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Republicans' Best Asset?
Is David Flint ( National Convenor since 1998) the republicans best asset, as some claim?

Remain united Print E-mail
Written by Professor David Flint AM   
Wednesday, 03 March 2010

[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.]


Image
[ 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.




Image
[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. 



Image
[ 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 The Cane 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.



Image
[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.    

In a speech to the Australian Republican Movement, “A Mate for Head of State? Why Australia Needs One” he said:

 “ 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?   




 ... Mr. Benwell blames other monarchists  ....      





In  his paper  “A definitive exposition of the position of Head of State in Australia” of  May 2009, Mr. Benwell not only turned his back on what he had been saying for 13 years, that the Governor-General is 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 .       




Image
[ 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”. 

Image
[ 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. 

                        Image




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?




              

 
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