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Is David Flint ( National Convenor since 1998) the republicans best asset, as some claim?
ACM Home arrow ACM News arrow The Governor-General

The Governor-General Print E-mail
Written by Professor David Flint AM   
Wednesday, 18 July 2001
Last week (13 July) I questioned whether a Governor-General should be a sort of national guru, offering opinions on all sorts of issues. This seems to have begun with Sir Zelman Cowan, who coined a truly memorable description of the Governor-General’s role. This was, he said, one of “interpreting the nation to itself”. At first glance, this seems admirable. On reflection, I wonder whether it is appropriate. I do not think that previous Governors-General saw this as their role, nor do I think The Queen does. There is a time for the Governor-General to speak, but the themes must never be political. As I said last week, if this role of national guru is associated with the novel proposition that a Governor-General should have an agenda or even a platform, however worthy, it is wrong in principle. Why? Because a Governor-General should have no other aim than that of doing his or her duty – which is to act as the constitutional head of the Commonwealth or of a state. That in itself is onerous enough, without having an agenda. This is another reason for appointing a person who is distinguished but whose career has reached its end. The incumbent should not be ambitious for further office, otherwise his or her judgement could be affected by the desire to be appointed to some other office at some time in the future.

My comments were provoked by Robert Manne’s piece in The Age and The Sydney Morning Herald. My letter responding to him follows:-

Sir,

If Robert Manne is saying (2 July 2001) that a Governor-General should be at liberty to make pronouncements on anything that happens to attract his attention, he demonstrates a failure to understand the centrality of the Australian Crown in our constitutional system. This is that the Crown gives us leadership beyond politics, and that its various offices – Governor-General and Governors – are beyond the capture of politicians and political parties. Does he really want the situation where President and Prime Minister can openly and publicly clash? The recent collapse of the Turkish currency was directly attributable to such a public slanging match. Why tinker with a system which has proved more successful than any other constitutional system?

The letter was not published.

Dr Peter Hollingworth

Dr Hollingworth, our new Governor-General is a distinguished Australian. I had the honour of welcoming his appointment at an ACM function on 14 June.

The uninformed keep repeating that he is not entitled to be addressed as Dr Hollingworth. A post graduate student, close to getting her Ph.D., wrote a letter along these lines complaint to the Courier Mail. Apparently she must not have known that (a) the Governor-General had been awarded the Doctor of Letters, (b) that universities, probably including her own, award higher doctorates, and (c) that higher doctorates have precedence over Ph.D.’s.

So I wrote this letter which the letters editor said would be published:

Earned doctorates are not (letters 2/7) restricted to the Ph.D., where a student writes a thesis under supervision. Higher doctorates are awarded for a significant contribution, or a series of contributions in a given field, often over a lifetime. Recipients are unquestionably entitled to be addressed as Doctor. These degrees should not be confused with honorary degrees, where the contribution recognised (e.g. philanthropy) is not academically related to the doctorate. Your correspondent may well be surprised, but the authority of the See of Canterbury to award degrees is more ancient than that of any of our universities.

I notice one or two journalists still refusing to use the title “Doctor”. This is needlessly discourteous.

Western Australia and the Oath of Allegiance

You can’t keep a good republican down. We would have thought that the massive landslide in the referendum in Western Australia might have encouraged republicans to leave the question along. But the WA Attorney-General has decided he will change the Oath of Allegiance. And one of the MP’s likened swearing the oath to swallowing broken glass. Let’s hope that witnesses in court cases don’t feel the same way about the oath to tell the truth.

ACM put out the following press release:-


6 JULY 2001


REPUBLICANISM BY STEALTH CONDEMNED


“The proposal to remove from the Oath of Allegiance any reference to The Queen of Australia is not only part of a broader campaign to change our institutions and symbols including our flag. It is also an attempt to chip away at the one institution in our constitutional system which is beyond the capture of politicians and political parties”, said Professor David Flint, National Convenor of Australians for Constitutional Monarchy.

“The people of Western Australia voted overwhelmingly to reject the Canberra politicians republic in 1999. It was a landslide – with 93% of electorates in the State registering a No vote.

“Now we see an attempt to introduce that republic by stealth.

“The people of Western Australia saw through the previous attempt and they will see through this one too.

The Attorney General appeared on the ABC Liam Bartlett program immediately after his announcement. Mr Bartlett then spoke to Professor Flint. Callers, including republicans, were four to one against Mr McGinty - one pointed out that Mr McGinty had campaigned for a Yes vote in 1999, and he should accept the decision of the people of Western Australia, and not try to circumvent it.

The Best Countries to Live In

The UN development program has just released its list of the most desirable countries to live in. The list is based on a general assessment of social and economic wellbeing. And of course a country’s institutions and constitutional system have much to do with achieving this sort of wellbeing.

This year Australia was ranked second after Norway and before Canada. (Canada had topped the list for seven years.) The top five are constitutional monarchies. So are seven of the top ten! As you can imagine the worst 10 are all…. you guessed it, all republics.

No One is Interested

The new Chairman of the Australian Republican Movement, Greg Barns, who was ARM Campaign Director during the referendum addressed the National Press Club on 10 July. One of the journalists asked him about interest in the republican issue, pointing out the frenzied emails sent out two days before to ARM supporters to come to the function which was in danger of being cancelled! Mr Barns said the ARM support base fill after the referendum, but was now 4.000. He said they would release a discussion paper on options for republican models in August ACM responded with this Press Release:

“Australians will ignore the imminent release of recycled and cobbled together republican models” predicted the National Convenor of Australians for Constitutional Monarchy, Professor David Flint.

Responding to Greg Barns, Convenor of the Australian Republican Movement, Professor Flint stated “While Mr Barns talks about civics education, he restricts himself to stooping to personal attacks on the members of the Royal family and prominent Australian Constitutional Monarchists. He avoids addressing the real issue – the leadership which the Australian Crown gives to our democracy beyond and above politics. Australians won’t forget that the ARM solemnly promised it would be no more the day after the referendum.” Professor Flint added.

“And we won’t forget the empty threat that Australians would be made to look ridiculous, and suffer enormously, if we didn’t change our Constitution and our flag for the new millennium and for the Olympics,” continued Professor Flint.

“Australians won’t forget the millions and millions of taxpayers funds the ARM insisted be diverted from schools, hospitals and other worth while causes just to produce two fundamentally flawed models over the last decade –none of which came even close to our present Constitutional system, one of the world’s great success stories. At least on this occasion, the republic cause is not being funded by the largely disinterested taxpayer. Let’s keep it that way,” Professor Flint said.

Although the press dutifully reported the National Press Club function, especially in The Australian - with a news report on an opinion piece both by Paul Kelly, and a report afterwards in which the ACM reaction was said to be “indignant”, the overall reaction was one of supreme indifference. If Mr Barnes has to email even his own supporters to ensure attendance at the National Press Club, what does that tell us about the general public?

Professor Winterton Returns to the Fray

Unlike many others Professor George Winterton is consistent in his republicanism. So many celebrity republicans converted to the cause when they thought, wrongly, that the wind was blowing that way.

Professor Winterton is a constitutional lawyer of considerable authority. He was a member of Paul Keating’s Republic Advisory Committee (1993) and the Constitutional Convention (1998). But the two models which they produced were fundamentally flawed, and certainly not up to our present constitution. The landslide defeat in 1999 has not stopped Professor Winterton returning to the fray. This time he proposes a popularly elected presidency.

The Age, which ran an extract of Professor Winterton’s address, was interested enough to write an editorial encouraging the Republic. It claimed republicans did not get “a thrashing” in the referendum. It also tried to downplay the fact that nobody, except journalists, politicians and their associates, is interested.

My response to The Age was not published, but some letters replying to Professor Winterton were. Mine follows:

Letter to Editor
The Age

Editorial, 13 July 2001

You say the No case has propagated the myth that the referendum result was a landslide. It was. When the informal and non-voters are taken into account, the Yes vote falls below 45.0%. And that on an electoral roll which has been demonstrated to be suspect, with even a cat said to be registered to vote in New South Wales! Moreover the Yes vote was concentrated nationally into 28% of the electorates, falling to 7% in Queensland and Western Australia. As Malcolm McKerras points out, 0.01% of the Australian landmass – and not one State - voted Yes.

Worse for the passionate, and as Malcolm Turnbull admitted to his own diary four months before the referendum, “Nobody is interested!” So when Mr Barns went to address the National Press Club last week, your reporter pointed out interest was such it was to be cancelled on Monday. It was only saved by an urgent email insisting ARM supporters turn out. So much for your second myth that the vast bulk of Australians are just not interested

Incidentally, Professor Winterton refers to former Prime Minister Keating’s threat to put a plebiscite asking whether the people wished to replace the Queen with an Australian Head of State. He says in a footnote that this led ACM to propound the “ludicrous” argument that the Queen was not the Head of State but the Sovereign. Nowhere in this paper does Professor Winterton admit that Mr Keating’s government and the previous government in which he was Treasurer, held out the Governor-General as Head of State to numerous foreign governments. Moreover this was confirmed in the government’s own official directory. And in event, the term Head of State is not used in any of our constitutional documents. Why? It is a diplomatic term. So whose argument is ludicrous?

Sir Gerard Proposes

During the referendum campaign The Australian published a letter signed by three Knights of the Realm. They assured the people that the republican model was safe. However two of the three, former Governor General Sir Zelman Cowan and former Chief Justice Sir Anthony Mason had earlier expressed serious reservations about the model! The third signatory, another former Chief Justice, Sir Gerard Brennan had not spoken publicly on the issue before.

On 18 July, Sir Gerard delivered a paper at the Australian National University “100 Years On: Strengths and Strains in the Constitution”.

The paper is republican and centralist. There is in it a recognition, at least implicit, of the difficulty of grafting a presidency on to our Westminster system. I think republicans now are close to conceding that a president is certainly not a Governor-General with a new name. The presidency will be captured by the political parties, unlike the office of the Governor-General.

To redress the obvious incompatibility of a president with our Westminster system, Sir Gerard proposes a device, a Constitutional Council of six – three former Governors-General or Presidents, three former High Court Chief Justices or Justices . The President would need their approval before exercising his reserve powers (these are the powers the Governor-General relies on as an ultimate safeguard to protect the Constitution).

In my view this is a “band aid” which will not work.

First, it does not address the problem of the President acting and speaking politically. This year, a public spat between the President and the Prime Minister of Turkey led to a financial crisis and the collapse of the currency! As the republican, former ALP President Barry Jones admitted, its like having a car with two steering wheels.

Secondly, the draft submitted by Sir Gerard denies a President the powers the Governor-General has today to “audit” government functions – in brief, to be satisfied that what he is advised to do is within his lawful authority. (Bill Hayden deals with this onerous role in some detail in his memoirs). Just remember, for example, the “Loans Affair” under the Whitlam Government.

Third, the Constitutional Council would muzzle the President just when he needs to act. The obvious example is the 11th November 1975 – the last day on which an election could be called. Under the model which Sir Gerard certified as safe in 1999, had Sir John Kerr referred the exercise of the reserve powers to a Constitutional Council, Mr Whitlam could have immediately dismissed him various Administrators – leaving him to govern without supply. There are other examples of the exercise of the reserve powers – whether or not to grant a dissolution, as in 1983 when Malcolm Fraser called without making an appointment while the Governor-General was receiving an ambassador. The Governor-General sent him away, but took a decision in the afternoon.

There is also the problem of a hung parliament, when no party has a majority. Should the President really have to seek the certification of the Constitutional Council?

Few constitutions work for long. Most have been failures. Australia has that rare creation, a successful constitution. Certainly, let us consider amendments for those parts that do not work well. For example, the centralist interpretations of the Constitution by previous High Courts which have never been approved by the people. But why target the part of the Constitution which is a balance to the dominance of the politicians and political parties? The part which works and works well. One of the fundamental parts of our “indissoluble Federal Commonwealth under the Crown.”

In summary, Sir Gerard’s proposal will mean that the President could be a nuisance and a busy body. Lets hope he doesn’t do the damage we have seen in Turkey and elsewhere. But when it comes to his (or her) real powers – power to stop a Prime Minister out of control – he will be effectively neutered. Australians are unlikely to want that!

Until next time,

David Flint

 
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