Speech by Sir David Smith at a Luncheon for ACM, Parliament House, Sydney 19 March 2001
Those two great constitutional scholars and commentators, John Quick and Robert Randolph Garran, in their 1901 scholarly and definitive work on the Australian Constitution, reminded us of the reasons why our Founding Fathers ensured that the Constitution could not be altered by Parliament or by Government, but only with the approval of the people, and then only by the double majority provided for in section 128 of the Constitution. As Quick and Garran put it, “These safeguards have been provided, not in order to prevent or indefinitely resist change in any direction, but in order to prevent change being made in haste or by stealth, to encourage public discussion and to delay change until there is strong evidence that it is desirable, irresistible, and inevitable.”
We were told often enough that the Keating/Turnbull republic was inevitable, but the 1999 referendum showed that the Australian people overwhelmingly found it neither desirable nor irresistible. We know that the republic will come again, provided, of course, that the republicans can reach agreement as to which of the three republican models still in contention – parliamentary election, popular election or McGarvie – they wish to run with.
But whichever model it is, we can rest assured that we shall be given the same old false reasons why we should alter our Constitution by removing from it the one element which has contributed so much to giving us the best system of government in the world, and has ensured the continuity and stability of government which this continent has enjoyed for over 150 years. We shall be told yet again that the monarchy must go in order for this country to be independent. We shall also be told that the monarchy must go in order that this country may have its own Head of State. Both of these claims are false, and even some ardent republicans have said so.
As to the first claim, Australia long ago severed all legal and constitutional ties with Britain. We are, and have been for a long time, an independent and sovereign nation, and the claim that we need to change our constitutional arrangements to become more independent is simply not true.
In 1985 the Hawke Government set up a Constitutional Commission charged with carrying out a fundamental review of Australia’s Constitution. Three of its members were constitutional lawyers – Sir Maurice Byers, a former Commonwealth Solicitor-General and Chairman of the Commission; Professor Enid Campbell, Sir Isaac Isaacs Professor of Law at Monash University; and Professor Leslie Zines, formerly Dean of the Faculty of Law and Sir Robert Garran Professor of Law at the Australian National University. The other two members of the Constitutional Commission were former heads of government – the Hon. Sir Rupert Hamer, former Liberal Premier of Victoria; and the Hon. E.G. Whitlam, former Labor Prime Minister of Australia. The Commission was assisted by an Advisory Committee on Executive Government under the chairmanship of former Governor-General, Sir Zelman Cowen.
One of the Commission’s terms of reference had asked it to report on the revision of our Constitution to “adequately reflect Australia’s status as an independent nation”. In its final report, presented in 1988, the Commission traced the historical development of our constitutional and legislative independence, and concluded: “It is clear from these events, and recognition by the world community, that at some time between 1926 and the end of World War II Australia had achieved full independence as a sovereign state of the world. The British Government ceased to have any responsibility in relation to matters coming within the area of responsibility of the Federal Government and Parliament”. And the Commission found that: “The development of Australian nationhood did not require any change to the Australian Constitution.”
The second republican claim, and probably the one that resonates most strongly in the community, is that we must become a republic in order to have an Australian Head of State. That claim is also false. Republicans confidently assert that our Constitution declares the Queen to be our Head of State. Let me assert with equal confidence that the Constitution does no such thing. The term “Head of State” is nowhere to be found in the document itself, nor was the term ever used by our Founding Fathers during the Constitutional Conventions of the 1890s when they were framing the document.
We refer to the Governor-General as The Queen’s representative, and the Constitution certainly contains that description. But when we look at the text of the Constitution and at the distribution of executive power, we find that the Queen is our Sovereign and the Governor-General is our Head of State, for it is the Governor-General who actually carries out the duties of Head of State in accordance with section 61 of the Constitution, and not the Queen. Each has an important role to play, but nothing that the Monarch does diminishes in any way the independence of the Governor-General in his role as our Head of State. On the contrary, the presence of the monarchy and the Crown in our constitutional arrangements gives to the Governor-General an independence he could never have, were he to be elected to the office, either by the Parliament or by the people.
The Monarch’s only constitutional duty is to appoint the Governor-General on the advice of the Prime Minister, so the case for removing her from the system of government can hardly be based on excessive interference. That the Monarch’s role is an important one is reinforced by the fact that, although the republicans are agreed that they wish to remove her from the Constitution, they are divided and confused over who or what to put in her place. The only significant difference between the various republican models on offer is how, and by whom, the Head of State will be chosen and appointed.
Under our present system of government as a constitutional monarchy, the Queen wears the Crown of Australia, and the Crown is the symbol of the nature of our constitutional arrangements, but it is the Governor-General who actually carries out the duties of Head of State, and he does so in his own right and not as a representative or surrogate.
An appointed Governor-General comes to that high office without having to seek it and without having to defeat others to attain it. The knowledge that it is an appointed office, and not an elected one, acts as a very real restraint on the way in which a Governor-General exercises the powers and functions of the office. An appointed Governor-General has no political constituency to represent, has no mandate to discharge, has no supporters to reward, and provides no alternative power base to that of the elected Prime Minister. On the other hand, an elected President, regardless of whether the process of election is by the people or by the Parliament, comes to office without those restraints, and there are examples all around the world of republics with an elected Head of State and an elected head of government where such an arrangement produces tension, instability, and conflict. Furthermore, appointment opens up the office to talent that would certainly not be available under any process of election.
Becoming a republic would mean much more than just the removal of the Sovereign, who, as I have already said, plays no part in our daily processes of government. We would also have replaced an appointed Australian as Governor-General with an elected Australian as President. The effect would be that the day by day role as Australia’s Head of State would continue to be carried out at Yarralumla by an Australian, just as it is now, but we would have lost the one protection against politicisation of the office. The President would exercise exactly the same powers and functions which the Governor-General exercises now, but our system of government would have lost the constraints which inhibit a Governor-General from abusing his very significant constitutional powers.
Although the term “Head of State” is foreign to our Constitution, it has been introduced into the monarchy/republic debate by republicans in an attempt to cloud the issues. They have used it to describe both the Queen and the Governor-General, switching from one to the other, depending on how it best suited their purposes at the time.
Prime Minister Paul Keating, in the very speech in which he announced in Parliament, on 7 June 1995, his Government’s proposals for the republic, referred to the Governor-General as our Head of State. And the official Commonwealth Government Directory issued by his Government actually stated that “the Governor-General is the Head of State”. That was because even he realised that, if he wanted a President carrying out the Governor-General’s duties to be acknowledged as a Head of State, then he would have to admit that the person who carried out the Governor-General’s duties now was also a Head of State.
Constitutional scholars have described the Governor-General as Head of State. Even the media, so intent on pushing for the republic, use the description. Over the past twenty-five years, Governors-General Sir Zelman Cowen, Sir Ninian Stephen, Mr. Bill Hayden and Sir William Deane have been described in newspaper editorials and articles as our Head of State.
During the referendum campaign, Sir Zelman Cowen said he had great difficulty in understanding the monarchist argument that the Governor-General is our Head of State. But Sir Zelman apparently had no such difficulty in 1995 when he gave the Williamson Community Leadership Lecture on the role of the Governor-General under the title “Leadership in Australia: The Role of the Head of State”. As to the legal evidence which I have cited publicly and repeatedly since 1992 to show that the Governor-General is indeed our Head of State, of this Sir Zelman said nothing. And this despite the fact that I included this material in a chapter about Sir Zelman’s Governor-Generalship which I contributed, at the invitation of Griffith University, to a Festschrift on his life and work.
My legal evidence begins in 1900 when Queen Victoria signed a number of constitutional documents relating to the future Commonwealth of Australia, including Letters Patent constituting the Office of Governor-General, and Instructions to the Governor-General on the manner in which he was to perform certain of his constitutional duties.
Our Founding Fathers had drafted our Constitution exceedingly well. The provisions which they had included in section 61 of the Constitution relating to the powers and functions of the Governor-General conferred upon our Governor-General a statutory position which the Imperial Parliament had not conferred upon any other Governor or Governor-General in any other part of the British Empire.
Two distinguished Australian constitutional scholars, Andrew Inglis Clark, who had worked with Sir Samuel Griffith on his final drafts of the Constitution, and who later became Senior Judge of the Supreme Court of Tasmania, and W. Harrison (later Sir Harrison) Moore, who had worked on the first draft of the Constitution that went to the 1897 Adelaide Convention, and who later became Professor of Law at the University of Melbourne, expressed the view in 1901 that Queen Victoria’s Instructions were superfluous, or even of doubtful legality, on the grounds that the Governor-General’s authority stemmed from the Australian Constitution and that not even the Sovereign could direct him in the performance of his constitutional duties.
Unfortunately, British Ministers advising Queen Victoria failed to appreciate the unique features of the Australian Constitution, and Australian Ministers failed to appreciate the significance of the Instructions which Queen Victoria had issued to the Governor-General. As a result, no notice was taken of the views of Clark and Moore, either in Britain or in Australia, and between 1902 and 1920, King Edward VII and King George V were to issue further Instructions to the Governor-General on the advice of British Ministers, and in 1958 Queen Elizabeth II issued further Instructions on the advice of her Australian Ministers.
In 1916, during a Privy Council hearing of a Canadian constitutional case, and again in 1922, during a Privy Council hearing of an Australian constitutional case, the Lord Chancellor, Lord Haldane, acknowledged that our section 61 “put the Sovereign in the position of having parted, so far as the affairs of the Commonwealth (of Australia) are concerned, with every shadow of active intervention in their affairs and handing them over, unlike the case of Canada, to the Governor-General.”
At the 1926 Imperial Conference, the Empire’s Prime Ministers declared that the Governor-General of a Dominion was no longer to be the representative of His Majesty’s Government in Britain, and that it was no longer in accordance with a Governor-General’s constitutional position for him to continue as the formal channel of communication between the two Governments. The Conference further resolved that, henceforth, a Governor-General would stand in the same constitutional relationship with his Dominion Government, and hold the same position in relation to the administration of public affairs in the Dominion, as did the King with the British Government and in relation to public affairs in Great Britain. It was also decided that a Governor-General should be kept as fully informed of Cabinet business and public affairs in the Dominion as was the King in Great Britain.
The 1930 Imperial Conference decided that recommendations to the King for the appointment of a Governor-General would no longer be made by British Ministers but would instead be made by the Prime Minister of the Dominion concerned. This decision, together with those taken at the 1926 Conference, further strengthened the constitutional role of Governors-General and their relationships with their respective Dominion Governments.
In 1953, in the course of preparing for the 1954 Royal visit to Australia, Prime Minister Menzies had wanted to involve the Queen in some of the formal constitutional processes of government, in addition to the inevitable public appearances and social occasions. But the Commonwealth Solicitor-General, Sir Kenneth Bailey, gave Menzies a legal opinion to the effect that the Constitution placed all constitutional powers in the hands of the Governor-General; that he exercised these constitutional powers in his own right and not as the Queen’s representative; and that they could be exercised by no one else – not even the Sovereign, and not even when she was in Australia.
In 1975 the Commonwealth Solicitor-General, Mr. (later Sir) Maurice Byers, gave Prime Minister Whitlam a legal opinion to the effect that the Governor-General’s constitutional powers could not properly be the subject of Royal Instructions, thus echoing the views expressed at the time of Federation by Clark and Moore, and confirming that all Head of State powers and functions had been given to the Governor-General by the Constitution on 1 January 1901.
The dismissal of the Whitlam Government later that year was to provide evidence of the correctness of all the legal opinions which had been given over the previous seventy-five years. Writing after the event, former Governor-General (and former Chief Justice of New South Wales) Sir John Kerr said: “I did not tell the Queen in advance that I intended to exercise these powers on 11 November. I did not ask her approval. The decisions I took were without the Queen’s advance knowledge. The reason for this was that I believed, if dismissal action were to be taken, that it could be taken only by me and that it must be done on my sole responsibility. My view was that to inform Her Majesty in advance of what I intended to do, and when, would be to risk involving her in an Australian political and constitutional crisis in relation to which she had no legal powers; and I must not take such a risk.”
After the Governor-General had withdrawn the Prime Minister’s Commission, Mr. Whitlam telephoned Buckingham Palace and spoke with the Queen’s Private Secretary, and the Speaker of the House of Representatives wrote to the Queen to ask her to restore Whitlam to office as Prime Minister. In the reply from Buckingham Palace, Mr. Speaker was told: “As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of the Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.”
On 21 August 1984, the Solicitor-General’s legal opinion of 1975 was finally acted upon. On the advice of Prime Minister Hawke, the Queen revoked all Royal Instructions to the Governor-General. The advice given to the Queen by the Prime Minister was to the effect that the Instructions should never have been issued.
And in 1988, the Hawke Government’s Constitutional Commission, to which I have already referred, found that: “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.” The Commission also found that: “The Queen does not intervene in the exercise by the Governor-General of powers vested in him by the Constitution and does not Herself exercise those powers.”
The final proof of my proposition, should any further proof be necessary, lies in the republican model that was chosen by republican delegates to the 1998 Constitutional Convention and which became the subject of the 1999 Referendum. As Prime Minister Keating had intended in 1995, the 1998 model provided that the President would inherit all of the Governor-General’s powers, without alteration. If a President carrying out the Governor-General’s duties would be a Head of State, then a Governor-General carrying out the identical duties would also be a Head of State.
Any one of this continuous string of legal opinions, judicial pronouncements, Commission of Inquiry findings, and Prime Ministerial and other decisions, stretching over almost a century, would probably be enough, on its own, to establish the case: taken all together, they provide incontrovertible evidence of the fact that we have an Australian Head of State and that it is the Governor-General.
Republicans have every right to press for constitutional change, if they believe that they are able to come up with a better system of government than the one we have now. But they have no right to misrepresent the changes they wish to make, and they certainly have no right to misrepresent our present Constitution.
I return to my starting point. The republic will not give us our independence for we have that already, and have done in substantial measure since the Imperial Conference of 1926, and in full measure since 1945. The republic will not give us an Australian Head of State for we have one already, and have done since Lord Casey became Governor-General in 1965. The real question now is, how does one have a sensible debate about the republic when your opponents’ principal arguments are based on misrepresentation, deception and falsehood?