Australia - A Continent for a Nation

AUSTRALIA – A NATION FOR A CONTINENT & A CONTINENT FOR A NATION

THE BEGINNING

Captain James Cook was the first European to locate and to map the east coast of Australia. He had been charting the coastline of New Zealand and then set sail to try to locate Australia. His ship, the Endeavour, was blown off course – a terrifying time for the entire crew – but land was eventually sighted by Cook’s second-in-command, Lieutenant Zachary Hicks. That land, halfway between present day Melbourne and Sydney, is now called Point Hicks.

The Endeavour sailed on and anchored at Botany Bay and Captain Cook claimed the country in the name of the King, George III. In 1770, there were two main European powers which were extending their territory. One was Great Britain and the other was France and there was great competition amongst the two to gain territories which would both protect and expand their empires. However, once it was determined that the land known as Terra Australis was not a threat to the British or French possessions in India and elsewhere, there was no further interest in what was to Europe an isolated, mostly empty and somewhat hostile land.

However, the situation changed when, in 1783, the American Colonies won independence. For many years Britain had transported its convicts to the Americas as there was no room in the British gaols to hold the huge numbers sentenced to imprisonment, many for stealing small items like a loaf of bread to feed themselves. British cities, and especially London, were becoming far too overcrowded, even when old rotting wooden ships, called hulks, were used as makeshift prisons.

SETTLEMENT

The British government therefore decided that a new penal colony would be established in Australia, even 

though it was a long way away, and commissioned Captain Arthur Phillip to be its first Governor and Administrator. A few months later, in May 1787, Governor Phillip sailed from Portsmouth with six convict ships, three store ships and two man-o-war ships and arrived at Botany Bay in January 1788. However, it was clearly seen that the sandy soil would not be suitable for a settlement and so Captain Phillip explored a little further and established a colony at Port Jackson, which is now the site of the present-day Sydney. On the 7th of February 1788, the entire eastern coastline of Australia, including Tasmania, was proclaimed as the Colony of New South Wales. Only Western Australia was excluded, being proclaimed as a separate British Colony in 1829.

THE INSTRUCTIONS OF KING GEORGE III

Before Governor Phillip set sail from Portsmouth, he had been given instructions from King George III who was very concerned that the Aborigines should be treated well and protected, particularly from the convict settlers.

In his Instructions to Governor Phillip dated the 25th day of April 1787, the King insisted that he was: “to endeavour by every possible means to open an Intercourse with the Natives and to conciliate their affections, enjoining all Our Subjects to live in amity and kindness with them. And if any of Our Subjects shall wantonly destroy them or give them any unnecessary Interruption in the exercise of their several occupations. It is our Will and Pleasure that you do cause such offenders to be brought to punishment according to the degree of the Offence.”

It was therefore always the intention of the British Administration to treat kindly with the Aborigines, although some officers and many settlers did not do so.

THE COLONIES

Governor Phillip’s First Fleet of 1788 comprised 756 convicts and 550 freemen – including officers, sailors and marines and their families, all crammed into eleven ships. Whilst some died of hardship and many of the freemen returned to England, the white population supplemented by more convict ships and free settlers expanded quickly within twenty years to over ten thousand.

It was not long before the early pioneers started to explore the interior of this new land. They found that the huge landmass of just under three million square miles in area was mainly desert or land lacking sufficient water to be properly arable. They spread throughout the area, but mainly established agricultural enterprises around the Eastern seaboard. Towns and then cities grew up to service the small farms and associated industries.

A small population in the new Colony, which even in 1808 - twenty years after settlement - was only 10,263, combined with the tremendous overland distances of a continent some 2,967,909 square miles in area, and the consequent difficulties of communications made it impossible for such a huge land mass to be both settled and securely administered. It was therefore inevitable that, as the land was settled it had to be broken up into separate administrative areas. It was decided that this would best be achieved through the creation of separate colonies, independent of each other and responsible directly to London.

The first part of New South Wales to be annexed and declared a separate Colony was Van Diemen’s Land (Tasmania) in 1825, Western Australia (a new land earlier the Swan River Colony and never part of New South Wales) followed in 1829. In 1836 some colonists settled the area now known as South Australia, hoping to create a model colony.

In 1851, the area around Port Phillip was settled and became the Colony of Victoria with the Murray River forming its northern boundary. In 1859 the northern part of New South Wales, which was predominantly a settlement of squatters, became the Colony of Queensland.

Following the British government’s bad handling of the American colonies leading to a revolution and subsequent independence, Briton was doubly cautious that they did nothing to incite a rebellion in its Australian colonies. As a consequence, the British government adopted a far more reasonable approach, even to the extent of encouraging a measure of independence from an early stage.

It was thus that the British parliament enacted the ‘Australian Colonies government Act’ in 1850. This now permitted the creation of parliaments in the Australian colonies, elected by a franchise with the Authority to make laws for the ‘peace welfare and good government’ of their respective colonies. Although these Assemblies were heavily regulated and not allowed to legislate in any way contrary to British interests, the franchise commenced what was actually a very short pathway towards independence.

One thing not generally known is that in his drafting of the ‘Australian Colonies government Act’, Earl Grey, the British Colonial Secretary, had made provision for a central authority to be based in Australia with a limited jurisdiction over the Australian colonies which were later to become the six Australian states. At that stage however, colonists were keen only on developing parliamentary government for their own colonies and were, perhaps justifiably, suspicious of a centralised power. This proposal was accordingly left out of the final Act.

Each Colony thereafter legislated to suit their own individual requirements, and these were for the most part confirmed by separate Acts of the British parliament, the most important of which was the ‘Colonial Laws Validity Act’ of 1865. (Its long title is ‘An Act to remove Doubts as to the Validity of Colonial Laws’), parts of which continued to be effective in the Australian states until the passing of the Australia Acts in 1986.

At first these colonies were very competitive and sometimes aggressive against each other, but towards the end of the nineteenth century railway and telegraph linked the states and made travel between them much easier and the idea of being 'Australian' began to be celebrated in songs and poems.

Moves towards a centralised authority did eventuate towards the end of the 19th Century as travel and trade between the colonies increased leading to leaders, such as the New South Wales Premier Henry Parkes, recognising the need for a resolution to then inequitable border tariffs. Furthermore, there was an increasing recognition of a need for a common foreign and defence policy amidst very real fears of invasion from the German territory of New Guinea together with a potential threat from Russia which brought home the precarious situation Australia was in, being so far from the homeland of Great Britain halfway across the world and with the closest military support stationed in India.

It was in this regard that, by the 1890s, the six Colonial parliaments started to debate uniting into one nation.

THE SIX COLONIES BECOME ONE NATION:

The evolution of Australian democracy did not just happen overnight. It was a lengthy process that commenced shortly after white settlement began. A process of discussion, deliberation and consensus, free from the influences of revolt and war, cumulating in absolute and total independence in 1901.

The Australian constitution came into being through a series of meetings culminating in constitutional Conventions.

The records of the Australasian federation Conference of 1890 and the Australasian federal Conventions of 1891 and 1897/8 are among the most significant founding documents of Australia as a nation.

At the Australasian federation Conference held in Melbourne from 6 to 14 February 1890, leading politicians from the six Australian colonies and New Zealand affirmed the desirability of ‘an early union under the crown’ and committed themselves to persuading their governments to send delegates to a convention which would ‘consider and report’ on a scheme for a federal constitution. Accordingly, the members of the National Australasian Convention of 1891 which met in Sydney from 2 March to 9 April of that year did not debate whether the colonies should federate but how. This Convention established a subcommittee which was empowered with drafting a new constitution. The committee comprised: Edmund Barton (from New South Wales), Andrew Inglis Clark (from Tasmania), Samuel Griffith (from Queensland), and Charles Kingston (from South Australia). These representatives, who are now called our Founding or sometimes our Federating, Fathers, drafted a document which, although based on the British Westminster system, also incorporated provisions from the constitutions of the United states, Canada and Switzerland.

The Australasian federal Convention met, in three sessions, in Adelaide Sydney and Melbourne in 1897 and early 1898 and delegates modified the draft produced in 1891.

The draft became The Australian constitution which was contained in the Commonwealth of Australia constitution bills. This was endorsed by the voters of each Australian colony at referendums in 1898, 1899 and 1900.

The vote on the Australian constitution was the first ever referendum to be held in this country and one of the few constitutions ever to be voted upon by the people (at least those eligible to vote) in the world.

On the 14th of May 1900, ‘The Commonwealth of Australia constitution Act’ was introduced into the British House of Commons and after passing through the Lords was given the Royal Assent by Queen Victoria on the 9th July 1900. The referendum in Western Australia was held in July 1900 just a few weeks too late for inclusion in the preamble , but provision had been made in Section 3 of the constitution to include Western Australia as a state within the federation of Australia.

The constitution Act had to originate in Britain because that country had ultimate control over Australia and, in effect, Britain was ceding that control to the people of Australia.

All Australians should be grateful to those who drafted our constitution as it created a separate and sovereign state under the crown with inbuilt safeguards protecting the sovereignty of the People. In no way were they subservient to the British government, and often had strong words with British ministers to defend, what they saw, as provisions protecting the rights of all Australians. Provisions, such as section 128 – the referendum process, which was unique within the Westminster, or British, system of governance.

The Australian constitution was therefore in no way a British creation but was specially drafted by Australian statesmen to suit the requirements of what was to become the brand-new country of Australia. It was then voted upon and accepted by the Australian electorate of the time.

It is this constitution which has made Australia, one of the youngest nations in the world, into one of the world’s leading and most dy

namic democracies. It was truly an historic achievement.

 

It was on the 1st of January 1901, that the Commonwealth of Australia was proclaimed in Centennial Park in Sydney and 

later that year, on the 9th May 1901, the first Commonwealth parliament was opened in the Exhibition Building in Melbourne at which Edmund Barton, a drafter of the new constitution, was elected as the first prime minister of Australia.

OUR UNIQUE CONSTITUTION

The Australian constitution brought together the six separate Australian colonies into one nation as a federation. This means that whilst they still retained their parliaments and with their own constitutions individually under the crown, they all ceded central authority to a federal parliament with a lower House of Representatives elected directly by the people on a separate electoral basis with no connection to the state parliaments, and a Senate elected on a state basis because, as well as being a house of review, its purpose is also to represent the interests of each state in the federation.

When drawing up a constitution to suit the unique conditions of the new nation of Australia, it was the choice of the delegates to the constitutional Conventions that, when Australia became a nation in its own right, it would continue as a restrictive monarchy ‘under the crown of the United Kingdom’ with the monarch represented by a governor-general where the authority of the nation would be vested in the crown and not solely in a body of politicians.

They could have opted for a republican form of government, as had occurred a hundred years earlier in the United states of America but they chose to depart from the sort of Westminster government that had developed in Great Britain by establishing that the constitution could only be changed by a state based referendum of the people, thereby making the crown subject to the will of the Australian People.

It is this process of amendment which places total control of the constitution in the hands of the people. It was the first and only of the British constitutions to do so. Whilst Canada had become an independent Dominion with the ‘British North America Act’ of 1867, it left control for constitutional change in the hands of the British parliament. This control was only ‘repatriated’ to Canada in 1983. Most of the British-type constitutions are all subject to the will of the respective parliaments, not the people.

The Commonwealth of Australia constitution Act’ of 1900, is a Statute of the parliament of the United Kingdom and contains nine clauses, the first eight of which are termed ‘covering clauses’ and mainly provide an introduction and explanation to clause nine which contains the constitution itself.

As mentioned above, because Britain had dominion over Australia, it was necessary for the British parliament to enact the new constitution which then became the founding document of the newly federated Australia meaning that it was free of further governance from Britain. However, the early governments of Australia continued to seek guidance from the British government and until 1931 the governor-general reported to the British government which itself nominated him. After 1931, the prime minister of Australia nominated his choice for governor-general. The appointment of the nominated person was effected by the monarch.

The constitution itself is divided into eight chapters comprising 128 clauses or sections. Chapters one and two deal with the parliament and Executive government. Chapter three deals with the Judiciary. Chapter four deals with the Commonwealth’s jurisdiction over finance and trade. Chapters five and six with the states. Chapter seven handles the potential seat of the new government and with the provision of a deputy to the governor-general, and Chapter eight sets out the process for amending the constitution.

The only clause in the Australian Constitution which provides a legislative power directly to the Sovereign is Section 59 which states: “the Queen [or King] may disallow any law within one year from the governor-general’s assent...” No referendum has ever been held to remove this power which has never been used. People still question the relevance of it having been included in the first place, but they forget that in the early days following federation, the parliament had been entrusted with massive powers and no one knew how it was all going to work out. Therefore, in the event the parliament passed legislation that was deemed to be faulty or unconstitutional, the Sovereign was given the authority to disallow it.

The ‘Queen’ mentioned in our constitution refers, of course, to Queen Victoria and what may appear to be an obsolete provision is covered by Section 2 which states: “The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.”

The constitution also recognised the continuing existence of the six colonies which became states within the Union.

It established a centralised government which was to operate as a federal authority and sets out guidelines for relations between the commonwealth government and the states including the removal of all tariff and customs barriers, thus creating a common federal trade and customs policy.

THE PREAMBLE:

The constitution commences with a preamble. A preamble, whilst not a clause, is considered to be an integral part of the constitution by many jurists as it explains the intent of the wording which follows.

The preamble to the Australian constitution specifies that: “Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, 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:” These words are not simply an introduction, as with most preambles in the world, but are a statement of three irrefutable facts.

The first was, that six Australian colonies united in one federation to be named ‘The Commonwealth of Australia’.

The second was, that the federation is to be indissoluble.

The third was, that as well as being subject to the constitution “hereby established”, the federation was to be “under the crown of the United Kingdom of Great Britain.”

Even though Western Australia agreed to join the federation, albeit too late to be included in the preamble , by 1930, some people in that state had become disenchanted with being a distant part of a federation governed essentially by people from the eastern states.

Some hold that the words “one indissoluble Federal Commonwealth” mean that the federation cannot be broken.

In 1933 the state parliament of Western Australia held a referendum which, with 66.23% of the votes cast in its favour, led to the (WA) Secession Act of 1934 being drafted into a petition, and in the following year this was taken to the United Kingdom parliament by a delegation of state parliamentarians.

The petition was not entertained as it had emanated from a state and not from the Commonwealth of Australia which was held to be the proper place for the petition to have been addressed in the first instance.

The application for secession was not proceeded with and within five years, John Curtin a Western Australian, became prime minister, thereby placating secessionists of the time.

The ‘indissolubility’ of the Union has therefore never formally been challenged and the only way in which one or more states could secede from the federation would be via Section 15 of the Australia Acts 1986 requiring the consent of all the parliaments of all six states plus the consent of the parliament of the Commonwealth of Australia. A consent which is highly unlikely ever to be given either by the states or by the Commonwealth parliaments.

‘Indissolubility’ of the Union is proof positive that the preamble to our constitution is not just a guide to the intentions of the framers or even, as Quick and Garran have stated, to just be ‘legitimately consulted’.

Indeed, the High Court has often referred to the preamble for guidance in its deliberations on constitutional matters. The Acting Solicitor-General Dennis Rose QC in his advice to the Republic Advisory Committee in 1993 stated: “I note, for example, the reliance placed by several Justices on certain words in the present preamble - i.e. ‘the people ... have agreed to unite in one indissoluble federal Commonwealth’ ... it illustrates the potential legal significance of preambular declarations.:”

Whilst the constitution itself mentions the word: ‘crown’ only three times, two of which are found in Section 44 and relate to the holding of office ‘under the crown’ and the requirement that ‘crown lands’ be used for the new Capital, the words of the preamble “under the crown of the United Kingdom of Great Britain” set the rule for Australia to be a constitutional monarchy.

As parliamentary democracy in England and then in the United Kingdom developed, ownership of the king's power, although remaining the source of all executive and judicial Authority, increasingly became vested in the ‘Legislature’ which evolved to become the Upper and the Lower Houses of parliament. The monarch became known as ‘The King (or Queen) in parliament’ and over time retained only residual but nevertheless essential powers which are called ‘the prerogative’. Although a totally independent and sovereign state, Australia inherited the precedents and conventions of the British monarchy established over several centuries.

These powers are today used to appoint or dismiss the prime minister within guidelines established by convention, and to give Assent (or formal approval) to all bills thereby completing the legislative process. Such Assent is freely given on the advice of Ministers and, by convention, is never refused, although the monarch, represented in Australia by a governor-general, does retain the right to be consulted, to encourage and to warn.

Such powers, whether exercised by the monarch or by the parliament, are encompassed in ‘the crown.’ It is therefore in the name of ‘the crown’ that the law is enforced, and the defence forces operate. Officials of the government are employed by ‘the crown' and public lands are held in the name of ‘the crown’.

The crown has therefore come to mean, not authoritarian power wielded by one or more persons, but rather the symbol of the people it protects.

Part I Section 1 of the Australian constitution specifies that: “The legislative power of the Commonwealth shall be vested in a federal Parliament, which shall consist of the Queen [or the King], a Senate, and a House of Representatives, and which is herein-after called ‘The Parliament’ or ‘The Parliament of the Commonwealth.’”

Under Part I Section 2: “A governor-general appointed by the King shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the King’s pleasure, but subject to this constitution, such powers and functions of the Kingas Her Majesty may be pleased to assign to him.”

Therefore, the Australian governor-general, following appointment by the King, exercises the power and authority of the crown.

Whilst the section states that the governor-general shall be “Her Majesty’s representative” this does not mean that the governor-general reports to the King on the exercise of his duties, but that he is the representative of the King in parliament and all that ‘the crown’ implies. In this instance mention of the King means the institution, or the body politic of the crown and not the individual as such.

The ‘crown of the United Kingdom’, however, means not just the body politic but also opens the doorway to everything that the monarchy and the constitution means in the United Kingdom. Such British constitutional documents as Magna Carta and the Bills of Rights are not mentioned in the constitution but these documents underpin our constitution and our laws.

The conventions and reserve powers of the crown of the United Kingdom in Britain are not mentioned or spelt out in our constitution nor is the term ‘Westminster system of government’, but again, they are all relevant to the operation of our own government in Australia. All descend to us through the ‘Crown of the United Kingdom’.

In the 19th Century, ‘the crown’ was one entity and its authority exercised through the British government. Today it is a recognised fact that the sovereignty of the crown is now ‘divisible’, or shared, amongst the sixteen Commonwealth Realms which comprise the United Kingdom together with those former colonies which have retained the British monarch as their Sovereign.

Some jurists have held that this separation occurred in 1954 with enactment amongst the Commonwealth Realms of their individual ‘Royal Style and Titles’ Acts Others hold the opinion that divisibility actually took place at the time of the Statute of Westminster in 1931 but the concept of multiple crowns worn by a shared monarch began to make its appearance in earlier Acts.

In a political sense, the ‘crown of the United Kingdom’ became divisible upon enactment of ‘The Commonwealth of Australia constitution Act’ in 1900. That Act established in law a constitution which, although under the crown, vested independent sovereignty in the people. In 1982 the English Court of Appeal held that “in matters of law and government the King of the United Kingdom, for example, is entirely independent and distinct from the King of Canada” and that same year Australia’s then Chief Justice, Sir Harry Gibbs stated that: “The allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the King of Australia.”

However, this ‘divisibility’ was nowhere more apparent than in a judgment handed down by the High Court of Australia in 1999 on the matter of the eligibility of the One Nation candidate, Heather Hill had been elected into the Australian Senate on a One Nation ticket in the 1988 federal Election.

A Queensland businessman, Henry (Nai Leung) Sue petitioned the High Court, in its capacity as a Court of Disputed Returns, to declare the election of Hill void, on the ground that at the time of her nomination for election she held dual nationality being a citizen of the United Kingdom as well as of Australia. Section 44(I) of the Australian constitution specifies that: 44. “Any person who- (i) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”

There are several hundred thousand British passport holders living in Australia on permanent resident visas and there would be at least a million persons of varying nationalities who have taken out Australian Citizenship whilst retaining the citizenship of their birth or previous adoption. None of these ‘dual citizens’ are eligible to sit in the federal parliament. However, the state parliaments each have their own constitutions, and many allow dual nationals to be elected and to sit in their respective parliaments.

Until 1984 any British Citizen taking up residence in Australia was able to vote in Australian elections after a qualifying period. Those who held Australian citizenship together with a dual nationality, whether British or otherwise, had the same rights as any person of Australian birth. Whilst nothing in this respect has changed in the constitution, the High Court has changed the criteria for eligibility.

Prior to and following federation in 1901, all persons of Australian birth were considered to be British Subjects and had free access to the United Kingdom. In 1948, the Chifley government enacted the ‘Nationality and Citizenship Act’ to differentiate between British Subjects of Australian residence and those who were simply visitors to Australia.

This Act was amended in 1969 to create an ‘Australian nationality’. It was further amended in 1973 and in 1984 Australian citizens, although strictly speaking remaining ‘Subjects of the then Queen’ ceased to be British citizens.

Heather Hill had migrated to Australia in 1971, a time when British Citizens enjoyed the same rights as persons of Australian birth, but it was not until 1998, around the time that she had decided to stand for election, that she took out Australian citizenship. However, at the time of the election, on the 3rd October 1998, she had not renounced her British citizenship.

The High Court found that since 1901, Australia had evolved into a totally sovereign nation separate from the United Kingdom and that even though we shared the same crown, that crown was divided into individual components each independent one from another and that accordingly Britain could be deemed to be a ‘foreign power’.

Over the years, there have been a number of complaints that persons holding or being eligible for another nationality were sitting in the parliament contrary to section 44 of the Australian Constitution, but none of the major parties wanted to open what could have become ‘Pandora’s box’.

However, in 2017 Scott Ludlam, a Greens senator from Western Australia was advised that he still held New Zealand citizenship from his birth in New Zealand and was ineligible to sit in the federal parliament and resigned. Thereafter, a number of politicians volunteered that they held or were eligible to hold dual nationality and the parliament submitted their names to the High Court sitting as the Court of Disputed Returns. As a result, fifteen sitting politicians were ruled ineligible or resigned pre-emptively. Several others, however, were deemed not to have dual nationality. A greater care is now being taken by political parties over the constitutional eligibility of their candidates. Both the Senate and the House of Representatives have established citizenship registers which operate on voluntary returns by senators and MPs.

THE CROWN

Whilst it is true that the Australian component of the crown is separate and independent of that exercised in any of the other Realms, the ‘crown of the United Kingdom’ is nevertheless also one entity. The British parliament itself recognised this in 1931 when it passed the Statute of Westminster prohibiting Britain from legislating over the crown and particularly over the Royal Style and Titles and the Succession without the consent of those who, in the words of the Statute, were “united by a common allegiance to the crown”.

It was due to this requirement that when Britain wanted to replace the requirement that males took precedence over females in succession to the throne (termed ‘male primogeniture’) and also allow members of the royal family outside the direct succession to marry whomever they wished without restriction and without the permission of the monarch, the parliaments of all of the King’s realms had to agree.

When the Commonwealth Heads of Government (CHOGM) met in Perth in 2011, the prime ministers of the Commonwealth realms met and agreed to amend the succession to the British throne to remove male primogeniture and agree that only the six persons closest to the throne would require the monarch's permission to marry.

HISTORY OF THE CROWN

The crown of the United Kingdom descends from the kingship of Saxon times, particularly from the Coronation ceremony established by St. Augustine in the sixth century AD. It is a crown which embodies a democracy unknown in other parts of the world for from the earlier times the King’s rule was always ultimately subject to the people, whether they were represented by the Saxon Witan or the medieval parliament.

Whilst the crown is mentioned only a few times in the Australian constitution, its influence permeates its entirety and whereas it may, with great difficulty, be possible to replace the King in our constitution, should the people of Australia ever agree to become a republic, it would be impossible to remove the pervading influence of the crown, including the precedents, the conventions and the reserve powers which flow there-from.

Accordingly, if the Australian people ever decide that Australia should be a republic, it would therefore be far better to draw up a new constitution as the Americans did in 1787 (ratified in 1789) rather than replace words here and there.

In the 1999 republic referendum, nearly 70 alterations were proposed and if the referendum had succeeded, undoubtedly, over 20 years on, there would still be arguments in the High Court over interpretations over he replaced wording.

THE UNELECTED HEAD OF STATE

Today some question how in having the arrangement of an ultimate (or de-jure) Head of state who is unelected, be democratic.

Monarchists say that by not being elected, the King and the Governor-General are free to exercise total impartiality as they are not beholden to any elective process. Republicans hold that we should have an Australian as head of state rather that the King who lives in London. This is answered by monarchists that the Governor-General, on appointment by the King, becomes Australia's executive head of state. They say that the King appointing the Governor-General removes any obligation from the prime minister who nominated him or her and that allegiance is thereafter to the King and through the King to the people.

When the British Colonies in America became independent, they established a constitution that essentially replaced the King with a President who continues to this day to hold immense power in his own right - much the same sort of imperial authority that King George III exercised over two hundred years ago. In Australia we have what is called ‘responsible government’ where the ministers are selected from members of the parliament and not from outside, as in the USA. Accordingly, all ministers, whether from the lower or upper houses, are answerable to parliament and may be questioned on any matter by other members.

IMPERIAL CONFERENCES & THE STATUTE OF WESTMINSTER

At the Imperial Conference held in 1926, it was decided that the process of evolvement to sovereignty was complete and that the ‘Dominions’ were totally independent of any control of the British government and that this should now be formally put into words in what was later enacted as the Statute of Westminster. The opening words of this Statute best explain what was then and is today the situation: “inasmuch as the crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the crown”

THE AUSTRALIA ACTS

The constitution made provision for the establishment of a high court, which was established in 1903 as the supreme federal court in Australia. However, at the time, it was never thought that it would become so powerful in its authority over state supreme courts, nor that it would become the arbiter of final appeal in Australia. Although not specified in the constitution, convention was that appeals could be made direct to the Privy Council in London from decisions of the high court and from state courts. Appeals from high court decisions were curtailed in 1968 and ended by federal legislation in 1975, although the right of appeal remained from state courts, until the passage of the Australia Acts in 1986.

By the early 1980's the attitude of the states apropos the commonwealth had radically altered. in 1982 the states and the commonwealth decided to abolish appeals from state supreme courts to the privy council and following a lengthy debate it was agreed that legislation be enacted to remove the vestiges of colonial acts and the right of the states to appeal. Section 15 of the act also gave the states the power to, combined, amend the 1931 Statute of Westminster adopted by Australia in 1942.

Although there was limited media reporting there were vigorous protests the legislation was steamrolled through all federal and state parliaments and through the UK parliament itself.

On the 4th December 1985 the Australia Act received Assent and was proclaimed on the 3rd March 1986 and the legislative and judicial institutions of the United Kingdom ceased to have any jurisdiction in respect of Australian affairs.

THE GOVERNOR-GENERAL:

When the British Empire, with its more than fifty countries was spread across the globe it was impossible for both the Sovereign and the British (or Imperial) government to be personally present everywhere and it was feasible for each country, or state, to be administered by a governor. Sometimes a governor was called an administrator, and in the case of the supreme governor of India, a viceroy.

At the time of federation, each state in Australia had a parliament and a governor, appointed by the British monarch. The governors each reported back to the British government as well as to the monarch.

Other than becoming a republic, our Founding Fathers could well have opted to become a separate monarchy and invited a son of Queen Victoria to become the king of Australia.

This was not an unreasonable thought particularly in view of the long distance from London, however, to have our own king, or as America does, our own president, was considered to be too difficult, risky and costly. Under our constitution, it is the parliament, which is elected to govern and the prime minister, head of government, not the monarch nor the governor-general who became more like trustees than rulers.

At the time of federation and for a few decades thereafter the governor-general was appointed by the British monarch following nomination by the British government. It was normal practice for the governor-general to act as the representative and to report to the British government and this process was accepted by the Australian government and parliament until the Imperial Conference of 1926, at which time the system was revised to accord to the independent sovereignty of Australia and other Realms.

Under our constitution (section 61), "The executive power of the Commonwealth is vested in the King and is exercisable by the governor-general as the King's representative..."

Our constitution does not mention a prime minister or Cabinet because the governor-general is advised by what is termed an executive council established by section 62 of the constitution. The governor-general normally chairs the council. The executive council is the equivalent of the privy council in the UK and comprises ministers and parliamentary secretaries but not, as in the UK, the leader of the opposition.

It is in this way that the government can effectively manage the nation with the confidence of parliament, which is elected by the people at regular intervals currently every three years.

Regular elections are held, and this enables the people to vote a government out of office, should it lose their confidence. A prime responsibility of the governor-general is to ensure that a parliament goes to the people prior to the expiry of its term of office.

The Governor-General is the representative of the King. This does not mean that he is the King’s minion, but that he represents the institution of the crown and as such assumes the role of effective head of state.

The Governor-General also has powers vested directly in him/her by the constitution, including the position of commander in chief of the armed forces. Unlike in the period following federation, for over seventy-five years, the governor-general has not reported anything to the British government, for his dealings are solely with the Australian government. Nor does he report everything to Her Majesty and, in fact, does not answer to the King on matters of state nor does the King give instructions or even advice to the governor-general, unless specifically requested.

The governor-general can enact no law except "with the advice and consent" of both houses of our parliaments. This is the framework of our system.

Furthermore, the monarch, under our Australian constitution, has no personal say in our affairs.

In this way, the ultimate power of the state is placed above party politics. The great strength in the existence of the crown and its conventional political neutrality is that it denies ultimate power to others.

The governor-general may be a political nominee, but the appointment is always by the King and once appointed he must rise above any earlier political allegiance and his allegiance must thereafter be only to the King and to the people whom they both serve.
This means that a governor-general is not the puppet of the politician nominating him and he must thereafter always act above party politics when exercising the vice-regal powers as the King's representative and stands in the same relationship to our houses of parliament as a constitutional monarch would do.

There are a number of ceremonial and social duties which are the responsibility of the governor-general which are similar to a non-executive Head of state. A number of charities depend on the governor-general’s patronage and support. However, there are also constitutional duties, which are far more important, as the constitutional role of the governor-general is similar to that of a trustee ensuring that all the parties participating in the governing of the nation play fair by the people.

A major constitutional role of the governor-general is to ensure that elections are held at or before the appointed time. Should a prime minister refuse to go to the people, then, unless the nation is in a state of war or national emergency, the governor-general has no alternative but dismiss the prime minister and appoint a caretaker prime minister who will agree to go to the polls as occurred in 1975.

Once the election has been held, the governor-general then commissions the leader of the political party which has the most seats (or votes) in the parliament, (or the most likely to be able to control a majority of votes), to form a government. Thereafter the governor-general must accept the advice of the government and must assent to bills passed by the parliament, unless such bills clearly contravene the constitution, because once elected, that parliament speaks with the voice of the people.

A governor-general can, and does, express in private whatever concerns he may have to the government. Many members of the public write into the governor-general and most receive a bland response, but their views are considered and frequently taken up in private discussions with the prime minister or cabinet minister concerned and often result in a bill being amended.

In fact, Australian governors-general have returned bills back to the parliament for amendment on a number of occasions but always the decision of the government backed by a consensus in the parliament is paramount because during their term in office, they speak with the confidence of the people.

As with the King in the United Kingdom, the governor-general may advise and caution the ministers, but contrary to the misguided notions of some ‘barrack-room lawyers’, a government cannot be overruled for to do so would be to overrule the majority will of the people.

PLEBISCITE VS REFERENDUM:

Many people are understandably confused about what is a plebiscite and what is a referendum.

Essentially, a plebiscite is a non-binding official government opinion poll and a referendum is constitutionally structured vehicle for actual change to the constitution. A plebiscite by itself cannot amend the constitution. A referendum, if passed, will.

Plebiscites, and even referendums, are fairly alien to the Westminster system where the procedure of governance rests with the constitutionally elected parliaments and not through a continuous participation of the people, as is the case in Switzerland. Australia is an exception to the rule, as our constitution can only be changed by a vote of the people at referendum.

In fact, when the constitution Act of 1900 was passing through the British parliament, the inclusion of Section 128, the referendum process, was questioned as not being true to the spirit of Westminster.

Plebiscites have their origin in early Roman times, before the establishment of the empire when Rome was ruled by two groups, the patricians, or nobles, and the plebeians, or commoners, whose council was called the ‘concilium plebis’ or ‘plebiscita’.

The first plebiscite held in Australia was in 1916, during world War 1, on the subject of conscription for service overseas. Since this was a matter of amending the Defence Act, which only allowed for conscription within Australia, there was no need to amend the constitution and thus no requirement for a formal referendum.

All that was actually necessary was simply the passage of an amending act through the house of representatives and the senate. However, the then prime minister, Billy Hughes, lacked control of the upper house and intended using what was termed an ‘advisory referendum’, or plebiscite, win to force the senate into accepting his legislation.

However, the vote was lost by around 2% (49% for and 51% against). In 1917, Hughes had the numbers in the senate but felt obliged to put the matter again by plebiscite to the people, but on this occasion the numbers were even higher against and it was thus that Australia had no conscription for overseas service in the Great War.

There was thereafter only one more plebiscite put to the people, although, in 1974, the Whitlam government conducted a public opinion poll and following the results, changed the national anthem from ‘God Save The King/Queen’ to ‘Advance Australia Fair’. The poll was not a plebiscite as it was voluntary with no formalities of voting. However, in 1977, at the same time as four referendum proposals, the Fraser government conducted a formal plebiscite, termed a ‘National Song Poll’, which resulted in a clear majority for ‘Advance Australia Fair’, which was then adopted as the national anthem.

State and local governments have used plebiscites quite often to determine which way the parliament or council should proceed.

A referendum is covered by Section 128 of our constitution which sets out a rather complex method of voting to ensure that the interests of the smaller states are not swamped by the larger, eastern, states. Section 128 requires that to succeed, a referendum must carry a majority of states Australia-wide and a majority of votes in a majority of states. This means that to succeed, a vote must have received 50% plus one votes throughout Australia and the same in four of the six states.

THE HEAD OF STATE:

The current debate on change to our constitution commenced nearly twenty years ago. Since that time there has been an unproductive argument over who is our head of state, leading to intense confusion on all sides.

When we federated into one nation in 1901, the term ‘Head of state’ was relatively unknown. However, over the past fifty years it has been commonly used in new countries to describe the individual who wields power within the respective nation. The reason why there is some confusion over the use of this term in Australia is because our system is different from republics, because ours is a constitutional monarchy with a sovereign represented by a governor-general who also assumes independent powers under the constitution.

If we are to use the term ‘head of state’ then the ‘sovereign’ head is the King, but once she has appointed a governor-general he assumes many of the duties of the monarch in the country and the King thereafter plays no further part in administrative affairs. However, it is the sovereign who appoints and, when petitioned by the prime minister, has the power to dismiss the governor-general.

The prime minister advises the King of the person he wishes to nominate for governor-general, and it is convention that the King always accepts the nomination. It may reasonably be asked ‘Why do we need the King and why cannot the prime minister just nominate the governor-general himself?’ The reason, of course, is that if the prime minister was empowered to himself appoint and dismiss the governor-general it would make the governor-general subservient instead of supervisory, as is the case at present where the governor-general is allegiant to the crown and therefore to the people and not to any politician.

Whilst it is practice for the monarch to accept the nomination of the prime minister, this does not mean that if a totally unsuitable nomination is made, it cannot be questioned. The procedure is a part of the checks and balances which make up our constitutional arrangements for the protection of the democracy of the people.

The protection of the democracy of the Australian people is what those brilliant men who drafted the Australian Constitution went to great lengths to guarantee and at any future referendum or plebiscite all those privileged to vote should remember this and ensure that the checks and balances and particularly the safeguards against authoritarianism and corruption we currently enjoy under the Crown, be replicated in a new constitution whether the president is to be elected by the people or appointed by the parliament.

Philip Benwell MBE
May 2020
Revised June 2023