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THE STATES IF AUSTRALIA SEPARATES FROM THE MONARCHY
Paper presented by Richard E McGarvie at the Australian Legal Convention, Canberra, 12 October 2001.
I start this paper, written for fellow lawyers, with a confession. When I agreed to become Governor of Victoria I assumed that I had a background that would give me a good understanding of the realities of the office of Governor. I had had many years as a barrister and a judge and much involvement in the organisations of the legal profession and the judiciary. How wrong I was. In finding out what were the realities of the office I found myself on the steepest learning curve of my career.
I have come to realise that in understanding the way our constitutional system actually works, and how it would work if particular constitutional changes were made, being a lawyer can be a great advantage or a grave disadvantage.
Being a lawyer gives a capacity to understand the meaning and legal effect of the Commonwealth, state and territory constitutions, which consist entirely of statute and common law. Those constitutions, though basic to our constitutional system, comprise only part of it. In the total constitutional system, the law of the constitutions combines with the operating part, which is organisational not legal in nature, to provide and protect our democracy. Thus it is the law of the constitutions that ensures periodical elections for parliaments. It is not the law of the constitutions or any other law that ensures that a Prime Minister or Premier defeated in an election or a no confidence vote resigns, or that, except in most exceptional circumstances, Governors-General and Governors exercise their legal constitutional powers as advised by Ministers of the elected government. That is ensured by constitutional conventions made binding by the operation of the organisational part of the constitutional system and the non-legal penalties it imposes for their breach.1 The greater part of the constitutional system is the organisational, non-legal part. An understanding of the operation of that part calls mainly for an understanding of humans and how they act, particularly within constitutional organisations where people tend to be tempted and impelled by an obsessive drive to obtain or retain political power. Perceptions of this are more likely to be gained from learning within a school of politics than within a law school.
Lawyers, particularly those who practice, have a good capacity to do the work necessary to understand the actual operation of complex organisations and the ramifications of an organisational change. Lawyers such as Deakin, Barton, Griffith, Isaacs and Inglis Clark were at the forefront of those with the creditable achievement of putting together a federal constitution which has adapted to the changes of a century while providing stable democracy. But they knew far more than law. They all had experience of politics and parliament. They had done a lot of reading outside the law. John Lahey says of the delegates to the conventions on federation that they 'knew a great deal about the world, about books and about the fact that politics is the art of the possible'. Except for one, they were politicians. They were cautious because they were knowledgeable. Nobody in Australia knew the pitfalls better than they.2
Lawyers who regard the knowledge and experience of law as a sufficient qualification for understanding the operation of our constitutional system and predicting the effect of constitutional change are probably the nation's worst advisers. They have had an unfortunate effect on Australians' understanding of their constitutional system. The Benthamite approach prevails where rules of law and supposed rules of law are elevated in importance far above the rules of the game that exist in fact.3 This legalism leads many lawyers uncritically to adopt for Australian purposes the concept of writers on the English constitution that the constitution and the conventions are of the same nature. Applying that in Australia where the constitutions are undeniably law, it is an easy step to treat components of the organisational part of the system, such as conventions, as law or analogous to law. Dr H.V. Evatt has been the leading exponent of that approach. His perceptions made an immense contribution to the debacle of Australia's constitutional malfunction in 1975.4 A correct understanding of a convention is not a matter of law. It is a matter of fact. The result of the legalistic approach has been that much of the received academic theory in Australia is unreliable because it describes the operation of the constitutional system as though it were analogous to the operation of the common law, instead of looking at what actually happens and why it happens.5
Looking at the operation of the constitutional system entirely through legal eyes has two main vices. In ruling on the operation which legislation has, courts try to fulfil the intention of the legislature. It is a serious error to assume that the operation which new constitutional provisions will produce within the organisational part of the system will correspond to the intention of their creators. Geoffrey Sawer reminds us that in the constitutional area, 'Legal powers are habitually used for purposes not contemplated by those who framed the law'.6 The other main vice is that it treats the doctrine of binding precedent as having a function which it does not in fact have within the organisational part of the system.
In assessing the future of the states if Australia separates from the monarchy, it is vital to free oneself from what could be regarded as binding precedent and to look objectively at the facts. Binding precedent is doctrine accepted in the past and ordinarily received and applied in the present without reassessing it. A doctrinaire approach to the future of the states obscures the realities of today. Quite early it became received doctrine in Australia that both the Aboriginal people and the states would wither and die.
The view that the states should wither became the received doctrine in ruling circles within the first quarter of the 20th century. Politically, its leading proponent was William Morris Hughes who, in promoting the national community as the prime focus of loyalty and attention, painted the states and their rights as reactionary, undemocratic and parochial.7 In 1920 the High Court followed suit, holding in the Engineers' case that the specified heads of Commonwealth power were to be interpreted in a formal literal way, virtually regardless of the impact on the states.8 There have been times when states have merited Hughes' epithets. However this century began with experience of the leading edge in social and community change having been taken in South Australia by the Dunstan Governments, 1970-79, and Victoria's Kennett Governments in 1992-99 having taken radical and innovative steps in economic change. The need to reconsider the appropriateness of the doctrinaire precedent in the Australia of today must be recognised.
In law, the precedent of 1920 is wearing thin. I agree with Professor Brian Galligan:
I would think [the] Engineer's case is somewhat in jeopardy today because it cannot be justified as being appropriate for a federal system. In a sense the tide of increased centralism has probably gone as far as it will go and what we are going to see now are moves towards decentralisation in Australia.9
Despite the efforts of revisionist historians,10 anyone reading Brian Galligan's, A Federal Republic: Australia's Constitutional System of Government,11 and S. Rufus Davis', Theory and Reality: Federal Ideas in Australia, England and Europe,12 with other than utopian eyes, is likely to conclude that our federation is travelling well and is valued by the Australian people. It is not surprising that federation attracts other democracies. The United Kingdom recently became federal, Europe is federating and the states are certainly not withering in the United States.
The main strengths of a federation are that it guards against oppression by dispersing governmental power and it brings government closer to the people. The people of an area are much more able to influence their state government than their central government. Tasmanians and South Australians have a lot of influence on their state governments but limited influence on the government in Canberra.13
While the precedential doctrine of withering states has held full sway
in our ruling, academic and media circles, it has not cut much ice with
the mainstays of Australian democracy - the ordinary voter. As is
usual in good federations, the states remain important to the people.14
The Western Australian Constitutional Committee catches the essence of
Australians' loyalties in recognising
the extent to which people in this state are conscious of being both
Australians and Western Australians; they have a dual allegiance that reveals
an intuitive grasp of the principles of federalism and a commitment to
them ? Being Western Australian is an essential aspect of being Australian.15
This importance of the states to the ordinary Australian is one of the
main explanations for most referendums failing. Galligan comments:
'They are typically put up as requests for more power for the Commonwealth'.
He identifies the other main reasons:
Most referenda that were put up were badly considered, badly presented,
and there was no support for them or not enough support and they are opposed
by a major party. Unless there is bipartisan support, changes are
not going to get up.16
The Contemplated Constitutional Change
Consideration of the effect on the states if Australia separates from the monarchy must start from an understanding of what is involved in such a separation.
In a gradual process, the Australian system of government, completely dependent on the British system in 1788, has almost entirely achieved the final separation from that system which would give it the constitutional autonomy of a nation state. The only constitutional dependence on Britain which now survives is the slim and formal residue that exists through the monarchy. For years the operative or de facto heads of state, the Governor-General, Governors and Administrator of the Northern Territory, have performed virtually all the head of state responsibilities for the Australian federation. They operate as advised by their Australian Ministers and are entirely free of any control by the Queen or anyone else in Britain. Our remaining constitutional dependence is that whoever is monarch of the United Kingdom is monarch of Australia and the formal head of state of the Commonwealth and each state and territory. The only constitutional function this leaves the Queen to perform is the fairly mechanical and infrequent one of complying with the binding constitutional convention to appoint or dismiss the Governor-General, Governors or Administrator as advised by the Prime Minister, Premier or Chief Minister.17
Finalising the separation from the British system of government would not be a large practical change but it is a difficult one. It is easy to think of legal ways of separating from the monarchy. The difficulties are apparent only to those who realise how much our democracy and its safeguards depend on the sophisticated balances created by the way the organisational, non-legal part of the constitutional system actually works.18 It is the operation of this part of the system which creates many of the incentives and disincentives, and the penalties which make conventions binding, which all combine to ensure that holders of powers exercise them in a way that maintains the strength of our democracy and its safeguards. The central task is to identify legal changes which would, if made, separate Australia from the monarchy, while either producing no significant changes in the operation of the organisational part of the system or setting it in operation in a way that would be equally efficacious in maintaining the strength and safeguards of our democracy.19
We can describe the contemplated constitutional change as separating from the monarchy or as becoming a republic. I prefer the former because the latter can arouse such emotions on both sides that it distracts from clear objective thought. It transports some into a utopian ecstasy of almost supernatural proportions where they expect change to a republic automatically to increase our trade, improve our human nature and make our problems easier to solve. On the other side there are many who, while aware of the republics like the United States or Ireland which are good democracies, are even more aware of the republics that produced the tyrannies of Hitler, Stalin, Mao tse Tung, Idi Amin, Pinochet and Robert Mugabe. People who or whose families came to Australia to escape the tyrannies of such republics tend to be filled with dread for any republic. It is much better to debate the issue in objective terms which indicate in clear unambiguous language precisely what is proposed.
Effect of the Change on the States
Would constitutional change which separated Australia from the monarchy necessarily or probably cause the states to wither? The answer is that it is entirely up to us. We could separate from the monarchy either by making legal changes that would weaken and wither the states or by changes which would have no adverse effect on them.
Legal Changes Weakening the States and Federation
It was a paradox that as we approached a century of federation its importance was overlooked by those who put together the package rejected in the 1999 referendum.
The referendum was only on the Commonwealth unit of the federation, which would have separated from the monarchy if an overall majority of voters and majorities in at least four states had supported it. Only the amendment power in s.128 of the Commonwealth Constitution was relied on. There was little or no consideration or mention of three published reports to state governments which stressed that political legitimacy required that all states support the change.20
The opportunity was missed of presenting the people with a proposal that could have caught their imagination and vision as a change which completed the long sweep of evolutionary history from total dependency in 1788 to ultimate constitutional autonomy. Because we voted only on whether the Commonwealth unit separated from the monarchy, even if the referendum had passed, most of the federation - all of the states - would still have been monarchies.
The health and strength of the federation was given hardly a thought. If the referendum had succeeded with support from a majority of states but one or two dissented, the people of the dissenting states would have been cast into a Commonwealth system of government in which their voters lacked confidence. Circumstance and ridicule would have left the dissenting states no practical option but reluctant separation from the monarchy at state level. That would have injected a destabilising factor into the federation, unequalled since 1933 when Western Australia voted almost two to one to secede.21
It is obviously most desirable that a decision on separating from the monarchy be made by voters in the whole federation at the same time and that the people of a state be not forced into a new system of Commonwealth or state government unless they have shown their confidence in it by a majority vote.
Legal changes could be made which would separate Australia from the monarchy but also have the intended or unintended effect of weakening the states. The proposal that state Governors be appointed and dismissible by the Governor-General, which the Founding Fathers rejected by a majority of nearly three to one, is a good example.22
If on separation from the monarchy a state Governor, whatever called, became legally appointed and dismissible by the head of state of the Commonwealth unit of government, the organisational part of the constitutional system would operate so as to weaken the state, whatever had been the intention and hope of the creators of the legal change. It is not an understanding of law but an understanding of the operational realities of the constitutional system that enables the actual effect of such a legal change to be perceived.
As a matter of constitutional fact, it is the person with the capacity to bring about a Governor's dismissal who has the capacity to give the Governor advice that in fact binds the Governor to comply with it. The capacity of the Prime Minister to give the Commonwealth head of state binding advice to dismiss the Governor, would give the Prime Minister the capacity also to give binding advice to the Governor. As Indian experience shows, in a situation of conflict, a Governor appointed and dismissible by the national head of state on the Prime Minister's advice, has no real option but to comply with the will of the Prime Minister rather than that of the state Premier. The Premier's advice, if not backed by the capacity to bring about the Governor's dismissal for refusal to comply, is impotent and ineffective. This would mean that in a conflict between the Commonwealth and state, the Prime Minister, not the Premier, could control the Governor and the Governor's exercise of the state's constitutional powers.23
Legal Changes Not Affecting the Strength of the States and Federation
The Corowa Peoples Conference 2001, to be hosted by the Corowa Shire Council on 1-2 December 2001, aims to recommend a process for an early resolution of the head of state issue which will not weaken our states, federation or democracy. It seeks to build on the lessons that come from Australia's experience of federating and from the rejection of the 1999 referendum. It is basic to its aim that the issue of whether Australia separate from the monarchy be resolved in a constitutional way in which the resources of people, parliaments and governments are all fully engaged in working out the proposal ultimately put to referendum. The years from 1993 to 1999 are notable for the attempt to resolve it in a privatised way. The main input into the rejected package came from a private organisation, the Australian Republican Movement. Its main critic was another private organisation, Australians for Constitutional Monarchy.
Underlying the Corowa Conference is an acceptance that the issue will be resolved only by a referendum vote upon a proposal that can genuinely be presented so as to catch the public imagination and vision, and where people can vote free of partisan political impulse and secure in the knowledge that whichever way the vote goes our democracy and federation will be safe for future generations.
It was by following a recommendation on process from the Corowa Conference of 1893, as supplemented by the Premiers Conference of 1895, that Australians were able to restart the stalled issue of whether Australia should federate and to move it to resolution by the referendum votes of the people. The Corowa Conference this year is confined to recommending a process which will restart the stalled issue of whether the federation should separate from the monarchy and move it to early resolution by the referendum vote of the people. It will not consider whether Australia should separate from the monarchy nor the merits of models to replace it in that event. Its task is to recommend a fair, informed and effective process to enable the people to decide those questions later.
The Conference is designed to be non-partisan in the sense of having members reflecting all shades of political opinion and all viewpoints on the head of state issue; to attract a number of people with particular experience or knowledge of the actual operation of the constitutional system and generally to attract people whose strength is in practicality rather than theory; to have people present from all sectors of the Australian community; and to generate an informed debate on process in the six months before the Conference. The composition of the conference is important because the weight its recommendations will carry will depend on whether the community sees it as a Conference of practical people who fairly reflect the experience and views of the whole community.
About half of the 450 members of Conference will be members of the public who have responded to advertised invitations to register. Up to a quarter will be people with actual experience in the constitutional system such as present or former Prime Ministers, Premiers, Chief Ministers or Leaders of the Opposition; Speakers and Presidents of parliaments; heads of political parties; independent members of parliament; former Governors-General, Governors and Administrators; and councillors from local government. The other quarter or more will be people selected for individual invitation because of particular experience or knowledge of how the constitutional system or other organisations work in practice.24
In recommending the best process for Australia to follow for early resolution of the head of state issue, members of the Conference will have the advantage of debate before and at the Conference on a number of alternative processes that have been proposed. There is an invitation to any member or members of the Australian community, whether attending the Conference or not, to provide for display on the Conference website a process they propose and comments on it or other processes. That has been occurring and an expanding debate on website www.corowaconference.com.au has been under way since May 2001.25
I will outline the process of which I am one of the proposers and which has as one of its objectives the preservation of the strength of the states and the federation if any change is made. The draft proposal of that process, prepared by Jack Hammond QC and me, has been displayed on the Conference website since May. It was developed from the proposal rejected by the 1998 Constitutional Convention that the issue be resolved for the whole federation together,26 the outline in my book, Democracy: choosing Australia's republic, of how that could be done27 and the process I advanced in launching John Lahey's book, Faces of Federation: an illustrated history and which Sir Zelman Cowen endorsed.28
The Conference has already gained support from influential people of all viewpoints. Included in those attending are the Australian presidents of major political parties, Shane Stone QC (Liberal) Greg Sword (Labor),and Michael Macklin (Democrats); former Liberal Prime Minister, Malcolm Fraser, former National Deputy Prime Minister, Tim Fischer and current Labor federal Shadow Attorney-General, Rob McClelland; ACTU President Sharan Burrow and business leader Stella Axarlis; Australian Republican Movement Chairman, Greg Barns, and Australians for Constitutional Monarchy National Convenor, David Flint. Sir Zelman Cowen is Patron of the Conference and will give the opening address.
Our process proposes that the Conference appoint a non-partisan drafting committee to prepare and place before the Council of Australian Governments (COAG) legislation to establish all-party committees within each of the parliaments. It is proposed that COAG, which has as its members the Prime Minister, Premiers and Chief Ministers, accept the responsibility for coordinating the process and giving it political momentum. Following the first Corowa plan, the Premiers Conference in 1895 accepted that responsibility.
Because the process is designed from the outset to inform people fully of the realities of what would be involved in separating from the monarchy and of the various views on the issues they will be deciding, it starts with all-party committees in the parliaments closest to the people - those of the states and territories. The committees will each investigate, listen to their citizens and report on the two questions vital to an effective resolution of the issue: (1) Which head of state model would best preserve or improve our democracy if it replaced the monarchy? (2) Which method of deciding the head of state issue would place least strain upon our federation? The work and reports of these committees will inevitably receive a lot of local attention. Then an all-party committee in the federal parliament, with a representative from each of the state and territory committees will consider those committees' reports and give its report on the two questions, appending the state and territory reports. Any model with majority or minority support would have to be specified in at least as much detail as was required by the 1998 Constitutional Convention. The report would go to COAG, be widely distributed and placed on the Internet.
Under our proposals, the Conference would recommend that the parliamentary committees consider a method for deciding the head of state issue without placing strain upon the federation. Under that method, with the community informed by the reports and discussion of them, there would be a national plebiscite in which the people of each unit of the federation (ie the Commonwealth, each state and territory) will choose the model they would prefer for head of state of their unit if it separated from the monarchy. All of the models which draw either majority or minority support and are specified in detail in the federal parliamentary committee report will be included in the plebiscite. Each Australian voter would mark a ballot paper showing their preference of model for the Commonwealth and another showing their preference for their state or territory.
This gives the supporters of each of the models proposed to replace the monarchy an equal opportunity of advancing it on its merits to the parliamentary committees, submitting it to their rigorous scrutiny and having it emerge from public debate as the preferred plebiscite model if voters judge it the best. To minimise expense, the plebiscite could be held with the federal election which must be held by 2004.
There is no constitutional necessity for each unit of the federation to have the same type of model. Because the system of government of each unit is essentially the same and because of the small cultural differences between different areas of Australia, it is most likely that each unit would select the same model.
By using the new powers of constitutional amendment created by s.15(1) of the Australia Acts 1986, Australians could decide in about 2005 that the whole federation separate from the monarchy at the same time. Awareness of the clear new power of the Commonwealth and states acting together to amend all Australian constitutions is only emerging slowly. One of the first to advocate such a course was South Australia's Solicitor-General, Brad Selway QC.29 Walter Bagehot explained that it is normal for constitutional change not to produce its full effect for a generation.30 Although s.15(1) of the Australia Acts gives the necessary legal power, combining its use with s.128 of the Commonwealth Constitution provides political legitimacy for any change as well.31
All Australian electors would vote in the one referendum on the one question of whether all the units of the federation - the Commonwealth, each state and territory - separate from the monarchy. If supported by the overall majority of voters, a majority in every state and the request or concurrence of each state parliament under the Australia Acts, the whole federation would separate from the monarchy at the same time. Each unit would convert to the model chosen for it by its voters in the plebiscite. Otherwise there would be no change. Either way the head of state issue would be resolved, at least for a long time. One way in which the available constitutional mechanisms could be used to enable the people to decide whether the whole federation separate from the monarchy is outlined in my book, Democracy.32
If the federation separated from the monarchy in this way, the change would have clear political legitimacy. The majority of Australian voters and majorities in every state would have shown that they preferred separation. Each unit would have converted to the model chosen by its own voters, voting with knowledge of the strengths and weaknesses claimed for the various models in the majority and minority reports of the parliamentary committees and public debate, and able to form their own opinions. There would be no dissenting state and no unit would have been forced to accept a mode of government imposed on it by others.
The need for majorities in every state and for the request or concurrence of every state parliament, in theory raises the standard for achieving constitutional change but in practical reality hardly raises it at all. From the referendums over a century ago with every colony supporting federation, to the present, only one successful referendum, that of 1910, lacked the unanimous support of state majorities.33 If the majority in a state had just voted for the change, the state parliament would in political reality have no option but to give the necessary request or concurrence.
I said earlier that the changes necessary to take Australia finally to the complete constitutional autonomy of a nation state are small but difficult. The approach of our process faces up to the difficulties and, starting from the premise that ordinary people are well able to make the decisions necessary to resolve the head of state issue if relevant information and the various views are made available to them, it aims to recommend an informed, fair and effective process which will enable that to be achieved.
If, instead of taking a course which can cope with the difficulties, Australia were to follow theorists who look to the simplicities of the past, believe the road to resolution so easy it hardly needs thinking about, that the states do not matter and that the ordinary people will vote as they are told, the cliffs and crevices across that road are likely to produce the corpse of at least one more failed referendum before the journey ends.
If Australia resolves the issue with constitutional wisdom there is no reason why it would cause the states to wither. In a republic as in a monarchy, the future of the states will depend on whether they are valued by the ordinary people and whether the ordinary people have the influence they should have in a democracy. Separation from the monarchy would only threaten the states if done in a way that deliberately or inadvertently weakened them.
Endnotes