Australian Identity
- The Law and the Individual

There is much talk today of Australia's uncertain identity or sometimes of its lack of identity, and this puzzles me because I myself believe that there has never been a time in our history when our identity has been more clearly identified for all to see, than it is now. Some say we have such a multiplicity of ethnic groups in our midst that our identity is in truth that of a multicultural society. It would have been called a polyglot nation, so that argument goes, fifty years ago. Professor Geoffrey Blarney, in one of his discussions of the matter, referred to that kind of identity as appropriate to a nation of many tribes. Others say we really belong to Asia without having any Asian culture or appearance, and still others say we are identified with the British because of our connection with the British Crown. These claims in respect of our lack of a clear identity are used to bolster the cause of those who would discard our flag and replace it with another and who would discard our constitution and replace that with a republican constitution. One of the absurd claims made by republicans was that a change to a republic would benefit us because Asians would think more of us and that would help trade.

These contentions about our identity receive prominence in the media from time to time, and we must meet them, although I personally believe that if these is an identity problem in Australia it is with the people who make these claims. They seem to be misfits in their own country, unable to understand the word "Australian," and they are not to be confused in any way with people who genuinely think that in some way (which they cannot perhaps express clearly) Australia would be better off if it followed what they regard as the "fashion" of today, namely to go republic.

A nation's identity is, of course, made up of a conglomerate of features of which identity as a legally created creature is only one. But in the present context of the attempt to convert Australia to a republic, it is important that the full implications of our legal and political structure are properly understood, so that false claims as to identity - or how a republic will or will not alter this identity - are met and revealed in their falsity. Our identity from the legal standpoint, as will be seen in a moment, is significantly advanced beyond a mere legal identity by the fact that "Australianness" as a feature of our nation is infinitely more pronounced today that it was one hundred years ago. I will, in due course, refer to the significance of the Australianness in the contact of our undoubted multicultural society. But first to the identity of our Commonwealth, as created by the Constitution Act, and as seen in the light of steps to independence taken since then.

If you look at Australia in 1900, when the Australian Constitution Act was passed, there can be no doubt that our identity was plainly British. We were all British subjects, although our Australianness, it must be said, was even then plainly perceptible. Our Governors-General were appointed by the Queen - as is the case today - but in the first quarter-century after Federation the appointments were only on the advice of the British Government, not the Australian Government. The Governors-General were representatives of the Queen. This state of affairs continued up to the Imperial Conference in 1926, at which the United Kingdom, Canada, Australia, New Zealand, South Africa and the Irish Free State were represented. As a result of that conference, the Dominions mentioned acquired the status of independent nations, the United Kingdom government disclaiming any right to pass laws binding the Dominions except at their request and with their consent. The change was formally implemented by the Statute of Westminster (1931) which was adopted by Australia in 1942. The Sovereign's capacity to disallow legislation which section 59 of our Constitution has authorised became obsolete. The first Australian to be appointed Governor-General was Sir Isaac Isaacs (1930). Later (due to the influence of Sir Robert Menzies, and his view of the Governor-General as being the personal representative of the Queen), three Britons were appointed to be Governor-General: Viscounts Slim, Dunrossil and de L'Isle. Thereafter all occupants of the post have been Australians.

In 1973 the Royal Style and Titles Act of 1953 was amended, to ensure that the monarch should be referred to as the Queen of Australia; in 1986 the Australia Acts, one passed by the United Kingdom and one by Australia - each Act being passed at the request of Australia's State Governments - finally removed from the United Kingdom the power to make any law that would operate in any of the States. (The States had not been beneficiaries under the Statute of Westminster.) Thus the States achieved complete autonomy subject to the Australian Constitution. Although the word "Governor-General" in this Constitution might imply that the Governors were or are subservient to him, that in fact has never been the

case. State Governors act on the advice of the Premier and his Ministers, without any obligation to consult the Governor-General first (although there necessarily was, and is, communication between the two types of vice-regal office). Appeals to the Privy Council from the State Governments or from the Commonwealth were, by the Australia Act, abolished. The preamble to the Acts described with accuracy the identity of the Commonwealth of Australia when it referred to it as "a sovereign independent and federal nation."

That brief sketch of the march of Australia to complete, independent nationhood - and of the vital feature of federalism built into the body of the nation - gives the lie immediately to any suggestion that Australia is not really independent, and that it is some way still tied to Britain's apron strings. For there is nothing in law that Australia or the British Government could do to make Australia more sovereign or independent. If a republic is ever established in Australia it will be, in the eye of the law, not one whit more completely independent or sovereign than Australia is now. Indeed, if independence is the criterion for a republic, we are a republic in all but name. The nations of the world, from the highest to the lowest, recognise Australia as an independent nation and deal freely with us on that basis. Furthermore, there is no doubt that Australia is seen internationally not only as a sovereign nation but also as a nation peopled by "Australians," who were recognised as having an identity of their own, an identity that is different from the Anglo-Celtic identity which came over with the first settlement. Our success at the recent Olympic forum was the success of the Australians who went there to get the Games for the nation. They succeeded in so doing against all comers, including China and the United Kingdom. But independence does not by any means make up the whole of our identity from the legal viewpoint, because the nature of the institutions which constitute the structure of our democracy reveal, when understood, other features of out identity. Our Constitution makes clear that we have a representative government through a democratically elected Parliament: comprising two houses, the House of Representatives and the Senate, the latter's members elected by the voters of each State. The Constitution also shows that we have a judiciary which is given the responsibility of interpreting Australia's laws. In 1900, when drawing up their Constitution, Australians did not seek to follow the English system of a House of Lords (comprising Lords Temporal and Lords Spiritual) with limited powers, and a House of Commons. Nevertheless, the House of Representatives and the Senate act upon many of the precepts of the Westminster system, whilst at the same time supplementing them by local Australian beliefs and practices.

You may ask, "Even though we are independent, are we not still heavily reliant upon Britain for the content of our laws and the workings of our Parliament?" The answer is that we are not now reliant in any way except to the extent that we wish to be; and although we owe an enormous debt to English law and English parliamentary practice, we have brought into the law of this country an Australianness", in the same way that Australianness has given rise to the "Aussie" himself and herself. I have mentioned that we no longer have appeals to the Privy Council and that our High Court is the final arbiter of law in this land. Though we pay the greatest respect to decisions to the Privy Council, of the House of Lords and of the English courts generally, we no longer look exclusively to England to aid us in moulding our common law, and we are prepared to take into account the views of nations within the Commonwealth (as well as other nations outside it, such as the USA). We have begun consciously to develop the common law of Australia. Already we have built up a great body of law of contract, law of landlord and tenant, environmental law, even criminal law, all of which can legitimately be claimed to be of our own making. It may be seriously doubted that the recent controversial decision in the Mabo case would have been given by the Privy Council if the case had been heard in that court. Although the common law right of free speech as developed by the English courts was brought to Australia with the First Fleet and further developed by later English decisions, our High Court has interpreted our Constitution as allowing a freedom of communication in respect of electoral matters. By this means, it has taken the matter of free speech into a much wider field than was the case before. That we are no longer reliant upon the United Kingdom to help us develop or modify the magnificent heritage of all which came with the first settlers is of course a source of satisfaction to us all. But it goes much further than self-satisfaction. Lawyers and judges throughout the world know that we are self-reliant and

that our independence in developing our law and legal system is as much a part of our identity as is our identity as is our independent status in law itself.

An examination of our Constitution and constitutional structure in relation to our history reveals yet another attribute to our identity. That feature is our identification with peaceful elections and stable government. For almost one hundred years we have gone steadily along a political path where never has been heard the sound of machine-gun fire or the exploding of a grenade. Nor has there been a coup of any sort. A Leader of the Opposition, Arthur Calwell, was shot at by a deranged man, but we have never has a political assassination. Although I have the greatest respect for the USA as a republic, I find it sad that in that great democracy the war which gave independence was to be followed within a century by a civil war with enormous loss of life - 600,000 men - and thereafter by the not infrequent assassinations of the President or of other political figures. The feature of peaceful stable government in Australia is of course but a mirror of what Great Britain has enjoyed since the revolution of 1688, and the reason for that incredible record (unequalled anywhere else in the work) derives directly from the British Constitution and the balance struck between Crown and Parliament; a balance also built into our own Constitution, although not there in express words.

Overall, the Australian Constitution, quite plainly, has worked wonderfully well. Of course, even the republicans have never said otherwise. Indeed, they even set out to maintain that stability by mistaken thinking they could have it all, through just omitting "Queen" and substituting "President" for "Governor-General" wherever the term appears in the Constitution. They know now that you cannot have it all, without writing it laboriously into a new Constitution. And even if they did that, they could not guarantee that they would be able to preserve the balance and stability which is achieved by having the Crown as part of our existing Constitution.

The secret of this stability derives directly from the position of the Monarch in the British Constitution. There the Monarch is a neutral figure - above politics - in the exercise of responsible government by the Parliament, and this feature of neutrality has been transposed into the office of Governor-General as the Queen's representative under our Constitution.

In the imperial exercise of these prerogatives, as also in her position as permanent head of the executive, in whom the various threads of the administration are centred, and as the representative of the national power and dignity, independent of and above the changes and intrigues of party government, the true significance and importance of the sovereign as a constitutional monarch are to be found.

As Sir Harry Gibbs pointed out in a paper recently, only two republics, Switzerland and the USA, have been free and stable over the last hundred years. Sir Harry also said what everyone knows today, that most constitutional monarchies are free and democratic, and that most republics are not.

Let us look briefly at the position of the Governor-General, because if ever we have a republic it will be necessary to have someone to take his place - perhaps a President - and the question immediately arises as to how the stability and neutrality built into our constitutional monarchy can be effectively reproduced in a republican constitution. If it cannot, then the guarantee, the almost gilt-edged guarantee, of stable government which we have under out present Constitution will be lacking. The Governor-General is given extensive powers under the Constitution, and he generally exercises these on the advice of his Ministers, according to the conventions developed in England and adapted and applied here. But he has, also, reserve powers, which he may exercise according to his own discretion. Three of these are in fact expressly provided for in our Constitution (sections 5, 57 and 64). In addition, he may dismiss a government or dissolve the House of Representatives. The Governor-General - like the Queen - is, in relation to these reserve powers, seen as the guardian of the electorate against unconstitutional government from Parliament. In Australia, the Governor-General may dismiss a Prime Minister and his Ministers if they are acting outside the Constitution. The Australian Prime Minister can also advise the Queen to dismiss the Governor-General, for example if he steps outside his vice-regal role of complete neutrality. Neutrality on the part of the Queen and of the Governor-General under our Constitution is an essential feature of our constitutional structure. It is recognised as of vital significance in the achievement of stable government. Can that neutrality, with its associated stability of government, be achieved in a republic? The very best answer which the republicans could ever hope to give to that is "maybe and maybe not". I find it

very difficult to believe Australians will accept that as an adequate substitute for what we have at present. On the only occasion when we have had what might be described as a serious constitutional crisis, the Governor-General (acting quite impartially, and at his own discretion) produced a solution which within three weeks resulted in the crisis being solved, the previously existing government being voted out and a new one being voted in. The nation went on with its business. Not a shot was fired nor a blow struck. The supremacy of the electorate over any government or political party, and even over Parliament, was firmly established for all time; and the Governor-General was seen, rightly, as the protector and guardian of the electorate.

In considering Australia's identity from the legal standpoint we have thus established that Australia is an independent nation. But even this is not a full statement of the identity of Australia. For there is another matter, deriving directly from out immigration laws and policies, which plays a significant part in our identity. That is the policy of multiculturalism: meaning the approval given by successive governments and the people to the settlement, in our midst, of divers ethnic groups with different cultures. That policy discloses to the world that we are a tolerant nation. Perhaps when we look around Australia today and see the many peoples from other nations dwelling here, we might reflect that about two hundred years ago Robert Burns forecast that one day in the future "man to man the whole world o'er will brothers be for a' that." This forecast, we hope, will be realised here in Australia. But although multiculturalism certainly demonstrates the element of tolerance in our identity, there are - as I said earlier - some people who seem to be suggesting that Australia's identity, whatever it might have been, has been wholly given over to an identity which is nothing more than that of a multicultural nation. This assertion necessitate further comment.

It is one thing to bring to this country people of differing nationalities and cultures, but it is something quite different to have them all live happily together. A policy of multiculturalism which stresses or encourages separateness between ethnic groups themselves, or between ethnic groups on the one hand and mainstream Australia on the other, is fraught with the danger of discord and strife. Separateness encourages old hatred and differences to remain and be enlarged. It permits new one to develop. We witnessed that only recently in the Macedonian incident which all know about. But a policy which recognises that the key to peaceful multiculturalism lies in the newcomers to this country accepting as their own the fundamental tenets and beliefs binding Australia together - this is a policy that will lead to a united, cohesive, strong and peaceful nation.

What do I mean by the word "Australia" here? This continent's indigenous people had their own sense of identity before 1788, but that identity was not "Australian". People who came here in 1788 or in the last century or even in this century came with a view that they were English, Welsh, Scots, Irish, Italian, Greek, Lebanese, Chinese or whatever, but turned into quite different nationality called Australian, after staying here. The Australian - as someone different from his Anglo-Celtic and other ancestors - was emerging towards the end of last century and was evident in the First World War, was still more evident in the Second World War, and of course is now clearly defined that everybody in the world knows what and who an Aussie is. He speaks English differently from his ancestors; he looks different from them physically, and in the way he walks and acts; his attitudes and beliefs are different. The newcomers from other lands have no doubt that they have come to a land of Australians. They know who Australians are, in just the same way that no-one else in the world has any doubt as to who we are, both as people and as a nation.

What then, are the fundamental tenets and beliefs of Australians that the newcomers should embrace, and of which they should be made fully aware, so that we can all together develop into an empire nation of Australians (while being enriched by the multitude of cultural features of the many groups represented in the life of our nation)? I suppose each one of us could make a list of the things which we consider bind Australians together. I offer the following list: honour; integrity and a fair go for all; the rule of law under our system of law - a system of law not subservient to the dictates of foreign people; parliamentary democracy as exemplified in our Constitution and our Parliament; freedom of religion for all in a country where Christianity is and has been the dominant faith of those who believe in a Higher Being; the equality of all men and women, whatever their race, creed or colour; recognition of the rights of Aborigines as the

occupiers of Australia long before 1788 and respect for Aboriginal culture; loyalty to Australia and respect for the Anzac tradition, as well as for our great writers and artists; the right of every employee to have a proper wage and the right of employers to take fair profits for their enterprise; abhorrence of violence; the importance of the family as a unit safeguarding the rights of children; a love of sport and a recognition of its vibrant part in the fabric of our society; understanding of our history and pride in the heritage left us by the pioneers of this vast country. It is the composite whole of these which, I believe, binds us now and has this century bound us together. If those beliefs are taught to and accepted by our newcomers and their children, then we will in truth, become a nation of Aussies while still preserving the diversity and richness of multiculturalism. We will be peaceful united nation.

Our total identity from a legal standpoint can be summed up as one of complete independence, with representative government, subject to the rule of law, the law being the law made by Australians for Australians and with the Queen as a symbol of our stability. I ask you: why would you want to change that identity?