nationhood was possible precisely because of the flexibility that is offered by convention. It has been argued that legal independence did not occur until the passage of the Statute of Westminster through both imperial and dominion parliaments was complete. In a passage dealing with the difficulty of making such a determination, Chief Justice Sir Garfield Barwick said:
The historical movement of Australia to the status of a fully independent nation has been both gradual and, to a degree, imperceptible ... though the precise day of the acquisition of national independence may not be identifiable, it certainly was not the date of the inauguration of the Commonwealth in 1901. The historical, political and legal reality is that from 1901 until some period of time subsequent to the passage and adoption of the Statute of Westminster, the Commonwealth was no more than a self-governing colony though latterly having dominion status. (China Ocean Shipping Co. v South Australia, 1979, 145, CLR 172 at 183)
The position was certainly resolved by the Australia Acts of 1986, which make certain that Australia is absolutely independent of the United Kingdom. Sir Anthony Mason, then Chief Justice of Australia, held this to be the true date of a hand-over of sovereignty, explaining that the Australia Acts: "marked the end of the legal sovereignty of the imperial parliament and recognised that ultimate sovereignty resided in the Australian people". (Australian Capital Television Ltd v Commonwealth, 1992, 177, CLR 106 at 138)
With the Balfour Declaration and the Statute of Westminster had come the termination of British legislative and executive responsibility, at least for the commonwealth, if not the states. Judicial responsibility remained, however, until the termination of appeals to the privy council (Her Majesty in Council), which had become part of the Australian court structure.
There are four significant points about the Australia Acts of 1986. Firstly, the bulk of the acts is concerned with severing those remaining legal ties between the states and the United Kingdom. These gave the state legislatures the full powers that the United Kingdom had previously retained — at Australia's request — to leg¬islate for the state as well as the power to legislate extra-territorially. The Colonial Laws Validity Act 1865 and the doctrine prohibiting repugnance to the law of England no longer applied (section 6). British executive responsibility and privy council appeals from the state disappeared (section 10 and section 11).
Secondly, the Acts clarify the role of the queen and the governors regarding the states. The state premiers would give advice on the exercise of royal powers, not through the British government, but direct to the queen. The premiers were never prepared to go through Canberra.
Thirdly, the Statute of Westminster was amended in several respects. These included the termination of the power of the United Kingdom parliament to legislate for the commonwealth, the states and territories thereof, even at the request of the Australian parliaments. (Notwithstanding this, over recent years, some Republicans have made the bizarre suggestion that the British parliament should be requested to impose a republic!) Now no British Act can henceforth apply to any Australian jurisdiction (section 11 and section 12).
Fourth, the Acts stipulate that the Commonwealth of Australia Constitution Act and the Statute of Westminster continue to be in force and provide an intricate method by which the Australia Acts and the Statute of Westminster may be amended. Both Acts, enacted in substantially identical terms by the United Kingdom and Australian parliaments, were proclaimed by the queen to come into effect on March 3 1986. On arrival in Australia to proclaim the Australian version, she observed both the rise of an Australian national identity and the circumstances under which the constitutional relationship between Australia and the United Kingdom had come to an end:
I can see a growing sense of identity and a fierce pride in being Australian. So it is right that the Australia Acts has finally severed the last of the Constitutional links between Australia and Britain, and I was glad to play a dual role in this. My last official action as Queen of the United Kingdom before leaving London last month was to give my assent to the Australia Acts from the Westminster Parliament. My first official action on arriving in Australia yesterday was to proclaim an identical Act, but from the Australia Parliament – which I did as Queen of Australia. Surely no two independent countries could bring to an end their constitutional relationship in a more civilised way, and I hope you will agree with me that this has been symbolic of the depth and quality of the relationship between Australia and Britain. Anachronistic constitutional arrangements have disappeared – but the friendship between the two nations has been strengthened and will endure. (McDonald, 67)
What we have seen since the adoption of the Australian con¬stitution is the gradual emergence of Australia as an independent nation. This surely is one of the beauties of our system – that it has permitted such a peaceful evolution.
As Sir Harry Gibbs explains:
Our Constitution has been criticised because it sketches the outline of the system of government and does not set out in detail the rules and conventions that determine the working of the various arms of government. Any such criticism is totally misconceived. The strength of our Constitution, as it has been the strength of the Constitution of the United Kingdom, is that it allows the needs of a changing society to be met by a gradual development, which has been found impossible in some nations whose written Constitutions attempt to lay down all the rules in detail. (Gibbs, 1994)
[Read More: Australia In The Twenty-First Century: An Independent and Self-Determining Nation, by The Honourable Barry O'Keefe, AM, QC ]
They Did Not Come Alone
By: Professor David Flint AM
The First Fleet was that extraordinary venture when, under the command of Captain, later Admiral Arthur Phillip, eleven ships sailed from Portsmouth on May 13, 1787, with about 1487 people to establish the first European colony in Australia.
They did not come alone. Captain Phillip did not only bring people and provisions - he brought institutions which are with us today and which have made this nation. Those institutions - and the concepts and ideas behind them - are not the property of the Anglo-Saxons of Australia, to the extent that there are still people whose lineage over the last two hundred and twenty-three years can be described as pure Anglo-Saxon. Just as in the USA, these are the institutions, concepts and ideas which belong to all Australians, whenever they or their ancestors came to this land, wherever they came from and whatever their race.
To understand what was being brought here, we should recall the sort of country Britain was when Captain Phillip gave the order to sail. David Landes (in The Wealth and Poverty of Nations, 1998) says that the pre-eminence Britain enjoyed in the industrial revolution resulted from the British people having “elbow room”. Compared with most communities across the Channel, the British were free and fortunate.
Britain writes Landes, was developing into a precociously modern industrial nation. He writes that a prosperous society's salient feature is the ability to adapt to new things and ways. And one key area of change was the increasing freedom and security of the people. Yet, he says, the British still call themselves subjects of the Crown, while they have longer than anyone else been citizens.
This was due to that extraordinary constitutional settlement in 1688, the Glorious Revolution. This was a rejection of James II’s attempt to direct the constitution towards the absolutist centralist model of government which prevailed on the continent, especially in the France of Louis XIV. As Thomas Babington Macaulay put it, the Glorious Revolution achieved an “auspicious union of freedom and power”. And this was the constitutional model in its two versions which was to be adopted by democracies worldwide.
Alan Atkinson (The Europeans in Australia, Volume 1, 1997) says that in Britain, at the end of the American Revolution, two great issues dominated the conversation of polite and ambitious men and women. These were, first, the status of blacks in the empire and, second, penal discipline. Closely related to this were the issues which drove the Americans to revolt, resulting in the British establishing a penal colony in Australia.
It is said that the victors write history. So when we come to what was, in fact, very much a civil war, the dominant theme is thought to be “No taxation without representation”. Put aside the reasonable claim for some reimbursement of the cost of the successful defence of the colonies against the French and the error of the British not to involve the colonists in resolving that issue. But there were two other issues which motivated the American colonists, who were living in the freest colonies the world had ever seen. The first was King George III's Great Proclamation of 1763, which reserved all formerly French lands to the West of the thirteen colonies for the Indian tribes and prevented any European expansion.
The other centred on a notorious case in 1772 concerning a runaway slave, James Somersett. Lord Mansfield is said to have concluded his judgment with the words: “The air of England is too pure for a slave to breathe; let the black go free.” Americans, especially in the South, were appalled that Lord Mansfield would, by this decision, free 15,000 slaves in England, leaving slave owners with no recourse. That parliament showed no interest in reversing this. They feared, of course, the precedential value of this decision in the colonial courts.
It has been said, but nowadays not too loudly, that “The price of freedom from England was bondage for African slaves in America” (see Alfred W. Blumrosen and Ruth G. Blumrosen, Slave Nation, 2005). Beneath the unity of revolution lurked a compromise that could not endure and would lead to civil war in the next century.
Two men stand out in the settlement of Australia. One was the Secretary of State for the Colonies, Thomas Townsend, Viscount Sydney. Manning Clark dismisses him as a mediocrity. Actually, his role in establishing the foundations of this country was crucial. Above all, Sydney was strongly attached to the constitution, “a consideration superior to every other in his mind”. He revered the law and the consent of the subject.
There is a striking example of the sort of man he was. This relates to a female convict, Susannah Holmes. She was sentenced to death after being found guilty of theft, but the King commuted this to transportation to the American colonies for a term of fourteen years. It also relates to Henry Kable, convicted of burglary. His death sentence was also commuted to transportation for fourteen years to America. They were both held at Norwich Castle jail pending transportation with the First Fleet to New South Wales.
Susannah and Henry began a relationship. She gave birth to a son, whom she called Henry. When she was taken to the ship bound for Botany Bay, baby Henry was nine months old. The captain refused to take the child. The jailer, John Simpson, could see that Susannah was devastated. He feared she would take her life.
Simpson did an extraordinary thing. He went off with the child on his lap down to London. He decided he would go to the top. He would see the minister.
He found Lord Sydney on the steps of the Home Office. Instead of sending him away or turning him over to his advisers—if he had had such people—Lord Sydney listened to his story. And remember, the television cameras were not on him in those days.
Instead of advising Simpson to fill out some form and put in a submission which some committee could consider in due course, Lord Sydney, who was “greatly affected”, immediately “promised that the child should be restored, commending ... Mr Simpson’s spirit and humanity”.
As it would today, the story appeared in the media—in several newspapers. It would not have been the result of the efforts of the minister’s army of spin doctors. In those days, ministers of the Crown did not see the need for such people. The story attracted the attention of one Lady, Cadogan, who organised a public subscription. This produced the grand sum of £20. According to the retail price index, this is the equivalent of around $3500 today, but using average weekly earnings, it is more like $41,000.
Whatever it was, it was a small fortune to Susannah. It was used to buy her family—for that is what they had become—a parcel of goods. Our first clergyman, the Rev. Richard Johnson, was charged with giving them the parcel on their arrival in New South Wales.
This story tells you something about Lord Sydney. But there is a more important matter concerning the minister. Lord Sydney took a crucial decision that would fundamentally affect the colony. Instead of just establishing it as a military prison, he provided for a civil administration with courts of law.
Phillip and Sydney came out of the same Enlightenment in Britain, which was to bring forth William Wilberforce, who was to lead the world’s first successful campaign against slavery. Wilberforce used an image of such power it told a thousand words: a kneeling black slave who pleads, “Am I not a Man and a Brother?”
Lord Sydney’s enlightened approach reflected very much the views of Captain Phillip, who was to govern the first colony in the only continent of this world which has never known slavery. Phillip wrote, before leaving England:
The laws of this country will, of course, be introduced in [New] South Wales, and there is one that I would wish to take place from the moment His Majesty’s forces take possession of the country: That there can be no slavery in a free land and consequently no slaves.
As Keith Windschuttle wrote:
The idea that slavery was an affront to humanity that had no place in a free land was part of the original definition of what it meant to be an Australian ... [although] Arthur Phillip’s original anti-slavery declaration was once well known to earlier generations of students, historians today rarely mention it.
Like Sydney, Phillip was a humanitarian. As a ship’s captain, he had to reduce the water ration as supplies dwindled. He reduced his officers’ ration—including his own—so that the men would receive a full ration. The navy board had ruled that both soldiers and male convicts should receive the same ration and women two-thirds. When provisions dwindled in the colony, the ratio for most men was reduced to two-thirds. This extended to officers and the governor. The women’s rations were maintained.
What a fortunate conjunction there was in 1788: Great Britain as the colonial power, Lord Sydney as the Colonial Secretary, and Captain Arthur Phillip as the Governor.
The result was that Phillip did not come alone. He brought four institutions which would be the foundations of this country: the rule of law, the English language, our Judeo-Christian values, and an institution which would forever ensure leadership beyond politics, the Crown. And from that flowed three marvellous developments.
The rule of law
Phillip brought the great gift of the rule of law with him. Now the rule of law has, according to Sir Guy Green, two elements:
First, everyone, including and especially the executive arm of government, is subject to the law.
Second, while citizens may do anything not prohibited by the law, the executive government may only do those things authorised by the law.
To speak then, as some, including Robert Hughes, have done, of the colony as a gulag or as a primitive ancestor of the gulag is completely erroneous. As Alan Atkinson says, “Nothing could be further from the truth.” To call the colony a gulag is not only a libel on the memory of Phillip and Sydney but on the Australian nation.
The Soviet gulags were brutal and lawless concentration camps for political prisoners. Political prisoners had no rights whatsoever. They were lucky to be alive if being there could be called a life. The rule of law was foreign to the Soviet gulags and the whole Soviet Union and its vast empire over Eastern Europe.
Even under the broadest definition, few of the convicts sent to Australia could be called political prisoners. So defined, every government in this country, since 1788, has been under the rule of law—every government. Captain Phillip came with a Charter of Justice, which, unlike the provisions of the Soviet Constitution, was actually applied. He came with no lawyers but with a set of law books.
Just consider one example. Remember Henry Kable and Susannah Holmes. At Norwich jail, Henry, described as “a fine healthy young fellow” had shown a “remarkable fondness” for their child and a desperate desire to marry Susannah.
Phillip put five of the best-behaved women, including Susannah, in tents near his own. Then he gave her permission to marry Henry. On February 10, 1788, Susannah, Henry, and four other couples were married by the Rev. Richard Johnson in Australia's first European wedding ceremony.
Remember also the parcel of goods which Johnson was to give them on their arrival in the penal colony. Duncan Sinclair, the Master of the Alexander, the ship which carried the parcel, would only hand over a few books, claiming the parcel was lost on the sworn deposition of Henry Kable, a summons to bring the Master before a court was issued on July 1, 1788, by the Judge-Advocate, David Collins, to the acting Provost Marshal. The Master was brought before the court the next afternoon. Justice was delivered expeditiously. Three sailors, including the Captain of the Sirius, gave evidence.
This was the Court of Civil Jurisdiction, one of two courts established by the King under the Letters Patent, referred to as the First Charter of Justice. (The jurisdiction of this court was transferred to the Supreme Court of New South Wales, established in 1814 under the Second Charter of Justice.)
Now, under the law then in force, a convict who had been sentenced to death had no right to sue. This was the law of felony attaint. The Master boasted that they could not sue him.
If you go to the law report, Kable v Sinclair, you will see that on the summons, in the space for the plaintiffs’ occupation, the words “New Settlers of this place” had been crossed out and nothing put in their place. To have described them as convicts would have ensured they could not sue, and the words “New Settlers” were untrue.
When Sinclair challenged the prosecution on the ground that the Kables were felons and thus attainted, the court required him to prove it. As all the convict records had been left behind in England, he could not do so, and the court ordered Sinclair to make restitution of £15, now somewhere between $2500 and $30,000.
This was the first example of the Australianisation of the common law.
Can those like Robert Hughes, who likens the penal colony to a gulag, give a similar example of litigation by prisoners in a Soviet or Nazi gulag, particularly one where the Soviet or Nazi judges upheld the prisoners’ assertions? Of course not.
Henry and Susannah had eleven children, and he was a successful businessman. Their descendants celebrate their memory in family reunions, and the Four Seasons Hotel has a restaurant, Kables, in their memory.
The penal colony of New South Wales, harsh as it was by modern standards, was one of the most successful experiments in criminal rehabilitation the world has ever seen. As far as we can tell, the rate of recidivism, or return to crime, was extraordinarily low.
I should mention another case, Boston v Laycock (1795), which established beyond doubt that everyone, including soldiers, was subject to the same law. Indeed, from the beginning of the penal colony, the authorities were to insist on the application of the rule of law - at least the criminal law - to all men and women of all races and colours. That this was to be imperfectly applied and that there were to be legal restrictions on Aboriginal people, often for paternalistic reasons, is a matter of great regret. But it does not equate to some form of Nazism at the heart of white Australia.
The first prosecution concerning the killing of an Aborigine was in 1797: R v Millar and Bevan. And four years later, a convict, John Kirby, became probably the first European sentenced to death for killing an Aborigine after he stabbed a cooperative chief called Burragong, or King Jack: R v Kirby and Thompson.
Perhaps the most remarkable is R. v Kilmeister in 1838. There the application of the rule of law was demonstrated cogently in the final grave words of the judge when sentencing the white perpetrators of the massacre of Aboriginal people at Myall Creek. These words demonstrate that even then, the principle that the rule of law must prevail in Australian society, whatever the race or colour of the victim or offender, was fully upheld. Mr Justice Burton declared:
The circumstances of the murders of which you have been found guilty are of such singular atrocity that I am persuaded that you long ago must have expected what the result would be. This is not the case where a single individual has met his death by violent means; this is not the case, as has too often stained indelibly the annals of this Colony, where death has ensued from a drunken quarrel; this is not the case, when, as this session the Court has been pained to hear, the blood of a human being and the intoxicating liquor were mingled on the same floor; this is not the case where the life or property of an individual has been attacked, ever so weakly and arms have been resorted to.
No such extenuating circumstances as these, if any consider them extenuating, have taken place. This is not the case of the murder of one individual, but of many—men, women, and children, old men, and babes hanging at their mothers’ breasts, to the number in all, according to the evidence, probably of thirty individuals, whose bodies on one occasion were murdered - poor defenceless human beings ...
I cannot expect that any words of mine can reach your hearts, but I hope that the grace of God may reach them, for nothing else can reach those hardened hearts which could surround that fatal pile, and slay the fathers, mothers, and the infants ...
I cannot but look at you with commiseration; you were all transported to this Colony, although some of you have since become free; you were removed from a Christian country and placed in a dangerous and tempting situation; you were entirely removed from the benefit of the ordinances of religion; you were one hundred and fifty miles from the nearest Police station on which you could rely for protection - by which you could have been controlled.
I cannot but deplore that you should have been placed in such a situation - that such circumstances should have existed, and above all, that you should have committed such a crime. But this commiseration must not interfere with the stern duty, which as a Judge the law enforces on me, which is to order that you, and each of you, be removed to the place whence you came and thence to a place of public execution, and that at such time as His Excellency, the Governor shall appoint you be hanged by the neck until your bodies be dead, and may the Lord have mercy on your souls.
What greater evidence of a society under the rule of law for all, and all races and colours, can there be than these words?
The English language
The benefit of the English language to the new land was not fully understood in 1788. A language dominates not so much for its quality or the quality of its literature. It is a question of power. The full realisation of the remarkable vocation of our language came from the extent of the British Empire and its dominance over France. In addition, for the very first time in history, the dominant power was immediately succeeded by another power, its former colony, which spoke the same language. This was, of course, the United States.
I would not predict which country will surpass the United States. But of the contenders, remember the significant place English enjoys in India.
Our Judeo-Christian values
The motto of our oldest university is Sidere mens eadem mutato—the same mind under a different sky. I think that captures the theme of this paper.
In addition to the rule of law, and our language, Phillip brought our Judeo-Christian values. They permeate our laws, language, institutions and even federation.
This does not mean Australia should not welcome those from other religions, nor does it mean that there is any obligation for an Australian to belong to any of these religions, or indeed any religion. In fact, this openness to others was stressed in the first sermon preached in this land on Sunday, February 3, 1788. This first public service was well attended, due no doubt to the direction by the Governor that “no man to be absent on any account whatever”.
The service was to begin at 10 a.m. under “a great tree” close to the harbour, now the corner of Castlereagh and Hunter Streets. The Rev. Richard Johnson chose as his text Psalm 116:12: “What shall I render unto the Lord for all his benefits toward me? I will take the cup of salvation and call upon the name of the Lord.” He began:
I do not address you as Churchmen or Dissenters, Roman Catholics or Protestants, as Jews or Gentiles ... But I speak to you as mortals and yet immortal ...
The gospel ... proposes a free and gracious pardon to the guilty, cleansing to the polluted, healing to the sick, happiness to the miserable and even life for the dead.
That influence was to continue, although undermined by the so-called Rum Corps.
Over one century later, in the public consultations on the draft of our federal Constitution, more supporting petitions were received than any other concerning a proposal that the preamble recognises what one delegate called the “invisible hand of providence” in the Federation of Australia. So we find in the preamble a provision which summarises, succinctly, the very pith and substance of that great act of unity. This is the people of each of the several states: “humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown ... and under the Constitution hereby established”. This, it should be noted, led to the insertion of the somewhat superfluous clause against establishing any religion, section 116.
Leadership beyond politics: The Crown
The institution which Phillip represented is our oldest. Alan Atkinson says the Crown figured largely in his view of the world. He paid extraordinary attention to our oldest holiday, the King’s birthday. “Phillip’s reconstruction of the Crown within his government, his essence in transferring the essence of eighteenth-century monarchy to this vast and remote space, was a remarkable labour of imagination,” writes Professor Atkinson.
The Crown has since evolved and been Australianised so much that our High Court has ruled that the Australian Crown is an institution separate from the British Crown and that allegiance to the Crown is allegiance to a foreign power (Sue v Hill, 1999). All that the Australian Crown has in common with the New Zealand Crown, the Canadian Crown or the British Crown is that the same person wears them and that the law of succession is identical in each of the sixteen Realms.
The Australian Crown is now a significant part of the Australian constitutional system. Providing leadership beyond politics, it is a significant check and balance against the improper exercise of political power. This works in three ways.
First, provided a government retains the lower house's confidence, it tends to control the house. This control is more evident in Australia. This is unlike the situation in, say, the USA. The Crown becomes a significant check and balance on this control in the Westminster system. It does this as a constitutional guardian through not so much the exercise of but the existence of the reserve powers which Bob Carr once boasted he had destroyed.
Second, the Crown acts as an auditor of the executive. The protocol is that significant government decisions are affected by advice to the Crown in the Executive Council. The Crown must be assured that what is proposed is within the power and that any conditions on exercising that power has been fulfilled.
Third, the other state institutions which are outside the political arena owe their allegiance to the Crown and not to the government of the day. These include the judiciary, the armed forces, the public service and the police forces.
If the Crown were to be removed from what is, according to the Constitution Act, our federal Commonwealth under the Crown, the result would be that the power of the political class would be considerably increased unless an alternative institution can be found. The noted Republican, Professor George Williams, agrees that the 1999 model had serious flaws.
The place of the Crown is under challenge. That is their prerogative if the Australian people decide to dispense with the Australian Crown. But those who wish to remove it are duty-bound to do three things. If they do not, they will fail.
First, they must understand the role and function of the Crown. It is surprising how often reformers do not understand what they want to change or advance spurious reasons for change, for example, attaining independence.
Second, they must provide details of exactly what is proposed to replace the institution in all its aspects.
Third, in the words of those great Founding Fathers Sir John Quick and Sir Robert Garran, they must persuade the people in a referendum that the change proposed is “desirable, irresistible and inevitable”.
The consequences
Captain Phillip brought those institutions, concepts and ideas that made this country and are still with us. There were three principal consequences.
Self-government
First, within a surprisingly short period, the full panoply of self-government under the Westminster system was exported to five of the six colonial, later state, capitals, and later to Perth.
The French, the Spanish, and the Portuguese did not transmit the parliamentary concept to their colonies, as the British did to their American colonies long before independence and as they did to Australia. Why? Because they either could not or would not. Except for the Dutch, they did not have this concept at home. And the Dutch showed no interest in granting self-government to their colonies.
So parliament, self-government and the Westminster system, the fifth pillar of our nation, came very early to Australia, within one generation of the founding of the penal colony. Australians quickly adapted to these institutions, making them even more democratic and, thus, more Australian.
There is one crucial point. This had absolutely nothing to do with the Eureka Stockade. There is no need to invent a “war of independence” which never occurred.
Initially, the power of the colonial governor was restricted by the law and carried out under written instructions from London. A legislative advisory council and an executive council later tempered this power. Gradually the legislative council took on an increasingly representative flavour, and within a surprisingly short period, the executive became responsible to that legislature. This is even more remarkable if we remember that most states started as penal colonies. From 1823 there was to be a gradually increased involvement of the people in the governance of what was now a civil and no longer penal colony.
By 1842, as Professor P.H. Lane points out, we can identify three fundamental constitutional doctrines applying in New South Wales:
"No taxation without representation”: the newly constituted people’s institution was to make laws, including the tax laws.
“The financial initiative of the crown”: the governor must first recommend to the legislature the purpose for which public money was to be appropriated.
“Parliament controls the expenditure of public money”: that is, the legislature must make an appropriation of (most) revenue, and in no other manner.
The second Australian Constitutions Act, 1850, “An Act for the better Government of Her Majesty’s Australian Colonies”, brought similar reforms to the other colonies (except for the Moreton Bay district - Queensland - which was attached to the New South Wales legislative council until 1859). This act was extremely important. It empowered the various colonies to draft their own constitutions, although they were still to be approved by the Colonial Office in London before being presented for the Queen’s assent. The New South Wales and Victorian Constitutions received royal assent on July 16, 1855.
To strike down another myth: the bills were in London well before the Eureka Stockade. Whatever the Eureka Stockade achieved, it was not democracy.
The state constitutions were, as Lane puts it, “essentially home grown, even if monitored by the Imperial authorities”. London never imposed them. And this was half a century before the federal Constitution. Lane observes that the development of the legislative council in each of the colonies brought about constitutional monarchy in Australia. Also known as a crowned republic, this is a system of government in which the Crown does not exercise absolute power, only limited power under the Constitution. In particular, the Crown is advised by its ministers, who are answerable, through parliament, to the people.
The state governors today survive as living symbols of the process of evolution to a representative and responsible government under the Crown, under which they act as constitutional umpires and auditors.
Federation
Federation was the second consequence. It was never inevitable. In fact, when the British first suggested it, the local politicians were outraged. And it was extraordinary; it was different from any other federation. There were no deaths, no violence, and no threats of war. Quick and Garran described this great achievement this way:
Never before have a group of self-governing, practically independent communities, without external pressure or foreign complications of any kind, deliberately chosen of their own free will to put aside their provincial jealousies and come together as one people from a simple intellectual and sentimental conviction of the folly of disunion and the advantages of nationhood.
The States of America, Switzerland, and Germany were drawn together under the shadow of war. Even the Canadian provinces were forced to unite by the neighbourhood of a great foreign power.
But the Australian Commonwealth, the fifth great Federation of the world, came into voluntary being through a deep conviction of national unity. We may well be proud of the statesmen who constructed a Constitution which—whatever may be its faults and its shortcomings—has proved acceptable to a large majority of the people of five great communities scattered over a continent; and proud of a people who, without the compulsion of war or the fear of conquest, have succeeded in agreeing upon the terms of a binding and indissoluble Social Compact.
Australia is one of the world’s oldest continuing democracies. In the United Nations Human Development Index, which measures countries according to their wealth, health and education, Australia invariably comes not only in the top twenty or the top ten but the top five.
Good international citizen
There is a third consequence. Australia has been involved in a remarkable way in defending the freedom and liberty of others. In the Second World War, we were one of a handful of countries that fought from the beginning to the end. As a percentage of the population, almost twice as many Australians gave their lives as Americans, 0.57 per cent to 0.32 per cent. It was more than ten times as many in the First World War, 1.25 per cent to 0.11 per cent.
This is not to denigrate the great contribution of the United States. It is to compare our contribution with that of another power whose territory was not a principal theatre of war in the first and only marginally in the second. It is to give some perspective to our contribution (our Anzac partner, New Zealand, made a broadly similar contribution).
Conclusion
Those on the First Fleet did not come alone. What they brought, those considerable and enduring gifts, have made this nation. That is our heritage. We should neither cast them out nor ignore them nor negligently order our educational system so that the young know little about them.
We should not only recall those wise words of the great Irish statesman Edmund Burke, but we should also apply them:
It is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society, or on building it up again, without having models and patterns of approved utility before his eyes ...
Society is indeed a contract ... It is a partnership between those who are living, those who are dead, and those who are to be born.
[This paper was delivered on Friday, May 14, at the Sydney Town Hall to a reception of the Sydney–Portsmouth Sister City Committee called to mark the 223rd anniversary of the sailing of the First Fleet from Portsmouth and was published in Quadrant in October 2010.]
Insight
The school-based speaking competition's expansion to almost every state in Australia was a significant development that empowered students to showcase their remarkable skills. Each student delivered an impressive, meticulously researched speech and presented with passion. They captured the attention of live audiences and revealed that their knowledge of the Australian system of government and constitutional arrangements was almost non-existent. The students felt that this speaking competition was a truly transformative, worthwhile experience.
The invaluable resources provided by http://www.crownedrepublic.com.au and http://norepublic.com.au were instrumental in helping participants prepare for their speeches and gain a deeper understanding of the Australian Constitution. The wealth of high-quality content presented on these websites was neatly organized and easily accessible, providing participants with the tools to hone their public speaking abilities. Participants could unlock their full potential and achieve their goals with these resources.
Ten Principles of Freedom
NATIONAL OBSERVER Australia's independent current affairs online journal No. 83 (June - August 2010).
Professor David Flint AM
To be free and to enjoy that freedom, man must live in an ordered society. We cannot live in a state of anarchy or a state of nature where, as Hobbes famously put it, life would be “solitary, poor, nasty, brutish, and short”.[1]
An ordered liberal society allows mankind to lead a full life. This was recognised eloquently by the Founding Fathers of the United States when, believing that their rights as Englishmen were being denied, they declared: “We hold these truths to be self-evident: that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”[2]
For longer than most people, Australians and New Zealanders have lived in a liberal society ordered by democratic institutions whose members are elected under universal suffrage. Most of us would like to see the people of every country enjoy those gifts. So would our governments.
This is true too of the United States. But the United States was the first dominant power to have seriously attempted to impose democratic institutions on foreign countries. On April 2, 1917, President Woodrow Wilson went before a joint session of Congress to seek a Declaration of War against Germany in order that the world be “made safe for democracy”. This sort of zeal to convert the world to democracy was more often a view held in liberal rather than conservative circles in the United States — by that. I mean “liberal”, as the Americans understand the term.
President George W. Bush was an exception. He also decided to make the world safe for democracy, something which had not previously been the ambition of conservative administrations. But no conservative administration had ever known anything like that attack on the territory of the United States, known as 9/11.
In March 2003, Deputy Defense Secretary Paul Wolfowitz said that the anticipated incursion into Iraq “would be like wars that you’ve fought in, a war of liberation, a war to secure peace and freedom not only for ourselves, but for the Iraqi people who have suffered so long under one of the world’s most brutal tyrannies”.[3] In 2005, President George W. Bush declared, “Across the generations, we have proclaimed the imperative of self-government, because no one is fit to be a master, and no one deserves to be a slave. All who live in tyranny and hopelessness can know the United States will not ignore your oppression, or excuse your oppressors. When you stand for liberty, we will stand with you.”[4]
As Michael Kazin observes, there is nothing conservative about these statements.[5] He says they would have distressed major thinkers on the right —from Edmund Burke at the end of the eighteenth century — who believed the sudden overthrow of authorities inexorably leads to anarchy and too long periods of war.
Unfortunately, neither President Wilson nor President Bush was successful in advancing his mission. Freedom cannot be achieved merely by importing a few institutions and decreeing ballot-box democracy. True democracy requires more than just the ballot box and universal suffrage. These insignia of democracy have to be planted in a fertile field.
In the debate over the Bush Administration’s policy to impose democracy across the world, Fareed Zakaria advanced the argument that democracy works best in societies when it is preceded by “constitutional liberalism”.[6] This is the sort of fertile ground in which democracy can succeed. Constitutional liberalism is a prerequisite essential to democracy and, thus, to freedom.
Before understanding the essentials of freedom today, we need to examine the emergence of constitutional liberalism.
The emergence of constitutional liberalism
Australia and New Zealand were fortunate in that the ground was very well prepared for the surprisingly early introduction of democratic institutions and universal suffrage, including female suffrage.
This was the result of the following factors:
First, the settlers brought with them the common law, which assumes all are subject to the same law.
Second, they were societies based on sound civic virtue. They brought with them values more compatible with constitutional liberalism and democracy, that is, Judaeo-Christian values.
Australia is the only continent not to have known slavery. This was because our founders, Governor Phillip and Lord Sydney, were guided by the Christian gospel in the same way as Wilberforce when he later came to campaign against and eventually overthrow the institution of slavery. “In a new country,” Philip said, “ there will be no slavery and hence no slaves.”
Third, they were both colonised by the British, who, more than any other colonial power, voluntarily exported constitutional liberalism to their colonies, including the American colonies. This was because the principles of constitutional liberalism were more developed in Britain than in the other colonial powers, with the exception of the Dutch.
The result was the early introduction of the Westminster system into Australia and New Zealand; it would become one of the pillars of each nation. This process began in Australia before the Eureka Stockade, sometimes incorrectly presented as its cause. By the middle to the late nineteenth century, all of the colonies were self-governing under the Westminster system, in a way in which the colonies of other powers were not.
It would be wrong to think of constitutional liberalism only in terms of those documents referred to as the Australian or New Zealand constitutions.[7] The constitutional system is larger than is encompassed by them. As Bolingbroke said, the constitution is “that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good that compose the general system, according to which the community hath agreed to be governed”.[8]
Our constitutional systems are to be found in that golden thread which goes back through the emergence of responsible government, the English Bill of Rights and the Act of Settlement, back to the Magna Carta. The Magna Carta is especially significant. It was, as Fareed Zakaria says, the first written limitation on royal authority in Europe.[9]
Only a handful of countries have a long uninterrupted experience of constitutional liberalism and, later, democracy with universal suffrage. They have certain common features which demonstrate to us, in a practical way, what is the essence of freedom.
With the exception of Switzerland, all of these can trace their systems to one particular event, the most significant single advance in the provision of good government that the world has ever seen. This has produced not one but two models of governance which have provided, as Thomas Babington Macaulay put it, an “auspicious union of order and freedom”.[10] They contain the essence of freedom.
This one event was the Glorious Revolution of 1688.[11] Its benefits far exceed anything gained from any other single event, including the more celebrated French Revolution of 1789 and certainly the so-called Russian Revolution of October 1917 — which was more a coup d’état by the Bolsheviks.
It is important to stress that the great advantages of the Glorious Revolution were not the result of a political philosopher or a school of political philosophers sitting down and designing them. That was what directed the French and Bolshevik revolutions, near-crazed men designing schemes to save the world but which came close to ruining it. The style of Anglo-Saxons governance is more pragmatic; the style of the major continental powers has tended to be more theoretical.
The wisdom of the Anglo-Saxons has been in allowing institutions to evolve gradually over time and through trial and error. By way of contrast to continental thought, I would refer to the story of the French énarque[12] who, when the benefits of something with which we are familiar were shown to him, said: “Yes, it may well work in practice, but does it work in theory?”
The centrepiece of the Glorious Revolution may be found in the Bill of Rights of 1689, which established the fundamental principles of government in what is the first version of England of a modern constitutional monarchy. Let us call this, for convenience, the Constitutional Monarchy Mark I.
In this model, only the king-in-parliament can legislate, the king thus having the power of veto. Unlike the present Westminster system, Constitutional Monarchy Mark II, the king also retains control of the executive government. The executive government is not yet responded to the House of Commons. And this is the model on which the American Republic is based.
The Glorious Revolution was to have momentous consequences. David Landes says that the pre-eminence that Britain enjoyed in the Industrial Revolution resulted from the fact that the British people had “elbow room”.[13] Far from perfect, the British were free and fortunate compared to most communities across the Channel.
Britain writes Landes, was soon a precociously modern industrial nation. He believes that the salient feature of a successful society is the ability to adapt to new things and ways. And one key area of change was the increasing freedom and security of the people. Yet, he says, the British still call themselves subjects of the Crown, while they have longer than anyone else been citizens. This was a “constitutional monarchy with limits on government, guaranteed rights, relatively benign religious toleration, and free market global capitalism”.[14]
This, Michael Barone says, was a long step forward toward the kind of society we take for granted now. It was “the backdrop for the amazing growth, prosperity, and military success of eighteenth and nineteenth century Britain — and for the American Revolution and the even more amazing growth, prosperity, and military success of the United States”.[15] He adds:[16]
“It changed England from a country in which representative government was threatened to one where it was ingrained, from a nation in which liberties were based on tradition to one in which they were based in part on positive law, from a nation where the place of religion was a matter of continued political dispute and even armed struggle to one where it was settled in a way that generally respected individual choice, from a nation that mostly kept apart from the wars of continental Europe to one that saw its duty as maintaining a balance of power there and around the world.”
What was achieved, a great governmental, military, financial and diplomatic revolution, was in many respects unintended. Its many benefits took some time to become apparent.[17]
It would be wrong to assume that the Glorious Revolution introduced democracy to Britain, at least as we know it. Nor, for that matter, did the American Revolution, based as it was not only on taxation but also on maintaining slavery and in overcoming Native American Indian land rights.
In the meantime, suffrage in England and Scotland was limited, with the aristocracy and the Sovereign enjoying special rights. But even as Sovereign, William never enjoyed the rights over other Britons that many of the American Founding Fathers had over those of their fellows whom they owned as their slaves.
This English and British example of representative government inspired the Founding Fathers of the United States and the entire world directly and indirectly.[18] It was copied — with minor variations — in the British colonies, many of which would become major nations. This improbable revolution, Barone argues, did much to shape the world as we know it.
Walter Russell Mead writes that many of the values, ideas and attitudes considered part of “America’s unique exceptionalism” came from Great Britain.[19] In particular, he says the ideas of the Glorious Revolution have left “a deep and abiding mark on political culture as well”. As only one example, he points out that the Declaration of Independence itself was closely modelled on the Declaration of Rights. The Glorious Revolution also guaranteed liberties.
And it was not just in the constitution and the law that the Glorious Revolution guided America. It was also in her institutions and even her foreign policy. The Glorious Revolution had given Britain financial institutions similar to those of the United Provinces, which allowed it to be more effective in government, war and trade than the richer France. This preponderance of sophisticated institutions was continued and developed in America.
No other colonies in other empires were given these free institutions quite often because the imperial power did not practise them at home. The English-speaking world enjoyed a benefit in advance of others. According to Andrew Roberts, this is the reason why English-speaking countries today account for more than one-third of global GDP, despite their combined population being only 7.5 per cent of the world’s population.[20]
The experience of generations living under a liberal constitutional system is reflected in the political judgement of the English-speaking world. It is not, of course, that English-speaking people are more intelligent. It is that the electorate, accustomed as it is to a liberal constitutional system, becomes capable of sophisticated judgement and is suspicious of those who challenge the constitutional system. These electorates typically reject extremes at either end of the political spectrum. The electors can, of course, be misled, but they are less inclined than others to render heroic status to their leaders or to be swayed by adventurism.
Accordingly, it is no coincidence that communist and fascist parties never attracted any significant support in English-speaking countries, in contrast to the experience of many of the apparently sophisticated European continental countries. A result of having a liberal constitution is that the electorate becomes a guardian of that system.
The influence of the Glorious Revolution overseas is quite remarkable. For the past two decades, the United Nations has, in its human development index (HDI), measured nations each year according to their people's life expectancy, wealth and education.[21] The form of government of all of the leading ten and the leading twenty nations every year, with the exception of Switzerland, derives from those principles established long ago in the Glorious Revolution. In most cases, the form of government is based on the subsequent evolution of that model in Britain after the American Revolution.
The Glorious Revolution even changed the essence of British and then American foreign policy. Mead observes that since the Glorious Revolution, the Anglo-Americans have been on the winning side in every major international conflict.[22] This is not the time to ascertain whether this is the result of an inherently superior system.
To return to the debate over the Bush Administration’s policy to impose democracy across the world, Fareed Zakaria has most notably advanced the argument that democracy works best in societies when it is preceded by “constitutional liberalism”.[23]
This is, of course, the essence of the British and American experience. Constitutional liberalism, with the people enjoying basic freedoms, including property protection and stable, limited government with adequate checks and balances, came before democracy.
This point was not fully appreciated in the occupation of Iraq. This is not to debate here the legality of the invasion, which can be argued to be a continuation of the war that began with Kuwait's invasion.
The essence of freedom
The argument here is that only under constitutional liberalism can democracy flourish. But we cannot assume that once democracy has emerged, we can keep it without effort and without vigilance.
What, then, is the essence of freedom?
The following are ten principles of constitutional liberalism, all or most of which should be in place for democracy to emerge. They must remain in place if democracy is to be maintained.
These are the principles relating to the separation of powers; good, stable and limited government; popular involvement; subsidiarity and, in appropriate cases, federalism; that certain key institutions must be above and beyond politics; civic virtue; private property; rights; and, finally, the sceptical principle.
1) The constitutional principle
The British have long been seen as offering the classical model for constitutional liberalism without having a so-called written constitution. Those who argue that Britain and New Zealand need a constitution which is in writing usually mean one which is contained in a document which is entrenched. By entrenchment, they mean one which cannot be changed by ordinary legislation. Entrenching usually involves the requirement for some special majority in Parliament.
The more democratic version of entrenchment is where the people must approve a bill setting out the proposed changes to the constitution. In Australia, this requires approval to be given nationally and in most states. This involves a Swiss-style referendum where the changes are on the table before the people vote.
Australians distinguish such a referendum from a plebiscite, much favoured during the French Revolution and by the Emperors Napoleon I and Napoleon III. It has been used by devious British politicians in recent years and called for a referendum. Most of the British press have let this sleight of hand pass without comment. In this plebiscite, the people are only asked a question, often crafted by spin doctors and with the details kept secret. If the question is answered favourably or even unfavourably, the details are revealed and then enacted. A plebiscite is like signing a blank cheque and is just as dangerous.
Not having an entrenched constitution worked in Britain for three centuries. There were effective checks and balances on the power of the House of Commons and an understanding of how politicians should behave. When the House of Lords refused to pass a budget in 1911, King Edward VII indicated he would create sufficient new peers but only after a second general election which demonstrated public support for the government’s position.[24]
But the practice of ensuring there is widespread support for constitutional change is no longer respected in the political class. This is probably related to a general decline in civic virtue in such circles, evidenced by the scandal concerning the expenses of members of parliament revealed before the 2010 election. Thus, in 2003, Britain’s then-Labour Prime Minister Tony Blair purported to abolish the ancient office of Lord Chancellor through a press release. The handing over of even more power to the European Union without a promised referendum is an egregious example. When the EU Constitution was rejected in referendums in the Netherlands and France in 2005, it was replaced by the Treaty of Lisbon, designed to amend other treaties and approved by the British Parliament without a referendum. It was also approved by all other European Parliaments without referendums, except in Ireland.
Apart from constitutional entrenchment, the decline in civic virtue in political circles and the increased power of the parties has led to a re-examination of the very concept of representative democracy, which is fundamental under a Westminster constitution. In New Zealand, a facility already exists for a citizens’ initiative, which can result in a referendum. But, unlike Switzerland, the result is not binding on the legislators.
New Zealanders were astounded when their politicians ignored the result of a referendum, when a massive 88 per cent of voters indicated their support for the repeal of legislation, making it an offence to smack children.[25] The new national government under John Key could not have disillusioned many supporters more.
As in Switzerland, the ACT New Zealand Party (successor to the Association of Consumers and Taxpayers) is campaigning to make the referendum process mandatory. The author, Amy Brooke, has launched the “100 Days, Claiming Back New Zealand” movement. This would introduce Swiss-style facultative referendums under which any legislation could be submitted to a vote by the people if a prescribed number of electors (in Switzerland, 50,000 people or eight cantons) have within 100 days signed a petition calling for a binding referendum.[26]
There is, at the same time, a move to give the voters in New South Wales the power to override their state’s fixed four-year parliamentary terms and force an early election.[27]
These developments are healthy and will serve to emphasise that in a democracy, the people should be sovereign.
2) The separation of powers principle
This can be traced back to the Glorious Revolution of 1688, which introduced the conditions essential for good, limited government.
This principle was fundamental to most of the world’s liberal constitutions, which provide both good governments with adequate checks and balances against the abuse of power. Those checks and balances comply with Lord Acton’s subsequent warning, "Power tends to corrupt, and absolute power corrupts absolutely.”[28]
Curiously, the principle was incorporated in legislation relating to the succession to the Throne. After the death of Queen Mary II, and then the death of her sister Anne’s son, Prince William of Gloucester, King William III and Parliament believed that the law relating to the succession should be reformulated to ensure that the Crown did not return to the Jacobite line, the Catholic heirs of King James II.
Not only did the Act of Settlement, 1701[29] determine the succession, there was in it a provision which was to profoundly affect governance in Britain, the US, the Commonwealth and indeed the world.
This is in the provision that the judges’ commissions be made quamdiu se bene gesserint, “during good behaviour”. This means that judges were no longer to hold office “at pleasure”, that is, be dismissible by the government whenever it so wished. And, of course, a government may well wish to dismiss a judge who rules against them. After this, the judges could be removed only by an address of both Houses of Parliament.
This was of signal importance. It is the source of the doctrine of the separation of powers in England, the subject of a detailed study by Montesquieu.[30] He saw the separation of the three powers, the executive, the legislature and the judiciary as ensuring political liberty. The essential part of this is that judicial power only be separated.
He believed the separation of the judiciary was real, and this was certainly the case in England. The dangers of judges holding office for pleasure can be seen in the use of acting judges. With the adoption of laws requiring that judges must retire by a specific age, there has been an increasing reliance in some Australian jurisdictions on commissioning recently retired judges as acting judges.
NSW judges must retire at 72 but can then be appointed as acting judges on a full- or part-time basis until the age of 77. Those acting judges had, by early 2010, made up about a fifth of the judges on the Supreme and District courts. Rather than having untenured judges, it would be better if the retirement age were extended to 77 or, better still, removed altogether.
We now have an example of the danger of this practice.[31] As a Land and Environment Court judge last year, David Lloyd embarrassed the government by ruling that the Minister for Planning, Frank Sartor, was biased when he approved Catherine Hill Bay and Gwandalan land developments by the Rose Group. The judge ruled that the developer’s contribution to the state of 300 hectares of conservation land, in exchange for the minister’s sympathetic consideration of the developments, amounted to a land bribe. Now the government has failed to appoint him as an acting judge, notwithstanding the recommendation of the NSW Chief Justice and the problems associated with the shortage of judges.
The principle of the separation of judicial power and the consequent independence of the judiciary is under threat in two other and more significant ways. First, in some jurisdictions, there has been a significant trespass by the judiciary into the legislative terrain, sometimes actually abetted by unwise legislators. Second, there is a tendency in some jurisdictions to establish specialist courts which function under different laws, some inimical to the pursuit of justice.
The first has become most evident in the United States. There the British model of the threefold separation of powers was carried to the American colonies and included in the Constitution of the United States. (Only after American independence did the British model evolve into the Westminster system as we know it today, where the ministry must enjoy the confidence of the lower house, the House of Commons, thus ending much of the separation between the executive and legislative powers.)
In the second half of the twentieth century, the Supreme Court justices of the United States began to trespass more and more into the legislative arena. This is being imitated in other common law jurisdictions, assisted by constitutional or statutory bills of rights. This seriously undermines the separation of powers. Unelected officials are making laws without the possibility, or if possible, the likelihood of those laws being repealed by the legislators. I shall return to this later under the principle of the rights.
The second area of concern is the establishment of specialist courts. It is no exaggeration that they can sometimes reflect some of the aspects of the Star Chamber of old. There is an Australian example of this. It has been the subject of an adverse decision by a vigilant High Court.
Now it is clear that some of our politicians have a very feudal idea of the law. They think that it is quite proper to apply special, onerous laws to one class of people, in this case, employers, large and small. Employers are, of course, those who make profits by taking risks and who give other people jobs.
Until this decision, NSW employers were subject to an absolute duty of care to their employees. This was enforceable by a summary criminal procedure in an industrial court. There was even an attempt to exclude the supervisory jurisdiction of the Supreme Court and, thus, the High Court.
Another extraordinary feature of this draconian law was to give unions a good share of the substantial fines collected; another was to conduct a criminal trial as if we lived somewhere resembling more the old Soviet Union rather than under our common law.
Note that the High Court has not terminated this machinery. It has, however, subjected it to the Constitution. The High Court case was Kirk v. Industrial Relations Commission, handed down on February 3, 2010.[32]
In this case, the NSW Industrial Relations Commission had found Graeme Kirk, a hobby farmer, guilty of failing to provide a safe workplace. This is related to the case of his experienced part-time farm manager, Graham Palmer, who was killed while moving heavy steel using an all-terrain vehicle in 2001. Mr Kirk had no farming experience and took no part in running the farm due to ill health. While working on the farm, Mr Palmer had incorrectly loaded some steel onto a vehicle and had then cut the corner of a road. The vehicle overturned, and he was killed.
The High Court quashed fines totalling $121,000 and said that Mr Kirk had been “treated very unjustly and in a manner” causing “much harm” and that the prosecution was “absurd”. The High Court reminded the Republican politicians that they could not remove specialist tribunals from the supervision of the courts.
The jurisdiction of the High Court arises from section 73(ii) of the Constitution, which provides for appeals “from all judgments ... of the Supreme Court ... or of any other court ... from which at the establishment of the Commonwealth an appeal lies to the Queen in Council”.
A defining characteristic of state supreme courts, the judges ruled, is the power to confine inferior courts and tribunals within the limits of their authority. Politicians can’t take this away, even to pay off their clients.
The Court also reminded them that minimum standards apply to a criminal trial. And to the credit of the High Court justices, they were unanimous, with Mr Justice Dyson Heydon wishing to go further in favour of Mr Kirk.
The decision is a warning to those who would set up Star Chamber-style jurisdictions parallel to the real courts. They clearly offend the separation of powers and the resulting independence of the courts, which must, in all fundamental respects, be courts of justice.
3) The good government principle: stable and limited
Good government must be stable for reasons which will be obvious, but it must also be limited.
If we disregard the idiosyncratic Swiss system,[33] which is discussed later, there are two widely known models for stable and limited government. (Since 1958, a third hybrid semi-presidential system has emerged, the French Fifth Republic. Every so often, its end is predicted when it falls into some crisis, as in the 2002 presidential election between Jacques Chirac and Jean-Marie Le Pen.)
The Westminster system of responsible government is the more modern and, in terms of its successful export beyond the seas, by far the most successful system of government across the world.
The older one is the American presidential system, based on the English constitution as it evolved under King William III and Queen Mary II from 1688 and also on the system of governance of the American colonies where the Governor, although sometimes chosen locally, was appointed by the Crown and not responsible to the colonial assembly.
Paradoxically, it was the American War of Independence which was to see the beginnings of what we recognise as the Westminster system, where the government is responsible to the House of Commons. In March 1782, following the defeat of the British army at Yorktown, the House of Commons voted that they “can no longer repose confidence in the present ministers”. Lord North, who was Prime Minister, resigned.
This was the beginning of the constitutional convention, which became firmly established in the middle of the nineteenth century, that a government must retain the confidence of the House of Commons.
This was the system which the British gave to their settled colonies and other states from the mid-nineteenth century.
Advantages of the Westminster system
The advantages of the Westminster system are that power is not concentrated in one person; it provides greater accountability and is more flexible and responsive to changing situations.
A good example of this arose as a result of the United States' failed invasion of Cuba in 1961, the Bay of Pigs affair.
Within seventy-two hours, all the invading troops had been killed, wounded, or surrendered. Richard Bissell, the head of the Directorate for Plans, was called to a meeting with President John F. Kennedy about this. President Kennedy admitted that it was his fault that the operation had been a disaster. But the President added: “In a parliamentary government, I’d have to resign. But in this government I can’t, so you and Allen [Dulles, CIA Director] have to go.”[34]
Another example of the advantages of Westminster is its continuing accountability to Parliament in financial matters. It is established in the Westminster system that a government must resign if Parliament denies it supply. This was one of the complaints against King James II, “levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament”. In other words, James was accused of raising taxes without parliamentary approval and ruling without supply.
This is forbidden both under the Westminster system and in the United States, but with different consequences. In the Westminster system, a government which cannot obtain supply must advise a general election or resign.
Thus on November 11, 1975, the Australian Governor-General, Sir John Kerr, withdrew the commission of the then Prime Minister, E.G. Whitlam, for trying to do this, to govern without a grant of supply.
In his reasons, Sir John said:[35]
“Because of the principles of responsible government a Prime Minister who cannot obtain supply, including money for carrying on the ordinary services of government, must either advise a general election or resign. If he refuses to do this I have the authority and indeed the duty under the Constitution to withdraw his Commission as Prime Minister.”
Soon after the dismissal of Gough Whitlam in 1975, the US Congress failed to grant supply to the Gerald Ford Administration. This led to the partial closure of diplomatic posts around the world and the termination of various services. An American lady was filmed in Canberra for the news saying, “What we need in the US … what we need is a Governor-General.”
This occurred again in 1995 and 1996 with a partial shutdown of the United States federal government. When Congress failed to pass a budget bill, the Administration suspended all non-essential services from November 14 to 19, 1995, and from December 16, 1995, to January 6, 1996.
The advantage of Westminster can also be seen when it is generally agreed it is time for the head of government to go. This can happen speedily, sometimes within days. It is rare that a vote of no confidence is needed when the Prime Minister’s colleagues want him to go. This may be precipitate, as some would say, by the forced departure of Britain’s Mrs Margaret Thatcher in 1990 and of Australia’s Mr Kevin Rudd in June 2010.
Contrast this flexibility with the US President's impeachment (a procedure from ancient England). An impeachment is a trial before the Senate where the action, the articles of impeachment, must be approved by the House. The impeachment cannot be founded on poor performance, lack of competence, or other skills and qualities. Instead, the House of Representatives must put the President on trial charged with “treason, bribery, or other high crimes and misdemeanours”. The trial must be before the Senate with the Chief Justice presiding, and, to be removed, two-thirds of the senators present must find him or her guilty.[36]
As we have seen, this process leads to a long paralysis in the government and the nation.
Limited government
Not only should a government be stable, but it should also be limited. As David Landes said of the government of England after the Glorious Revolution, it should give the people “elbow room”.[37] Experience has demonstrated the wisdom of Friedrich Hayek’s counsel that modern society is far too complex to have decisions made on our behalf by a government, however benevolent.[38]
An excellent example was in 2009 when the Australian Government introduced a heavily-subsidised roof-insulation programme. This was undertaken both as a response to concerns about global warming and as a fiscal stimulus. It ended in deaths, fires, electrified roofs, fraud and general mismanagement, and it was abandoned. It is a case study of what a government should not do. This conclusion is corroborated by the confessions of the then Prime Minister, Mr Rudd, who admitted to not properly estimating the complexity of what he had embarked upon. Unfortunately, he seemed to think he needed to do better rather than acknowledge that installing roof batts was not the government's role. A similar story is emerging over the $16.2 billion Building the Education Revolution (BER), under which one commentator has said: “We get infrastructure worth about $7 billion and no one in government seems to know where the other $9-odd billion is going.”[39] Then there is the $43 billion National Broadband Network (NBN).
As Hayek warned, we are mistaken if we believe that we can have the knowledge necessary to make such decisions. There is a view in Australia that if hospitals are placed under the control of the Federal Government, their management will be more efficient.
Earlier in what is referred to as the GFC, the global financial crisis, the Federal Government gave a guarantee covering most bank accounts. Unlike the situation in other countries, there did not seem to be any obvious need for this. This was followed by a run on a number of sound finance and mortgage funds, with the result that tens of thousands of Australians, including the retired, still cannot access all of their funds.
There is hardly one stimulus programme in Australia which has not been surrounded by gross incompetence and prodigious waste. Yet most of the media commentators will still say how well the government managed the global financial crisis. This was a crisis they did not foresee. Before the 2007 election, they even ridiculed the then-Liberal Treasurer Peter Costello, who had warned of the impending downturn. But because of the safe banking regulation John Howard and Peter Costello established, the soundness of the accounts, the government’s large budget surplus, and our trade with China, the crisis was to have a minimal effect on Australia.
Labor’s former Finance Minister, Lindsay Tanner, defended the Rudd Government by saying: “Well, the truth is if we’d sat around dotting ‘i’s and crossing ‘t’s forever, then there wouldn’t have been any stimulus package.”[40]
It seems the government is following the alleged advice of John Maynard Keynes that in situations like this, the government should stimulate the economy by paying people to dig holes and fill them up.
Keynes did not say that. He merely said this would be better than doing nothing, but hardly sensible. He explained:[41]
“‘To dig holes in the ground’, paid for out of savings, will increase not only employment but the real national dividend of useful goods and services. It is not reasonable, however, that a sensible community should be content to remain dependent on such fortuitous and often wasteful mitigations when once we understand the influences upon which effective demand depends.…
“If the Treasury were to fill old bottles with banknotes, bury them at suitable depths in disused coalmines which are then filled up to the surface with town rubbish, and leave it to private enterprise on well-tried principles of laissez-faire to dig the notes up again (the right to do so being obtained, of course, by tendering for leases of the note-bearing territory), there need be no more unemployment and, with the help of the repercussions, the real income of the community, and its capital wealth also, would probably become a good deal greater than it actually is. It would, indeed, be more sensible to build houses and the like; but if there are political and practical difficulties in the way of this, the above would be better than nothing.”
By mid-2010, Australia had little to show from unprecedented wasteful profligacy, apart from the disappearance of the surplus and a massive debt to service and repay.
Core functions
The core functions of a limited government — in a federation, the totality of the functions of all our governments — are:
First, the defence of the realm is the protection of the borders. This raises a duty to ensure that those who enter the realm will not undermine it from within.
Second, to ensure the soundness of the currency, that is the economy's general health.
Third, the provision of justice to ensure law and order, that is, to keep the Queen’s peace.
If governments do not attend to their core functions, why do they try to be involved in so much, in areas which really have little to do with government? We have prime ministers today who are concerned with obesity, reading to children, how to respond to children's bullying, and whether a sportsman should have posted a risqué photograph of his former girlfriend on the internet.
Just take one core function, the provision of justice. What is the situation in relation to the civil courts? It has been said that the courts of justice are open to all, rich and poor alike … just like the Ritz Hotel. The fact is, as former justice Michael Kirby indicated recently, litigation is, except for those in receipt of legal aid, priced far beyond the finances of anyone except the wealthiest.
The criminal justice system is equally deficient. Not so many decades ago, putting grilles on your windows and double-locking your doors would have been indicative of some paranoia. Now it is perfectly normal. In some ways, the recent attacks on foreign students may reflect the decline of the elementary service government should provide, which is the freedom to walk about our streets without fear of attack and that our homes indeed be protected from criminal incursions.
Margaret Cunneen SC is a senior crown prosecutor in New South Wales. She has appeared for the prosecution in a number of highly publicised cases brought against gang rapists and paedophiles. In 2005, in the course of a public lecture, she asked whether public confidence in the courts was being eroded by the perception that the pendulum had swung rather too far in the direction of the protection of the rights of the accused person.[42] She was the subject of complaints by some prominent lawyers and failed to gain the status of Senior Counsel for some years.
There is, of course, something seriously wrong with our criminal justice system. The public sense this. But governments seem obsessed with weather-vane issues and jumping on the latest bandwagon.
4) Popular involvement principle.
It is obvious that in a democracy, the people must remain involved. Now most democracies are representative democracies, which Western Australian writer Joseph Poprzeczny dismisses as mere “ballotocracies”. [43]
Direct democracy
The alternative form of democracy is direct democracy, of which Switzerland is the classical example. There, the people can choose to play a significant, institutionalised role in the legislative process. They may both initiate constitutional change, and they may veto legislation.
Elements of direct democracy may be found in representative democracies. For example, the Australian Constitution requires the direct approval of the people both federally and nationally to any constitutional amendment.[44] On the other hand, the use of referendums which are not binding on the legislators, is not a direct democracy, merely popular consultation. (In Australia, a non-binding vote over the Australian Constitution is now referred to as a “plebiscite” to distinguish it from a constitutionally-prescribed referendum.)
Non-binding referendums or plebiscites are typically resorted to over issues where the political parties are sometimes internally divided or reluctant to determine a policy, for example, on daylight saving. Sometimes a show of superficial consultation is seen as helpful in legitimising a major decision, for example, in joining a trading bloc or devolution. In such cases, the politicians are often careful to submit a question designed to attract maximum support and to provide little or no detail of the bill to be subsequently introduced.
New Zealand has institutionalised community-initiated consultation through the Citizens-Initiated Referenda Act 1993. This is still not a direct democracy, as a referendum on these terms is not binding.
An example was the citizens-initiated referendum in reaction to “anti-smacking” legislation removing parental discipline as a defence to assault against children. New Zealanders were thereupon asked in 2009, “Should a smack as part of good parental correction be a criminal offence in New Zealand?” In a postal ballot closing on August 21, 2009, with 56.09 per cent of the electorate participating, 87.40 per cent voted No and 11.98 per cent voted Yes, with 0.72 per cent votes declared informal.
The National, Labor and Green parties refused support for a private member’s bill introduced by ACT MP John Boscawen legalising smacking less than a week after the ballot. The Kiwi Party has now proposed a referendum to make referendums legally binding.
The question, “Should Parliament be required to pass legislation that implements the majority result of a citizens-initiated referendum where that result supports a law change?”, was approved by the Clerk of the House on December 17, 2009.
In the meantime, New Zealand writer and commentator Amy Brooke has launched what can be described as the “100 days Campaign” to introduce facultative referendums into New Zealand. Her paper, “100 Days — Claiming Back New Zealand”, has been posted on a new website.[45] She summarises the reasons for the proposed measure thus:[46]
“Essentially this provision ensures that, although parliament can pass any law, including those insufficiently debated, typically late at night, or on Christmas Eve — or through any profoundly undemocratic trade-off with a minor party manipulating the system… whatever law is passed actually can’t come into effect for 100 days. During this time, if 50,000 citizens are concerned enough to call for a referendum, it has to be put — what is called a facultative (optional) referendum — and the country’s verdict is binding.
“The different, citizens-initiated referenda, where proposals come from the people themselves, are a separate and interesting issue. But it is the facultative referenda that we most urgently need to put a stop to our now perceived lack of genuine representative democracy — so very well illustrated by the scandalous ignoring of the country’s wishes in parliament’s infliction of the anti-smacking legislation.”
Representative democracy
Apart from the issue of direct democracy, the principle of popular involvement requires the legislature should be effective and should properly represent the people. There are three matters of concern here, unicameralism, electoral fraud and forced voting by MPs.
The only safe legislature is one consisting of two houses. The purpose of having an upper house of parliament is to ensure there is a review of all legislative proposals. Given there is no one universally agreed method of election, the upper house should provide representation in a way different from that in the lower house. It is desirable, too, that the voting system not reinforce the power of the political machines. An example is the appointment of MPs from lists produced by a central party machine.
An upper house is even more desirable under the Westminster system than under the presidential system because of the close identity between the lower house and the executive. It is also especially desirable in a unitary state where there is no division of powers between federal and state legislatures. These two considerations suggest that the restoration of a second house should be high on the agenda.
Elections must be as free from fraud as reasonably possible. Experience indicates that when politicians say measures must be introduced to make voting easier, they are either misinformed or they are about to embark on some device designed to enable electoral fraud.
In the United Kingdom in 2005, an electoral commissioner Richard Mawrey QC, sitting as a High Court judge, found six Labour councillors guilty of electoral fraud in the 2004 Birmingham Council election. According to a report by Nick Britten and George Jones in the London Daily Telegraph on April 5, 2005,[47] Mr Mawrey QC found that the councillors were responsible for a “massive, systematic and organised fraud” which was supported by the local Labour Party. He said the fraud was such that it would disgrace a banana republic. He subsequently made similar findings against Conservative councillors.
He attacked ministers who dismissed warnings about vote-rigging in the forthcoming UK general election as “scaremongering” and said the system that the then Prime Minister Tony Blair was encouraging the public to use was “hopelessly insecure”. “There are no systems to deal realistically with fraud, and there never have been,” Mr Mawrey said. “Until there are, fraud will continue unabated”. He also warned against the trend to provide postal and other absentee voting on demand, which he said could never be secure.
The other current issue is forced voting by MPs. Forced voting occurs when an MP does not cast a bona fide vote but is forced to vote in a particular way under the threat of losing some real advantage. The proper principle under which a member of parliament votes was set out long ago by Edmund Burke when he said: “Your representative owes you, not his industry only, but judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”[48]
Burke is correct. This is a representative democracy. The degree to which focus groups and opinion polls determine policy clearly offends this principle.
What then of the requirement to make a pledge, such as that of a Labor candidate in Australia, to vote on all questions, and especially those affecting the fate of a government, “as a majority of the Labour Party may decide at a duly constituted Caucus meeting”?[49] This must limit the judgement or discretion that the constitutional system vests in a member of parliament. The caucus pledge is against the spirit of representative democracy; only a court could determine whether it offends the letter of the Constitution.
5) The subsidiarity and federalist principles
For reasons of history and because Australia has such a large land mass, the federalist principle is essential to freedom in Australia. Federalism is part and parcel of the subsidiarity principle, that matters ought to be handled by the smallest, lowest or least centralised competent authority. The corollary is that the central government in a unitary state and the federal government in a federation should only perform those tasks which cannot be performed at a lower level. It also applies to states in a federation. For example, rather than trying to manage public hospitals themselves or through area authorities, why not allow the local community through a board and superintendent and matron to run them?
It is regrettable and perhaps predictable that federalism has few adherents among the Australian political class. Because it is under challenge and has been undermined, it is pertinent to concentrate on this.
It is sometimes forgotten that the federation of the Australian states was a remarkable achievement:[50]
“Never before have a group of self-governing, practically independent communities, without external pressure or foreign complications of any kind, deliberately chosen of their own free will to put aside their provincial jealousies and come together as one people, from a simple intellectual and sentimental conviction of the folly of disunion and the advantages of nationhood.… The Australian Commonwealth, the fifth great Federation of the world, came into voluntary being through a deep conviction of national unity....”
The Constitution Act describes it well, reciting that the people of the several states, “humbly relying on the blessing of Almighty God,” had “agreed to unite in one indissoluble Federal Commonwealth under the Crown … and under the Constitution” thereby established.
Professor Walker observes that for “a framework of government that has created a new nation and given it external security, internal peace, stability, progress and prosperity throughout the most violent, turbulent century in human history”, our constitution has been subjected to an “inordinate” amount of negative comment. He says the chief obstacle to a balanced appraisal today is the failure of the critics to consider the advantages of federalism. He lists ten of them: the right of the citizen of choice and exit, the possibility of experiment, the accommodation of regional preferences and diversity, participation in government and the countering of elitism, the better protection of liberty, the closer supervision of government, stability, fail-safe design, competition and efficiency, and the resulting competitive edge for the nation.[51]
The point is that the intention of the founders and, most importantly, of the people was very clear. Had the centralist politicians and the judges kept more to that intention, many if not most of the problems of overlap, of centralisation and of financial irresponsibility by the states would probably have been avoided? That intention was surely that the external affairs and spending powers of the federal government and parliament be limited to the list of powers which the people agreed should be of federal concern and that the states should be principally dependent on taxes they raised themselves. The intention was not that the states be reduced to their present mendicant status but that they should continue as they originally were: self-governing communities now united in a federation where the federal entity had limited enumerated powers.
The problem today is not so much in the constitution; it is in those who have effectively changed it without seeking the approval of the people, and in the knowledge, it should be noted that the people would have been most unlikely to agree. The answer is certainly not in the dissolution of the states, in the substitution of regions even more dependent on the Commonwealth, in the transfer of even more powers to the Commonwealth, in a vast increase in the power of the judges to govern us through a bill of rights, or in the grafting of some unspecified republic onto our constitution.
Professor Walker writes that the debate has hitherto focused exclusively on its disadvantages. More recently, there has been an increasing acceptance of the advantages of federalism. Those advantages were noted in the Business Council of Australia (BCA) report.[52] They were stressed in a major report in 2007 by Dr Anne Twomey and Professor Glenn Withers[53] to the newly formed Council for the Australian Federation (CFAF), which brings together all of the Australian governments, with the exception of the federal government. They argue that by focusing too much on the problems in the operation of the federal system, we forget about the benefits of the federation, including checks on power, choice and diversity, customisation of policies, competition (although they do not mention it, unilateral action by the Queensland Government led to the abolition of that inequitable tax, death duties, in all states and at the federal level), creativity and co-operation.
The CFAF report drew attention to widespread media coverage of the BCA report, which suggested that the cost of inefficiencies in the federal system, or perhaps the federal system itself, cost $9 billion for 2004-2005, or $450 per Australian, a conclusion which was highly qualified in the report itself. The authors of the CFAF report preferred to measure the benefits of federations from a comparative OECD study which found that, for the last half-century, federations had a 15.1 per cent advantage over unitary states. In addition, they measured the benefit of fiscal decentralisation, which ranges between an average of 6.79 per cent to “federal best-practice”, exemplified by Canada, Germany and Switzerland, of 9.72 per cent.
Australia, they conclude, is the most fiscally centralised of the OECD federations, demonstrated by the fact that the states and territories raise only 19 per cent of taxes but are responsible for 40 per cent of public spending. As long ago as at the time of the creation of the United States, it had been realised that such vertical fiscal imbalance is inimical to good government. As a principle, governments should be responsible to the people who elect them for the money they spend. The CFAF report argues that the benefit to Australia from being a federation is already 10 per cent; and that this could be raised significantly by further decentralising our taxation system. The result would be to raise average incomes by $4,188 per annum.
Every so often an Australian public figure will say what a good thing it would be if Australia and New Zealand were one country. If New Zealand were so minded, she would be most unwise to become one or even two states under Australia’s present unsatisfactory arrangements. Even if the sovereignty of the states were restored, which would require a Thatcherite revolution, it is difficult to see how New Zealand’s interests would be preserved. Even a monetary union is suspect; there is no doubt that where our interests deviated, the New Zealand interest would come second, whatever soothing words and compensation were offered.
6) The principle that certain key institutions must be above and beyond politics
Under a liberal constitution it is accepted that there is a proper place for the conduct of party politics. This is in the legislature and in the formation of the executive government.
At the same time, certain important, indeed crucial, organs must remain above and beyond politics. These are the armed forces, the judiciary, the police, the public or civil service, and the Crown. This also extends to an institution in the public sphere which, with the exception of public broadcasting, is not part of the state, the media.
This concept of a large sphere outside of the political arena is most highly developed under the Westminster system, where the Crown plays a central role.
The proponents of both the Westminster and presidential systems agree that the armed forces should be above politics. This principle is manifested in the proscriptions against both the maintenance of a standing army without parliamentary approval and the quartering of troops. In addition, in the United States, citizens have the right to bear arms. Under the Westminster system, the supreme command is vested in the sovereign or the governor-general, thus emphasising the non-political role of this office. It is worth noting that the Westminster system has been more successful, at least until recently, in keeping the high command out of the political arena.
Another institution which ought to be beyond politics is the judiciary, which creates the corresponding requirement that the judiciary not participate in politics and the courts not enter into the legislative arena. Again, the Westminster system has been more successful in this. We do find that in some places under the presidential system, the judges are elected or subject to processes which are or have become political, including judicial confirmation. This has been exacerbated by the judges moving into areas previously regarded as the preserve of the legislators.
Another non-political area, at least in the Westminster system, has been the public or civil service. The emergence of a non-partisan public or civil service coincided with the withdrawal of the Crown from political activity and the emergence of the constitutional monarchy as we know it. Walter Bagehot advised the Canadians in 1867 that not only was a non-partisan public service absent in the US. He believed it was impossible. The contrast between the public services of the countries of the Commonwealth and the states of the US remains, even if in Australia, in recent years, there have been some regrettable weakening of this principle in regard to the higher echelons of the public service.
If the 2009 Australian OzCar (or “Ute-gate”) affair demonstrated anything, it was that the ideal should remain that of an independent public service. A constitutional monarchy is a fertile field for this because it is designed to allow an easy transfer of political power, the prime minister being untenured and at all times dependent on the confidence of the lower house.
Our great wartime Labor Prime Minister John Curtin accepted this. When, as leader of the Opposition, he was offered confidential material by a delinquent public servant, he said: “No matter has given me so much concern, as it affects the public administration and the loyalty of persons in the service of the Crown, and I had to choose what my highest duty to my country was.”[54] According to his biographer Lloyd Ross, he showed the documents to the then Prime Minister Robert G. Menzies and Treasurer Arthur Fadden at the earliest opportunity.
In the Westminster realms, the Crown remains the central institution providing leadership beyond the political arena. As Viscount James Bryce is reputed to have said, it is not so much the power the Crown wields but the power it denies to anyone else, which is important. This means that the politicians are required to justify proposals and, in the area of the reserve powers, must accept decisions made by the viceroy at his or her discretion.
In addition, the other institutions outside of the political arena, the judiciary, armed forces, police and public service, do not in the Westminster system owe their allegiance to the politicians, even if chosen through the political process. They owe their allegiance to the Crown which is a trustee for the people. They, as well as the politicians, owe allegiance to the Crown. This is reinforced by their swearing an oath of allegiance.
The making of an oath, such as an oath to tell the truth, the whole truth and nothing but the truth in a court, or an oath of allegiance, should not of course, be made lightly. Respect for an oath is integral to that civic virtue which must prevail in a civilised society, apart from any consideration of the effect of a breach on the eternal soul of the delinquent.
It is an indication of the decline in standards in public life that some republican politicians so easily breach their oaths. An egregious example was the decision of the New South Wales republican politicians to abolish the oath they had themselves sworn just before a visit by the Queen.[55]
The republican politicians plan to remove the Crown, but the 1999 proposal to do so in Australia indicates they are not motivated by a desire to improve the governance of the country. Australia’s republicans were given a carte blanche in the 1999 referendum to devise their own republic. They provided that the prime minister could dismiss the president without notice, without reason and without appeal. The “No” campaign warned that this would be the only republic in the world where it would be easier for the prime minister to sack the president than his cook. Professor George Williams, now one of the leading Republicans, last year admitted: “The 1999 model contained a flawed mechanism for the dismissal of the president.”[56]
No one who seriously thought about good governance and accountability would have proposed this. One leading independent Republican politician, well known for his honesty, believes that the 1999 proposal was intended to increase the power of the political class.[57]
There is another institution which must remain above and beyond politics and which lies mainly outside of the state — that is, the fourth estate. As this name indicates, the institution is separate from the other estates in the Parliament and is crucial to the maintenance of our freedom. We do not live in a small city-state; we need to be informed. That this institution must be free is essential.
This concept went from Britain to America. The First Amendment to the U.S. Constitution is no more than a statement of the position that the fourth estate enjoyed in England and in America, where it was intended only as a restraint on the new federal polity: “Congress shall make no law … abridging the freedom of speech, or of the press.”
Although indulgent, U.S. Supreme Court Justice Hugo Black in 1971 described the role of the press well in New York Times Co. v. United States:[58]
“In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfil its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam War, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”
This freedom, of course, gives rise to a duty to be responsible. Unfortunately, some in the media too readily forget their duty. But the reason why the media are accorded considerable freedom is because of the duty so well described by the London Times in 1851: “The first duty of the press is to obtain the earliest and most correct intelligence of the events of the time, and instantly, by disclosing them, to make them the common property of the nation.”
Associated with this is a duty to make the reporting of the news clearly distinguishable from comment. As the great editor of the Manchester Guardian, C.P. Scott, declared: “Comment is free, but facts are sacred.” The media are, of course, entirely free to editorialise, the exception being, of course, public broadcasters such as the BBC. It is refreshing then that the chairman of The ABC recently warned, with particular reference to reporting anthropogenic global warming: “We must ensure that our town square is not a monologue.”[59]
Today we see and read too much news which falls into the category of campaign journalism. Too often, rather than reporting, the media wish to be players in the political game.
What does this mean today? The leading Australian Fairfax and ABC journalist David Marr once famously declared that the natural culture of journalism is “a kind of vaguely soft-left inquiry sceptical of authority. I mean, that’s just the world out of which journalists come. If they don’t come out of that world, they really can’t be reporters.” Indeed, he said that any journalists not of this culture should leave the profession. “I mean, if you’re not sceptical of authority, find another job. You know, just find another job.”[60]
He was absolutely right to say a journalist must be a sceptic — how else can you find the truth? But to say he can come from only one end of the political spectrum is wrong. It leads to issues such as that of Fairfax when it promoted rather than reported Earth Hour when supporters were to turn off their lights for one hour to reduce their carbon footprint. That is when Sydney’s Sun-Herald newspaper published photos of Sydney before and during Earth Hour.[61] However, they were not taken on the same day. That is the consequence when the news columns are biased.
There is a particular danger that the gallery may be too close to the government or to a particular party. The press should maintain a distance from those exercising power. As the British editor and political commentator, Baron Sydney Jacobson, once informed the House of Lords: “My Lords, relations between Government and the press have deteriorated, they are deteriorating, and they may deteriorate even more. And on no account, on no account must they be allowed to improve.”
7) The civic virtue principle
If democracy is to grow and to hold, the ground has to be fertile. The people have to be receptive, having a clear commitment to the performance of their duties as much as of their rights. Their duties include those to their fellow citizens and, through the Crown, their clear duties to the nation. This requires a society to share the same values so that there be a commonality between all people. Ours come from Judaeo-Christian values. This does not mean that belonging to a particular religious denomination is a prerequisite for citizenship. It is the values, not the doctrines, which are mandatory. (Of course, many ecclesiastics will argue that the values cannot exist without religion.)
The principal civic virtues include active involvement in civil society, that is in philanthropy and pursuits aimed at the public good, in restraint, in being honest and trustworthy, and in observing the principle of reciprocity. These are typically associated with republican government, and contrasted with monarchical government where the virtue of the monarch encourages obedience. But in constitutional monarchies, or crowned republics, both the citizen and the sovereign are expected to exhibit these virtues.
If we do not have a common view of what the essence of being a citizen is and of what our duties and responsibilities to one another and to the nation are, we will of course weaken our society and endanger eventually our democracy.
One of the core functions of government, the defence of the realm, is the protection of the borders. There is an important duty on a government to ensure that only those who will contribute to the civic virtue of the nation will be admitted not only to citizenship, but also to residence. If, instead, entry or continued residence is allowed for the purposes of calculated electoral gain, which has been alleged in Australia, then the government is failing in the performance of this core duty.[62]
8) The private property principle
That a liberal constitution requires that government be limited is something which socialists have never appreciated. Because much of Western political philosophy in the nineteenth and twentieth centuries was dominated by socialist thought (and still is under the guise of, for example, militant environmentalism), this means that little attention has been given to a feature absolutely essential to any society which is governed under a liberal constitution. This is that the right to private property be protected under the law.
Indeed, Hernando de Soto has demonstrated that the protection of property rights in a formal property system, and one with adequate records, is crucial to economic development, and indeed, that its absence in many third world countries explains many of their barriers to development.[63]
The Australian Constitution gives the Federal Parliament the power to make laws for the peace, order and good government of the Commonwealth with respect to the acquisition of property on just terms. We have seen in Australia the adoption of an inter-government scheme to satisfy Kyoto Treaty carbon-reduction targets. Funded by the federal government, the states have effectively made land useless to farmers. This is expropriation and, as we have seen, expropriation not on just terms. This is in many ways the thin end of the wedge, a growing predilection for governments to interfere with property rights which offends the private property principle.[64]
9) Rights principle
Until the latter part of the twentieth century, the prevailing view in the Commonwealth was that the best guarantee of human rights was through the common law and the system of responsible government.
The American Bill of Rights remained what it was intended to be, a restraint on the powers of Congress to make laws. It was only in the latter part of the twentieth century that a judicial coup d’état took place, and the judges invaded the legislative patch.
But apart from it not being the constitutional intention, legislation by judges, especially legislation effectively amending the constitution, offends the democratic principle. The judges have no mandate, they are not answerable to the people, and their legislation can only be repealed by the judges.
The results have not been good. The judges’ incursions into freedom of speech have effectively given a green light to the most offensive defamation imaginable. The judge’s refusal to accept that the First Amendment was directed to the protection of political speech led them to unleash a torrent of obscene speech (that is, speech in the broadest sense) across the United States and, therefore, the world. In a campaign unjustified by the constitution, the judges have used the proscription against there being a federally established church as a pretext to drive religion from the public square and from the schools. And then, the judges used separate rights to construct a constitutional right to privacy — a constitutional right unknown to the Founding Fathers. Peering into the penumbrae — the shadows of the Constitution — they have extracted a constitutional right to privacy for women, a right to abortion. By doing that they relieved the often grateful state politicians from doing their duty — that is, to legislate or not in this area.
There is a place for limited specific rights in an entrenched constitution; there is no place for broad generalisations which endow the judges with the discretion to legislate. It is proper to make the power to expropriate conditional on any expropriation being on just terms. A list of broad political rights, and worse, of economic or social rights, places governance in the hands of an unelected elite.
It is argued in Britain, New Zealand and Australia that statutory bills of rights can avoid the excesses of the constitutionally entrenched bill of rights. But, as Professor James Allan warns, “What is happening in Britain is tantamount to having a full-scale US-style or Canadian-style constitutionalised bill of rights.”[65]
10) The sceptical principle
It is essential that in a democracy, all manner of propositions be subjected to rigorous testing. Unlike dictatorships and primitive societies, a modern liberal democratic society allows the citizenry the privileges of scepticism and opposition.
In the law, in journalism, in trials, in science and in the formulation of public policy, any argument presented has to be subjected to examination. Indeed, without the right, and on occasions the duty, to be sceptical, we could not long remain a democracy under a liberal constitution. We would become the sort of society which insisted that the line handed down from above be instantly received and adopted — Stalinist Russia and Hitler’s Germany being extreme examples.
It is difficult to see how certain professions can be carried on if the practitioners do not employ a healthy degree of scepticism in the exercise of their functions. Among such professions are science, the judiciary and journalism.
Scepticism is not a failing but a badge of honour. There is currently a theory that we are going through a period of dangerous global warming that is anthropogenic and driven primarily by carbon dioxide emissions linked to the use of fossil fuels. This it said, requires policies and laws to drastically reduce those emissions.
Paul Monk rightly says that we need to hear the most rigorous challenges to those conclusions.[66] That is because this is the best way known to man to test their accuracy. He declares that this is something fundamental to the scientific method, to the practice of liberal politics and the achievement of sound public policy.
One of the most sinister observations by the political class, more suited to Stalin’s fraudulent biologist Trofim Lysenko, is that, with respect to anthropogenic global warming, “The science is settled.” Those are words more appropriate to a tyrant than to a minister in a democratic government, or worse, a journalist.
Another formulation which is certainly not sinister but must be challenged is one I recall most from editorials in The Australian. This is: “We must give the planet the benefit of the doubt.” That is too easy an approach to what former PM Kevin Rudd identified as evidenced-based public policy. The prescriptions of the anthropogenic global warming lobby have been for the burden to an extraordinary level of our economies, even unilaterally. Their assertions must be tested.
Our duty is not to relax the application of the sceptical principle merely out of fear that the global warming lobby may be right. Our duty is to intensify the rigour of this process. And when we see the extent of the dissimulation, obfuscation, illegal activity, apparent deliberate misrepresentation, use of fear, exaggeration and other examples of impropriety, we can see why they fear the sceptical principle. However, it is a principle which must universally apply in science, journalism, the law and public policy.
[David Flint AM is a former law professor at the University of Technology, Sydney, and a former chairman of the Australian Press Council and Australian Broadcasting Authority. He is the national convener of Australians for Constitutional Monarchy (at www.norepublic.com.au). He is also the author of Twilight of the Elites (2003) and Malice in Media Land (2005) and has contributed an essay, “Monarchy or republic?”, to The Howard Era (2009), a volume of essays edited by Keith Windschuttle, David Martin Jones and Ray Evans. The above article is based on a speech Professor Flint delivered at the Summer Sounds Symposium at Nelson, New Zealand, on March 19, 2010.]
[1] Thomas Hobbes, Leviathan or The Matter, Forme and Power of a Common-Wealth Ecclesiasticall and Civill [1651] (Harmondsworth, UK: Penguin, 1979), Part 1, chap. 3, p.186.
[2] The Declaration of Independence: July 4, 1776: The unanimous declaration of the thirteen states of the United States of America.
[3] Cited in Michael Kazin, “What lies beneath: Bush and the liberal idealists”, World Affairs (American Peace Society, Washington DC), Winter 2008.
URL: www.worldaffairsjournal.org/articles/2008-Winter/full-liberal-idealists.html
[4] Kazin, op. cit.
[5] Kazin, op. cit.
[6] Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York: W. & W. Norton, 2004).
[7] Commonwealth of Australia Constitution Act, 1900 (Imp); Constitution Act, 1986 (NZ).
[8] Viscount Bolingbroke, On Parties [1735], p.108.
[9] Zakaria, op. cit., p.38.
[10] Thomas Babington Macaulay, History of England, 4 vols [1848-59] (London: Heron Books, 1967), Vol. 1, p.1.
[11] David Flint “Three and twenty years of freedom,” Quadrant (Australia), November 2008, Vol. 52, No. 11, pp.40-47.
[12] An énarque is a student or graduate of the L’École nationale d’administration (ENA), one of the most prestigious of the French “grandes écoles” from which come the nation’s leading civil servants.
[13] David S. Landes, The Wealth and Poverty of Nations: Why Some Are So Rich and Some So Poor (New York: W.W. Norton, 1998).
[14] Michael Barone, Our First Revolution: The Remarkable British Upheaval That Inspired America’s Founding Fathers (New York: Crown Forum, 2007), p.225.
[15] Barone, op. cit., p.8.
[16] Barone, op. cit., p.229.
[17] Barone, op. cit., p.225.
[18] Barone, loc. cit.
[19] Walter Russell Mead, God and Gold: Britain, America, and the Making of the Modern World (New York: Alfred A. Knopf, 2007), p.47.
[20] Andrew Roberts, A History of the English-Speaking Peoples Since 1900 (New York: HarperCollins, 2007), p.637.
[21] Human Development Report 2007/2008, United Nations Development Programme (UNDP).
URL: http://hdr.undp.org/en/media/HDR_20072008_Summary_English.pdf
[22] Mead, op. cit., p.5.
[23] Zakaria, op. cit.
[24] Simon Heffer, Power and Place: The Political Consequences of King Edward VII (London: Weidenfeld and Nicolson, 1998), p.286.
[25] “NZ parents vote to smack their kids”, ABC News (Australia), August 24, 2009.
URL: www.abc.net.au/news/stories/2009/08/24/2665254.htm
[26] “100 Days — Claiming Back New Zealand”.
URL: www.100days.co.nz
[27] “Total recall for NSW Parliament: Opposition”, ABC News (Australia), March 13, 2009.
URL: www.abc.net.au/news/stories/2009/03/13/2515029.htm
[28] Lord Acton’s letter arguing against the promulgation of the doctrine of Papal infallibility was sent to Bishop Mandell Creighton in April 1887.
[29] (12 & 13 Wm 3 c.2).
[30] Charles de Secondat, Baron de Montesquieu, The Spirit of Laws [1748], translated by Thomas Nugent, revised by J.V. Prichard. Based on a public domain edition published in 1914 by G. Bell & Sons, Ltd., London. Rendered into HTML and text by Jon Roland of the Constitution Society.
URL: www.constitution.org/cm/sol.htm
[31] Joel Gibson “Judge rejection ‘threatens’ court independence”, Sydney Morning Herald, March 8, 2010.
URL: www.smh.com.au/nsw/judge-rejection-threatens-court-independence-20100307-pqm0.html
[32] Kirk v. Industrial Relations Commission, High Court (Canberra), February 3, 2010.
URL: www.austlii.edu.au/au/cases/cth/HCA/2010/1.html
[33] This is the executive council system: James Bryce, Modern Democracies, 2 vols (London: Macmillan, 1921), Vol. 2, p.508 et seq. The unusual feature is that alongside the bicameral legislature and executive council, the people are a separate legislative authority through the referendum and initiative.
[34] Richard Bissell biography, Spartacus Educational.
URL: www.spartacus.schoolnet.co.uk/JFKbissell.htm
I have read this as, “If this were the UK, you as the civil servant would continue and I would resign. But it’s not.” “In the United States, I continue and you resign”; but I cannot locate the original source.
URL: www.norepublic.com.au/index.php?option=com_content&task=view&id=1641&Itemid=4
[35] Sir John Kerr’s Statement of Reasons. Following his dismissal of Gough Whitlam on November 11, 1975, the Governor-General released this document outlining his reasons.
URL: http://whitlamdismissal.com/documents/kerr-statement.shtml
[36] Australian Constitution, Article II, Section 4.
[37] Landes, op. cit.
[38] Friedrich A. Hayek, The Road to Serfdom [1944] (London: Routledge & Kegan Paul, 1976).
[39] Ray Hadley, “Education revolution has become a rort”, The Australian, April 1, 2010.
URL: www.theaustralian.com.au/news/opinion/education-revolution-has-become-a-rort/story-e6frg6zo-1225848217965
[40] Federal Finance Minister Lindsay Tanner, interviewed by Ali Moore, 7.30 Report, ABC TV, January 22, 2010.
URL: www.abc.net.au/7.30/content/2008/s2472501.htm
[41] J.M. Keynes, The General Theory of Employment, Interest, and Money [1936], chapters 16 and 10, quoted in Stephen Wildstrom, “Stimulus and holes: what Keynes really said”, Business Week, February 3, 2009.
URL: www.businessweek.com/blogs/money_politics/archives/2009/02/stimulus_keynes.html
[42] Margaret Cunneen’s lecture, “Living within the law”, Sydney Morning Herald, September 24, 2005.
URL: www.smh.com.au/news/national/margaret-cunneens-lecture/2005/09/23/1126982234942.html
[43] Joseph Poprzeczny, “Australia — a democracy or just another ballotocracy?”, National Observer, No. 76, Autumn 2008, pp.7-32.
URL: www.nationalobserver.net/2008_autumn_toc.htm
Geoffrey de Q. Walker, Initiative and Referendum: The People’s Law (Sydney: Centre for Independent Studies, 1987).
Geoffrey de Q. Walker, “Direct democracy and citizen law-making”, Proceedings of the Samuel Griffith Society (Brisbane), vol.4, 1994, ch.9, pp. 281-304.
URL: http://samuelgriffith.org.au/docs/vol4/v4chap9.pdf
[44] Australian Constitution, section 128.
[45] “100 Days — Claiming Back New Zealand”.
URL: www.100days.co.nz
[46] Amy Brooke, “100 days — claiming back New Zealand”, NZCPR Guest Forum (New Zealand Centre for Political Research), April 3, 2010.
URL: www.nzcpr.com/guest188.htm
[47] “Judge lambasts postal ballot rules as Labour 6 convicted of poll fraud”, The Telegraph (UK), April 5, 2005.
URL: www.telegraph.co.uk/news/uknews/1487144/Judge-lambasts-postal-ballot-rules-as-Labour-6-convicted-of-poll-fraud.html
[48] Edmund Burke, Speech to the electors of Bristol, November 3, 1774.
[49] Graham Freudenberg, Cause for Power: The Official History of the New South Wales Branch of the Labor Party (Sydney: Pluto Press, 1991), p.40.
[50] John Quick and R. Garran, The Annotated Constitution of the Australian Commonwealth (Sydney: Angus & Robertson, 1901), p.225.
[51] Geoffrey de Q. Walker, “Ten advantages of a federal constitution”, Proceedings of the Tenth Conference of the Samuel Griffith Society (Brisbane), August 7-9, 1998, vol. 10, chapter 11.
URL: www.samuelgriffith.org.au/papers/html/volume10/v10chap11.htm
See also Greg Craven, “Federalism and the states of reality”, Policy (Centre for Independent Studies, Sydney), vol. 21, no. 2 (Winter 2005), pp.3-9.
URL: www.cis.org.au/images/stories/2005-21-2-greg-craven.pdf
[52] Reshaping Australia’s Federation: A New Contract for Federal-State Relations (Business Council of Australia, Melbourne), October 28, 2006.
[53] Anne Twomey and Glenn Withers, Federalist Paper I: Australia’s Federal Future, a report for the Council for the Australian Federation (CFAF), April 2007.
URL: www.caf.gov.au/Documents/AustraliasFederalFuture.pdf
[54] Laurie Oakes, “Time to quit shonky politics, Mal”, Daily Telegraph (Sydney), August 8, 2009.
URL: www.dailytelegraph.com.au/news/opinion/time-to-quit-shonky-politics-mal/story-e6frezz0-1225759113617
[55] David Flint, “Power grab in NSW”, Australians for Constitutional Monarchy, March 15, 2006.
URL: www.norepublic.com.au/index.php?option=com_content&task=view&id=548&Itemid=4
[56] George Williams, “Four rules for reform”, On Line Opinion, October 3, 2008.
URL: www.onlineopinion.com.au/view.asp?article=7974&page=0
[57] David Flint, “Republican minister’s blistering attack ... on republicans”, Australians for Constitutional Monarchy, March 29, 2010.
URL: www.norepublic.com.au/index.php?option=com_content&task=view&id=2363&Itemid=4
[58] New York Times Co. v. United States, 403 U.S. 713 [1971].
[59] “Maurice Newman’s address to ABC staff”, The Australian, March 11, 2010.
URL: www.theaustralian.com.au/business/media/maurice-newman-speech/story-e6frg996-1225839427099
[60] David Marr on the ABC Radio National Big Ideas program, September 26, 2004.
[61] ABC TV, Media Watch, Episode 7, 2007.
URL: www.abc.net.au/mediawatch/transcripts/s1892855.htm
[62] Australians for Constitutional Monarchy, “A formal citizenship test?”, November 30, 2006.
URL: www.norepublic.com.au/index.php?option=com_content&task=view&id=869&Itemid=24
[63] Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York: Basic Books, 2000).
[64] Spencer v. Commonwealth of Australia [2010] HCATrans 55 (March 12, 2010}, cited in David Flint, “Without compensation: Governments take properties”, Australians for Constitutional Monarchy, April 1, 2010.
URL: www.norepublic.com.au/index.php?option=com_content&task=view&id=2367&Itemid=4
[65] James Allan, “Charter lobby turns desperate”, The Australian, March 12, 2010.
[66] Paul Monk, “The Open Society and its Friends”, Quadrant (Australia), vol. 54, no. 3, March 2010.
URL: www.quadrant.org.au/magazine/issue/2010/3/the-open-society-and-its-friends
The Future of Our Federation: in safe hands?
"Never before have a group of self-governing, practically independent communities, without external pressure or foreign complications of any kind, deliberately chosen of their own free will to put aside their provincial jealousies and come together as one people, from a simple intellectual and sentimental conviction of the folly of disunion and the advantages of nationhood... the Australian Commonwealth, the fifth great Federation of the world, came into voluntary being through a deep conviction of national unity..."
Founding Fathers Sir John Quick and Sir Robert Garren.
"We need a new vision splendid," argued Australian Democrat Senator Andrew Murray recently. He said that our political and social contract is under serious strain, and not just because the Commonwealth has the money and the states want to spend it. He believes that some of this strain comes from our "creaking constitution and institutions" and the consequent need to modernise our governance. He also blamed the "centralising tendencies" of the Howard Government.
He was critical of any "mere managerial" solution, the principal example of which he says is the action plan recently proposed by the Business Council of Australia (BCA), (1) which has a focus on efficiency and which sees no need for radical changes to the powers of the states and the Commonwealth or for any major change to the constitution.
No reform of the Australian system will be successful, he believes, unless it accommodates revised checks and balances. "I'm talking political economy, a holistic approach," he writes. "You cannot fix the economic or the social effectively without fixing political governance. And that means reassessing the constitution, the separation of powers, a republic, whether the federation should stay, and, if it should, in what form, and the powers that state and the Commonwealth should each have."
He proposes another convention, but this time a standing convention for, say, 10 years, with a permanent secretariat and with a budget sufficient to allow for "full engagement and dialogue". This should be supplemented by a "university-based institute for constitutional change, producing discussion papers and fostering public awareness and debate".
These arguments are in the tradition of those who say our constitution is creaking under strain, shows its age and is in need of reform. What they really want is a constitution radically different from that which our founders chose. In political and media debates, "reform" does not necessarily mean improvement. In the Australian constitutional context, "reform" has long been shorthand for centralism and in recent years has been extended to a vastly increased political role for the judges as well as, of course, some sort of a republic. It often includes the removal of checks and balances, such as the states, the Senate and our oldest institution--and the one above politics--the Australian Crown. In addition, it usually depends on substituting judicial orthodoxy with a degree of adventurism, even where this is disguised in a genuflection towards literalism.
The age of our constitution is used as part of the armoury of the "reformers" who are wont to qualify it as coming from the "horse and buggy" era. They should be reminded that the American constitution is twice as old as Australia's and that few Americans would call for a drastic change. Indeed, constitutional longevity in a world where constitutional instability is the norm should be seen as a virtue and not a vice. As John Stone argues, ours is one of the finest--if not the finest--constitutions in the world. (2) The Australian people were more fully involved in the development and adoption of our constitution than any other people in the modern world. They determined the essence of the new nation in the constitution's covering clauses when, "humbly relying on the blessings of Almighty God", they agreed, in each of the colonies, "to unite in one indissoluble Federal Commonwealth under the Crown ... and under the Constitution ...". (3)
The intention of the founders and, most importantly, the people was very clear. Had the centralist politicians and the judges kept more to that intention, many, if not most, of the problems of overlap, centralisation and financial irresponsibility by the states would probably have been avoided. That intention was surely that the external affairs and spending powers of the federal government and parliament be limited to the list of powers which the people agreed should be of federal concern and that the states should be principally dependent on taxes they raised themselves. The intention was not that the states be reduced to their present mendicant status but that they should continue as they originally were: self-governing communities now united in a federation where the federal entity had limited enumerated powers.
The problem today is not so much in the constitution; it is in those who have effectively changed it without seeking the approval of the people, and in the knowledge, it should be noted that the people would have been most unlikely to agree. The answer is certainly not in the dissolution of the states, the substitution of regions even more dependent on the Commonwealth, the transfer of even more powers to the Commonwealth, in a vast increase in the power of the judges to govern us through a bill of rights, or in the grafting of some unspecified republic onto our constitution.
In the meantime, the consequences of the present unsatisfactory situation can be considerably mitigated by sensible working relationships between Canberra and the state capitals, such as those that seem to have been reached recently. But, above all, what is needed is a return to the principles of the constitution of our one indissoluble federal Commonwealth under the Crown--principles to which the Australian people have given their consent and which they have so regularly affirmed in a series of referenda.
THE FEDERATION IN CONTEXT
The Australian Federation is not some easily disposable appendage, some burden which good sense demands we quickly remove. It is not only part of our history; it remains one of the pillars of our nation. It flows from and is closely interrelated to each of the other pillars. Indeed, the federation and its institutions cannot be understood without placing them in the context of those other pillars, four of which came with the settlement in 1788. To say that is to denigrate neither the Aboriginal history of this continent nor the Aboriginal people. But modern Australia began with the settlement, which had both harsh and good consequences for the indigenous people. Some form of European settlement was inevitable, and the fact that the acquisition was British was, on all historical evidence and comparisons with other places, preferable.
The first pillar of our nation is English, which now is the world language and gives Australians particular advantages in all their international activity. The second pillar is the rule of law. Governor Philip was no dictator, and the penal colony was no gulag. Philip came with a charter of justice and governed under the law. We had the good fortune of inheriting the common law, probably the legal system most likely to provide simultaneously stability in government, the guarantee of freedom and the protection of life, liberty and property. With this came a belief and an assumption in the virtue of limited government--not as limited as the American colonies--but limited to the extent that it was understood that people should be left to run their own lives while the government concentrated on its core functions.
The third pillar is our oldest institution and one above politics, the Crown. This remains an important check and balance at the centre of our constitutional system. The consequence is that Republicans must propose a form of constitutional government that is at least as stable and as workable as the present system. They must persuade Australians that this change crosses the constitutional threshold--that it is "desirable, irresistible and inevitable". (4)
The fourth pillar the British brought is our Judeo-Christian values. This is not, and was not, a rejection of people of other faiths and, indeed, no faith. A glance at the very first sermon delivered in Australia demonstrated this when the Reverend Richard Johnson said: "I do not address you as Churchmen or Dissenters, as Roman Catholics or Protestants, as Jews or Gentiles, but I speak to you as mortals though yet immortals. The Gospel proposes a free and gracious pardon for the guilty, cleansing for the polluted, happiness for the miserable, and even life for the dead." (5) This eloquent and poetic theme has resounded through the history of our nation and is deep in the hearts of the people. It is there offering spiritual strength in times of trial and reinforcing our lives today. As Edmond Burke said: "We know, and what is better, we feel inward, that religion is the basis of civil society." (6)
These were the Judeo-Christian principles which, when mixed with the essentially Christian common law, guided Lord Mansfield in the celebrated case concerning the runaway slave, Somerset. Mansfield declared, probably apocryphally: "The air of England is too pure for a slave to breathe; let the black go free." (7)
These principles, seen through the religious revival that swept through Britain, gave birth to the great movement which led to the abolition of slavery, an institution which never tainted this land, alone among all of the continents. (8)
That theme that Richard Johnson enunciated is seen again at the time of the achievement of that last great pillar of our nation, our federation. In the meticulous drafting of and approval of our constitution, the Australian people were more involved than had ever occurred in the formation of any other nation. It is appropriate to recall that the theme that caught the greatest interest and strongest expression of public support was that the constitution should be adopted with a reference that what man does is done under God. This does not mean that Australians must belong to any particular religion or, indeed, any religion. But those values are at the basis of our legal, social and ethical system.
The fifth pillar was very much a gift from the British. They were the only colonial power that gave this to their colonies; indeed, most imperial powers did not even enjoy it at home. This was responsible government under the Westminster system. This brought self-government to each of the Australian colonies. The suggestion that self-government came because of Eureka is demonstrably false. The relevant bills were already prepared before that event. Even today, it is unlikely that Australians will move away from the Westminster system. The only realistic alternative is the American system, which, it should be noted, has never been successfully exported.
The final pillar of this nation is the federation, which, although first proposed by the British (9), was entirely our own decision. It depends on and is intimately interrelated with the other six pillars. Not only is federation a pillar, but the way it was achieved is also unique and is testimony to the political sophistication of the Australian people, the freedoms which they had inherited, and the wisdom of the colonial authorities.
Our nation was born without war, loss of blood or violence. That great founding father, Sir John Quick, who played a crucial role in achieving federation, wrote (with lawyer Robert Garran) that: "Never before have a group of self-governing, practically independent communities, without external pressure or foreign complications of any kind, deliberately chosen of their own free will to put aside their provincial jealousies and come together as one people, from a simple intellectual and sentimental conviction of the folly of disunion and the advantages of nationhood. The States of America, Switzerland, of Germany were drawn together under the shadows of war. Even the Canadian provinces were forced to unite by the neighbourhood of a great foreign power. But the Australian Commonwealth, the fifth great Federation of the world, came into voluntary being through a deep conviction of national unity. We may well be proud of the statesmen who constructed a Constitution which, whatever may be its faults and its shortcomings, has proved acceptable to a large majority of the people of five great communities scattered over a continent; and proud of a people who, without the compulsion of war or the fear of conquest, have succeeded in agreeing upon the terms of a binding and indissoluble Social Compact." (10)
The preamble to the Constitution Act that the British Parliament passed to give effect to our constitution--with some minor changes--expresses the nature of that compact and reminds us of the other pillars. It recites that the people of the several states, "humbly relying on the blessings of Almighty God, have agreed to unite in an indissoluble Federal Commonwealth under the Crown ... and under the Constitution hereby established".
Those words set out the essence of our federation, which was truly the success story of the 20th century. This is the context of our nation. Just as the United States was formed and still lives under its constitution, the Australian nation lives under and still operates under the pillars of our nation, which include our constitutional system.
The values that flow from the six pillars of our nation remain relevant today. They are the creeds that Australians have long held and should continue to hold today. Our federation can only be seen as a culmination of history and in the context of a strong desire and intention to retain the self-governing states as important entities in themselves. This desire to retain the autonomy of the states and their freedom from federal control explains the long delay until 1986 in removing the states from what was mistakenly thought to be only the nominal tutelage of the British ministers in relation to Crown matters. (11)
THE EXPANSION OF FEDERAL POWER.
Under our constitutional system, only two institutions straddle the Commonwealth-state divide. One is the Crown, the other is the High Court. Both are intended to be above politics. While the Crown remains unquestionably above politics, the High Court, or a majority of the court, has occasionally wandered beyond its role, never more so than in some of their more controversial decisions during the 1990s.
One policy which has dominated the court since 1920, and for which there is no constitutional authority, is centralism, once disguised as an objective exercise in literalist interpretation. This began as long ago as 1920 in the decision of the High Court in the Engineers' Case. (12)
According to Professor Geoffrey de Q. Walker, the case inaugurated a method of one-sided interpretation that contradicted the constitution's plain intention, ignoring the first principles of legal interpretation and violating the people's wishes as consistently expressed in constitutional referenda, as well as mocking their sovereign power. This, he says, denied the people the advantages of competitive federalism and increased the burden, cost and remoteness of government, more recently pushing the constitutional order to the brink of breakdown. (13)
The court has continued this trend in the recent decision in the WorkChoices case. (14) Whether or not we agree with the changes in the Howard Government's industrial legislation, it is difficult not to be concerned as to the consequences of this decision on the future of the federation. The court indicated, with Justice Michael Kirby and Justice Ian Callinan dissenting, that the Commonwealth's use of the corporations' power is almost without limits. The court had two decades ago come to a similar conclusion with respect to the external affairs power. (15)
No one could seriously say that this vast expansion of federal power was the intention of the founders or that it reflects the wishes of the Australian people. In fact, most of the failed referenda which involved giving more power to Canberra--some even rejected more than once--have been circumvented by High Court decisions which have favoured the Commonwealth. (16)
Professor Greg Craven observed that "the states should be in absolutely no doubt" that this latest decision "is a shipwreck of Titanic proportions. Not since the 1920s has the court struck such a devastating blow against Australian federalism ..."
"How," he asked, "a court can weigh every tiny word of a constitution without grasping the central premise that it was meant to create a genuine federation must baffle historians and psychoanalysts alike." This is, he said, "the greatest constitutional disaster" to befall the states in 80 years.
Reflecting the warning of Justice Kirby in his strong dissent, Professor Craven warned that the federal authorities now have an "open cheque to intervene in almost any area of state power that catches its eye, from higher and private education, through every aspect of health, to such matters as town planning and the environment". (17)
That this should worry conservative constitutionalists is well explained in the dissent of Justice Callinan. That this should also worry conservative politicians and their supporters was demonstrated when P.P. McGuinness warned that this decision could and probably would work both ways. A future government could attempt to regulate prices and incomes, re-regulate the labour market and, if socialism becomes fashionable again, effect the nationalisation of any sector of the economy. He wrote that the majority had "destroyed our federal system of government". They had effectively abolished any logical or sensible limitation of the federal powers. (18)
Professor Craven said there is not the "least chance that Canberra will use these powers comprehensively to take over such policy nightmares as our health and education systems". Instead, based on long practice, Canberra will employ its new capacity to "cherry-pick politically attractive items and to embarrass uncongenial state governments". In other words, the politicians will, thanks to the High Court, be allowed to behave like politicians.
In handing down its decision on November 14, 2006, the High Court majority said the fact the people may have indicated their objection to a specific change is of "no assistance" to them. That is, the fact the people may have refused to grant some power to the Commonwealth is to be completely ignored. The High Court has turned its back on--or, as Professor Walker says, mocked--the "quasi sovereignty" with which the founders specifically endowed the people. (19)
The result is that the High Court has abdicated much of its role as an important check and balance. As Professor Craven says, we no longer have "even a deeply biased constitutional umpire". The High Court "has given Canberra the key to the constitution".
ADVANTAGES OF FEDERALISM
Professor Walker observes that for "a framework of government that has created a new nation and given it external security, internal peace, stability, progress and prosperity throughout the most violent, turbulent century in human history", our constitution has been subjected to an "inordinate" amount of negative comment. He says the chief obstacle to a balanced appraisal today is the failure of the critics to consider the advantages of federalism. He lists 10: the right of the citizen of choice and exit, the possibility of the experiment, the accommodation of regional preferences and diversity, participation in government and the countering of elitism, the better protection of liberty, the closer supervision of the government, stability, fail-safe design, competition and efficiency, and the resulting competitive edge for the nation. (20)
Professor Walker writes that the debate has hitherto focused exclusively on its disadvantages. More recently, there has been an increasing acceptance of the advantages of federalism. Those advantages were noted in the BCA report. (21) They were stressed in a major report in 2007 by Dr Anne Twomey and Professor Glenn Withers (22) to the newly formed Council for the Australian Federation, which brings together all of the Australian governments, with the exception of the federal government. They argue that by focusing too much on the problems in the operation of the federal system, we forget about the benefits of the federation, including checks on power, choice and diversity, customisation of policies, competition (although they do not mention it, unilateral action by the Queensland Government led to the abolition of that inequitable tax, death duties, in all states and at the federal level), creativity and co-operation.
The CFAF report drew attention to widespread media coverage of the BCA report, which suggested that the cost of inefficiencies in the federal system, or perhaps the federal system itself, cost $9 billion for 2004-2005, or $450 per Australian, a conclusion which was highly qualified in the report itself. The authors of the CFAF report preferred to measure the benefits of the federation from a comparative OECD study which found that, for the last half-century, federations had a 15.1 per cent advantage over unitary states. In addition, they measured the benefit of fiscal decentralisation, which ranges between an average of 6.79 per cent to "federal best-practice", exemplified by Canada, Germany and Switzerland, of 9.72 per cent.
Australia, they conclude, is the most fiscally centralised of the OECD federations, demonstrated by the fact that the states and territories raise only 19 per cent of taxes but are responsible for 40 per cent of public spending. As long ago as at the time of the creation of the United States, it had been realised that such vertical fiscal imbalance is inimical to good government. As a principle, governments should be responsible to the people who elect them for the money they spend. The CFAF report argues that the benefit to Australia from being a federation is already 10 per cent; and that this could be raised significantly by further decentralising our taxation system. The result would be to raise average incomes by $4,188 per annum.
WHAT CAN BE DONE?
Both the BCA and the CFF reports join in the premiers' call for a constitutional convention. But if one is held, it should not be about that "arid and irrelevant" issue, (23) a republic. Nor should it be distracted by the question of a constitutional bill of rights which bears no relation to the federal issue. The convention should be about the far more relevant issue: how to restore the federation.
Ideally, this convention could aim to propose amendments to:
Ensure "vertical fiscal balance", so that the states would be responsible for collecting most of their income and answering to their electors as to how they spend it;.
List those powers where state laws are to prevail. The absence of such a list allowed the High Court to launch, and maintain, its long adventure in forcing centralism on a reluctant nation;
cap the extent of the external affairs and corporations' powers to the other shared powers;
ensure that minimum bureaucratic overlap occurs in relation to powers, the exercise of which is effectively shared, and
ensure the states are directly involved (and not just consulted) in determining the membership of the High Court. Why not, for example, allow each state chief justice or a nominee to join the bench as "ad hoc" justices in federal disputes?
The success of the constitutional conventions after 1893 was at least in part because they were mainly elected. Only one-half of the 1998 Constitutional Convention was elected, and that by a postal system too open to abuse. Many of the nominated members were effectively chosen as almost ex officio members, including the prime minister, the premiers and leading ministers. This process could be repeated for this convention, but with a higher proportion of elected members and a secure voting system. Prominent constitutional lawyers, political scientists and finance and business experts could be available to give advice, either to the convention as a whole or to individual members, both orally and in writing.
A wholly nominated convention would lack authority and would be open to manipulation and bias. It would have as much authority as the endless succession of "summits" which are called to settle some issue and too often to diffuse some debate. A recent example was the "history" summit to which Dr Keith Windschuttle, the leading and formidable critic of the current establishment--whose work resulted in a widespread loss of confidence in what is being taught in the schools and universities--was not invited to participate.
As to procedure, the governments should agree in advance that the principles of the Corowa Plan (24) should apply. This, proposed by Sir John Quick in 1893, ensured that the movement to federation was not bogged down in endless parliamentary debate. When the convention finalises its draft, say in 12 months. It should be made public and sent to all the parliaments for comment. After three months for comment (both parliamentary and public), the convention should have a period, say six months, to consider the comments and to finalise any subsequent changes. Following the Corowa Plan principles, the proposal would then be included in a bill for a referendum.
The obligation of the federal parliament to do this would be moral rather than legal, the same sort of obligation their predecessors in the states agreed to in the 19th century.
Adopting the Corowa Plan principles would ensure that the conclusions of the convention are put to the people for their decision and not just ignored or pigeonholed.
There is a clear need to restore the principles and essence of the federal Commonwealth, which the Australian people approved and have regularly affirmed. (25) Whether the states are to be restored or are to be even more emasculated, that decision should be made only by the people in a referendum and not by circumventing the constitution, which remains a splendid vision.
1. Business Council of Australia, Reshaping Australia's Federation: A New Contract for Federal-State Relations (2006). 2. ABC Radio National, 13 July 2006. 3. Preamble, Australian Constitution. 4. J. Quick and R. Garran, Annotated Constitution of the Australian Commonwealth (1901), p. 988. 5. An Address to the Inhabitants of the Colonies, established in New South Wales and Norfolk Island, by Richard Johnson (1753-1827); Ian H. Murray, Australian Christian Life from 1788 (Edinburgh: Banner of Truth, 1998). 6. Edmund Burke, Reflections on the Revolution in France (1790). 7. R. v. Knowles, ex parte Somersett (1772) 20 State Tr 1; (1772) Lofft 1. 8. Keith Windschuttle, "Australia and the abolition of slavery", Quadrant, April 2007. 9. David Flint, The Twilight of the Elites (Melbourne: Freedom Publishing, 2003), p.38. 10. Quick and Garran, op. cit., p. 225.
11. Anne Twomey, The Chameleon Crown: The Queen and her Australian Governors (Sydney: Federation Press, 2006). 12. Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd, (1920) 28 CLR 129. 13. "The Seven Pillars of Centralism: Federalism and the Engineers' Case", Proceedings of the Fourteenth Conference of The Samuel Griffith Society, 16 June 2002, vol. 14. 14. New South Wales v Commonwealth (WorkChoices Case) (2006) 231 ALR 1. 15. Commonwealth v Tasmania (Tasmanian Dams Case) (1983) 158 CLR 1. 16. David Flint, The Cane Toad Republic (1999), p. 160. 17. The Australian, 17 November 2006. 18. The Australian, 15 November 2006. 19. Quick and Garran, op. cit., p.988. Professor Walker prefers the term "sovereign power". See fn.13, supra. 20. "Ten Advantages of a Federal Constitution", Proceedings of the Tenth Conference of The Samuel Griffith Society, Brisbane, 7-9 August 1998, vol. 10, chapter 11; see also Greg Craven, "Federalism and the states of reality", Policy (Centre for Independent Studies), vol. 21, no. 2 (Winter 2005), pp. 3-9. 21. Fn 1, supra. 22. Anne Twomey and Glenn Withers, Federalist Paper I: Australia's Federal Future, a report for the Council for the Australian Federation (April 2007). 23. A term used by a Republican constitutional lawyer to refer to the Head of State debate: George Winterton, "Who is our Head of State?", Quadrant, September 2004, p. 60. 24. Quick and Garran, op. cit., p.153. 25. See Flint, Twilight of the Elites, op. cit., chapter 10, pp. 183-216: "Restoring the Federation".
The Head of State Debate Resolved...
Governor-General David Hurley says it's time to recognise the extraordinary work of everyday Australians.
The principal argument advanced in the current campaign for a change to a republic is that the Head of State should be Australian; constitutional monarchists reply that we already have an Australian Head of State in the Governor-General. A hitherto overlooked High Court decision provides the key to resolving this dispute.
This campaign is the fourth significant attempt to create an Australian republic. The first was to establish a white racist republic in the nineteenth century, free of the immigration policy of the British Empire. This faded away with the movement to the Federation, with the Commonwealth of Australia being endowed with an express power to establish a national immigration policy. The second and longest campaign was to create a communist state similar to the East European Peoples' Republics established after the Second World War. Its proponents never made the slightest impact in Australia electorally, notwithstanding their control of several key strategic unions. The third was initiated by the Australian Republican Movement and promoted by Paul Keating when he was Prime Minister. Its object was to graft onto the Constitution a republic, initially only at the federal level. In this Republic, the president would be appointed by Parliament. Although a string of implausible reasons for the change was advanced by senior Republican figures, ranging from reducing unemployment and the brain drain to stopping Australian expatriates from being taken for Britons,[i] the raison d’être of their campaign was that only a republic could provide an Australian Head of State. Their formidable political and media campaign culminated in the 1999 referendum, which was defeated nationally and in all states. The present and fourth campaign for an Australian republic also relies on the same argument about the Head of State. But unlike the last attempt, the Republicans are now unwilling, or more likely, to specify what sort of Republic they propose.[ii]
This is because they remain irreconcilably divided over the form of the Republic, which should be adopted. But they do agree on the issue of the Head of State. They also agree that the process for choosing the model and the resulting referendum should be preceded by a plebiscite with no details of the change and only a vague general question about Australia becoming a republic.
Those favouring a republic in which the electorate would choose the president to propose a second plebiscite. Those who favour a republic where Parliament would choose the president propose other methods of consultation to determine the model. Republicans see an initial plebiscite as having at least seven advantages over proceeding immediately to a referendum. First, there will be no need to provide any details whatsoever about the form of the Republic envisaged. Second, republicans would be united in campaigning for it. Third, voters will not be torn between different forms of the Republic. Fourth, the question can be so worded that it will attract the maximum vote without the voters being distracted by any details of precise changes to be made to the Constitution. Sixth, people will feel committed to some form of Republic in any subsequent referendum if it passes. Seventh, if it passes, the constitutional monarchists will be isolated and effectively unable to participate in the debate over the model. The latter will be ensured if there is a second plebiscite where indicating a preference for the existing Constitution is not allowed.
There is an eighth advantage for Republicans feared by many constitutional monarchists. If the plebiscite were passed, there might be a temptation to try to change the Constitution through the" backdoor." [iii] This would require all seven parliaments to legislate to amend the Statute of Westminster and then the Constitution, but would no doubt be challenged in the High Court. Constitutional monarchists object in principle to holding a vague "blank cheque" plebiscite when the Constitution provides the process for popular consultation and decision, a referendum. They say a plebiscite goes against the spirit of the Constitution. Moreover, it would invite the people to vote of no confidence in one of the world's most successful constitutions, with the details of the proposed change being kept from them and no guarantee that change would follow. This, constitutional monarchists say, would be a recipe for constitutional instability. They say it is difficult to conceive of a more irresponsible act for politicians to engage in.[iv]
But let us return to the term, Head of State, on which the Republicans have staked so much. In the official 1999 Yes/ No Pamphlet delivered to all households, the Yes case[v] concluded that by saying to each voter that he or she "...will be able to vote YES for the change to an Australian as Head of State or NO to retain the Monarchy. If you agree that, as we enter a new century, the time has come for an Australian to be our Head of State, please join with us and help make history on November 6. Vote YES for an Australian republic." [vi]Constitutional monarchists have long argued that while The Queen of Australia is the Sovereign, and the Governor-General is the Head of State. Accordingly, the No case in 1999 Yes/No pamphlet stated: "Our constitutional Head of State, the Governor-General, is an Australian citizen and has been since 1965." [vii]
Although the referendum proposal was defeated nationally and in all states, the debate continues. This manifested in the "Mate for Head of State" campaign in 2006.[viii] Recent research has revealed a High Court decision which is highly relevant to the resolution of this debate.[ix] The decision related to whether the Court could direct the Governor in exercising his power to fill a vacancy in the Senate.
Under the Australian Constitution, the judicial power of the Commonwealth is vested first in the High Court.[x] The High Court is empowered to give final, binding and authoritative decisions concerning the Constitution, so any ruling by the High Court would determine the debate. In addition, this particular bench consisted of some of the most prominent of our Founding Fathers. They surely would have had an excellent understanding of the constitutional intention.
The High Court bench consisted of five judges, all of whom had played significant roles in the political life of Australia and all of whom had been involved, in different degrees, with the Federation of the nation. The Court could be aptly described as a bench of Founding Fathers. Such was their grasp of and understanding of the constitutional system of the new Commonwealth of Australia. They were led by the Chief Justice, Sir Samuel Griffith, who had chaired the committee which produced a draft of the Constitution at the 1891 Convention. Of that, those great authorities, Sir John Quick and Sir Robert Garren say that it contained the "whole foundation and framework of the present constitution." [xi] Then there was Sir Edmund Barton, the first Australian Prime Minister, who was also intimately involved in the drafting of the Constitution and in campaigning for its adoption. He opposed appeals to the Privy Council. I mention this to demonstrate that the bench did not consist of arch-conservatives with predictable views.
He and the third justice, Richard O'Connor, were two of the three members of the 1897-1898 Convention drafting committee. O'Connor twice refused a knighthood, an indication again of a less-than-conservative attitude. (The other member of the drafting committee was Sir John Downer.)The fourth judge was Sir Isaac Isaacs, later our first Australian-born Governor-General, who was also closely involved in the movement to Federation and played a significant role in the crucial 1897-1898 convention. His lasting monument is the Engineers Case[xii] of 1920, which established the inexorable, some would also say, the regrettable direction of High Court jurisprudence towards the recognition of strong centralist powers in the federal Parliament and Government. The fifth judge was Henry Bournes Higgins, who, like Justice O'Connor, had also refused a knighthood. He was no conservative. It is enlightening to recall his reaction to the introduction of the words in the draft preamble to the Constitution Act, reciting that the people of the several colonies, "humbly relying on the blessings of Almighty God," had decided to unite. He proposed a balancing provision. This was to become section 116 of the Constitution, which prevents the establishment of a national church or the prescription of religious tests. Close to Labor and made Attorney-General in a Labor government, he is best remembered for the celebrated Harvester judgment, which set out the rights of the worker to receive a minimum wage "as a human being in a civilised community." [xiii] It can be said that all justices had an intimate knowledge of the Constitution and its drafting, in comparative developments in other countries, especially the federations, of the workings of the political system and of the role and function of the Crown and its representatives. Both my background and thinking it was as diverse as any modern court.
Sir Edmund Barton read the unanimous decision of the Court. The Court held that it had no jurisdiction to direct the Governor concerning filling a vacancy in the Senate. For the purposes of the issue under consideration here, what is important is that on several occasions, in an admirably succinct judgement, the Court described the Governor of South Australia, and thus all governors, as the "Constitutional Head of State," or "Head of State". And the Court declared the Governor-General the "Constitutional Head of the Commonwealth." In some cases, this was preceded by the word "officiating," which seems to be of little relevance in the debate about whether Australia should become a republic. The High Court also referred to the King as the "Sovereign," the term normally used by constitutional monarchists to contrast The Queen's role with the Governor-General's role as Head of State.
The case has been referred to in subsequent judgements of the Court on four occasions, that is, in 1981, 1987, 1988 and 1998.[xiv]So almost one hundred years ago, the High Court had thus resolved an acerbic debate which subsequently divided a nation.
The origins of the term head of State
Until recently, the internationally accepted generic term for what is now Head of State was "prince." As the number of republics increased, the term "prince" became less appropriate, and the term "head of state" emerged to general acceptance. As an essentially diplomatic term, its usage was accordingly governed by international law and practice.[xv]It was, of course, impossible to devise a common position description of a head of State because the functions of a head of state range from purely ceremonial to that of also being Head of the Government, as in the United States.
The Head of State need not even be one person, as the examples of Andorra and Switzerland demonstrate. Under international law, the determination of who is the Head of State is a matter of recognition. The Head of State is the person or persons held out to be the Head of the State concerned and recognised by other states. The Governor-General's status in what was then the Dominions was changing significantly as they moved towards full independence. In recognizing that the Dominions and the United Kingdom were "equal in status," and "in no way subordinate one to another in any aspect of their domestic or external affairs," the Balfour Declaration of 1926 had necessarily to consider the appointment and the status of the Governor-General, who apart from playing the role of a constitutional monarch had until then also represented Imperial interests.[xvi]
The Declaration says the Governor-General 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..." [xvii]
The clear natural meaning of these words is that diplomatically, the Governor-General, when travelling, is entitled to be held out as and to be received as a Head of State. Perhaps because of the inability or unwillingness of some Australian diplomats to insist on the Governor-General being accepted as Head of State, this has led to at least one diplomatic incident.
In 1987, according to Sir David Smith, the Governor-General, Sir Ninian Stephen, acting on the advice of the Australian Government, cancelled a proposed visit to Indonesia because President Suharto had said that he would not be present at the welcome ceremony but would instead send his Vice-President. The reason advanced was that the Governor-General was not a Head of State. "That year, Sir Ninian made State visits to Thailand, China, Malaysia and Singapore," says Sir David. In each, he was received as a Head of State. Soon afterwards, the Indonesian Government admitted that it was wrong, saying that it had been wrongly advised by its officials. The Government indicated it would treat our Governor-General as a Head of State on any future visit. This occurred in 1995.[xviii]In 1996, the Commonwealth Government Directory defined the Governor-General's role in these words, "Function: Under the Constitution the Governor-General is the Head of State in whom the Executive Power of the Commonwealth is vested." [xix]Since then, Governors-General has travelled overseas and been received in all countries as Australian Head of State at the time of writing, most recently in Israel in 2008 when Major-General Jeffery unveiled the monument to honour the celebrated charge by the Australian Light Horse at Beersheba which was of great importance in the Allied campaign against the Central Powers.
The Constitutional Head of State
As a diplomatic term, the words "Head of State" did not appear and were not used in constitutions until relatively recently. Somewhat inauspiciously for Republican arguments in Australia, the first domestic use seems to have occurred in countries under fascist governments. The first such use seems to have been by Generalissimo Franco, who, during the vacancy in the Spanish throne, became El Jefe del Estado. Then Le Maréchal Philippe Petain became Le Chef d’État in Vichy France.[xx] As to Australia, Sir David Smith, in his magisterial work, Head of State,[xxi] has put together a vast amount of material which presents an argument, so far unanswered, that the Governor-General is the constitutional Head of State.
This centres on section 61 of the Constitution, which was the first Constitution in the British Empire to provide that the Governor-General should exercise executive power. In other parts of the Empire, this was done by Letters Patent establishing the office and by Instructions from the Sovereign. (The Australian Constitution was also the first to allow for amendment in the Dominion without reference to London.)
Section 61 provides: "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."
In 1975, Buckingham Palace confirmed that the Sovereign could not and, by implication, never could review or reverse decisions taken by the Governor-General under section 61.[xxii] The Speaker had asked The Queen to reverse the decision of Sir John Kerr to withdraw the Hon. G. Whitlam's commission as Prime Minister and to appoint the Leader of the Opposition, the Rt. Hon. Malcolm Fraser.
The Palace responded that as the commissioning power was vested in the Governor-General, it would not be proper for her to intervene in matters so clearly placed within the jurisdiction of the Governor-General under the Constitution. In the book, Sir David anticipates and, in my view, refutes arguments which have been advanced against the proposition that the Governor-General is Head of State. One which he revealed to be without foundation was recently revived by one of the prominent delegates appointed by the Federal Government to its 2020 Summit, Professor Robert Manne. A few years ago, the former Chief Justice of Australia, republican Sir Anthony Mason, made the same claim, which he now probably regrets. This is that it is a "robust convention" that there is no place for the Governor-General when The Queen is present, thus proving that Her Majesty is the Head of State.[xxiii]
Sir Anthony Mason was, incidentally, also appointed, without his knowledge, to sit on the 2020 Summit panel on governance. He declined.[xxiv]He also had previously declared that he became a Republican when watching the 1932-1933 bodyline cricket series, but as Sir David Smith observes, he waited 65 years to tell the world, accepting an imperial knighthood on the way.[xxv]
Sir Anthony argued the "robust convention" when he sought, in a paper delivered at the Australian National University, to demolish the argument advanced by Sir David Smith that the Governor General is Head of State. Sir Anthony had dismissed Sir David's argument as "arrant nonsense." To demonstrate this, Sir Anthony relied on Sir Zelman Cowen's absence when the Queen opened the High Court building in Canberra in 1980. Sir David Smith replied that a practice of the Governor-General withdrawing when The Queen was present seemed to have developed on some previous Royal visits to Australia, but he knew of no constitutional or other bases for it. So he took the matter up with Buckingham Palace. He was told that the Palace also knew of no basis for the practice, which seemed to be peculiar to Australia, and that The Queen would be pleased if the Governor-General were present when she opened the High Court. As Sir David writes in his book, Head of State, he so informed the Department of the Prime Minister and Cabinet, and draft orders of arrangements were prepared, which provided a place for the Governor-General on the dais.
Malcolm Fraser appropriates the Governor-General's place.
It was only when the then Prime Minister, Mr Malcolm Fraser, saw the draft that he decided that the Governor-General should not be present: with the Governor-General out of the way, his place in the official procession next to the Duke of Edinburgh would be available for himself, the Prime Minister. Sir Zelman asked Sir David not to pursue the matter, but he was disappointed and very hurt. Far from being the application of a robust convention, the Governor-General's absence was the result solely of Mr Fraser's desire to rank next to royalty.
Later Mr Fraser was to campaign against the constitutional Monarchy in the 1999 referendum, even appearing with Mr EG Whitlam in a television advertisement based on the theme Mr Whitlam successfully used in the 1972 election, "It's Time." Sir David points out that when The Queen opened the Commonwealth Games in Brisbane in 1982, the Governor-General, Sir Ninian Stephen, was present and seated next to her, as did the Governor-General of Canada when The Queen opened the Commonwealth Games in Edmonton in 1978. "So much for Sir Anthony's so-called robust convention, "observes Sir David. Sir David also cites the opening of the new Parliament House in 1988 to demonstrate the absence of any such convention, robust or not. A painting in Parliament House shows The Queen addressing the assembly in the Great Hall with the Governor-General on the dais. No doubt to the great embarrassment of Sir Anthony Mason, a press photograph at the time is fascinating. For it shows, sitting in the front row, none other than..... Sir Anthony Mason. When The Queen first came to Australia in 1954, she was received by Sir William Slim, the Governor-General, together with the Governor, the Prime Minister and the Premier. Nor did the Governor-General go into hiding during the tour. Sir William Slim was photographed with The Queen at a Garden Party in Canberra.[xxvi]
2020 Summit
In 2008, and in apparent ignorance of Sir David Smith's refutation of the existence of any "robust convention", Professor Robert Manne and Dr Mark McKenna, in a video discussion posted to the website of TheMonthly, accused constitutional monarchists of lying and of fraud when they say the Governor-General is Head of State.[xxvii] This interview was to promote the book "Dear Mr Rudd: Ideas for a Better Australia," edited by Professor Manne and containing an opening chapter by Dr McKenna on the subject of changing Australia into some sort of Republic. Of course, if constitutional monarchists are lying, diplomats, foreign governments, presidents, emperors, The Pope, international organizations, the Hawke-Keating governments, and the High Court have fallen for this lie. They all believe that the Governor-General is the Head of State or, in the case of the High Court, the Constitutional Head of the Commonwealth, the Governors being, in its unanimous view, the Constitutional Heads of State. The principal argument Professor Manne and Dr McKenna advance for their abuse is the same as that advanced by Sir Anthony Mason. They claimed that when The Queen is in Australia, the Governor-General must disappear and that this proves that Her Majesty is Head of State.
The academicians put their discovered "rule" in terms which would seem unusual for the learned world of academia. When The Queen comes to Australia, they say, "...the Governor-General has to push off." Professor Manne and Dr McKenna have apparently neither read the decision of the High Court referred to above nor Sir David Smith's refutation of the existence of any rule that the Governor-General must, as they so inelegantly put it, "push off." Vulgarity is, of course, no substitute for scholarship and research.[xxviii]Yet Professor Manne was appointed to the 2020 Summit.[xxix]
The Summit governance panel voted 98:1 to recommend Australia become a republic. Soon after, the Morgan Poll found that public support for Australia becoming a republic with an elected president had fallen to 45%, the lowest in 15 years. Among the young (14-17), support had fallen to 23%. The Summit decided that the process to attain a republic should be a two-stage process: "Stage 1: Ending ties with the UK while retaining the Governor-General's titles and powers for five years. Stage 2: Identifying new models after extensive and broad consultation." This opened the Summit to ridicule because all ties with the UK were terminated years ago. So ten days later, the recommendations now read: "Introduce an Australian republic via a two-stage process, with Stage 1 being a plebiscite on the principle that Australia becomes a republic and severs ties with the Crown and Stage 2 being a referendum on the model of a republic after extensive and broad consultation."
The principal reason[xxx] for a preliminary plebiscite, rather than a referendum, is that the Republicans fear a similar defeat as in 1999. There, despite strong media and political support, the referendum was lost nationally, in all states and 72% of electorates. The non-binding plebiscite will be a question only, without any detail. If the question suggests that only a republic can provide an Australian Head of State, in addition to material advanced in 1999, constitutional monarchists will be able to point to the authoritative ruling of the High Court in 1907.
New arguments for constitutional change will have to be developed.
[Published in Quadrant, May 2008] by David Flint
[i] David Flint, The Cane Toad Republic, Wakefield Press, 1999, chapter 2, pp 25-32
[ii] David Flint, Her Majesty at 80: Impeccable Service in an Indispensable Office, ACM, Sydney, 2006 pp
[v] Approved by a majority of members of Parliament who had voted for the proposed constitutional change: Referendum ( Constitutional Alteration) Act, 1999
[vi] Australian Electoral Commission, Australian Referendums 1906-1999, DVD, 2000
[vii] Ibid. There was an initial dissent from one monarchist group, but they have since joined the monarchists' consensus.[viii] "Special Report: "The Republicans' major campaign in 2006-" A Mate for Head of State" August 13, 2006 Australians for Constitutional Monarchy http://www.norepublic.com.au/index.php?option=com_content&task=view&id=689&Itemid=24 accessed May 9, 2008
[xiv] Gould v Brown [1998] HCA 6; 193 CLR 346; 151 ALR 395; Re Wood [1988] HCA 22; (1988) 167 CLR 145; Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28; (1987) 163 CLR 117; R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170
[xv] David Flint, The Cane Toad Republic, chapter 3 pp 37-48
[xvi] Imperial Conference, 1926, Summary of Proceedings, HMSO, 1926
[xxx] See also the suggested eight advantages, supra
A Crowned Republic is a form of government that features a monarch who serves as a symbolic, ceremonial leader with limited authority over matters related to the executive branch and constitutional issues. This type of system is exemplified by countries like Australia, New Zealand, Canada and the United Kingdom, which are officially classified as constitutional monarchies. Additionally, the term can be applied to historical republics where the head of state held the title of "doge," such as those found in Venice, Genoa, and the Republic of San Marino. In these cases, the monarch's role was largely symbolic, with actual governance being carried out by elected officials or other government bodies. Overall, a crowned republic is a unique blend of monarchical and republican features in which the monarch's role is largely symbolic but still serves an important ceremonial function.
A Crowned Republic is a form of government that features a monarch who serves as a symbolic, ceremonial leader with limited authority over matters related to the executive branch and constitutional issues. This type of system is exemplified by countries like Australia, New Zealand, Canada and the United Kingdom, which are officially classified as constitutional monarchies. Additionally, the term can be applied to historical republics where the head of state held the title of "doge," such as those found in Venice, Genoa, and the Republic of San Marino. In these cases, the monarch's role was largely symbolic, with actual governance being carried out by elected officials or other government bodies. Overall, a crowned republic is a unique blend of monarchical and republican features in which the monarch's role is largely symbolic but still serves an important ceremonial function.
