The Role Of The Crown In Our System Of Governance
Written by Lloyd Waddy RFD QC   
Monday, 21 August 1995

We have the republican movement to thank for the public rediscovery of the great strengths of our unique Australian system of government. Each of its challenges to our Constitution has been rebutted. Indeed, the most intelligent, perceptive, accessible and impassioned rebuttal has been that of the long-time republican, Padraic P. McGuinness, in an article in The Australian. Mr McGuinness, like so many intuitive republicans, has been alienated by the crassness and unreality of the Keating /Turnbull republican arguments."

Republicans' first "argument," that the monarch is not elected," is the monarchy's greatest strength. It is the only way known to ensure that we avoid having a politician as head of state. Their second "argument", that the monarchy is inappropriate," is actually an assertion, not an argument at all.
The Fundamental Role of the Crown

The Crown, is the final check on political excess. When politicians are threatening to act illegally or are attempting to govern without Supply or will not advise an election, the Crown's representatives (i.e., the Governor-General and State Governors) have the power (and the duty) to uphold the Constitution. When politicians have wanted an election for mere personal convenience, vice-regal representatives have acted independently to grant or to refuse dissolution of parliament.

These powers of the Crown, vested in the Queen but exercisable only by the Queen's representatives (now always Australians nominated by the Prime Minister or, in the States, by the Premiers) are the essential armament of impartial watchdogs of our freedom under the law. No republican system has yet been devised to operate in the same way. If Australia were to move to a republic, a totally different framework and theory of government would be necessary.

Australia Completely Independent

My own position is very straightforward. I like our present constitutional framework. Australians devised it for this entire continent in the 1890s. It was then adopted by a majority of the Australian voters in each of the colonies. Since the creation of the Australian nation in 1901, the ensuing ninety-three years have been ones of continual constitutional stability. Our system has withstood the stresses of two great wars and the depressions of the 1930s and 1990s. We have seen Communism, Fascism and Socialism come and go. We have seen the abandonment of the White Australia policy, the welcoming of waves of displaced people and immigrants, and the happy growth of a tolerant and diverse society. These are all matters for great rejoicing. Few other countries have been as fortunate. Few countries this century have enjoyed such internal peace and stability.

Also this century, we have witnessed the greatest empire the world had ever seen, "on which the sun never set- transformed peacefully firstly into the "British Commonwealth" and then into the "Commonwealth of Nations." This latter group of countries, to which Australia proudly belongs, is a free association of nations under the Head of the Commonwealth - The Queen. At the same time as the Commonwealth of Nations has evolved from the old Empire, so, too, Australia has evolved legally and constitutionally to total independence. The Queen has been and is part of that independence.

The Constitutional Role of the Crown -The Queen

Our Constitution embodies two fundamental principles. One, federalism, diversifies power between the Commonwealth and the six States. The other, the Crown, separates the "power" from the "glory." No politician or political party can seize control of the State, because it is permanently vested in a neutral monarch one who succeeds to that role by an accident of birth (into the Royal Family).

Australia was established, as the preamble to our Constitution reads, "humbly relying on the blessing of the Almighty God," on a religious basis as God-fearing yet non-sectarian. Following the customs of one thousand years, our monarch, the Queen, was required to swear at her Coronation that she would govern us according to our own (Australian and State) laws and customs. This promise came in the coronation service before she was anointed by the Church and dedicated her life to the service of God and her peoples. Hence, she freely acknowledged that as monarch she is answerable to God and reigns by divine providence under our laws, with our consent. The Queen can enact no law except "with the advice and consent" of both houses of our parliaments. This is the framework of our system.

But the monarch, under our Australian constitutions, has no personal say in our affairs. In 1900 it was never envisaged that a reigning King or Queen could possibly visit this country from the other side of the world. Thus, all the executive power "vested" in the Queen under the Commonwealth is "exercisable" by the Queen's representative as representative of the Queen (section 61). in this way, the ultimate power of the State is placed above party politics. Theoretically, politicians only "tender advice." The great strength in the existence of the Crown and its conventional political neutrality is that it denies ultimate power to others.

Mr Keating has endorsed and stated the true role of a constitutional monarch. After an audience with the Queen at Balmoral on 19 September 1993 he said:

Her Majesty authorised me to say that she would, of course, course, act on the advice of her Australian ministers as she always has and on any decision made by the Australian people.

The Queen thus clearly acts in Australian affairs only on the advice of her Australian ministers. It follows that the Governor-General is not thereto do what the Queen wants." He acts independently, with his own integrity, exercising the Queen's powers as her representative in accordance with constitutional conventions and without reference to the Queen. He (or she) may be a political nominee, but the appointment is always that of the Queen. Once appointed Governor-General or Governor, however, the appointee is thereafter as free from direction by politicians (or the Queen) as any judge. A Governor-General or Governor is not the puppet of the politician nominating him. He or she retains personal integrity to act above party politics when exercising the vice-regal powers as the Queen's representative, and stands in the same relationship to our houses of parliament as a constitutional monarch does.

The Constitutional Role of the Crown - The Governor-General

However, just as the Queen will act ("as she always has") on the advice of her ministers, so too, her representatives, the Governor-General and the Governors of each State, act similarly. There is, of course, great argument about the extent of their reserve (or personal) powers and the circumstances in which they can be used. Some, like Mr Turnbull, believe those powers should be codified. Others, such as myself, believe that to codify those powers, even if agreement could be reached on their exact content (a highly contentious matter in itself), would be to translate convention into law and reduce the dynamism and flexibility of our system which presently enables us to respond to any unusual challenges. One such challenge occurred federally in 1975 with Mr Whitlam' s refusal to resign or advise a general election when unable to obtain Supply from the parliament. Another instance, at State level, occurred in 1932 when Jack Lang, as Premier of New South Wales, would not assure the Governor, Sir Philip Game, that the actions proposed by the government were in accordance with the law. In each instance the vice-regal office holder sought a new adviser who advised an election.

The occasions when our constitution has needed an impartial umpire above party politics, sworn to uphold the Constitution have been, thankfully, few. But, when they have occurred, the vice-regal interventions have been decisive, effective and returned the problem to the people for solution by way of a popular election.

It should be noted, particularly, that the occasions when a vice-regal representative has to choose a Prime Minister or Premier, rather than just accept the politician who commands the confidence of the Lower House, are also very rare. Ninety-nine per cent of all vice-regal actions are taken on the specific advice of a minister, who literally countersigns the executive act and is thus identifiable and able to be held to account for the advice by the people, their representatives in parliament or the courts. In 1975, Sir John Kerr appointed Mr Fraser, but Mr Fraser advised an election and obtained Supply. Had he not done so, Sir John would have needed other advisers as a matter of urgency! It was for the people by their votes to vindicate or censure Mr Fraser for his advice. In the event, they endorsed it by an overwhelming majority.

Our system operates so that all political power over Australians is exercised by Australians themselves or on the advice of Australians. Similarly, the ultimate or reserve power of the vice-regal representatives is exercised by Australians placed above party politics as the representatives of a neutral but highly respected and effective Crown. Whilst ever the possibility for argument between the Senate and the House of Representatives remains, we need a non-political, impartial umpire to preserve our present system of government.

The Living Constitution

Just as one does not analyse a marriage by only reading the marriage licence or the marriage settlement, so one must look beyond the precise words of the constitution and try and grasp how, in fact, it has operated and does operate in practice. A nation's constitution is a dynamic process as much as it is a written instrument.

Republicanism means changing a system of government and changing a balance of power within that system. We would not be changing a particular person or even a Royal family, but a system. Any move at all to a republic will result in a very great change in the potential manner and potential purpose of the exercise of power over us in Australia both federally and in each of the States. Mr Downer, who supports our current Constitution (which his grandfather helped to draft), has likened the task of removing the Crown from our federal Constitution to that of "unscrambling an omelette." He is absolutely correct.

Mr Tumbull's Republic Advisory Committee usefully listed all the powers of the Governor-General under the present Constitution.

Why these powers of the Governor-General, which are potentially dictatorial, are not used dictatorially depends on three factors:

they are held as representative of a non-political monarch; by convention, they are (mainly) exercisable on advice; the Governor-General can be removed at will by the Queen on the advice of the Prime Minister.

These are very effective checks on the misuse of the powers and, in ninety-three years, the powers have never been misused. Those checks on the misuse of these powers cannot exist in a Republic.

Does the Prime Minister get the Crown or not?

Federally, in any republic, each of these enumerated powers of the Governor-General will have to be provided for and exercised by somebody else. By definition, there will be no politically-neutral Crown or its neutral representatives in a republic: there will only be politicians elected by one means or another, be they President or Prime Minister. Thus, all power in a republic will be both exercised by politician; and used to their own party political advantage.

Personally, I would not like that. More importantly, I believe that a majority of Australians would not like it either. In fact, unlike the republicans who say that change is "inevitable," I believe Australians will never willingly or knowingly vote to give more power to politicians. It is here that Australians for Constitutional Monarchy has and will have a crucial role in explaining and publicising the very real advantages of our present system of government, and the dangers inherent in radical change.

This volume the first, we hope, of several-examines critically some of the problems that arise from the republicans' attempts to suggest foolproof (politician-proof?) republican models by modifying our present Constitution. Many of us believe, if there is to be a safe republic, it will be essential to tear up our Constitution and start again. Australians for Constitutional Monarchy can justly claim to have shown up "minimalism" - the mere replacement of "Queen" and "Governor-General" with the word "President" for the fraud it always was. No sensible person proposes it now. It would be the shortest route to a dictatorship. It is to be avoided at all costs.

Fundamental to this debate are two questions: whether there should be change at all and, if change there is to be, then to whom the present powers of the Crown will be entrusted and with what safeguards; will they go to a political President or to a political Prime Minister?

These powers include not only those now exercised by the Governor-General but also all those exercised by the Governors of the six States. We will thus need to have seven republics. If, then, we are to have seven Presidents, will they get the powers? Or, is it more likely that the Prime Minister and Premiers of the States will seize them?

Referenda and the Polls

Another great difference between many of the republicans and the constitutional monarchists is our approach to democracy, and our trust in the people. Republicans refuse to have a referendum until they believe they can win it, and want (mostly) to avoid a President elected directly by the people.

Our present Constitution combines elements from many places. The Executive and Judicial systems are derived from our adaptation of the Westminster system of the United Kingdom. The concept of a Senate comes from the constitution of the USA, which is, incidentally, a century older than ours and not subject to any popular movement for change. Our greatest safeguard lies in the referendum mechanism, adopted from Switzerland, that section 128 makes essential to any change. A referendum gives to us, the people, the vote and final say as to whether or not our Constitution will be changed in any way. Usually, when asked, we have said "No." When there has been bipartisan support for a really good idea, we have generally said "Yes," but not always. The chances of Australian voters saying "Yes" to give more power to politicians are minimal and would reverse ninety-three years of history!

At present, those preferring our present system of constitutional monarchy outnumber those who favour the concept of a republic, Newspoll says by 43 per cent to 39 per cent, even after two years' debate and intense republican propaganda. More are strongly committed to our system than strongly desire a change. Even so, of all people polled, 80 per cent have said that, if there were to be a republic, they would want a popular vote to elect the president. Try as they might-by "education" or any other means-republicans will never, I believe, convince the Australian people to give up their direct control of any constitutional change, and will never talk Australians out of insisting on voting directly for any president they may be offered. Who would want the politicians to elect one of their own to a "wombat" presidency? The polls tell us that very few would presently countenance such a system.

Executive Powers for the President?

More ominously for the republicans, over 70 per cent of people polled said (Newspoll, July 1993) that if there were to be a republic, then they would want the president's powers to include, at least, the power to dismiss Prime Ministers (40 per cent). Another 32 per cent wanted the president to have, additionally, the executive powers of the US President. That is, 72 per cent wanted a "strong" presidential figure. An executive President would, of course, involve a complete reversal of our present system. where the powers of the head of state are exercised on ministerial advice; that is, at present, the Prime Minister, not the head of state, is the key power-broker. What Prime Minister worth his salt is going to want a President with stronger powers or stronger popular appeal than he himself has?

I believe that an executive-style president would be totally incompatible with our existing Constitution. That is why, when I begin most speeches on republicanism, I make two basic statements. First, I say. "of course, we can have a republic if a sufficient majority vote for it; if the Americans can run a republic for two hundred years with only one (very bloody) civil war, Australians could run two republics before breakfast." Secondly, I add, "If you want me to nominate a republican system I would presently favour, it is that of the USA; we know it is safe and that it works, in its way, and has done so for over two hundred years. But, I must confess that I believe the operation of its system of government, with an executive-style presidency is infinitely inferior to our own." That approach of mine has been called "hardline" monarchism!

Basic Questions

The fundamental question in this whole debate remains - "What is the best system of government for Australia today and in the future?." We have inherited a unique Constitution, designed and adopted in Australia. It is ours both to cherish and to change if we want to. We should not fear to do either. But do we want to change?

If we contemplate change, then several questions arise. "What are the consequences of the changes proposed?," "What is their true cost?," "Will we be as safe under a new system?," "How will it improve our system of government and our lives and that of succeeding generations?". This volume will, we trust, throw some light on those questions by highlighting what the republicans have not been telling us.

Debating the Republicans - An Interesting Experience

A great deal of republican claims have been exposed as spurious, misleading or just plainly offensive. Their more frequently repeated assertions are set out in Table 4, together with some brief answers. You may readily think of others.

I have been called many names during this debate. The one that truly surprised me most, when a radio interviewer from Western Australia used it for the first time, was "monarchist." I had never thought of myself as anything but an Australian who liked our constitutional framework (with its in-built mechanism for change by referendum) as it is. I have got used to the name now, but I prefer "constitutionalist as a more apt word. Every receipt of ours from the very first has carried the slogan, "Defend the Constitution!"

I believe there is now recognition on both sides of the debate that the great bond that unites a majority of republicans and the monarchists is a passionate love of this country and a desire to see that whatever may be done (if anything) will be the best for us all. Let us hope that the period of abusive conduct has ended. If ever there is one person from whom Australia has nothing to fear, who has no vote, no political power here and no designs for self-aggrandisement, it is Queen Elizabeth II. How Professor John Hirst, a member of the Australian Republican Movement and also a member of the Republic Advisory Committee, came to write (and repeat) his claim "Queen Elizabeth is the enemy of rural Australia" is a mystery. I have yet to encounter anyone who takes the claim seriously.

Our freedom is too important a matter to be clouded by extravagant and irrelevant emotionalism or the attempted manipulation of the minds of children.

Australians for Constitutional Monarchy

I came to this debate by default but readily found others who thought on this topic as I did. We called together as many like-minded people as we could. We did so to make sure that an inarticulate majority had a clear voice in a debate republicans then claimed was over. We believe the question: "Should we have a republic at all? " must precede the republicans' obsession with "inevitability" and such alternative arrangements as there may be for a republic.

We deny that a republic is "inevitable." So far, a large number of Australians agree with us: to remove the Crown and become a republic is not a selfevident proposition. We will continue to assert that our constitutional monarchy is safe, stable, familiar, efficient, modern, economical, international and well worth keeping for its intrinsic advantages. If one carefully analyses a large number of the arguments said to support a republic they would, in fact, equally support a locally domiciled Australian-only monarchy. To date, Padraic P. McGuinness has been the most up-front in this regard by suggesting offering the Australian Crown to Prince Charles if he would renounce the British throne!

On a Personal Note

Finally, may I add a plea for tolerance and understanding?

From the outset, Australians for Constitutional Monarchy has been determined to demonstrate that support for the Crown comes from all sections of Australian society. The foundation signatories to our Charter are an extremely inclusive group of Australians who love their country. Among them are two leading Aboriginal Australians - a tribal elder and ex-Senator, Neville Bonner AO, and Margaret Valadian AM-and also the first Asian-born member of an Australian parliament, the Hon. Helen Sham-Ho MLC.

We believe the troubles of the rest of the world should be left behind by those who come here. Both Michael Kirby and myself come from Australian families of Irish descent as do, of course, many others involved from the beginning of Australians for Constitutional Monarchy, including Doug Sutherland and Barry O'Keefe. Australians for Constitutional Monarchy has had two splendid Executive Directors, Tony Abbott and Kerry Jones, both of them Catholics. We believe that neither religion nor ethnicity should play any part in this debate.

By way of personal explanation, I confess that I have endeavoured to inject a sense of fun and enjoyment into the exploration of our national institutions, and to bring a sense of humour into the debate. Mr Turnbull has kindly written of me that I am "a better comedian than political scientist." I take that as high praise although, perhaps, the judgement of history may be otherwise. Meanwhile, I will continue my call for Australians to unite behind our Constitution-Australians who love life, and rejoice in our liberty, our history, our culture, our traditions, our tolerance, our welcome to newcomers and our search for new ideas. We need a happy multitude across Australia both to study the great strengths of our Australian Constitution and the role in it of our Constitutional Monarchy, and to share that knowledge with the community. Without such knowledge, an informed debate will be impossible.

A Noble Cause

The system of government we champion is clear: "what we have is what we keep." We all know or sense how well it has worked. Over 9,000 supporters are pledged to our Charter: they are but the first trickle of those who, we believe, will come to appreciate the wisdom of our stand. Australians for Constitutional Monarchy's task-our happy task-will not be complete until the great benefits of our constitutional heritage and the freedom it has guaranteed this nation throughout its existence are truly appreciated by all who proudly call themselves Australian. We can leave no finer legacy to our children than freedom under the law, constitutional stability and personal safety. Under our Constitution and under the Queen of Australia, this nation can go forward into the next century with just such a stable federal constitution, designed and democratically adopted in Australia almost a century ago. At the same time, we can rejoice in our well-loved Monarch whose reign of the past forty-two years has seen untold blessings unfold in this land and with her look forward to the promise of so much more in store in its remaining decade.

So we say: Keep up the struggle. Ours is a noble cause. Defend the Constitution!