In the Shadow of the Crown: Some Men Look At Constitutions…

By Christopher Reynolds

Christopher Reynolds began an extensive study of Australian political history and the Australian Constitution when he was a senior professional staff member in the U.S. Congress in the 1980s.

As someone who drafted and promoted legislation, he was interested in Australia’s complicated relationship with Britain as well as what it needs to change to promote democracy.

Quoting authors from Aristotle to Thomas Jefferson, and a host of Australian authorities, Reynolds outlines Australia’s journey from being a dominion of the British Empire toward independence. He supports his findings by examining documents from British archives, Australian constitutional debates, as well as the constitutions of other nations that lead to the path of meaningful reform.

Take a revealing journey through the history of Australian politics and consider a model of government based on involvement and interaction rather than conflict with In the Shadow of the Crown.

• Language: English
• Publisher: Lulu Publishing Services
• Release date: Mar 6, 2015
• ISBN: 9781483427041

Book preview

IN THE SHADOW OF

THE CROWN

Some Men Look at Constitutions…

by

Christopher Reynolds

Copyright © 2015 Christopher Leonard Reynolds.

All rights reserved. No part of this book may be reproduced, stored, or transmitted by any means—whether auditory, graphic, mechanical, or electronic—without written permission of both publisher and author, except in the case of brief excerpts used in critical articles and reviews. Unauthorized reproduction of any part of this work is illegal and is punishable by law.

ISBN: 978-1-4834-2705-8 (sc)

ISBN: 978-1-4834-2704-1 (e)

Library of Congress Control Number: 2015902823

Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

Any people depicted in stock imagery provided by Thinkstock are models, and such images are being used for illustrative purposes only.

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Lulu Publishing Services rev. date: 2/27/2015

CONTENTS

DEDICATION

PREFACE

INTRODUCTION

1.    THE WHITLAM STORY

Traumatic Upheavals

Who’s Rules?

Power and Glory

2.    A HISTORY OF CONSERVATIVE POLITICS

Wheat, Sheep and Gold

Federation: More of the Same.

When Money and Politics Conflict: The Lang Story.

All the Way with LBJ

The Semi-Sovereign People

3.    THE IMPERIAL CONNECTION

The Governor Generalship

The Structure of Government

Her Majesty’s Representative in the Commonwealth

Discrepancies

Reserve Powers

Political Involvement

4.    A QUESTION OF SOVEREIGNTY

Colonization

The Statute of Westminster

The Statutory Problems of the Dominions

5.    REPRESENTATIVE GOVERNMENT

A Matter of Degree

Made in Man’s Image

Threats to the Future

Challenges of the Future

Reshuffle the Deck

6.    AUSTRALIA FOR AUSTRALIANS

The Form of Reform

The Republic of Australia

7.    THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA - A PROPOSAL FOR AMENDMENT TO CHAPTERS I and CHAPTER II -

CONCLUSION

APPENDIX

Commonwealth of Australia Constitution Act

Letters Patent 2008

BIBLIOGRAPHY

ABOUT THE AUTHOR

Some men look at constitutions with sanctimonious reverence, and deem them like the Ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment … Laws and institutions must go hand in hand with the progress of the human mind …We might as well require a man to wear the coat that fitted him as a boy, as civilised society to remain ever under the regime of their ancestors.

(Inscribed on the wall in the Jefferson Monument)

DEDICATION

I dedicate this book to Prime Minister Gough Whitlam – the ghost of statesman past, who gave his all and lost the lot.

I also dedicate this book to others of integrity who seek to achieve the best for Australia.

ACKNOWLEDGEMENTS

I wish to acknowledge the support given by my mother and Harry who had no real clue of the importance of my work in the US Senate but undertook various trips to previously unventured places as the Sydney Mitchell Library in order to help me produce this hallmark work.

I also thank the people of Claremont Graduate University for their intelligence, their dedication to education and their wonderful support given to me by the faculties of philosophy, and government.

And, naturally, I acknowledge and thank my four sons, David, Andrew, Michael and Stuart, who have put up with their father’s ventures in academics and politics. I hope my life inspires them to learn, to think and to speak out for others.

PREFACE

The Constitution of the Commonwealth of Australia Act was enacted in the British Parliament in May, 1900 but was never meant to create an independent Australia. In enacting the Australian Constitution, it was considered natural by the British that commercial subordination should be followed by political subordination. As money and financial benefit is the root of political action so the Constitution was drafted to safeguard British interests.

The Constitution emerged from an environment of economic and political conflict and from its inception it has been an inadequate document open to abuse. In 1959 the Committee on Constitutional Review, established under Prime Minister Robert Menzies, stated that the Commonwealth Government was impaired by the limited powers granted by the Constitution. Similar discontent has been expressed by Prime Ministers Whitlam and Hawke. It was hoped that Constitutional Conventions, begun under Whitlam, would settle many lingering problems within Australian government. But, despite the added impetus of the dismissal of Whitlam by the Governor General, Sir John Kerr, in 1975 and the debates of the 1983 and 1985 Conventions, nothing has really changed.

In the 1980s, the Australian Government appointed the Republican Advisory Committee to prepare an options paper to describe the minimal changes needed to the Australian Constitution to achieve a viable Federal Republic of Australia. The Committee considered; references to the Monarch, the creation of a new head of state, the appointment and removal procedure for a head of state, and the powers of the head of state. But nothing was achieved.

It was to take more than a decade until 1998 before another Constitutional Convention was organised. Unfortunately, this review of the Constitution was politicised by the major parties causing polarisation of opinions along party lines. It was equally unfortunate that the Government, or at least the Prime Minister at the time, requested the Republican Advisory Committee to consider minimal changes to suit himself. It was also disappointing to have our Constitution gone over with a red pen to just remove references to the Queen and ignore the real and substantive issues regarding popular sovereignty (democracy) and the nature and power of the Executive Office (the Governor General).

In November 1999, the Australian republic referendum was finally held. The primary question was ‘should Australia become a republic with a President appointed by the Parliament’. The referendum was soundly lost. The people were not interested in a republic where the Prime Minister got to manipulate a parliament to put yet another cipher in the Executive office. For some years the opinion polls had suggested that the majority of the electorate had favoured a republic with an independent president. They did not get the opportunity to vote on this model but forced to consider Prime Minister John Howard’s preferred option. This was nothing short of a national tragedy.

Since Federation, Australian governments have had continual problems with the referendum process of bringing change to the Constitution and in 1986 the Passage of the Australia Act was supposed to finally cut the umbilical cord between Australia and Britain. For the most part this was done. Yet, and as a consequence of the failing referendum of 1999, the Governor General in Australia continues to maintain more power under the Constitution and his Reserve Powers than does the Monarch in England. Indeed, the Governor General continues to receive Letters Patent from Queen Elizabeth the Second, Queen of Australia confirming that the Governor General is Her Majesty’s representative in the Commonwealth … to administer the Government of the Commonwealth. The Letters Patent is essentially a power of attorney document.

The writing of this book began in that period of constitutional review in the 1980s but was not published. With the passing of Gough Whitlam and the memory of the sacking of a Prime Minister, questions of how a coup d’état could have occurred in a country believing itself to be civilized and democratic, deserve reconsideration.

In starting this study to discover and disclose the financial and political motivations in the history of Australian politics, I was challenged by an American friend, Professor Gerry Jordan, of Claremont Graduate University to ‘go find the money’. It might be Australia but you won’t understand the country’s politics until you find the money behind it, he said. He was right; there was a story to be told of financial power and influence steering political events. The Whitlam sacking was no exception.

The story of money and power is told in these pages and moves to the inevitable question of what needs to change in the Australian Constitution to create a democracy. I do not believe, however, that the question of the nature of democracy in Australia should be left to a select and prominent few. It should be made a public issue. As John Stuart Mill suggested in 1926; The first step is to define the purpose which governments are required to promote. The next is to inquire what form of government is best fitted to fulfil those purposes. (Representative Government)

Thus, after considerable study of other constitutions, there is sufficient precedent for reasonable reforms to the Australian Constitution to change the very nature of the Executive Office.

INTRODUCTION

Democracy in Australia is only a facade. The Governor General as head of the Australian Government continues to be appointed by the British Crown and to exercise prerogative power at his own discretion. Colonial commitment etched out the Australian Constitution, and one hundred and fifteen years later it remains a legacy of imperial patronage, and a bulwark against democratic principles. The dismissal of Prime Minister Gough Whitlam by the Governor General in 1975, illustrated that representative government was an empty gesture in the face of viceroy sovereignty. It was not that the Governor General was under instructions from England, but rather, drawing upon the powers delegated to the office under the Constitution, John Kerr made up his mind, as he said, to dismiss a government.

The coup d’état of 1975 (see Chapter 1) made it plain that sovereignty lies with the Monarch and Her representative rather than the people. Australia continues the motions of electing representatives to govern, but ministers of state only hold office under the pleasure of the monarch’s representative. The principle of responsible government exists only as an ideal in Australia. The mechanics of it are performed but, under close examination, it is the executive office and not the legislature which holds the power to rule.

The revelation in 1975 that viceroy reserve powers lay dormant but effectual, leads to a questioning of the adequacy of the federal Constitution to enunciate a democratic system of government. The Constitution concentrates power in the hands of the Governor General and so empowered the controls the executive government and holds power to appoint and dismiss governments as he pleases. Further, his personal discretion in these matters is not subject to any legal code or obligation. While it is commonly believed that the conventions of responsible government limit the use of such power, conventions carry no authority against constitutional statute. Representative government, accordingly, is ineffective. Elected representatives can only make decisions which please the Governor General, as Prime Minister Whitlam discovered.

While Prime Ministers have historically sought to get around the power inherently vested in the governor general office by appointing tame people, Australia has witnessed several occasions where conflict has ensued and Executive powers won out. These events are explored here.

It is argued here that the drafting the Constitution of the Commonwealth of Australia Act with a concentration of power in the hands of an overseer was not an accident. Economic interests demanded that property be protected, and accordingly, the British parliament established governors as their representative in the colonies to preserve politically conservative conditions. The governor generalship was supported in the absence of direct British rule by other financial barons interested in retaining a political advantage Thus; the powers of the Governor General saturate the Constitution. It is clear from close examination of the document that it is not conventions, or monarchical reserve powers, which enables a Governor General to dismiss governments, but the statutes of the Constitution itself.

The principles of responsible government, the distribution of power, and the structure of government, are the areas of concern here. The Australian political environment is examined with these concerns in mind. The purpose is to consider how Australia should mature towards establishing a republic, not as a rebuttal to England but as an exercise in devising a democratic political structure. Thus, a political movement for reform in Australia would be fundamentally a social movement to shift the balance of power in government and to give it a popular base.

Although conventions would suggest otherwise, by statute, the office and powers of the Governor General exists as a power-block which can render government ineffective at any time and, therefore, is in reality a threat to democratic practice. The solution is to either define and refine the power and conventions of the Governor General or eliminate the office altogether. Such change would, of course, result in a redistribution of power in Federal politics and government administration. The proposed changes and amendments to the Australian Constitution create a functional democracy and, no doubt, will stimulate reasonable discussion.

CHAPTER I

THE WHITLAM STORY

Colonies do not cease to be colonies merely because they become independent."

— Disraeli, 1863.

Traumatic Upheavals

November 11, 1975 was Remembrance Day and thousands of Australians had attended services that morning in memory of the fallen in World War I. Yet, serious business demanded that the Labor Party meet to discuss action against the Liberal Party’s unconventional refusal to pass the budget (supply). At 9:30 a.m., the Australian Labor Party caucus convened to discuss the current budget crisis pending in the Senate. At 10:10 a.m., Prime Minister Gough Whitlam arrived at the meeting and in an effort to create cohesion and enthusiasm proposed that they seek a half-senate election. With this proposal approved, Whitlam set out at 1:00 p.m., to meet Governor General Sir John Kerr and request that he announce the Prime Minister’s decision.

When Whitlam arrived at Government House, he was escorted into the study where Sir John was waiting to receive him. After being seated at one end of this impressive and imposing room Kerr began the conversation with a question: Are you prepared to recommend a general election? Whitlam answered No. Kerr responded, In that case, I have no alternative but to dismiss you. Whitlam retorted, I will contact the Queen, to which Kerr replied, It’s too late.

On November 11 1975, the Prime Minister of Australia, Gough Whitlam, was dismissed from office by the Governor General, Sir John Kerr. This was the most important event in a political crisis that had lingered in the Australian Parliament for over a year. It was also the most traumatic upheaval in Australian politics since Federation in 1901.

Kerr’s dismissal of Whitlam demonstrated the full extent of executive powers under the Constitution of Australia and made it clear that prime ministers and governments in Australia are accountable first to governors general and then to the citizens who elect them. The dismissal came about because John Kerr believed the Whitlam Government threatened the nation’s economic wellbeing. At least, that is what he said. In carrying out his purpose, he drew upon the reserve powers granted to him by the British monarch under the Letters Patent and the Australian Constitution. These reserve powers remain a legacy from Australia’s colonial past and constitute a flaw in Australia’s democratic system. Accordingly, this study of the history of Australian political history and the use of the executive powers of the Constitution reveals that the structure of Australian government is inadequate to meet the requirements of democracy and that change to the Australian Constitution is necessary if Australians are to be truly represented in their parliaments.

The Whitlam dismissal illustrates the history of difficulties of the office of governor general and shows how the democratic process in Australia is still vulnerable to autocratic rule. It further illustrates that the model of responsible government, instituted for British colonial governments, is an ideal of the past and not a practical principle or form of government in the present.

An examination of the nature of executive power is here initiated by a detailed description of the Whitlam affair. The politics involved in securing the dismissal of Whitlam was typical of the use and abuse of reserve powers in Australia since Federation. Although Kerr did not rely upon any precedent to justify his actions and appeared confused about which clauses in the Constitution supported him, his action was legal and similar actions had been carried out by British appointees in Australia in the past.

Kerr’s reason for dismissing Whitlam was that his government was unable to govern due to a deadlock in the Senate over the passage of supply. Yet, the political and economic climate of the time suggests that the deadlock was an opportunity to bring about a political end desired by a contingent of forces opposing the Labor Party.

During 1974-75 inflation and unemployment had burgeoned. The Government, under Labor Party leader Gough Whitlam, had suffered several political scandals and general antagonism from the business community. Political controversy centred on the appropriateness of Labor’s reformist policies and opponents insisted that Australia could not afford to wait a further eighteen months for a general election and a change of government.

The Governor General’s unorthodox involvement in these events is highlighted by a comparison with what is considered conventional behaviour. The Governor General, as head of state appointed by the British monarch, conventionally consults and advises the elected government. All federal government officers, ministers, and acts of parliament are validated by the approval of the Governor General. He (or she) acts on the advice of his ministers, who are drawn from the parliament and make up the Executive Council. When he acts in this manner his behaviour is considered conventional. Strictly speaking, however, the Governor General is constitutionally empowered to act against the advice of his ministers and decide his own course. In November 1975, Sir John