Australians for Constitutional Monarchy

The Order of Australia Association 21 August, 2009.

Four Seasons Hotel, Sydney 

Our Australian Heritage: Is it being slowly worn away? 

May I offer you, members of the Order of Australia Association my congratulations on the awards you have received. It is indeed right and proper that, through the Crown, a grateful nation  has recognized your many contributions.

I thank you Mr Chairman for your kind introduction. I must say, however, that my life has been perfectly normal and unexceptional.

I am in brief a modest man. In that context I do recall the observation of Sir Winston Churchill concerning his rival and successor, Mr. Clement Attlee.

 “Mr. Atlee,"  Sir Winston said," is a modest man – with much to be modest about.”  

I fit very much the old saying, attributed to Churchill and to Shaw - among others: “ A man who is not a socialist at 20 has no heart; a man who is a socialist at thirty has no brain.”  

I believe it was first used by the French statesman, Georges Clemenceau who in turn  took it from that extraordinarily gifted Prime Minister of King Louis Philippe, François Guizot , who once said  “ A man who is not a republican at 20 has no heart; a man who is a republican at 30 has no brain.” 

(“Ne pas être un républicain à vingt est preuve de veulent du coeur ; être un à trente est preuve de veulent de la tête”)

[ King Louis - Philippe and his ministers, 1844. M François Guizot is on the King's left ]

I must hasten to say I never used that in any of the referendum debates against Malcolm Turnbull and his colleagues.

Mr Turnbull was not so kind to me. In his diary of the referendum campaign “Fighting for the Republic” he says I speak with an "affected pseudo British accent",( where would he have got that from) that  I am not a "constitutional lawyer at all" and he predicts my book for the 1999 referendum  campaign, The Cane Toad Republic, will be remaindered.

I must admit to a certain degree of schadenfreude  when, some months  after Mr. Turnbull’s book appeared, a friend phoned me to tell me he had seen it  on sale at the University Cooperative - at a substantial discount.

Incidentally, in his diary, four months before the referendum, Mr Turnbull made a startling admission. The entry reads:  "We have Buckley's chance of winning." Why? "The problem is nobody is interested."   What a pity he didn’t tell us; we could have save dall that trouble and money.

His book was called “Fighting for the republic.” A colleague who will remain anonymous because he may be seeking preselection, said cruelly that  it should be called “Whingeing for the republic”

”Utegate”

Now I must say my speech is not about Malcolm Turnbull, but it was inspired by what is now known as “Utegate,” when relying on an email subsequently found to be false, Mr. Turnbull called for the resignation of the Prime Minister Mr. Rudd. We may dismiss this as political manoeuvring – that at least seems to be the view among members of the public.

I think Laurie Oakes was right ( Daily Telegraph 8 August) when he said that  government  politicians could not claim to have more noble sentiments than those exhibited by Opposition leader Malcolm Turnbull in the affair. 

The government politicians would probably have well been more sceptical, and they could have been better tacticians. But as Laurie Oakes says, they happily accepted leaked documents from public servants and used them to embarrass the previous Howard government. 

But the sole exception of genuine whistleblowing in relation to criminal activity which cannot otherwise be revealed, public servants should never leak. This is clearly not only is a serious breach of their duty; it compromises the very independence of the public service.

In fact the emergence of a non-partisan public or civil service under the Westminster coincided with the withdrawal of the Crown from political activity and the emergence of the constitutional monarchy as we know it. The great Walter Bagehot advised the Canadians in 1867, that to assure popular rule, there were only two constitutional models available for them: the British or the American constitutional model.  

Not only did he think a non- partisan public service did not prevail in the US, he believed it was impossible.   But under the Westminster system the loyalty of the public servant is to the non political Crown and not to the politicians. This enforces the obligation of the public servant to act within and according to law, and to provide advice not influenced by and indifferent to political considerations.   

If the appalling “utegate” affair demonstrated anything, it was that the ideal should remain of an independent public service. This complements what is called responsible government under the Westminster system.  

Unlike an American president, our prime minister is untenured and at all times dependent on the confidence of the lower house. This allows for one of the jewels of our system, that it allows an easy and peaceful transfer of political power. A leading example of this difference between the American system and Westminster came after the failed Bay of Pigs invasion of Cuba in 1961. 

President Kennedy, who agreed he was responsible for the failed intervention, told the CIA deputy head:

 “If this were the UK, you as the civil servant would continue and I would resign. But it’s not. In the United States, I continue and you resign.”So let us return to the “utegate” affair. I wonder what our great leaders from the past would have done in similar circumstances.  What would former prime ministers, particularly our greatest prime ministers have done?

Graham Freudenberg, the historian and former speechwriter to Gough Whitlam, reminded Mr. Oakes of the case of C.J. Winkler, a Labor supporter who became a federal public servant under the first Menzies government and the brief Fadden government that followed it in 1941. C.J Winkler handed over to then opposition leader John Curtin confidential official documents apparently showing that a cabinet minister had made payments from a secret fund to a trade union official.

John Curtin had grave misgivings about using such material. According to his biographer, Lloyd Ross, he showed the documents to Prime Minister RG Menzies and Treasurer Arthur Fadden at the earliest opportunity.

John  Curtin later told LLoyd Ross:

"No matter has given me so much concern, as it affects the public administration and the loyalty of persons in the service of the Crown, and I had to choose what my highest duty to my country was."

Laurie Oakes says Malcolm Turnbull “did not see past the politics”. He gave no more thought to the principle of "the loyalty of persons in the service of the Crown" than Rudd would have done had the situation been reversed.

We have over the years seen a serious diminution of the independence of the higher echelons of the public service.

   This brings me to our heritage. When I was a boy, two major newspapers and the Lord Mayor campaigned to pull down what they described as a “Victorian wedding cake.”  This was that wonderful edifice next to the Town Hall, and since restored by a Malaysian company.  It was the Queen Victoria Building.  They wanted to replace it with civic square or  a car park. The campaign was strong but good sense eventually prevailed.  Over the next few years much of Sydney disappeared.  Melbourne, a gracious and planned Victorian city has also lost too much of her past.

There is an even greater heritage than our buildings. It is in the way we do things. And that affects us in our daily lives. Why is it that we are among one of the world’s six or seven oldest continuing democracies? Why was it that in 2007, power passes peacefully form Mr Howard who conceded defeat to Mr Rudd?  There were no demonstrations in the streets, no cars with flags circling the cities with horns blaring, no violence and burnt cars as there was in the last presidential election in  that most civilised city, Paris.

  Why are we in the top ten countries in the UN Human Development Index which measures health, wealth and education? How were we able to contribute so much to the freedom of other countries, one of the few which fought from the beginning to the end in both world wars, and who lost more than most in the first World War?  How are we able to be, on a per capita basis, the world’s leading sporting nation? How are we one of the leading Nobel Prize–winning countries, again in per capita terms?

Why is this so?  It is in the context in which we live, in the way we govern ourselves. It is our constitutional system, in the broadest of senses. It is this system which gives people the freedom and the means to fulfil their lives.

What is our constitutional system?  A constitution was described succinctly and eloquently by Bolingbroke as "that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed".

Without understanding the past we cannot understand the present, and we are unarmed in relation to the future.

Life is a continuum. Edmund Burke put it well when he said “ Society is ...a partnership not only between those who are living, but between those who are living, those who are dead, and those yet to be born.”

Our constitutional system is not  something recent, and although the federal constitution took effect on 1 January 1901, it goes back through the inauspicious foundation of the penal colony not far from here in 1788, through that golden thread which takes us back to the Glorious Revolution of 1688 – the most important beneficial event in the world in the last five half millenium - and back to the Magna Carta of 1215.

Society is indeed a partnership between the living, those who have gone before us and those yet to be born.

There are two features of that foundation which all Australians should be aware of. First, it ensured this would be the only continent not to know slavery. This was because our founders, Governor Phillip and Lord Sydney were irrevocably opposed to it. "In a new country there will be no slavery and hence no slaves.”  (Phillip also ordered that Aborigines be treated well, and indicated that the murder of an Aborigine would be punished by hanging.)

The second point is that even although it was a penal colony, it was a colony under the rule of law. It was not, as Robert Hughes has wrongly informed the world, a gulag.

Lord Sydney, whom too many glibly dismiss as being of no consequence, took a decision which would have a fundamental effect on the colony.  Instead of just establishing it as a military prison, he provided for a civil administration, with courts of law.  Just consider one example.  An early civil action brought by convicts against a ship captain for theft was defended on the ground that at common law felons could not sue.  The court required the captain to prove this, which was of course impossible since the records were in England.  Can Mr. Hughes give us a similar example of litigation by prisoners in a Soviet gulag?

What do we want most in government? Thomas Babbington Macaulay  put it succinctly as  an “auspicious union of freedom and power”  It requires stable government, but one where there are checks and balances against the abuse of power. Montesquieu proclaimed that this had been first and best achieved in England through the separation of powers.  Acton explained the reason for the separation of powers in his timeless warning that “power tends to corrupt, and absolute power corrupts absolutely. “

Now you might think that all this is easy to achieve, that it is easy to write a constitution. It is indeed easy, very easy, to write a constitution. The difficult thing is to design one which works and which lasts. You can count those on your fingers.

According to a 1988 Constitutional Commission survey, 50% of respondents from the general public were not even sure Australia had a constitution and 82% were unaware of its contents.

In response to this substantial programmes in civics education have since been developed nationally, at great expense. Has that worked?  Sadly it has not.

In a 2007 official survey, Year 10 students were asked the elementary question, “What is the Australian Constitution?”

They were given four possible answers:

·          the rules about how the major Australian political parties are run;

·          the policies of the Australian federal government;  

·          the framework for the way Australia is governed; or

·          all the laws that Australian citizens must obey.  Only 34 per cent identified the correct answer. This is of course the framework for the way Australia is governed. That is one in three.

You can be sure that if two out of three students do not even know what the constitution is, they are unlikely to appreciate the fact that we have a special heritage.   



The Consequences 



It is not only in the diminution of the independence of the public service that we see a decline in the respect and application of our heritage, and a consequent decline in the standards of government. 

The core functions of government- I mean the totality of all our governments- are

·          First the defence of the realm,

·          Second the soundness of the currency and

·          Third, the provision of justice.  

If governments do not attend to their core functions, why do they try to be involved in so much, in areas which really have little to do with government?

Just take one core function, the provision of justice. What is the situation in relation to the civil courts? It has been said that the courts of justice are open to all. Just like the Ritz Hotel. The fact is, as former justice Michael Kirby indicated recently, litigation is, except for those legally aided, priced far beyond the finances of anyone except the wealthiest. 

The criminal justice system is equally deficient. When I was in my youth, to put grilles on your windows, and double lock your doors would be treated as indicative of some sort of paranoia. Now it is perfectly normal. The recent attacks on foreign students may in some ways reflect the decline of the elementary service government should provide, which is the freedom to walk about our streets without fear of attack, and that our homes indeed be protected from criminal incursions.

Margaret Cunneen SC is a Senior Crown Prosecutor in New South Wales. She has appeared for the prosecution in  a number of highly publicised cases brought against gang rapists and paedophiles. 

In 2005 ,in the course of a public lecture, she asked whether public confidence in the courts was being eroded by the perception that the pendulum has swung rather too far in the direction of the protection of the rights of the accused person.

She was the subject of complaints by some prominent lawyers, and she failed to gain the status of Senior Counsel for some years.There is of course something seriously wrong our criminal justice system. The public sense this. The solution I believe lies essentially with our politicians.


The reason



  What  is the reason for this decline?  There are probably more than one. But central to this is the weakening of an important principle of parliamentary democracy, that is, representative democracy.

This was best expressed by Edmund Burke who famously said : “Your representative owes you, not his industry only, buthis judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.” 

The political parties have neutralised this principle. I do not say political parties are a bad thing – they are good and in any event unavoidable.

What is not in the public interest is what Lenin and the Bolsheviks called democratic centralism.  This means that once a decision is taken by a party organ it is binding.  From 1894, the Labor Party adopted something similar, the so called caucus pledge.

Unlike, say, British Labour MP’s, Australian Labor MP’s are bound to all vote the way caucus decides. In recent years a convention seems to have arisen in the Liberal Party that you should not cross the floor. This is exacerbated by the media, which delights in painting debate and independence within a political party as a show of weakness, as indicating the party is not ready for government. If the party bosses think crossing the floor is the equivalent of committing a major crime, what would they make of changing your party allegiance ? 

At the same time the media, or many in the media, too readily forget their duty. But the reason why the media are accorded considerable freedom is because of this duty. As The Times declared in 1851, "The first duty of the press is to obtain the earliest and most correct intelligence of the events of the time, and instantly, by disclosing them, to make them the common property of the nation. “ 

Associated with this is a duty to make the reporting of the new clearly distinguishable from comment. As the great editor of the Manchester Guardian CP Scott declared “comment is free, but facts are sacred”.  Today we see and read too much news which falls into the category of campaign journalism. Too often, rather than reporting, the media wish to be players in the political game.



A solution?





What is the solution?  We must ensure as far as we can that Australians- especially the young and the new to our land – are well informed.  We must be active, active in making our views known. And to an extent unknown since the Greek city states where every free man participated       directly in government, technology is feeing us from the oligopoly of the media and the discipline of the parties.

But technology alone is not enough; we must be informed and we must ensure our children are.  That is why I and two young colleagues, Jai Martinkovits and Ed Copeman, are engaged in The Crowned Republic project which is an attempt, without government assistance, to ensure that Australians, and especially the young and those new to this country, can better understand and appreciate the underlying system which assures our freedom and our ability to achieve. 

May I recall  once again of Burke’s wise advice, that society is indeed a partnership between the living, those who have gone before us and those yet to be born.  To understand the present and plan the future, we have to know the past.