The Palace Letters reveal that in 1975 the British monarchy, through the Queen’s private secretary, directly interfered in Australia’s politics by playing a significant role in the dismissal of the Whitlam government.
That act, offensive to Australia’s notion of its own sovereignty, will give a boost to the republican movement. It reminds us of the utter weirdness of the constitutional arrangement that still has the Queen as our head of our state.
Ironically, if it was properly considered (it won’t be), the 1975 saga adds no strength to the current republican cause and arguably undermines one of its key elements.
Australia’s constitutional structure is a bastard child of the UK’s Westminster democracy, itself an anachronistic collection of laws and conventions. While the Westminster system is routinely held up as the apotheosis of democracy, it has several fatally undemocratic flaws.
Democracy requires, as a base component, the separation of powers between the three branches of government: legislative, executive and judicial. In Australia, while the judiciary is fully independent, the legislature (parliament) and executive arms are a confused mess.
The democratic principle that parliament (being directly representative of the people) should be sovereign is not reflected in our system. Instead, parliament is effectively subservient to the executive, as the government in power controls the parliament’s legislative agenda through party room discipline.
In practical terms, it’s obvious that the supreme power in our polity is not the parliament but the prime minister, a role not even mentioned in the constitution.
The problem is compounded by the constant creep of the executive into the realm of law-making, by multiple means such as delegated legislation, ministerial powers, unelected governmental authorities with wide discretionary powers and rampant spending of public money with no legal authority whatsoever. Parliament’s impotence in response to sports rorts and other outrages proves who really holds the reins.
Then there is the governor-general, proxy under the constitution for the Queen; whatever the monarchists claim, she is our true head of state.
The Queen is the head of the executive government, theoretically conducting its operations through her ministers and the public service. That’s why the ministers do that swearing-in thing at Yarralumla when they take office, because they serve at the governor-general’s pleasure.
However, as the head of state, the governor-general signs parliament’s acts into law, opens and closes parliament and commissions the prime minister to form government. In addition, they hold the controversial reserve powers, which Sir John Kerr used to dismiss Whitlam.
The result is a hopeless confusion between the governor-general, prime minister and parliament as to who is the boss of whom. As 1975’s crisis exposed, only conventions (unwritten and unenforceable agreements as to how everyone will behave) allow it to function at all.
This mess is a historical overhang from the compromises that accompanied the progressive transference of power from the monarchy to parliament in the UK, from Magna Carta to the Glorious Revolution of 1689.
Parliament came out ahead in the end, but the hereditary monarchy hung on as titular head of government, mostly just going along with the government of the day but retaining undefined prerogative powers.
We inherited the anachronism of the monarchy, but along with it the odd notion that democracy requires a head of state. There is no reason in truth why that should be so; in a pure democracy, parliament — elected by the people — should be sovereign and answerable only to the people.
Parliament makes the laws and the executive implements them. The executive is parliament’s delegate in that system, not the other way around as is the practical case in Australia.
We don’t need parliament’s acts to be approved by an unelected person once passed; the formal stuff is pointless pageantry only. That just leaves the reserve powers, which is where the real argument lies.
What if the government goes rogue? Don’t we need an independent head of state who can step in and protect democracy?
The only reserve power required is one that would force the parliament back to the people by fresh elections. That power could comfortably reside with the High Court. No head of state required.
More importantly, what if the head of state goes rogue? As Kerr certainly did, encouraged by his imperial masters? Do you know how we get rid of a bad governor-general? We have to ask the Queen to sack them.
We are no less exposed today than in 1975 to an anti-democratic act like Kerr’s.
It’s of only historical interest to confirm the palace’s involvement; that wouldn’t happen today. However, there is nothing to stop a future governor-general from overriding the people’s will as expressed through their election of members of parliament, using ill-defined powers and not breaking the law.
Imagine if one of our governments broke convention by installing a partisan hack as governor-general, someone who would happily burn down our fragile democracy for party gain? That could happen.
The republican movement in its current iteration calls for the minimal step of replacing the governor-general (and therefore the Queen) with a president. Same powers, just no monarchical link. Great, but it won’t solve any of the problems I’ve mentioned.
In fact, if we ended up with an elected head of state as most republicans favour, that role would become necessarily political. And, inevitably therefore, the risks to our democracy which our flawed constitutional model has embedded would become even greater than they are today.
As attractive as is the notion of just doing a “replace all” to the constitution — president for governor-general throughout — the harder work of fixing our flawed democracy would be a far better idea.
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Great article as always Michael – thank you for the analysis.
Honorable conventions are hardly worth the paper they are written on when leaders go rogue as we have seen all too often here, in the UK, and in the US.
An immediate transfer of the reserve powers to the High Court, with the necessary laws on which it must act, should not be that difficult to enact while the much larger task or re-organizing the whole show goes on.
No chance of that happening with any conservative government, as the flagrant flouting of conventions suits them just fine, and the voters seem content to let them do it.
What an infantile piece of ill-informed and ill-thought-out rubbish.
Ah Robin !
I could hardly allow your “piece of ill-informed” comment go through to the keeper!
Is the best you can do in commenting on a well reasoned article by an author of note on legal matters, being a sad piece of our national history?
The ramifications of the dismissal of a democratically elected government by a person appointed to represent the Queen of England and its Commonwealth, are reverberating through and causing dysfunction within our society today.
Unless the ARM is prepared to step up to the plate and offer more than a minimalist change to the constitution without addressing the underlying flaws to our democracy, then surely they defeat our purpose?
On this point, my correspondence to the ARM and their chair, Peter FitzSimons on what their position is on reforms to our constitution has been viewed as being unworthy of an acknowledgement let alone a reply!
I recommend you cast your net more widely on this subject and appreciate what the Whitlam government stood for and sought to deliver for ALL Australians – a self reliant, confident , creative society with equality of opportunity and importantly having control over its wealth creation to deliver for everyone.
For a reasonable yr10 or yr 11 class your description would amount to fair introduction to constitutional government but I am sure that even YOU would consider the piece to be far too general.
We got to were we are by the practical application of Parliaments from circa Edward III (or John and the Magna Carta if you insist) and I doubt if human nature has changed over that period as the essays and letters of Charles Fox (18th century) will attest. In other words, what we have, for all of its worts, is something practical – allowing that anyone could and can be elected. Speaking of the British system, Churchill acknowledged the system to be “the worst except for all else”.
A former PM was very “big” on a Republic some time ago but when it was clear that the model was not going to go his way (Parliament electing the President) he washed his hands of the entire project. Agreed; such is the behaviour of an overgrown six or ten year old but there it is and it is far from uncommon in either House today.
Perhaps I ought to make my sentiments clear. The monarchy did not “assist” either Australia in 1975 (with impartial advice) or Fiji (racist coup) in 1987 and 2006. One may well ask : “what is the point of the Monarchy”? On the other hand, the constitutional ignorance of the electorate being what it is, the country is clearly incapable of designing a Republic from a host of available models or indeed something original.
As an aside, Republics tend to waft to two major parties, that overtime, come to be indistinguishable. A book could be written but I’ll leave it there.
Some very good points. Also some sins of omission: there are not many instances when the High Court has been “independent” – Look at two recent cases: The AFP and the Pell case. The AFP still got a free reign although it had “stolen” documents and is therefore pursuing an ABC journalist, and Pell went free because the HC “thought” the jury “must have” forgotten the “beyond reasonable doubt” clause in the privacy of the jury room [!]. But, the jury actually had raised that problem, and toured the Melbourne Cathedral for that reason. Funnily, Chief Justice Kiefel believed the two victims in the Dyson Heydon deep problem of the HC. The Barwick and Mason HC interference in the constitutional coup was raised in the SMH today.
As well, you do not explain how a new constitution would separate the overweening executive powers over the legislature. Nor do you even mention the drastic need to remove the Race Powers from the constitution, or a change in its approach to Indigenous peoples so Dutton can no longer attempt to deport any and to recognise Uluru.
I was amused that yesterday Rundle turned straight to Anne Twomey on the Dismissal who, in yesterday’s SMH conveniently omitted the crucial letters that showed the Palace complicity with Kerr and Fraser, Barwick, Mason et al. All the revisionists are out – history is bunk; the Illiberal Party must brook no criticism etc.
The High Court, in the case of Pell, (1) acknowledged the existence of “opportunist witnesses” (the words of the Court of Appeal) along with the dissenting Judge and three facts of the case that were not clearly presented at the first trial. Those three facts discredited the evidence of the witnesses and of which the Court of Appeal took little countenance. The first two trials were never about evidence per se.
In the case of commercial litigation the limitation is typically six years however much doco is still bouncing about. The capacity for “construction” over extended periods is a recognised psychological characteristic – however ‘sincere’ a person or witness may be. There is more (or less?) to the AFP case than meets the eye too.
As to the High Court even someone as ‘egalitarian’ as Murphy had his issues. The problem, Hector, has been around for some time and is best expressed as “Quis custodiet ipsos custodes”? An extended ‘translation’ might be “we will never live in a perfect world” but only in one of successive approximation.
“Democracy requires, as a base component, the separation of powers between the three branches of government: legislative, executive and judicial.”
This is an arguable proposition.
When I was at school a long long time ago, I was taught that the separation of powers as embodied in the the US constitution had been based on the work of Montesquieu (The Spirit of Laws) which in turn was based on his misunderstanding of the English ‘constitution’ (where the legislative and executive functions are entwined). Further, that the USA had taken a wrong turn, given the propensity for deadlock between Congress and the President. I have some sympathy with this view.
Anyway, it turns out the position vis a vis Montesquieu and English governance is a lot more complex than as outlined above. For those who may be interested, see: https://ouclf.law.ox.ac.uk/montesquieu-in-england-his-notes-on-england-with-commentary-and-translation-commentary/
Understandably, most of the world’s democracies have not followed the US model of separation between executive and legislature and I do not see how it can be said that this is a “base component of democracy”.
As I see it, the main democratic deficit with the Westminister system (at least in the UK, Canada and, to a lesser extent, Australia), is the lack of proportional representation.
You are not entirely correct; at least in a literal sense. The office of the USA Attorney General has a foot in the Administration AND the Legislature. For Australia, and the Commonwealth generally, there is the Attorney General, which is a government of the day appointment and the Solicitor General which is a public service position. Its not for nothing that Trump has Barr as the incumbent and JFK selected his brother! I doubt of the USA version could be more incestuous and necessary for the president’s position to function.
Secondly, as to proportional representation, it looks good on paper or over coffee but the practice also permits extreme parties (polling less than 5%) to get a post in government when the two main parties are deadlocked at (e.g.) 48% each. The (e.g. UK) first-past-the-post may not be entirely representative but there is a sense of stability (as a racehorse might win a race). Pros & cons.
“Secondly, as to proportional representation, it looks good on paper or over coffee but the practice also permits extreme parties (polling less than 5%) to get a post in government when the two main parties are deadlocked at (e.g.) 48% each.”
It not only looks good on paper, it has worked very well in practice in many European countries over many years and there is no reason to believe that it would not also work well in a country like the UK – certainly better than the shambles over the past decade.
As for the “extreme party” argument, as you probably know the German system (for instance) has a 5% / 3 seat threshold – so no representation for parties who do not so qualify. Apart from this, extreme parties are generally shut out by the major parties. By the way, the 48/48 type split that you posit does not generally apply in PR systems – that is the whole point!
In FPTP countries, major parties can be captured by minority elements – the UK Conservative party and the US Republicans are contemporary examples.
Pros & cons – agree, but imo the PR pros are overwhelming.