The latest possible date for a general election is Saturday, 16 April 2011, although almost everybody thinks it will be this year. But a double dissolution election cannot be granted after 11 August; the actual election would be later.
I think it unlikely that the Prime Minister will go to an early election. He will hope as, Crikey’s Bernard Keane does, that Tony Abbott has peaked. That is unlikely, but advisors will warn the government that the public prefers a government to serve close to its full term, something the Prime Minister has repeatedly affirmed.
The particular interest for constitutionalists is not so much the timing of the election. It is that the path to the election is governed by a number of constitutional provisions, and that there will no doubt be calls for a simultaneous vote on a politicians’ republic.
[ The first Double Dissolution took place on 4 June 1914, when the Governor-General approved Prime Minister Joseph Cook's request for a double dissolution of parliament. This was the first use of this vice-regal power granted by Australia's Constitution: The National Australian Archives ]
...referendum this year?...
The Prime Minister has said that if the states refuse to sign up to his health plan, “we will take this reform to the people at the next election – along with a referendum by or at the same election to give the Australian government all the power it needs to reform the health system”. (Paul Kelly, The Weekend Australian, 6-7 March 2010. At the time of writing this was not on the web)
If a referendum to increase the Commonwealth’s power with respect to hospitals is held by or with the election, there will be demands addressed to Mr. Rudd from republicans to hold a referendum or plebiscite on Australia becoming a politicians’ republic.
Seasoned political advisors will tell Mr. Rudd not to touch this.
[ Sir Ronald Munro Ferguson, Viscount Novar, Governor-General 1914-1920 ]
...the Senate and the referendum....
First, polling trends indicate a republic referendum or plebiscite will be lost. More importantly for the government, it would soak up too much media time which will be diverted from other issues. If the Senate rejects the referendum, or fails to pass it or passes it with an amendment unacceptable to the House, and three months passes, the government may try again.
If the Senate rejects it or fails to pass it or passes it with an unacceptable amendment, the Governor–General may submit the referendum to the people (Constitution, section 128). , An undecided question is whether this is part of the reserve powers, i.e., does the Governor-General make this decision in her discretion? There is good reason to suggest that the Governor-General should consider the government’s advice, but come to a decision which she considers correct.
The analogy I would suggest, is in the deadlock provisions concerning a double dissolution where the Governor-General comes to an independent decision as the Australian constitutional head of state.
....a double dissolution?....
Second, the prime Minister may advise a double dissolution, which is not a routine matter. Two referendums would complicate the situation.
In exercising the power to dissolve both Houses, the Australian Electoral Commission (AEC) says the Governor-General acts on government advice.
True, but the Governor-General is not bound to accept the advice. That was the view of the Labor Party in 1914 when Sir Ronald Munro -Ferguson granted Joseph Cook a double dissolution, to which they strongly objected. it remained their view in 1951. The other parties have always agreed that this falls within the discretionary reserve powers.
A double dissolution cannot take place if the term of the House of Representatives will expire within 6 months. This means a double dissolution can only be granted on or before 11 August 2010. (section 57)
The writs must be issued within 10 days of dissolution ( section 32) , and polling day follows between 33 and 58 days after that.
The AEC advises that while a double dissolution must be proclaimed by the Governor-General by 11 August the actual election could occur as late as 16 October 2010 (based on maximum timetables), but with the usual minimum timetables, the latest date would be 18 September 2010.
The question is how likely is the Prime Minister to want to close down the Parliament on or by 11 August and have up to two months of campaigning and perhaps losing the chance of having a referendum. On the other hand he may prefer that, particularly if he thinks he would lose the referendum.
More than one Bill may provide the basis for a double dissolution. It is possible for a government to save up (or "stockpile") double dissolution bills as ‘triggers' during a term of Parliament, in order to get them all passed at the same time.
Just because an election is called on the basis of a rejected bill or bills does not of course mean that will dominate the electoral campaign. If the trigger were, for example the rejection of the bill to means test the private health insurance rebate, this is hardly likely to be the dominant issue in the election.
...six double dissolutions.....
There have been six double dissolutions since federation and one joint sitting.
In 1914 and 1983, the government lost the election that followed the dissolution and no further action was taken on the disputed bill or bills.
In 1951 the government won the election with a majority in the Senate and so the deadlock was broken in that way.
In 1974 and 1987 the government won the election but did not have a majority in the Senate. In 1974 the six bills that had been the basis for a double dissolution were passed by the one and only joint sitting. One was subsequently found to have been invalidly put to the joint sitting.In 1987 the Hawke government decided not to proceed with the bill which triggered the double dissolution.
The double dissolution in 1975 was unusual. More than 20 double dissolution bills had been stockpiled when the Senate delayed three other money bills, including a key appropriation bill.
The Governor-General (Sir John Kerr) eventually dismissed the Prime Minister (Mr Whitlam) and asked the Leader of the Opposition (Mr Fraser) to take over as Prime Minister on condition that he would advise the Governor-General to dissolve both Houses and call an election held on 13 December 1975).
Each year, The Queen attends the Commonwealth Day celebrations in London. Since 1977, Commonwealth Day has been celebrated throughout the Commonwealth on the second Monday in March.
The Queen attends an inter-denominational service held in Westminster Abbey, followed by a reception hosted by the Commonwealth Secretary-General.
The Royal site recalls that modern communications technology allows The Queen to speak to every part of the Commonwealth through her annual Christmas and Commonwealth Day messages.
Both messages are delivered by The Queen as Head of the Commonwealth to the peoples of the Commonwealth as a whole. They are special in that they reflect Her Majesty's personal views and are not drafted on ministerial advice.
In the video below Her Majesty speaks about the role of science and technology in the Commonwealth in her annual address. Commonwealth Day was celebrated throughout the Commonwealth.
Iin Sydney, the Commonwealth Day Council arranged a major function at Parliament House involving schoolchildren. A report on this will soon be posted.
The American Commonwealth, a two volume study by James Bryce, 1st Viscount Bryce of Dechmont was published in 1888. It was the first study in which the institutions of the United States had been thoroughly discussed from the point of view of an historian and a constitutional lawyer, and it at once became a classic.
Lord Bryce was a celebrated British jurist, international lawyer, constitutional expert, historian, diplomat and politician. He was a minister of the Crown and British Ambassador to the United States. He was a friend of prime ministers and presidents
[ Robert Baden-Powell, President William Taft and James Bryce at the White House in 1912 ]
He was the author of the Bryce Report into German atrocities in Belgium published in 1915, and he later strongly condemned the Armenian Genocide in the First World War.
He served at the International Court (the Permanent Court of International Justice) at The Hague, supporting the establishment of the League of Nations, and published a major two volume study in 1921, Modern Democracies.
...Lord Bryce on Australia...
This remains a major resource in the study of comparative constitutional law and practice. In Modern Democracies, Volume II, he devotes seven chapters to Australia, which he praises for the standards and success of its system of self governance.
In the course of this he writes at page 194:
“In its practical working from year to year, the Commonwealth [of Australia] is, and each State also continues to be as a State what it was as a colony, a Crowned Republic, i.e., a community monarchical in form, but republican in its sprit and operation, and indeed more democratic than many republics are.”
[Modern Democracies is published in two volumes. These can be acquired through the Book Depositary, London, post free, at the following prices, Volume I, $42.12 and Volume II, $51.48. To order click on each volume.]
The recent visit of Prince William was by any measure a great success not only for him and those core institutions, the Australian and New Zealand Crowns, but financially for Australia and New Zealand.
Despite the ungracious complaint about the visit by the republican leader, as the video below shows, the republican movement glosses over the fact that unlike a political president and vice president and similar politicians at the state and territory level we pay nothing – nothing - to the Royal Family. · ·
...extrordinary return from Royal Visit...
Even in the United Kingdom the Royal Family more than pays for itself. The monarch’s properties in the Crown Estate more than cover the funds provided by the British Government, not as salaries, but for state expenses properly incurred. This also covers the running costs of The Queen of Australia as well as providing a very handsome profit for the British government. And that government has behaved appallingly, leaving heritage buildings in a dangerous state. That ought to at least remind people never to increase the power of the politicians in a politicians’ republic.
There is another factor which trumps the predicable republican whingeing over the costs of a visit which was paid mainly by The Queen. Tourism returns for a Royal Visit are substantial – Australia gets worldwide attention at this time, and unlike tourism advertisements, it is free.
Tourism Australia spent about $100 million on tourism promotion last year, the industry earning about $25 billion from overseas tourism. Professor Noel Cox from Monarchy New Zealand points out a single full page advertisement in The Times in London is expensive – Aus$45,000.
[ Prince William in the Royal Botannic Gardens, Sydney ]
Imagine what we gained from the international media attention about the visit, and just recall the effect of the “Where the bloody hell are you?” campaign and you will understand what I mean.
The coverage by Sky News meant, along with the BBC that the visit was followed on their networks and then by others. The radio, newspaper and magazine reporting was impressive, and not only in the English speaking world.
Two videos follow from the State Visit to New Zealand. They are on the opening of the Supreme Court of New Zealand, and the speech delivered there.
...constitutional understanding in France...
The leading French weekly Point de Vue had an illustrated report which described the visit as a triumph beyond all hopes. The Royalist site Gotha de France reported that he was given an enthusiastic reception. It was interesting that they grasped immediately the constitutional position in Australia, reporting that the Prince was received by the Governor-General, “chef d'Etat de l'Australie, une monarchie constitutionnelle”, the head of state .
In the meantime the London Sun (28/1) decided to be creative. Using a photo of the Prince beside a vacant throne, the journalistic imagination created the headline: “ Wills eyes his future job.” The story began “Prince William casts a longing glance at an empty throne yesterday - looking like he was dreaming of the day he'll sit on one.”
This is fiction, not fact. I doubt if you are surprised.
Australia could be seriously affected if Argentian invades the Falklands again, warns Dr.Hal G. P. Colebatch (“Obama needs to support Brown over Falklands”, The Australian 5 March). He writes that BHP has been warned it will face sanctions in Argentina if it pushes ahead with oil exploration offshore of the Falklands. If Argentina got away with such an invasion, he believes, it would damage the whole framework of international law in a manner ominously reminiscent of the way the international order began to unravel in the 1930s.
[ The Falklands War 1982: clockwise from top left: The sinking of the ARA General Belgrano; the RFA Sir Tristram; Argentine prisoners of war; Margaret Thatcher; British cemetery at San Carlos; Satellite image of the Falkland Islands; War memorial in Buenos Aires; Members of the Argentine Third Military Junta; British Royal Marines surrendering at Government House.]
“Of course Argentina would be mad to invade the Falklands, which could still be made very costly for it, but it has shown itself capable of such irrationality once before in similar circumstances, and conquering them seems a widespread national obsession,” he says.
“A strong Anglosphere stance, a strong statement by Obama or Clinton now, would be the end of the matter. Argentina will probably not launch another war over the Falklands. But if it does, Brown and Obama, as well as Kirchner will have a full share of blood on their hands for letting the situation come about.”
Dr. Colebatch argues that that in releasing the Lockerbie bomber Abdel Baset al-Megrahi and allowing him to return to Libya, where the Libyan government gave him a hero’s welcome despite assurances it would, and British courts ordering the release of US intelligence deemed sensitive by the Americans, Britain has infuriated the US.
And President Obama shows little interest in maintaining any special relationship.
But Dr Colebatch says the US should be “big enough to swallow the Brown government's antics and to recognise that supporting Britain in so serious a matter is of paramount importance.”
He sees no evidence of any assurance that this is the case.
Even with the approval of all the states to the diversion of the GST, the Prime Minister’s Rudd’s hospitals plan may hit serious constitutional difficulties.
In a public interest case courageously brought in 2009 by law academic Bryan Pape, the High Court recently indicated that there are real limits to the power of the Federal Parliament to appropriate moneys ( see this column, "High Court Performing Well," 14 September, 2010)
The case related to the Tax Bonus for Working Australians Bill, 2009 which was to provide, at a cost of $8.2 billion, financial support to about 8.7 million taxpayers. This support was to take the form of one-off payments ranging from $950 to $300 according to the taxable income of the recipients in the year ended 30 June 2008. The stated purpose was to “immediately support jobs and strengthen the Australian economy during a severe global recession."
....appropriations power....
[ Just how was this German hospital funded in 1682 without a GST? ]
While the court upheld this, there was a discussion concerning the appropriations power. This is to be found in section 81 of the Constitution which provides:
“All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.”
In a leading case in 1975, the AAP case, there was a challenge to a Whitlam government plan to transfer moneys to regional councils for social welfare payments which the Commonwealth itself could not make under the existing social services powers in the Constitution.
....”purposes of the Commonwealth”....
In upholding the plan by a 4:3 majority, the Court was divided as to the meaning of the crucial words “purposes of the Commonwealth.”
Three judges thought this was to be determined by Parliament. Three judges thought the purposes were those set out in the constitution and could be reviewed by the court. In the Pape case, the view emerged that the power to allocate money to say, regional hospital boards (rather than the states) is restricted to the purposes of the Commonwealth ( section 81).
Put simply, deciding what is a purpose of the Commonwealth is no longer a matter for the politicians. .In seeking to bypass making grants to the states (section 96) the conditions for which are unlimited, the Commonwealth could leave itself open to a serious constitutional challenge. The Commonwealth could avoid this by making payments to the states on condition that they then paid the money as the Commonwealth directed. But this would require that the states co-operate.
[I received the following important memorandum from the prominent journalist and author, Mr. Peter FitzSimons. As it was in the Sydney based Sunday newspaper, The Sun Herald, 7 march 2010, so did well over a million people according to the excellent Roy Morgan readership survey . Mr. FitzSimons conceived the Mate for a Head of State campaign, which frankly worried us, particularly the centrepiece which is described below.
That campaign demonstrated once again how the Australian head of state issue was, is and will always be central to the republican case.]
Memo Professor David Flint,
I’ve gone deep undercover on this one but I think I’ve pulled it off.
On Tuesday I had a meeting with Ray Martin (see this column “Ray Martin and Malcolm Turnbull: Grow Up!” 2 February 2010) in a Neutral Bay cafe on the subject of what he sees as the urgent need to change the Australian flag and I think I have made him believe I am on his side!
This is amazing when truly, as you know, I can think of no greater pleasure in life than wrapping myself in the Australian flag, with the massive Union Jack uppermost, while I grovel before English royalty as they tickle my tummy....
and sorry, I digress. Anyway, things are moving. Can’t say too much right now but you can count on me to report back.
Yours in grovelling to all things English,
Peter FitzSimons
[ Bondi Beach: the high point of the mate for head of state campaign ]
...mate for a head of state high point...
The high point of the mate for head of State campaign was to be a series of “sausage sizzles” on the Sunday before Australia Day, 22 January 2006. And what publicity they had had in the media! It must have been worth millions.
They had Peter FitzSimons and other media celebrities on side with substantial media promotion. Some reports were balanced, for example, 2GB’s Jim Ball and Channel 7’s David Koch, both of whom ran stories where the other side is allowed to speak.
So you would think with all that , in a city of over 4 million people and a state of about 7 million people, a few interested members of the public would turn up for the main feature of the day, the widely advertised “Beachside Brunch & Sausage Sizzle” between 10:30am-12:30pm in the Biddigal Reserve, a pleasant grassy rise just a hop step and jump to North Bondi Beach?
The republican movement’s big guns duly arrived for their sizzle, commandeering the only public barbecues at the end of the beach. We wonder whether Waverley Council, still mired in the controversies over its ban on our Australian flag flying over the Bondi Pavilion, and charging lifesavers to park their cars, actually consented to moving out ordinary Australians for the purposes of this political campaign?
So who turned up? An observer told us forty six, and a journalist who interviewed me said “about fifty.” But that included the republican big guns and the media!
Later, when my description of the fiasco at Bondi Beach was published in The Australian, these figures were challenged by an extremely irate and prominent republican.
After some exchanges, when I asked him how many actually came, he insisted there were 300. But he was referring to the number of sausages, not the number of people. (And in any event we do not know whether the sausages were republican or monarchists.)And the public?
Hardly anyone, it seems, notwithstanding the massive publicity. Not even for a free sausage!
And in the meantime, crowds were queuing up a few yards away for a sausage sizzle at the North Bondi Surf Club. But these non-republican sausages weren’t free- they had to pay $1.30 for one sausage. But this was for a good cause, and Australians are interested in good causes.
Rank and file Australians are obviously not at all interested in a republic. Not at all. As we said, who will they blame for this fiasco?
"The four potential referendum questions are obviously the republic, the recognition of indigenous Australians, the third is local government and the fourth is this issue of co-operative federalism," Federal Attorney General Robert McClelland was quoted as saying in the Australian Financial Review at the time of Prince William’s visit (“Change the flag to.... I don't know what :Ray Martin”, 25/1).
[ Gustave Dore : Confusion of Tongues ]
When Susannah Moran asked him about this for The Australian’s Legal Affairs pages (5/3) she reported that Mr. McClelland wasn't as keen on the idea.
He said any referendum "is incredibly difficult to achieve". He also thought it was "pointless" to pursue any referendum question without knowing there was "overwhelming support" from the public because it could disengage them on the issue."I don't think the time has come where Australians are of that mindset," Mr McClelland said. That clears that up, concludes Ms. Moran.
Sometimes a campaigner for handing over all power to the political class and turning us into a politician’s republic is at least honest enough to reveal the republican movement’s full agenda. The official line is usually limited to having a resident Head of State. One such campaigner is Sir Robert Jones.
Sir Robert, or perhaps Sir Bob, is a New Zealand property tycoon, who started the short lived New Zealand Party in 1983. He disbanded that after the 1984 election.
[ Arguably the most beautiful country in the world: Milford Sound ]
Sir Robert told Anthony Hubbard of the Sunday Star Times (28/2) that he approved of Green MP Keith Locke's bill for a referendum with three choices – keeping the Queen, replacing her with a president elected by popular vote, or with a president elected by 75% of MPs. If none of the choices gains half of the votes in the referendum, there would be a run-off between the two leading options in a second referendum.
Unfortuantely these are not real referendums as the Swiss or the Australians would understand them. Rather they are plebiscites, the sort of device the two Napoleons liked.
The difference is that with a referendum, the details are on the table before the people vote. With a plebiscite, the details are filled in later.
What New Zealanders would be asked, if this bill passes, is to give their politicians a blank cheque.
... blank cheque for a politicians’ republic, new flag, anthem and the end of.... New Zealand...
Sir Robert said he supported the Bill because the British monarchy was no longer appropriate in a country with such a broad range of cultures and races. When he walked down Auckland's Queen St last week,
"I said, God, I was the only European face around. I mean, I like that. You'd swear you we're in Hong Kong or something. These people are New Zealanders, [but] they don't relate to Queen and country stuff."
Then he revealed the republican agenda. New Zealand, he said, needed to change its "silly" name, its flag – "apart from the symbolism being wrong, aesthetically it is such a disgrace" – and the "embarrassing" anthem.
Keith Locke says he believes there will be enough support in parliament to send the bill to a select committee. Whether it ultimately passed would depend on the public debate, because many people were still uncertain about the issue. However, he said very few now believed that New Zealand should have a British monarch as head of state "forever".
...so predictable, but I'll keep the title....
This is all so predictable. As in Australia, the usual elites - celebrities and retired politicians - support the move. They all talk about having a New Zealander as Head of State. And again predictably, not one of them is talking about improving the governance of New Zealand.
And Sir Robert, ever so predictably, has not renounced his title.
But at least he has let New Zealanders know what else is on the elites’ agenda. All they are asking for is that New Zealanders sign a blank cheque.
Easy voting is fraudulent voting, warned Mr Richard Mawrey QC at a seminar held at Parliament House Sydney on Thursday 25 February organised by the H S Chapman Society and co-hosted by ACM.
In what he said would disgrace a banana republic, Richard Mawrey QC, sitting as a High Court judge, found six Labour councillors guilty of electoral fraud in the 2004 Birmingham Council election. This made news not only in the UK, but around the world.
In a splendidly bipartisan approach, he subsequently found that Conservative councillors had engaged in fraud in the Slough Council election.
He discusses these findings in the following interview, “Electoral fraud which would disgrace a banana republic.”
In the second interview,” Easy voting is fraudulent voting,” Mr Mawrey QC warns that the longer the period between the calling of an election and the closing of the rolls the greater the likelihood of undetectable fraudulent registrations.
A book was published on the Birmingham Council case in 2005, Fraud At The Elections. This contains "The Full Final and Definitive Judgment of Election Commissioner Richard Mawrey QC Handed Down on Monday 4th April 2005 in the Matters of Local Government Elections."
It is easy to read, and a splendid case study of the way in which some politicians can undermine our democracy if they are given the opportunity to do so. Why then do some politicans insist on making voting easier, and argue that we must allow registrations almost up to the election?
The book is unfortunately out of stock, but once it is available we will let you know.
Electoral fraud has been a particular concern for ACM , both in the election for the 1998 Constitutional Convention and the 1999 referendum. Unusually for Australia, the 1998 election was voluntary and not just postal on demand, which Richard Mawrey QC warns cannot be protected against serious fraud. The Convention election was wholly postal.
The conclusion from Mr. Mawrey’s advice is that any future plebiscite and referendum held under the present system will involve a degree of electoral fraud. How much we do not know.
And of course, this potential for electoral fraud challenges the legitimacy of all our political institutions. This is because such a potential acts as an incentive for fraud. Were we to allow such a potential for fraud with credit cards, does anyone seriously suggest that this would not attract fraudsters? The same is of course true of elections.
We must be vigilant whenever proposals are made to make voting easier. We must also demand that the exisitng obvious incentives for fraud be removed or countered.
[It is of crucial importance that those who so successfully defended our constitutional system at the 1998 Constitutional Convention and in the 1999 referendum maintain the unity they achieved there.
The five monarchist groups at the Convention worked closely together and a consensus was reached there and in the referendum campaign on fundamental matters. One of these is that the Governor-General is the constitutional head of state, a conclusion reached by all leading constitutional monarchists on the best legal and other advice available.
Although he is on the record concurring with this conclusion from at least 1996, the Australian Monarchist League’s Chairman Philip Benwell has in the last 10 months launched a campaign to reverse this. This has included a scathing attack on fellow constitutional monarchists, an attack which found its way into the media.
This can only be of advantage to those intent on removing the Australian Crown from our constitutional system.
Until now, ACM has only responded privately in the hope that the matter could be resolved. The continuation of this public campaign has forced our hand.]
[ Mr. Benwell's attacks on the consensus that the Governor-General is Head of State were posted on his site beside this portrait with this caption ]
...the Yes/No booklet...
Before a referendum is held, the AEC sends every voter a booklet containing separate arguments for voting Yes or No. This is known as the Yes/No Case pamphlet, or Yes/No booklet.
This is an important part of any referendum campaign. At least republicans think so. Recently, they tried to end or at least weaken this. ACM fought this vigorously and filed a major submission ( and a supplementary submission) arguing for the retention of the Yes/No booklet with the recent parliamentary Inquiry into the Machinery of Referendums.
[There were nine references to their argument for the need for an Australian Head of State in the Yes case, more than for any other argument. It was central to the Yes case. That is why the No case stated: Our constitutional head of state, the Governor-General, is an Australian citizen and has been since 1965 ]
The centrepiece of the official Yes case made by republicans and sent to all voters in 1999 was about the need for an Australian Head of State. Mentioned nine times - more than any other argument - it was the republicans’ only serious argument in the campaign.
A decade later it still is.
Accordingly constitutional monarchists need to be vigilant on this issue. If there is a plebiscite or another referendum at some time in the future, the Head of State issue will be a key argument.
The official 1999 referendum No case sent with to all voters was more detailed and, we think, more persuasive than the Yes case.
The Yes case appeared on the left hand pages and the No case on the right hand pages. Readers found that the last 11 left hand republican pages contained nothing. And they faced 11 pages of detailed No case argument.
This was a serious tactical error by the republicans, and has led to recent calls in the recent parliamentary Inquiry into the Machinery of Referendums for changes to the booklet, even its abolition. A number of participants – obviously republicans – were highly critical about our No case.
In other words, they realised it was effective.
The 1999 No case gave the voter not one, but ten reasons to vote No. The key one responding to the principal argument in the Yes case was this
“Our constitutional head of state, the Governor-General, is an Australian citizen and has been since 1965.”
So why should any monarchist now seek to undermine what worked , what was a successful strategy and what was supported by the best legal and political research?
....undermining success....
But a recent comment in February 2010 by Philip Benwell on the Monarchist League website (“In response to Professor Flint’s Comments”, undated) criticises me for saying that all leading constitutional monarchists actively involved in the constitutional convention and the referendum campaign, both inside and outside Parliament, supported the argument that the Governor-General is the constitutional head of state (“Royal Domino Theory”, Thursday 25 February 2010).
This followed an earlier, scathing, attack by Mr. Benwell on ACM which was sent to the press and posted on the Monarchist League website – see below.
Mr. Benwell’s latest comment appears next to a photo of the Governor-General.
Ironically, the caption above that photo of Her Excellency reads: “Australian Head of State”. This illustrates the confusingly different positions Mr. Benwell has adopted over the years on the Head of State issue.
[ Described as the Australian Head of State on the AML site ]
...the head of state...
The term head of state has its origins in diplomacy. It was introduced as an alternative to the generic term ‘prince’." ( See TheCane Toad Republic, 1999, chapter 3). As such it is governed by international law, an area of my particular expertise as a professor of law.
The Australian Governor-General is held out to be and is received as a head of state. Under international law she is the head of state. This conclusion does not of course determine the status of the governors-general of the other fourteen Realms.
As for constitutional law, there is no such designated office in Australia mentioned in the Australian constitution. The question is can the Governor-General be described as the constitutional Head of State.
As the former Chief Justice of Australia , the late Sir Harry Gibbs said “there is a strong argument that the Governor-General, although representative of the Queen, is the Head of State of Australia.” Curiously, Mr. Benwell, in a published paper, specifically cited this observation with approval.
....indispensable office.....
To say the Governor-General is Head of State in no way denigrates the role and function of The Queen who remains absolutely essential to the Australian constitutional system: see David Flint, Her Majesty at 80: Impeccable Service in an Indispensable Office, Foreword by Tony Abbott MP, 2006.
[Impeccable service in an indispensable office ]
...Mr. Benwell changes his mind ...
Although he was highly critical of Kerry Jones when she first referred to the Governor-General as Head of State in the early nineties, by the time of the constitutional convention in 1998 and the referendum in 1999, Mr. Benwell had changed his mind.
He was at that time in agreement with ACM. In November 1996 he wrote that “...we have as our resident Head of State...the Governor-General...” However in June 1997, he had second thoughts, and decided that “constitutionally, however we actually have no Head of State.”
But by August 2001, he had returned to the view espoused by most constitutional monarchists. He wrote that republicans “...repeat in a parrot like fashion, ‘We want an Australian Head of State’. I have news for republicans. If we have a Head of State we have one in the Governor- General and he is an Australian.”
It was here that Mr. Benwell quoted with approval the late Sir Harry Gibbs, the former Chief Justice, who said “there is a strong argument that the Governor-General, although representative of the Queen, is the Head of State of Australia.”
Then in an introduction to a book of collected papers published in 2003, which included all of the above references, he declared that “...if we are to have a Head of State, it should be the Governor-General.” (In Defence of Australia’s Constitutional Monarchy).
.... Mr. Benwell lets Gerard Henderson into the secret....
In January 2006, Dr. Gerard Henderson, the Director of the Sydney Institute and columnist with The Sydney Morning Herald, The Courier Mail, The West Australian and commentator on the ABC and other outlets, made an extraordinary revelation.
“ I was told by Philip Benwell, the head of the Australian Monarchist League, that he (among other monarchists) approached the Palace and requested that the website be changed. Not wanting to involve itself in the Australian political debate, the Buckingham Palace website was altered and the reference to the Queen as Australia's head of state was dropped.”
A theme of this speech was the republican position that the Governor-General is not the Australian Head of State. Dr. Henderson repeated this story about Mr. Benwell in one of his press columns, and has returned to it recently. Mr. Benwell has not denied this account.
We do not understand why Mr. Benwell would have briefed Dr Henderson, a leading republican, with this information.
In any event this account is a clear indication that Mr. Benwell supported the argument that the Governor-General is the Australian Head of State. So why has Mr. Benwell recently adopted the republican theme propounded by Dr. Henderson that the Governor-General is not the Australian Head of State?
He also launched a very personal and baseless attack on all those monarchists who had argued in the nineties that the Governor-General is Head of State.
He said that “when republicans hit upon the phrase ‘an Australian for head of state’ [in the nineties] some monarchists were thrown into a complete panic and came up with all sorts of absurd suggestions, ...that ‘the Governor-General and not the Queen was head of state’...”
He added that this was because these monarchists did not have “a proper understanding of our constitutional and monarchical system of government.”
He suggested that some of these monarchists “lacked courage”. Mr. Benwell clearly meant Australians for Constitutional Monarchy and the eminent lawyers – including the former Chief Justice the late Sir Harry Gibbs – who had helped develop the position that the Australian Head of State is the Governor-General.
...media involved....
Had he Mr. Benwell forgotten the fact that he was on the public record from at least 1996 endorsing this position on more than one occasion, including his extraordinary briefing of Dr Gerard Henderson?
Before this paper was posted to the Monarchist League site it came into the hands of certain journalists, including a determined republican journalist who used it to publish a comment saying there was a division among monarchists. This also appeared in a major metropolitan newspaper.
When the paper was finally posted to the front page of the Monarchist League site, it was placed beside the photo of the Governor-General which, as we mentioned above, is captioned “Australian Head of State”
...rewriting history....
Even then we ACM refrained from responding publicly to Mr. Benwell. His latest post of February 2010 referred to above has forced our hand.
In this, Mr Benwell also claims the Monarchist League delegates to the convention did not support what was in the Yes/ No Booklet because they “were excluded from the [official] No Committee.”
He says this was “supposedly because they would not agree to join as a team with republicans and were insistent that the role of the Crown and the Queen in our constitution should be explained, not ignored.”
This is not correct.
It should be pointed out that for some reason Mr. Benwell did not stand for and never attended the Convention and also stood down as Chairman of the Monarchist League during the referendum campaign. In an any event the reason there were no Monarchist League members of the No committee is not as Mr. Benwell gives it.
...membership of No Committee decided on size of vote...
Both the Vote No and Vote Yes Committees were appointed by the government to supervise the official advertising campaigns.
The approval of the Official Yes and No cases, published in the Yes/No booklets, was not the responsibility of these committees. According to the law, that role lies with the MPs supporting each case.
The government decided the proper criterion for appointment to each committee was the number of votes gained by each of the groups in the Convention election.
On the basis of the votes received the government decided the Vote No committee should be made up of eight constitutional monarchists with two republicans from republican groups opposed to the Turnbull-Keating model which was the subject of the referendum.
There were five constitutional monarchist groups elected to the Convention. ACM had won 72.82% of the constitutional monarchist vote, followed, in order of size, by Bruce Ruxton’s Safeguard The People, the Australian Monarchist League, Queenslanders for Constitutional Monarchy and Fred Nile’s Christian Democrats.
On those results the government determined that all eight constitutional monarchist seats should go to ACM delegates. No offer was made to any of the other four monarchist groups.
The Monarchist League delegates were not excluded from the Vote No Committee for the reason Mr. Benwellsuggests. This was that “they would not agree to join as a team with republicans and were insistent that the role of the Crown and the Queen in our constitution should be explained, not ignored.”
The reason was the government determined that on the size of their vote they were not eligible under the appointment criteria .
[ 1998 Constitutional Convention: LLoyd Waddy QC addresses the chamber : National Library of Australia ]
...High Court decides...
Mr. Benwell then refers to a hitherto unnoticed High Court decision I had unearthed about three years ago. (See: The Howard Era, ed. K.Windschuttle et al, 2009, Chapter 14; first published as David Flint, “The Head of State Debate Resolved”, Quadrant , July-August, 2008; “Head of State debate resolved in 1907”, Professor David Flint AM, 12 July 2007
The decision was handed down in 1907, when a bench of Founding Fathers unanimously described the Governor-General as the “Constitutional Head of the Commonwealth” the Governor as the “Constitutional Head of the State” and The King as the “Sovereign”.
[ The first High Court sitting with three of the five Founding Fathers who decided in1907 that the Governor-General is the Constiutional Head of the Commonwealth of Australia ]
As a senior appellate judge observed when he read the case: “This settles the matter. There can be no doubt now”. The leading authority in this area has come to a similar conclusion. He is of course Sir David Smith, whose 2005 magisterial work on this question, Head of State, 2005, remains unanswered to this day.
But Mr. Benwell claims that because the term “Constitutional Head of the Commonwealth” [of Australia] in the judgment is preceded by the word “officiating”, the Governor-General is therefore not the “Constitutional Head of the Commonwealth”.
The word “officiating” means performing the duties of an office. It is often used in the church – e.g. “...the officiating clergyman blessed the couple...” Used there it clearly does not mean the clergyman is anything but fully empowered.
In that sense the word “officiating” in this decision merely means whoever happens to be Governor-General at the time.
The word “officiating” certainly does not neutralise the clear intention of the judges to describe what The Queen recognised when refusing to overrule the dismissal of the Whitlam government in 1975 – that the prerogative powers of the Crown are placed by the Constitution in the hands of the Governor-General and Her Majesty constitutionally has no part in decisions relating to them. (The Cane Toad Republic, 1999, page 93)
...who’s harping?....
In his latest post Mr. Benwell accuses me of harping on the Head of State issue. But the last two major front page posts have been about this, all posted on the AML site beside the photo of the Governor-General with the caption” Australian Head of State.”
More importantly it was and is the only serious claim made by those who would foist a politicians’ republic on Australia. Opinions will always differ on the detail of our beliefs. The ACM Charter is based on acknowledging that ACM is indeed a broad church. But to be effective, we have had to adopt very clear positions in campaigns fighting to survive.
Thomas Flynn, ACM’s Executive Director, has put his finger on it. The republicans can lose, but they are allowed to keep on coming back. But if we had lost in 1999, the media and the politicians would not have allowed us to fight again. However unfair that is it is absolutely true. We have to be ready, and we must not retreat from any of the positions which persuaded the people in 1999. And the strongest of these is our bona fide conclusion, supported on the evidence, that the Governor-General is Head of State.
... against God Save the Queen and for Malcolm Turnbull...
We have disagreed with Mr. Benwell in the past and will no doubt do so in the future. This has been particularly so when he appears to launch a personal venture without apparent consultation within the Monarchist League. This has on at least two particular occasions created a storm within League ranks.
One was when he went to the media to denounce our campaign to ensure the Royal Australian Anthem, God Save The Queen, should be played at the Melbourne Commonwealth Games.
The other was when he campaigned for Malcolm Turnbull in the 2004 election. The furore within League ranks was such that he told the Wentorth Wentworth Courier it was a “personal” campaign. This did not stop him convening a function at the Union Club in Sydney where a founder of ACM and long standing constitutional monarchist, the then member for Wentworth, Peter King, was denigrated before an audience of constitutional monarchists.
On the other hand when Mr. Benwell suddenly and inexplicably engaged in a campaign dissenting from our long standing total opposition to any constitutional plebiscite, we were delighted that the AML National Council appears to have intervened and reversed this.
....monarchists must be united on core issues ...
Whatever group we belonged to, monarchists were united at the convention and in the referendum. We do not understand why Mr. Benwell has launched an attack about the head of state argument which he has so clearly supported in the past.
And why say in a paper which somehow found its way to the media even before it was posted on the AML site that the reason other monarchists adopted this argument was because they panicked, did not understand the constitution and lacked courage?
The republicans have gone backwards since 1999. We have made significant inroads there, and the times have changed. But they are still determined to force the issue. A central argument is that only under a politicians' republic can we have an Australian Head of State.
What possible advantage is there in Mr. Benwell’s attempts to agree with the republican position and to reopen a matter clearly settled among constitutional monarchists before the referendum campaign, and moreover one which he has specifically endorsed on several occasions over at least thirteen years?
