I am honoured to have been invited to deliver the Field Marshal Sir Thomas Blarney Memorial Oration for 1993, and the committee of the United Service Institute has suggested that I might care to speak on the topic The Crown and the Australian Constitution. Such then is the title of this address.
I make no pretensions to being a constitutional lawyer and I shall not attempt to erudite legal analysis of the Australian basic governmental document about which many books and articles have been written and may court judgments delivered over the last 90 odd years.
Early last century a movement began in the infant colony of New South Wales for the institution of representative government and later it became a movement for responsible government. Next, there was the division of New South Wales into five separate colonies and the creation of the Colony of Western Australia which was an independently founded colony. The movement for Federation of the separate colonies was one which involved many discussions and two major national Australasian conferences called 'Conventions', the first in 1891 and the second in 1897-98. These conferences and conventions finally led to the passing by the British Parliament of The Commonwealth of Australia Constitution Act 1900.
The National Convention of 1891 had agreed that there should be 'a federal union under the Crown', and the preamble to the UK Act of 1900 recited that the people of the several colonies have agreed to unite in 'one indissoluble Federal commonwealth under the Crown of the United Kingdom of Great Britain and Ireland and under the constitution hereby established'.
In Quick and Garran's text book on the Constitution, which was published in 1901, the authors then said that the phrase 'under the Crown' is 'a concrete and unequivocal acknowledgment of a principle which pervades the whole scheme of government; harmony with the British constitution and loyalty to the Queen as the visible central authority uniting the British Empire with its multitudinous peoples and its complex divisions of political power'. The authors continue to say that the words have been inserted in the preamble not as a protest against any growing sentiment adverse to the British connection, but partly to harmonise it with the Canadian precedent and partly because there was no reason for departure from the precedent of the Commonwealth Bill of 1891 which had been drafted as the first National Convention of that year.
It is the ninth section of the British Act which contains the Constitution for the Commonwealth of Australia - a document which was written, re-written and eventually agreed to during that series of meetings held during the 1890's. That constitution contains 128 sections. The colonies were continued as states with their own constitutions and their own governmental arrangements, but a new central or federal governing authority was created.
The Crown, or the Queen, is not very often referred to in the written constitution itself but it can truly be said that the notion of the Crown pervades the Constitution. Section 1 states that the legislative power of the Commonwealth is vested in a Federal Parliament consisting of the Queen, a Senate and a House of Representatives; the Queen is empowered to appoint the Governor-General as her representative (S.2) and the executive power of the Commonwealth is vested in the Queen but the constitution states that it is exercisable by the Governor-General as the Queen's representative (S.61). The power to call meetings of both houses, to fix sessional times, to prorogue and to dissolve the House of Representatives at any time within its three year term, to dissolve both houses under the deadlock provisions and the power to appoint and dismiss at pleasure persons as Ministers of State are vested in the Governor-General without any reference to the Queen. Section 51 and other sections vest the legislative power in parliament. The Governor-General is also specifically given power to refuse assent to proposed legislation or to refer it to the Queen and to recommend amendments to the houses; he is given the power, in the event of a dispute between the houses, to submit a constitutional referendum to the electors on the voice of one house only (provided that the proposal has twice been rebuffed by the other house). There are a few other sections in which the Crown or the Queen is mentioned, such as one which disqualifies a senator or a member of parliament holding any office of profit under the Crown, but I do not think that, for the purposes of this paper, it is worthwhile to refer particularly to them. Suffice it to say that the monarchical principle is recognised in those sections of the constitution to which I have referred. Indeed the predominance of the Crown in
every respect of government powers is the central characteristic of the constitution and the new entity, the 'Commonwealth of Australia' came into being by means of a Royal proclamation. It is important that we look now at, and that we understand, the historical development of the Australian nation and the type of democratic responsible government which we have, and to understand also how this form of government has evolved over time and has in the past depended, and still does depend, for its efficacy upon certain constitutional conventions.
Until Federation this country consisted of six colonies, largely self-governing, but still crown colonies with certain powers retained by the UK government. The early governors of these six colonies exercised very wide legislative and executive powers largely because, in the 19th century, the UK government saw its governors as agents of that government. Until towards the end of the 19th century they were normally British colonial servants, and later continued to be persons chosen by the UK government. The powers of the colonial governors decreased rapidly with the growth of self government; the colonies became the six States and the state, and formerly colonial, governments have been autonomous and self sufficient for over 100 years (subject to the Australian Constitution since 1901). The fact that the state governors represented British interests ceased on Federation because that duty fell upon the Governor-General.
With the coming of Federation in 1901, Australia began its march towards total and complete independence and sovereignty which is the case today. Australia has moved from colonial status to dominion status and thence to completely independent nationhood without revolution and without the civil unrest which has accompanied such changes in other countries such as the U.S.A., India, many African and South American nations and even some nations in the Pacific region. There was no War of Independence in Australia. It has been said that, if the six Australian colonies had not agreed to federation, they might have been separate countries sharing a continent, as is the case now in Europe. Several imperial conferences were held from 1917 onwards, and that in 1926 was important because it issued a report which became known as 'The Balfour Report". This 'Balfour Declaration' issued by that conference of UK and Dominion Ministers, said:
'... Great Britain and the Dominions ... are 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 .. the Governor-General of a dominion is the representative of the Crown, holding in all essential respects the same position in relation to the administration of public affairs in the dominion as is held by His Majesty the King in Great Britain, and that he is not the representative or agent of His Majesty's government in Great Britain or any department of that government'.
That role of Governor-General was not more precisely defined but it followed that the holder of that office no longer served as the representative and custodian of United Kingdom interests; these became the concern of a High Commissioner. An interest historical development in the office of Governor-General is that in the early years he not only discharged the role prescribed by the law of the Australian constitution but also saw himself as serving as the principal representative of the British government in Australia and as a protector and an interpreter of British and Imperial interest. But this has changed over the years commencing, as I have shown, with the Balfour Declaration in 1926.
The 1929 conference drafted a statute which was adopted by the 1930 Imperial conference and which was sent out for comment to the several dominions. It was adopted in 1942 by the Australian Federal Parliament and the Statute of Westminster 1931, 4 was greeted as the charter of Dominion National Independence although the dominions still retained a few British links.
Legislation was enacted in 1953 (and amended in 1973) entitled The Royal Style and Titles Act 5, and it gave assent to the adoption by the Queen of her new Commonwealth conference title as 'Queen of Australia', she becoming also the Queen of certain other participating nations who retained the monarchy. In 1975 the Privy Council (Appeals from the High Court) Act (CTH) 6 was passed and it removed the last category of High Court decisions in which an appeal might have been taken to the Privy Council without a certificate from the High Court - certification of appeals on 'inter se' questions can now be regarded as eliminated as a practical possibility, the only such certificate having been granted in 1912 7. But appeals direct to the Privy Council continued to lie from decisions of State Supreme Courts, until the passage of the Australia Acts in 1986 to which I shall shortly turn. Since Federation the States of Australia have continued to
have, as the very basis of that Federation agreement intended that they should have, their own direct and independent relations with the British government. The States were not represented at Imperial conferences and the Statute of Westminster did not apply to them, but for a long time the British government has not exercised legislative powers, nor the reservation and disallowance powers of the Crown, in relation to the States. For 70 years or more the monarch would not have contemplated negating the will of a duly elected parliament of a state, and for a very long time the UK government has discharged no independent responsibility for the government of a state. I understand that no colonial act has been disallowed by the UK government since 1880.
The early Governors-General were appointed by the monarch on the advice of UK Ministers and, as I have said was the case with the governors of the colonies, the Governor-General reported to the British government and held the view that he was representing British interest. But soon it was considered that Australia should have a say in his appointment, and the first Australian Governor-General appointed was Sir Isaac Isaacs in 1930. At the 1930 Imperial conference it was declared that the appointment of a Governor-General was a matter to be settled between the monarch and the dominion government. It has been accepted since then, for over 60 years, that the appointment of a Governor-General should be on the advice of the Prime Minister without any intervention by British Ministers. It can also now be accepted as well-settled that an Australian should be appointed as Governor-General and as a state Governor. Sir John Northcott (Governor of New South Wales in 1946) was the first Australian State Governor in the same year the first Australian Governor of Queensland was appointed, namely, Sir John Lavarack.
All modern nations have what is called a Head of State. The reasons for such are obvious, namely, not only the taking of oaths but generally when the nation has to act as a nation, someone has to perform the necessary overt actions. For example, making proclamations, calling parliament together, making a declaration of war and so on. A Head of State is an essential and integral part of modern national government. I have earlier said sufficient to show that, in Australia, all Head of State functions are performed not by the Head of State, but by surrogate, the Governor-General. The Queen as Head of State is both a fiction and a symbol. The de facto Head of State is the Governor-General, as was clearly shown by the 1975 dismissal of Prime Minister Whitlam, and the Queen symbolises the unity and cohesion of the several federated parts of our nation. The Governor-General is appointed by her on the advice of the Prime Minister. The major legislative steps towards independence taken since the enactment of the constitution were adoption of the Statute of Westminster by the Australian Government in 1942 and the passage of the Australia Acts by the United Kingdom and by all Australian parliaments in 1985 and 1986. In short, the Crown exercises virtually no power, other than in a formal sense. The elected government exercises nearly the whole of the legal power but does so with or 'in the name of' the Crown.
The Commonwealth and State governments agreed that in the early 80's there should be legislation to end certain relics of the States' colonial past. So, after discussion with the UK government, the several Australia Acts were passed. In effect these were two substantially identical versions of the Australia Act, one passed by the Commonwealth Parliament and one by the UK Parliament, and they came into force on 3 March 1986. Those Acts expressly set out that the advice to the Queen in relation to the exercise of the Queen's powers and functions in respect of a state shall be tendered by the State Premier 8. The Act also clearly terminated the power of Parliament in the United Kingdom to legislate for Australia 9, and it also abolished appeals to the privy council from Australian courts other than the High Court from which, as I have already said, appeals are effectively impossible. So, our judicial link with the United Kingdom has been finally severed and the decisions of the privy council are of no more than persuasive authority so far as our courts are concerned. As an eminent constitutional lawyer and former Governor-General has said, there is now a shared monarchy within the wider Commonwealth and "The Queen's position resembles that of the King of Scotland and England between 1603 and 1707 when two entirely independent nations with independent legal systems shared a King'. 10. In any event, the Commonwealth and States have in fact long been regarded as separate "Crowns", or at any rate, as the Crown acting in separate rights.
While speaking of the role of the Governor-General, let me refer to a classical work on the British system of government entitled "The English Constitution" wherein the eminent author, Bagehot, explained that the monarch's effective power
is to be found in her celebrated rights to be consulted, to encourage and to warn 11. The Governor-General, as the monarch's representative in Australia possesses these rights in respect of ministerial advice given to him, but, of course, if the Prime Minister in giving such advice persists in it, the Governor-General must, in accordance with convention, follow that advice. But the Governor-General retains a personal discretion (referred to generally as the "reserve powers") in which he may act contrary to ministerial advice. In other words, in certain extraordinary circumstances he may act on his own initiative. These are his powers to dissolve the House of Representatives and to appoint and dismiss the ministers when circumstances require a change of government. The need for the exercise of these powers, when a Governor-General has to act on his own judgement, may arise after an election, for example, when there is a hung parliament or even during the life of a parliament when it is not clear which person or political party can command the confidence of the parliament. Dr Anthony Lowe, Smits Professor of the history of the British Commonwealth at Cambridge, pointed out that in 1987 there were 85 replicas of the Westminster model in the British Commonwealth (taking into account the Australian, Indian and Malaysian States and the Canadian provinces). Each of these States had a non-executive constitutional head, each distinguished clearly between the headship of state and the headship of government and, to a greater or less extent, each derived its constitutional precedents from the British model. Professor Lowe gave evidence before the advisory committee on executive government of the constitutional commission and he listed 53 occasions since the second world war when political crises in the Commonwealth had involved a constitutional head in decision making. The list did not include occasions when a coup d'etat had led to the supersession of constitutional headship by an executive presidency nor occasions when governments had changed without the calling upon the discretion of the Head of State.
I should now say something about constitutional conventions. By convention "is meant a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution" 12.
Another learned constitutional lawyer and author has said about conventions that they are "conventions, understandings, habits or practices which, though they may regulate the conduct of several members of the sovereign power ... are not in reality laws at all since they are not enforced by the courts" 13. Constitutional conventions have their basis in the very nature and operation of the system of parliamentary government with the executive being responsible to the parliament. For example, one of these constitutional conventions is that the monarch (in Australia, the Governor-General, and in the Australian States, the Governor) must assent to any bill which has been duly passed by the parliament; others are that the government is chosen from those who have the confidence of the parliament, and that ministers should resign when they cease to command the confidence of the parliament. These conventions are not referred to in the Australian constitution and one wonders, should the crown ever be taken out of the Australian constitution, whether those conventions can continue or whether they will in fact continue to exist.
These constitutional conventions were inherited, or taken from, the governmental practices which had developed in Britain along with the growth of responsible government. Australia inherited from Britain, not only concepts such as the rule of law and that of the liberty of the subject, but also these conventional rules which developed and were refined together with the principles of democratic and cabinet government. Of course, in many ways Australia was ahead of England in the attaining of certain democratic goals, such as the introduction of universal suffrage, the secret ballot and votes for women. But it is cabinet and ministerial responsible government (popularly known as the Westminster system in contra-distinction to the American presidential system) which is a very cherished heritage. Our written constitution of 1901, as is the case in Britain, makes no reference to the Prime Minister or to cabinet. These concepts, which are basic to our governmental system, have come from our inheriting the unwritten understandings inherent in the Westminster system. I do not wish to discuss in depth the way these fundamental rules have developed, but in this regard we owe a lot to the mother of parliaments at Westminster.
I am of the view that the Australian constitution, over the 90 odd years since it was framed, has done a good job and that it is reasonably understood by the citizens of this country. The Australian people have been loath to effect any
constitutional changes, and since Federation there have been 63 proposals to change the constitution of which only 12 have been successful.
The constitutional commission which was set up by the Commonwealth government a few years ago had, as one of its terms of reference, to enquire and report on the revision of the Australian constitution to adequately reflect Australia's status as an independent nation and a federal parliamentary democracy. In its final report, presented in 1988 - only five years ago - that commission recommended no change at that time to Australia's status as a constitutional monarchy or to the position of the Queen of Australia as Head of State. The only changes recommended by that body affecting the powers of the Queen under the constitution related to some vestigial elements of the past, namely, referring to the assignment of some powers to the Governor-General, the reservation of bills passed by the houses of parliaments for the Queen's personal assent, the power to disallow federal acts and the power to authorise the Governor-General to appoint deputies.
The standing committee on executive government to the commission explicitly recommended that a referendum for a republic should not be held at that time, and the constitutional commission said, in its final report.
"We agree with the advisory committee's recommendations that there should be no alteration of the constitution in respect of the appointment of a Governor-General, qualifications for appointment to the office, the terms of office and removal from it. We believe that the convention that the Queen does not appoint a Governor-General except on the advice of the Prime Minister of Australia is so well established that there is no need to alter Section 2 of the constitution to make it clear that the Queen's power of appointment cannot be exercised except on that advice." (Para 5.121)
Most informed Australians support the concept of Federation of the States into the nation of Australia. The existence of the States as part of the constitutional monarchy system of government poses problems for those who wish to do away with that system. The Queen of Australia is represented in each state by the Governor of the particular state and I remind Queenslanders of Section 53 of the Constitution Act of Queensland. This section was inserted in the act in 1977 and it specifies that a bill which expressly or impliedly provides for the abolition of or alteration in the office of Governor shall not be presented for assent unless it has first been approved by a referendum, and further, that referendum section itself cannot be altered unless first approved by a referendum. So, since it is provided by the Constitution Act (S11A) that the Queen's representative in Queensland is the Governor, this provision cannot be abolished or changed without a referendum.
I have mentioned this provision of the Queensland Constitution Act because of the present republican movement. Whether Australia alters its constitution from that of a constitutional monarchical one to a republican one is a matter for the Australian people and I do not wish to argue the case for or against. It is to be hoped that the people will vote on such a basic proposal only after having had the benefit of reasoned debate and clear statements on both sides. But if the constitution is altered in order to enable Australia to become a republic, there are many questions which will arise, such as: What sort of a republic? What will be the powers of the President? How will he or she be appointed? Will he or she be appointed by the Prime Minister of the day? Will he or she be appointed by cabinet? Will he or she be elected by parliament or elected by popular vote? If elected by popular vote, who will stand for election? In other words, who will put his or her name forward in that regard? Is it probable that only politicians or ex-politicians will stand for such election? Will political party philosophy play a large part in his or her election? If it is practicable to alter the constitution in a manner which is being called the "minimalist" position, will the then Head of State still retain certain reserve powers?
So I conclude this paper by inviting you to consider the following issues -
Has not the Australian written constitution, as amplified by constitutional convention, interpreted by the courts and applied now for nearly 100 years, allowed our nation to have a traditional and symbolic as well as an active and realistic Head of State? Does it contain now the appropriate checks and balances between legislative and executive powers to enable Australians to continue to live in a stable society? Does it recognise and acknowledge our history as well as asserting our oneness as a nation? With these thoughts in the forefront of our minds, would any change be for the better?
1. 63 & 64 Vict., C12
2. Quick & Carran: The Annotated Constitution of the Commonwealth (1901), p. 294.
3. S.128
4. 22 Geo V, C4
5. 1953, No. 32; repeated by Act No. 216 of 1973 (The Statute Law Rev Act); 1973, No. 14.
6. 1975, No. 33.
7. A.G. (Cth) v Colonial Sugar Refining Co, Ltd. (1913) 17 C.L.R. 644.
8. 1986 c.2; (U.K.)
9. Ibid S.1.
10. Sir Zelman Cowen: The Australian Head of State; Quadrant Apr. 1992, No. 285, p. 65.
11. The English Constitution (1862): Bagehot OVP 1955; p. 67.
12. Modern Constitutions (1951): Wheare, p.178.
13. The Law of the Constitution (1959): Dicey; 10th ed., p.24.
