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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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22. For debate in the House of Representatives, see CPD H R, 22 September, 1966, vol. 52, p. 1173; and vol. 52, pp. 1873–4.

23. CPD Senate, 26 October, 1966, vol. 32, p. 1461.

24. Ibid., p. 1462.

25. On the vicissitudes of the Holt Government in 1967, see Ian Hancock, The V.

I. P. Affair, 1966–67, A u s t r a l a s i a n Study of P a r l i a m e n t Group, 2004.

Published as Australasian Parliamentary Review, vol. 18(2), Spring, 2003.

–  –  –

“ C o n s t i t u t i o n a l r e f o r m i s a s e r i o u s m a t t e r. Unlike o r d i n a r y l a w reform whose effects are confined to specific areas and which may be modified or repealed if i t t u r n s out to have been i l l - a d v i s e d, c o n s t i t u t i o n a l r e f o r m i m p a c t s upon t h e entire system of law and government and is virtually irreversible. It follows that we have an obligation not only to ourselves but to our descendants to consider any proposals to change the C o n s t i t u t i o n of the Commonwealth or a S t a t e rationally, deliberately and with a complete understanding of the nature of that which is being changed and of what the consequences of the change will be”. 1 T h e r e p u b l i c a n s a r e a t i t a g a i n, d e s p i t e t h e h i d i n g t h a t they received in 1999, and despite the fact that the latest polling shows support for the republic has declined since 2001. A cross-party republican forum has been established in the Commonwealth Parliament, and The Australian newspaper has taken up the cause again, so the task is before us once more.

A n d w h a t i s i t t h a t t h e s e p o l i t i c i a n s a n d The Australian w a n t t o f o i s t o n u s ? T h e y w a n t u s to become a republic, but they d o n ’ t y e t k n o w w h a t s o r t of republic. In f a c t there is no such thing a s “ a republic”. The United N a t i o n s recognises 191 independent countries in the world, and more than half of them – 104 by my count – are republics. Most of these republics are different from each other, and none of them offers a better system of government t h a n t h e o n e w e have enjoyed on this continent for more than 150 years, and as a nation for more than a century. As former Chief Justice of the High Court, Sir Harry Gibbs, has reminded us, most of the world’s monarchies are free and democratic societies, and most of the world’s republics are not. So when we speak of a republic, we need to know what sort of republic. Just remember that both Mary Robinson and Saddam Hussein were republican Presidents.

When the republicans came to the 1998 Constitutional Convention they had ten different republican models on the table. By the end of t h e f i r s t w e e k t h e y had reduced the number to four, and by the end of the second week they h a d their preferred model – the one which the Australian people threw out neck and crop at the 1999 referendum.

After the referendum, t h e A u s t r a l i a n Republican Movement produced s i x republican models for consideration, and by l a s t year they h a d reduced t h e number to five. At t h i s r a t e they should have t h e i r one preferred model in sixteen years’ time. In the meantime they support the proposal put forward by M a r k L a t h a m when he was Opposition Leader, and now supported by h i s successor, Kim Beazley, and by The Australian, t h a t a p l e b i s c i t e b e h e l d t o a s k the Australian people whether they want a republic.

This plebiscite proposal is b l a t a n t l y dishonest. I t would simply ask u s w h e t h e r w e w a n t a r e p u b l i c, b u t i t w o u l d n o t t e l l u s w h a t k i n d o f republic we would get. It would violate the provisions of our Constitution, that require the A u s t r a l i a n people to be given the full d e t a i l s of any proposal to a l t e r t h e Constitution before we are asked to vote on it, and not afterwards.

I t h a s been m y e x p e r i e n c e t h a t t h e r e p u b l i c a n c a m p a i g n is led by people who are ignorant of, or deliberately misrepresent, the provisions of our present C o n s t i t u t i o n, a n d t h e e f f e c t o f t h e c o n s t i t u t i o n a l c h a n g e s t h a t t h e y seek. They have done this by putting forward two reasons for our becoming a republic, both of which are simply not true.

Their first argument is that Australia must become a republic in order to become independent. But Australia has long been a fully independent n a t i o n. I n 1985 the Hawke Government established a C o n s t i t u t i o n a l Commission a n d charged i t w i t h carrying out a f u n d a m e n t a l review of the A u s t r a l i a n C o n s t i t u t i o n. Three of the Commission’s members were d i s t i n g u i s h e d c o n s t i t u t i o n a l lawyers – S i r M a u r i c e Byers, former Common-wealth SolicitorGeneral and chairman of the Commission; Professor Enid Campbell, Professor of Law at Monash University; and Professor Leslie Zines, former Professor of L a w a t the A u s t r a l i a n N a t i o n a l University. The other two members were f o r m e r heads of government – the Hon S i r R u p e r t H a m e r, former Liberal Premier of Victoria, and the Hon E G Whitlam, former Labor Prime Minister of Australia.

The Commission was a s s i s t e d by an Advisory C o m m i t t e e on Executive Government under the c h a i r m a n s h i p of former Governor-General, S i r Zelman Cowen.

One of the Commission’s t e r m s of reference required i t to report on t h e revision of our C o n s t i t u t i o n to “adequately reflect A u s t r a l i a ’ s s t a t u s a s a n independent nation”. In i t s final report, presented in 1988, the Commission t r a c e d the h i s t o r i c a l development of our c o n s t i t u t i o n a l and legislative

independence, and concluded:

“It is clear from these events, and recognition by the world community, that a t some time between 1926 and the end of World War II A u s t r a l i a h a d achieved full independence as a s o v e r e i g n s t a t e o f the world. The B r i t i s h Government ceased to have any responsibility in relation to matters coming w i t h i n the a r e a of responsibility of the Federal Government a n d P a r l i a m e n t.... T h e development of A u s t r a l i a n n a t i o n h o o d did not require any change to the Australian Constitution”. 2 That report, it seems to me, effectively disposed of one of the propositions used by republicans when they t r y t o argue t h a t A u s t r a l i a needs to become a republic in order to become independent.

The second argument upon which the case for a republic is based is t h a t the Queen, as well as being our Monarch, is also our Head of State, and that an Australian republic would give us an Australian Head of State. This proposition is also untrue. Furthermore, it is based on the equally untrue proposition that the Governor-General is nothing more than the Queen’s representative, and has no independent constitutional role.

The fact is that the Australian Constitution gives the Governor-General two separate and distinct roles – one as the Queen’s representative and another a s the holder of an independent office. And this t o o w a s confirmed by the Hawke

Government’s Constitutional Commission in its 1988 report:

“The Queen does not intervene in the exercise by the Governor-General of powers vested in h i m by the C o n s t i t u t i o n and does not Herself exercise those powers.... Although the Governor-General is the Queen’s representative in Australia, the Governor-General is in no sense a delegate of the Queen. The independence of the office is highlighted by changes which have been made in recent years to the Royal instruments relating to it”. 3 I shall return to those recent changes later in this paper.

The Queen plays an i m p o r t a n t role under our system of government a s Queen of Australia, 4 as does the Governor-General as the Queen’s representative and as the embodiment of the Crown in Australia. These separate and distinct r o l e s a r e c a r r i e d out w i t h o u t d e t r i m e n t to our sovereignty a s a nation, a n d w i t h o u t d e t r i m e n t to our independence. To argue t h a t the Queen is not Australia’s Head of State does not in any way diminish the role that the Queen has in our Constitution and under our system of government as the Monarch. It is simply the case that she does not have, and therefore does not exercise, Head of State powers and functions.

The A u s t r a l i a n C o n s t i t u t i o n d o e s n o t c o n t a i n the words “Head of S t a t e ”, nor was the term discussed during the constitutional debates which resulted in the drafting of the Constitution and its subsequent approval by t h e A u s t r a l i a n people. In the absence of a specific provision in the C o n s t i t u t i o n, a n e x a m i n a t i o n o f j u s t who a c t u a l l y p e r f o r m s t h e d u t i e s of Head of S t a t e is a useful starting point in determining who occupies that Office.

These d u t i e s a r e p e r f o r m e d b y the Governor-General, and by the GovernorGeneral only. The Sovereign’s only c o n s t i t u t i o n a l d u t y i s to approve the P r i m e Minister’s recommendation of the person to be appointed Governor-General, or to approve the Prime Minister’s recommendation to terminate the appointment of a Governor-General. The Governor-General is the Queen’s r e p r e s e n t a t i v e, f o r t h a t is how he is described in s. 2 of the C o n s t i t u t i o n, and t h a t enables h i m t o exercise the Royal prerogatives of the Crown in A u s t r a l i a. However, when he c a r r i e s out his c o n s t i t u t i o n a l d u t i e s to exercise the executive power of t h e Commonwealth under Chapter II of the Constitution – the Chapter headed “The Executive Government” – and in p a r t i c u l a r u n d e r s. 61 of t h e C o n s t i t u t i o n, he does so in his own right, and not as a delegate or surrogate of the Queen.

C o n s t i t u t i o n a l s c h o l a r s, i n t h e i r t e x t books and in other w r i t i n g s, have referred to the Governor-General as Head of State, albeit on occasions prefixed by an adjective such as “constitutional” or “ de facto ”. 5 P r i m e M i n i s t e r Gough W h i t l a m considered Governors-General S i r P a u l Hasluck and S i r J o h n K e r r t o be A u s t r a l i a ’ s H e a d o f S t a t e, and ensured t h a t when Sir John travelled overseas in 1975 he did so a s Head of S t a t e, and w a s acknowledged as such by host countries. 6 The m e d i a have referred to the Governor-General a s Head of S t a t e f o r a l m o s t 3 0 y e a r s ; 7 s o m u c h s o t h a t The Australian’s E d i t o r - a t - L a r g e, P a u l K e l l y,

was able to write two years ago:

“Have Australians decided not by formal referendum but by informal debate that the governor-general is our head of state?... Take the media eruption of calling the governor-general head of s t a t e, pursued in the papers, t h e ABC and commercial media. Simon Crean [then Leader of t h e O p p o s i t i o n ] now refers to the office as the head of state”. 8 In recent years, scholarly c o m m e n t a t o r s such a s R i c h a r d McGarvie, formerly Governor of Victoria and a Judge of the Supreme Court of Victoria, 9 a n d Professor George Winterton, formerly Professor of Law at the University of New South Wales and now Professor of C o n s t i t u t i o n a l Law a t the University of Sydney,10 joined the media in referring to the Governor-General as Head of State.

And we have seen official Commonwealth Government p u b l i c a t i o n s, s u c h a s t h e Commonwealth Government Directory, now published a s A Guide t o t h e Australian Government, refer to the Governor-General as Head of State.

B u t all t h i s is only anecdotal evidence; of much more significance in determining this important question is the legal evidence for the view that the Governor-General is our Head of State.

During 1900 Queen V i c t o r i a s i g n e d a n u m b e r of c o n s t i t u t i o n a l d o c u m e n t s relating to the f u t u r e Commonwealth of A u s t r a l i a, including L e t t e r s P a t e n t c o n s t i t u t i n g t h e O f f i c e of Governor-General, and Instructions to the GovernorGeneral on the manner in which he was to perform certain of his constitutional d u t i e s. 11 T w o d i s t i n g u i s h e d A u s t r a l i a n c o n s t i t u t i o n a l s c h o l a r s, A I n g l i s C l a r k, 12 who h ad w o r k ed with Sir Samuel G riffit h on his dra ft s of t he C ons t it ut ion, a nd w h o later became Senior Judge of the Supreme Court of T a s m a n i a, a n d W H a r r i s o n ( l a t e r S i r H a r r i s o n ) Moore, 13 who h a d worked on the f i r s t d r a f t of t h e Constitution that went to the 1897 Adelaide Convention, and who was Professor of Law a t the University of Melbourne, expressed the view t h a t the L e t t e r s Patent and the Royal Instructions were superfluous, or even of doubtful legality.

They did so on the grounds that the Governor-General’s position and a u t h o r i t y s t e m m e d from the A u s t r a l i a n C o n s t i t u t i o n, and t h a t not even the Sovereign could purport to re-create the Office or direct the incumbent in the performance o f h i s c o n s t i t u t i o n a l d u t i e s. 14 Unfortunately, B r i t i s h M i n i s t e r s advising Queen V i c t o r i a failed t o a p p r e c i a t e t h e u n i q u e f e a t u r e s o f t h e A u s t r a l i a n C o n s t i t u t i o n, and A u s t r a l i a n M i n i s t e r s failed to a p p r e c i a t e t h e s i g n i f i c a n c e of the L e t t e r s P a t e n t and t h e Instructions which Queen V i c t o r i a h a d issued to the Governor-General. Thus, between 1902 and 1920, King Edward VII and King George V were to issue further Instructions on the advice of British Ministers, and in 1958 Queen E l i z a b e t h II amended the L e t t e r s P a t e n t and gave f u r t h e r Instructions to the GovernorGeneral on the advice of Australian Ministers.

In 1 9 1 6, d u r i n g a C a n a d i a n case before the Privy Council, Lord Haldane, Lord Chancellor of Great Britain and President of the Judicial Committee of the Privy Council, commented on the absence, from the B r i t i s h N o r t h A m e r i c a A c t, of any provision corresponding to s. 61 of the Commonwealth of A u s t r a l i a Constitution Act. 15 I n 1 9 2 2, d u r i n g t h e h e a r i n g o f a n A u s t r a l i a n c a s e – a n a p p l i c a t i o n by t h e State Governments for special leave to appeal to the Privy Council from the High Court’s decision in the Engineers’ Case 16 – Lord Haldane had occasion to make a

similar observation when he asked, with reference to s. 61:

“Does it not put the Sovereign in the position of h a v i n g p a r t e d, so f a r a s the a f f a i r s of the Commonwealth are concerned, w i t h every shadow of active intervention in their affairs and handing them over, unlike the case of Canada, to the Governor-General?”. 17 Clearly Lord Haldane shared the view of our constitutional arrangements in respect of the Governor-General’s powers which h a d been expressed earlier by Clark and Moore.

The views of Clark and Moore about the Governor-General’s status under the Constitution, and the observations by Lord Haldane about s. 61, highlight one of t h e s a d d e s t aspects of the republican debate over the p a s t decade or more.

While much of the debate h a s concentrated on specific provisions in t h e Constitution, a major tactic has been to try and denigrate the entire document in general. But our Founding Fathers crafted and drafted a better Constitution than they have been credited with.

Although they were producing a Constitution for a Dominion that was not yet fully independent, they were also drafting a Constitution that would enable Australia to become a fully independent sovereign nation of t h e w o r l d, w i t h o u t one word of the Constitution needing to be altered. In p a r t i c u l a r, t h e y gave to the Governor-General an additional independent constitutional position not given to any other Governor or Governor-General anywhere else in t h e B r i t i s h E m p i r e.

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