The Framers of the Constitution—Their Intentions
Written by Dr Frank R McGrath AM OBE   
Saturday, 18 October 2003
The 2003 ACM National Conference
The YWCA Hotel Conference Centre

Sydney Australia

Transcript as provided to the Office of Research and Education

DR MCGRATH: Chairman, Ladies and Gentlemen.

It gives me great pleasure to have this opportunity to speak at the launching of my Book “The Framers of the Constitution—Their Intentions.”

It is not inappropriate that the launch is described in the Program as a “Champagne Launch”. One need only refer to the Menues for the various formal dinners that accompanied the Conventions of the 1890”s, to appreciate that the Framers of the Constitution were not only highly intelligent men, but they were also men of taste and refinement, who appreciated the importance of good food and wine. Afterall it was not for nothing that Sir Edmund Barton, the leader of the 1897 Convention, was nicknamed “Tosspot Toby” by his enemies!

At the outset, I would like to thank Professor David Flint for his kindness in endorsing the book with a Foreword.

Coming now to the issues addressed in the Book itself.

What the book argues.

The main argument of the book is that it is possible to ascertain the intentions of the Framers of the Constitution by analysing the Debates of the two major Constitutional Conventions in 1891 and 1897 respectively.

This analysis reveals that there has developed a significant divergence of interpretation of the Constitution between that of the Framers and the Justices of the High Court of Australia.

The book argues that the High Court should use the Debates of the 1890’s as a positive aid to the interpretation of the Constitution.

Restricted use of the Convention Debates by the High Court.

Prior to the decision of Cole v Whitfield in 1988, the High Court would not allow these Convention Debates to be used before the Court. After this decision, the Court will now allow reference to be made to these Conventions but, curiously, not for the purpose of assisting in the interpretation of the Constitution itself.

In A.G. (Cwth); ex rel. McKinlay v Commonwealth (1975) 135 CLR,1. 17., Sir Harry Gibbs had already expressed a reservation about the restricted use of the Convention Debates in aid of the interpretation of the Constitution.

His Honour said:

It would seem paradoxical if we, although forbidden to consider the debates of our own constitutional conventions for the purpose of discovering what the delegates thought was the meaning of a particular provision accepted by them, should, nevertheless, in construing s. 116 indirectly give weight to the opinions of Thomas Jefferson as to the meaning of the similar words of the First Amendment.

Despite the legitimating of the use of the convention Debates in interpreting the Constitution, the Court in Cole v Whitfield specifically rejected any attempt to ascertain the actual intentions of the Framers.

Reference to the history of s.92 may be made, not for the purpose of substituting for the meaning of the words used the scope and effect—if such could be established—which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which the language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged.

The book argues that if reference to the debates is to be allowed, there is no reason why such reference should be so restricted.

It also analyses the full extent of some of the major powers of the Commonwealth Government under the Constitution in the light of the Framers’ intentions.

Centrality of the Crown

One of the most important topics covered in the book is the centrality of the Crown in the Constitution.

The Framers made a choice to devise a federal constitution under the Crown of the United Kingdom. This choice was a deliberate one. They had before them the Constitutions of Switzerland, Canada, and the United States.

They incorporated a number of the United States Provisions, but they explicitly rejected the American system of an Executive Presidency external to the Parliament. They also explicitly rejected the idea of an elected Governor-General rather than one appointed by the Queen of the United Kingdom. This feature was one of those which distinguished the Commonwealth Constitution from that of the United States, also a Federation.

Whilst adopting many of the provisions of the American Constitution which ensured a wide division of powers between the central government and those of the States, as would be expected in a republican constitution along classic lines, the Crown was finally retained as the central feature of the marrying of responsible government with a federal structure.

At the 1987 Convention, Patrick Glynn, representing South Australia, addressed the view of the commentator Freeman that “a federal State will also be a republican State”. His comment was:

Of course that would not tell against our Federation, because we really set up a crowned republic.

In what way did the Framers regard the Crown as central to the Constitution?

1. By placing the Crown inside rather than outside the Parliament, the Crown became an integral part of the fabric of parliamentary government.

2. This made the clear distinction between the Commonwealth Constitution and that of the United States where the President, as executive, was external to the Congress.

3. With the exception of the prerogative powers, the Crown was subject to the laws of the Parliament in relation to all matters arising from government policy. Whilst all laws were subject to the Royal Assent, such assent required the advice of the Ministers forming the Executive Council. The “grand and glorious revolution of 1688, and the settlement of the conflict between Crown and Parliament.

4. These restrictions on the powers of the Crown resulted from the settlement of the long running conflict between the Crown and Parliament in the United Kingdom which involved the execution of Charles 1, a civil war, the establishment of the Commonwealth under Oliver Cromwell, the restoration of the Monarchy under Charles 11 and the removal of his successor James 11 when he defied parliament, overawing it with a private army, and attempted to reinstate rule by divine right without the consent of parliament.

5. The settlement of this dispute led to the institution of the constitutional monarchy as we know it today, with the acceptance of the Crown by William and Mary, on the terms and conditions set out in the Bill of Rights of 1689, supplemented by the Act of Settlement of 1701.

6. The reigns of William and Mary and Queen Anne marked the major change in the role of the Crown under the British Constitution. The cabinet system gradually developed as a consequence of these changes. In the form known as the Westminster system of responsible government, it has come down to us today.

7. Whilst the Crown now acts on legislation only on the advice of the Ministers who retain the confidence of the Parliament, there remains an area of power which the Crown retains, and is exercisable independently of the Parliament. This area of power is that occupied by the prerogative powers.

The prerogative powers

8. Whilst these powers have not been explicitly codified under the British Constitution, nor under the Australian Constitution, they have become subject to a number of conventions which, whilst not restricting them, constrain and limit their arbitrary use.

9. Two of the most important of these powers are the power to call and prorogue parliament, and the power to appoint and dismiss Ministers of the government.

The calling and prorogation of Parliament.

1. This power is unique to the Crown but cannot be exercised arbitrarily. The Bill of Rights of 1689 provided that parliament should meet frequently. The Commonwealth Constitution provides that parliament shall meet at least once a year, and shall be called together within thirty days of an election.

2. Ministers are appointed on the recommendation of the Prime Minister, but can be dismissed by the Crown (represented by the Governor-General) where they lose the confidence of the parliament or act against the Constitution.

3. Where there are no Ministers who command the confidence of Parliament, the Crown can seek and appoint other members of Parliament to act as Ministers if they can gain such confidence. Where no such Ministers can be found, the Crown calls elections to enable the electors to resolve the crisis.

Prerogative power to dismiss Ministers not obsolete.

The use of the prerogative power to dismiss Ministers has been infrequently used in the United Kingdom. However, John Paul has pointed out, in a paper to the Samuel Griffith Society in 2001, that in Australia, it has been used to resolve crises in Government on more than one occasion. The two most notable examples are the removal of Premier Lang by Sir Philip Game, in New South Wales, and the dismissal of the Whitlam government in 1975 in the Commonwealth.

The power of the Crown to defend the Constitution.

The use of the prerogative powers in relation to the appointment and dismissal of Ministers, is part of the Crown’s role as protection of the people from unconstitutional actions by governments. This power is explicitly recognised in the Federal Constitution by Section 61, which provides:

61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the maintenance of the Constitution, and of the laws of the Commonwealth.

Republicanism by stealth

In England, under the Blair Government, republicans have advocated the confinement of the Crown to purely ceremonial duties. Suggestions have been made that the formal opening of parliament by the Queen coupled with the Queen’s speech should be abolished. Fortunately, these suggestions provoked sufficient opposition to see them dropped.

Other drastic changes were criticised by the Leader column of the Daily Mail quoted in the UK Mail on 23 September 2003:

A wiser Prime Minister would respect a delicate Constitutional fabric that was centuries in the making. Not Mr. Blair. This is the politician who in his last shambolic reshuffle tramped on 1,400 years of tradition by trying to abolish the post of Lord Chancellor without telling the Queen.

In Australia we have seen the removal of the State Governor from Government House, and the removal of the symbols of the Crown from the Uniforms of Parliamentary attendants.

Real motive behind these actions.

These alleged cosmetic changes to the way the Monarchy operates are far more than cosmetic. The motive behind them is to conceal from the public the fact that the Crown has real constitutional powers, which are the ultimate protection of the people from the destruction of the Constitution itself.

If the Crown becomes solely a ceremonial institution, without reference to the electorate, it will be easier to argue for the further restriction of its public role and to urge its abolition on the basis that it has become irrelevant to the governance of a modern society.

Central position of the Crown in the Constitution

1. The book covers in detail the reasons why the Framers of the Commonwealth Constitution insisted on the Crown becoming central to the fabric of the Constitution.

2. It is important for the protection of our constitutional rights for the public to be aware of the central role played by the Crown in our Constitution.

3. It is important to remember that our Constitution was framed by delegates elected by the people themselves and adopted by the people in Australia wide referenda. It has given us stable government for a century and will continue to serve our needs for a century into the future. We should not meddle with it without sound and proper reasons in an atmosphere of mature and well-informed examination and discussion.

I am sure that you will all find the Book as well worthwhile as the Champagne with which it is launched.