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ACM Home arrow Anthems arrow Constitutional Essays arrow Colonies To Commonwealth: The Evolutionary Crown

Colonies To Commonwealth: The Evolutionary Crown Print E-mail
Written by Bruce Knox   
Sunday, 20 August 2000
First, a lament. The colonies in Australia preceded and produced the Commonwealth. The Commonwealth and its institutions of government are incomprehensible without the colonies. This obvious truth seems to have been more overlooked than considered. That is why there is such a dismaying contrast between the position of the States of Australia in relation to November’s Republic referendum and the position they ought to occupy. No-one doubts that, if the referendum were to succeed – and presuming that the Establishment of Republic Act survived the High Court challenge which it deserves – its effect would be to create the Australian republic which its proponents so ardently desire. Of itself, it would have no effect on the States, each of which is a separate monarchy. Each state would need to consider its future position and status, in terms of whether or not the Queen would remain its sovereign and the governor its head of state as Her Majesty’s representative.

It would surely be bizarre for the States, or any particular State, to retain the monarchy in the face of such a change in the Commonwealth. I hold this view out of regard for the dignity of the Crown itself: indeed, any attempt by a State to stand out of the general change might reasonably provoke the Queen into some appropriate form of refusal to endure further humiliation. But it reflects also my perception of the weakness of the States in relation to the Commonwealth. Their supine behaviour in connection with the republican project has not helped them. It is clear to me indeed that they have contributed to an increase in their growing subordination to the Commonwealth by not resisting the push. At the very least they could have demanded to be consulted about any process by which a republic might be considered or its introduction planned or prepared. Instead, they have suffered a setback.

Their fault is grave, but graver still on the part of the Commonwealth. When Mr Keating as Prime Minister decided to adopt the republican push as his own, he committed the Federal Government to a policy designed to end with the establishment of a republic authorised by such a referendum as we must now suffer. The Australian Labor Party, unenthusiastically but with lurking memories of ‘1975’, had already adopted the republican objective for the talismanic year 2001. Minimally critical of the Prime Minister’s excesses (for such they increasingly were) the press began a relentless presentation of the ‘inevitability’ of a republic, which by the time of writing has reached the proportions of a scandalous abuse of privilege. The Australian Republican Movement of course maintained its attempted blitzkreig. Under such an intimidating combination, it is perhaps not surprising that the States, with, for the most part, their lesser resources, should have faltered.

One State government at least was equipped with an impressive knowledge and understanding of the moral requirements of the situation and consequently of what was due to the people of the country whose form of government was under attack. That was the Government of Victoria. Its Premier, Mr Kennett, has more recently declared his conversion to the belief that a republic must come, and he is prepared to vote for the deeply unsatisfactory ‘model’ on offer. To attempt to plumb the workings of Mr Kennett’s mind is beyond the scope of this paper. But his present stand is very far removed from, and even at odds with, that of July 1993 when he delivered a speech to the Conference of the Samuel Griffith Society, entitled ‘The Crown and the States’. Its theme and arguments are of great value, and should have been communicated to other State Premiers, regardless of party or other predisposition.


Besides its central theme, Mr Kennett’s address advanced a general analysis of the quality and practicality of the republican proposal, especially as it had been so recently and so keenly taken up by the then Prime Minister. It is hard to fault its several points – from how it was ‘deceptive’ to advocate ‘a fundamental and radical change’ while describing it as ‘only a small, cosmetic, "minimalist" change to our Constitution’ – to the extreme unlikelihood of finding any method of appointing a President which would ensure the continuation of the ‘truly apolitical’ role of the Governor-General. For all that he has changed his mind, none of Mr Kennett’s points and arguments has lost its force.


Ironically, within the last few months the central concern of the address – the position of the States – has suffered a serious blow. In May 1999, at the government’s behest, the Victorian parliament passed an Australia Acts (Request) Act. Under it, the Commonwealth Parliament is asked to amend the Australia Acts, 1986, so that Section 7 of those Acts, stipulating that ‘Her Majesty’s representative in each State shall be the Governor’, need no longer be binding. The idea was to ensure that, in the event of a successful referendum in November, the State would not need to seek (or be willy-nilly subjected to) Commonwealth action abolishing the monarchy in Victoria. All the States and Territories, encouraged by the Commonwealth, had agreed to pass such a Request Act, ‘to preserve the constitutional independence of the States’. In terms of purely legal theory this independence may well have been achieved. We might well consider, however, that it was a moral and political misdemeanour or miscalculation on the part of the States, for it represented the acceptance by them of a fait accompli initiated by the Commonwealth: one which assigned a subordinate role to the States in a matter in which, if anything, the reverse should apply.


It is an ominous reminder of how far State functions and status have succumbed to centralism since 1901. Whether the uncertainties involved in introducing the republic would give rise to, or permit, unforseen further adjustments in federal-state relations is a serious question, not to be pursued here. We must notice however that, while the States have preserved their right to appoint – or not to appoint – Governors, no productive thought seems to have been given the role or character to be possessed by these functionaries once they are deprived of vice-regal status. They are even less provided for than the intended President of the Commonwealth, itself a most unhappy invention. They are already deprived of the prospect of titular distinction; the Governor of New South Wales has removed from Government House at the request of a Premier who seems to relish the tactics of the Irish Free State in the 1930s for degrading the Crown. We might well expect that republican governors will be subjected to like indignities. Worse, the auguries suggest that they will lose their capacity to curb, as in Tasmania and Queensland in quite recent years, constitutional impropriety.


The 1993 Kennett address gave close attention to the position of the States under the republic project, working from an apt and proper base. ‘Not for one minute’, stated its author, ‘do I believe the founding fathers of the Constitution contemplated [that section 128: providing for amendment] would be a vehicle for removing the Monarchy.’ It was, he supposed, not clearly out of the question to establish a republic by its use, but it was at least ‘problematic’, not least because Clause 2 of the Constitution ‘both provides for the continuation of the Monarchy and prevents indigenous monarchies being instituted.’ Evidently the present federal government, following its predecessor, has decided that this is not an insuperable obstacle. It merges however with a further consideration which takes us to the very heart of the question of where the States fit, or ought to fit, in any move to turn Australia into a republic. Citing a raft of ‘Australians versed in constitutional law,’ the paper made much of a particular passage in the preamble to the Constitution Act, viz., the words, ‘one indissoluble Federal Commonwealth under the Crown’. By associated legal argument, the author concluded that the republican proposals ‘cannot be carried out without the agreement of all State governments’. (Perhaps by a drafting error, the word ‘governments’ occurs rather than ‘parliaments’: though, as we shall see, even ‘parliaments’ seems inadequate.) But this problem has been overcome by the stratagem described above, thanks to the extraordinary permissiveness of the Australia Acts.


Why, then, do I deplore the stratagem, since it seems legal? The answer lies, at least in the first instance, in that part of the preamble to the Constitution Act which was not quoted in the Kennett speech (though its author was certainly conscious of it). It reads: ‘Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania ... have agreed to unite ...’, in the ‘indissoluble federal Commonwealth’, etc.. As I, not a lawyer but an historian, read these words, it seems to me doubly wrong that the State governments, after a conference of their and the Commonwealth’s Solicitor-Generals, should have agreed to introduce Bills which assume that the republic referendum will be carried, and that it is the proper way to introduce such a change in the Commonwealth of Australia. To me it seems that, though it may be ‘legal’, it is certainly not proper. As the Kennett speech put it, ‘to remove the Crown is not to amend the Constitution but to change it for another’.

A good deal that is said for or against the republic project refers to ‘democracy’ and to bringing the people into the process. How odd therefore that so few observers have taken notice of the words of the preamble quoted above. ‘The people of New South Wales …[and the rest]’, it states, ‘have agreed to unite ...’; it did not refer to ‘the Australian people living in New South Wales, etc.’; and it did not say that a majority of the colonies agreed to the union, but that all had agreed (as, shortly afterwards, did Western Australia). Before that agreement, expressed through referenda, there was no unity. As Robert Lowe wrote in connection with one of the first federal proposals (1856): ‘The Colonies of Australia are substantially as regards each other, foreign countries, subjects of the same sovereign but having no political relation to each other’; and this condition had been only slightly altered by the Federal Council of Australasia Act, 1885. Being ‘subjects of the same sovereign’ was an undoubted – and forgotten – advantage, but the ‘Australia’ for which a constitution was being made could not exist without that agreement between the colonies, nor could the Constitution itself; nor, of course, could an ‘Australian people’. It must be added that the process of obtaining the agreement had involved rather more than a one-off vote, and that consideration had taken, not just the 1890s but, on and off, about half a century: W.C. Wentworth, Charles Gavan Duffy and, indeed, Earl Grey, deserve as much remembrance as Deakin, Griffith and the end-of-century others. It has become, moreover, something of a commonplace that the final stages did not gain momentum until governments and legislatures ceased to tell the people of the colonies what they should wish to have, and began to ask them what they wanted.


This is in stark contrast with what is now happening. True, a ‘Constitutional Convention’ has been held. It is however held in contempt by those who, for good reason, regard its outcome as having been manipulated by one segment of opinion, with the Prime Minister’s connivance; and the States – State governments that is – were alloted a minimal role in determining the membership of the Convention. Apart from that event, the whole approach to a vote on reconstructing the Constitution has been determined and controlled by the Federal Government. Its measures were passed by the House of Representatives because it is easily controlled by government, while the crucial Bill for the referendum was manoeuvred through the Senate, whose members showed interest in little beyond party and none for the interests or standing of the States. State participation in the process has been limited to the Requests for amendments to the Australia Acts already mentioned as having been arranged by a conference of State and federal officials.


The following contentions thus seem at least reasonable:


The conversion of Australia to a republic involves, and ought to be acknowledged as involving, not an amendment to the Constitution but a replacement of it with another.

As the primary purpose of the Constitution of 1901 was to implement the desire of the Colonies to form ‘a federal Commonwealth under the Crown’, the arrangement ought to be re-negotiated if one of these components is to be eliminated.

At the very least, any proposed new Constitution ought to be submitted for the approval of all the original parties to the compact; and this is a requirement upon which the States ought to have insisted.


Any new Constitution ought not to be brought into existence without the concurrence of a majority of the people of each of those parties – that is, of every State.

It is to the discredit of both the Commonwealth and the States, and to the disadvantage of the latter, that none of these conditions has been, so far as I am aware, so much as canvassed by their governments. I advance this opinion aware that the legality of the existing process has not been challenged and that a challenge might fail. It is, I suggest, immaterial. The obligation of treating the republic proposal as the responsibility, ultimately, of the States and their people is a moral one. Perhaps, in the event that the republic referendum fails, the obligation will be observed in some distant period.


Understanding that the States and the Crown are privileged by the Constitution of 1901 directs attention to the era preceding the establishment of the Commonwealth and enables us to expose one of the central fallacies of the republican push. The ‘official’ republicans, those chiefly represented by the Australian Republican Movement claim that their proposal involves no profound alteration of the Australian political system – that the referendum model is ‘minimal’. They insist that maintenance of parliamentary, cabinet government is their sine qua non. Abolition of the monarchy, they say, would merely remove the last legal, constitutional, political and administrative links with the United Kingdom (which, to these advocates, is identical with ‘the Crown’), and that it is but the last small step needed for Australia to become ‘fully free’. It is portrayed as no more than a cosmetic exercise, to remove something external rather than an integral part of the body politic.


This is more than a travesty or an evasion of truth: it is entirely a departure from it. The history of the colonies before 1901 shows not only that the Crown was embedded in their political structures – indeed, in the fabric of their existence – but that it was the instrument by which their constitutional freedom was implemented. This was one of the gifts of the colonies/states to the Commonwealth of Australia, whose constitution, properly so-called, does not depend only on the document contained in the Constitution Act. The drafters of the new Constitution came to their task imbued with the ideas and the experience of some fifty years of colonial self-government ‘under the Crown’. Some, especially Victoria, had survived grave turmoil in which the governor’s role as ‘constitutional sovereign’ was critical. They knew the value of their constitutional machinery. They proposed to construct a new entity based on existing ones. Thirty years earlier Canada had shown that what we might call the ‘American’ device of federation could properly be grafted onto colonial constitutions, not replacing but enhancing them, and certainly not tending to send the monarchy and parliamentary government into retreat.


To the separate colonies of Australia (as to those of British North America) the Crown was integral. As it was in the Dominion of Canada, so it would be in the Commonwealth of Australia. The ‘freedom’ process was thus enabled to continue in the twentieth century, the Australia Acts, 1986 being merely a legal coping stone to what was already a reality. To urge that ‘Australia ... is not yet fully free’, is to be guilty perhaps of no more than extravagant rhetoric. But often enough it accompanies attempts to exploit ignorance by appealing to highly dubious emotions.


The main intellectual and historical support offered for this republican furphy involves a misconstruction, not only of the Commonwealth’s twentieth century constitutional experience but of that of the nineteenth century colonies. The argument is that the incremental acquisition of independence by Australia has at every stage pushed ‘the Crown’ away to a greater and greater distance. The alleged logic requires that it should disappear entirely, as has the British Empire, from which it was once inseparable: the monarchy appears thus to be, as it were, a piece of flotsam from the wreckage of empire, disfiguring and impeding an Australian ship which has had an extensive refit. In a post-colonial world it is not hard for such an assertion and associated images to impress many people, for ‘empire’ has come to connote subordination scarcely to be borne. But the assertion, like the connotation, is false, whether allusion is made to legal or political facts, or to symbols.


The republicans’ scheme and arguments go far to promote constitutional and cultural discontinuity. As well as repudiating Australian political symbols, habits and assumptions which began to take local form in 1788, it would impose an alien system never seriously canvassed in this country. And this has very practical consequences. Without subscribing to predictions of dictatorship and the like, I agree with those who urge that to bring in a republic risks confusion and dislocation in the Australian polity and in the polities of the constituent States.


The authenticity of Australia’s monarchic constitution cannot be elucidated by attending merely to the twentieth century or the Constitution of 1901. I have already indicated that the separate colonies contain the origins and fifty years of growth. Leaving aside a couple of hundred years of antecedent English experience, we need also to look at other developments which at first sight may seem remote, being primarily connected with other places. A good deal of what follows is of that kind. Ironically enough, much of it is likely to be known, not least to republicans of a literary or academic bent.


During the first 64 years of settlement the Crown had a rather restricted meaning, though its symbolic role and value were constant. But there occurred a political and constitutional transformation which even by the 1860s was truly dramatic. It could not have happened without an empire deeply affected by quasi-revolutionary metropolitan developments, or without the Crown’s presence in the colonies to act as a pivot and facilitator of change. The Crown (that is, the monarchy) which we are urged to abolish now stands both as a working institution and a monument to an extraordinary process of state formation.


It ought to be a commonplace that New South Wales was established to serve a crude purpose of the British State in the late eighteenth century. The governor of New South Wales certainly held a Commission and Instructions from the King (and personally took them very seriously, as Alan Atkinson has noticed in his recent volume). But ‘the Crown’ chiefly meant authority exercised locally by the governor, who in turn could be instructed by the British government when time, and the exigencies of 20 years of war with Revolutionary and Napoleonic France, allowed it.

Not until the 1820s did New South Wales receive for the first time a ‘constitution’. Until then it was under a kind of improvised and provisional administration, in which the king and his government were represented by naval captains followed by a colonel with his regiment. The retired generals who came next heralded something new, and its 1824 Constitution made New South Wales a regular part of the post-1815 empire. But it was a Crown Colony, and the chief characteristic of a Crown Colony was that the powers and functions of government lay in the hands of the governor who was under the orders of the Secretary of State in Downing Street, Westminster. The implementation of ‘the Crown’ was years away from what it was in Britain or what it was to become in Australia. Yet within thirty years New South Wales, and the other colonies which were carved out of it or established separately, were to be caught up in a metamorphosis of the British colonies in North America and Australasia. The key to understanding this is ‘responsible government’, a system to which the Crown was integral from the start. The Commonwealth of Australia, the creation of the end of the century, is incomprehensible without this.


The transformation was not planned, nor was it inevitable. The same could be said of the changes in the practice of politics and government in Britain in the 1830s, without which the colonial revolution could not have happened. But it was certainly colonial. In British North America a very old pattern of representative government broke down, in ways and for reasons which we must pass by. At the other end of the world, Crown Colonies demanded the institution of that old pattern. Stimulated by rebellion in Canada, the British government and its North American governors tried to adjust the constitutional system so as to eliminate conflict between ‘the Crown’ (that is, the governor and his officials) and the elected legislature. Some eight years of expedients produced an experimental arrangement called – colonial responsible government.


That was 1849 in Canada. Three years later, at the end of 1852, the Secretary of State for the Colonies, Sir John Pakington, invited the Australian Legislative Councils to plan their own versions of constitutions which would provide institutions of government ‘more nearly assimilated to those of the mother country’. Antipodean reformers during the 1840s had been demanding proper representative institutions: the New South Wales Legislative Council had specifically mentioned ‘a constitution similar in its outline to that of Canada’. They were not, it should be noted, agitating in republican terms, but as loyal subjects of the Crown looking for their rights. They could now have what they wanted. Pakington did not need to point out that ‘responsible government’ was implied by, precisely, an adjustment of the role of the Crown in the office of governor. Thus did the Australian colonies receive responsible government in 1856 – about as rapid an elevation in the constitutional scale as can be imagined. It is central to our understanding of the present republican errors.

There were never lacking individuals of knowledge and intellect whose logic decreed that responsible government must result in the colonies becoming independent states, separated from the empire. As early as 1839, Lord John Russell, one of the promoters of the great parliamentary Reform of 1832 (and Colonial Secretary in 1839), saw the untoward possibilities of ‘what is called responsible government’ with rather too much clarity. It would, he stated, make governors into independent sovereigns, any one of whom might be given, by his ministers, advice which differed from that given, by her ministers, to the sovereign of the empire. He concluded that it was thus incompatible with the unity of the empire. Even in 1866, Sir Frederic Rogers of the Colonial Office was clear that the colonies (meaning those in North America and Australia) ‘became independent when they received responsible Government ’. They were, he wrote, already ‘republics ’:


The difference between them and the U.S. being that instead of a principal magistrate ... elected directly by the people whom he governs under the name of President, they have a principal magistrate appointed indirectly by the people of this country under the title of Governor.


And he believed that ‘the dissolution of the Empire [was] a matter of time’.

Lord John Russell’s logic in 1839 was impeccable, but he demonstrated the danger of theorising about the working of a constitution. Sir Frederic Rogers was less theoretical, for nobody could have studied the establishment and progress of responsible government as closely or as long as he. But he was still, in the sense that he intended, wrong. ‘Responsible government’ was certainly an experiment, and its outcome was uncertain. Yet however surprisingly, it worked, as an instrument not of dissolution but of creative momentum: and our present constitutions, State and Federal, are its products. Its mode of working furnishes us with the reason why republicans are so wrong about ‘the Crown’.


As soon as the constitutions of 1855 came into force in Australia, ‘the Crown’ assumed a new role and character. The Queen did not cease to be either sovereign of the empire or Queen of the United Kingdom. The authority of the British government and the supremacy of the British parliament were unimpaired. Governors were still officers appointed by and answerable to the Secretary of State for the Colonies. Despite the empowering provisions of the Colonial Laws Validity Act, 1865, colonial legislation was still subject to scrutiny in London.


But to dwell on these truths is to obscure others of greater portent. Thus, in a colony like Victoria or New South Wales the business of government was placed in the hands of ‘ministers’ – servants of the Crown answerable, as in England, to parliament. Queen Victoria became, in a direct sense, ‘Queen of Canada, Victoria, New South Wales, and the rest’. She was served by ‘ministers for Victoria’ (or wherever), at a remove for reasons as obvious and as harmless then as they are now. Ministers were appointed by the governor; but in fact their fate depended on being able to command a majority in the Legislative Assembly: they were a ‘responsible’ executive.


It was a dramatic transformation, especially perhaps with hindsight. But drama did not have to attend its beginning. To inaugurate the system in Queensland, for instance, there was no ceremony; it required no special statute. The first Governor simply minuted:


Now that this Colony has the happiness to enjoy a Ministry directly responsible to the Assembly, the Governor wishes to see only such papers as require his signature, or which are to be submitted to the [Executive] Council, or which may give him useful or interesting information.


The Governor, in short, began to to act like a ‘constitutional sovereign’, and was sometimes so described. George Higinbotham, the notable Victorian radical and (later) Chief Justice, took this idea to an extreme in the 1860s and later, strenuously denying that either the government or the parliament of Great Britain had any legal power or role in relation to the internal affairs of the colony; but his admiration for the sovereign’s role was unbounded. His democratic – not republican – views are instructive: for, as the colonial constitutions matured, coping with exigencies as they arose, the amount of discretion exercisable by the governor decreased, and he became more and more like the sovereign he represented. Successive Secretaries of State, moreover, began to neglect their capacity to require their officer, the governor, to intervene in local political matters, even when questions of illegality arose. If a governor chose to intervene, it was to be on his own. But the understanding was clear that the ministers he appointed, supported, or dismissed held their offices from the Crown.


Henry Parkes has left us a nice illustration of the changed state of affairs. In 1875 he could refer to the recent withdrawal of the Regular garrison as an acknowledgement by the British government of the ‘political freedom’ of the colonies. It was, he wrote, ‘the removal of the last symbol of Imperial authority in the management of Australian affairs.’ Yet Parkes was anxious to increase the integration of the colonies with the affairs of the empire, and there is nothing in his career which would suggest some sort of republican hankering. In short, to distance ‘Imperial authority’ was necessary for ‘freedom’, but that was no derogation of the place of the Crown in either the Empire as a whole or in the colony.


The position and function of the Crown in this extraordinary development, then, is crucial. So far as it meant ‘the British government’ or ‘the British State’ then responsible government did indeed involve distancing it from the colonies. But in fact responsible government ensured that what had been the chief meaning of ‘the Crown’ became the least. It needed no Imperial Conference, 1926, for the Crown in the self-governing colonies to cease to be the source and channel of metropolitan authority and to become instead a means of a practical independence. It was the agency by which the British State and its apparatchiks were more and more removed from playing an active part in the self-governing colonies and, in due course, the Commonwealth of Australia.


Here we have ‘constitutional monarchy’ in its colonial implementation: the adaptation of the institution which had reached a classic stage in England as late as 1841. Its development has continued into the present non-colonial age. It was indispensable to the conversion of self-governing colonies into ‘Dominions’ in the twentieth century; and its position has been enhanced, not diminished, by measures and practice up to the present day, confirming, not creating, independence. Far from distancing the Crown, responsible government from the 1850s ensured that the sovereign would be incorporated more intimately and directly into the local constitution. Governors proved responsive to local social patterns and political behaviour, as well as exercising some influence upon them. Though Government House was not, and could not be, Windsor Castle – though Victoria produced a palazzo which aptly celebrated the Crown and itself – until quite recently its occupants purveyed something of the manners of the distant Court. It is not an obvious advantage that celebration, and the outward signs of the majesty which is represented, have been reduced in recent years. The Crown works in perhaps too low a key, without what might be regarded as adequate recognition. One might well say that what is now needed is refurbishment of the monarchy, not its destruction.

 
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