Transcript of ACM Conference Address on March 27, 2001
By Richard J. Wood
What better time could there be than now to stand back and quietly consider whether our Constitution has faults, weaknesses or frailties that requires us to take some action to remedy them. The referendum proved that the people have faith in their constitution -- the Olympic games proved that the flag Australians love is the present Australian flag -- and despite the republicans and many others claiming that Australia has a new identity, namely, that of a multicultural society and that that requires a new constitution, the Olympic games gave Australia's true identity a double A rating -- Aussies and Aborigines. To decide what, if anything, should be done, we must firstly be fully in agreement on the operation of the Constitution on the matter we propose to reinforce and, secondly, we must have a keen appreciation of the fact that it has given us stable and constitutional government for 100 years with few amendments having been necessary.
After the draft Constitution of 1897-8 had been passed the Premier of Queensland, Charles Kingston proclaimed that it was "the most magnificent constitution into which the chosen representatives of a free and enlightened people had ever breathed the Life of Popular Sentiment and national hope." How true that statement has proved to have been. Let us then tread the path of reinforcement -- or reform -- with very careful, considered steps. There are, in my view, some sections of the Constitution which ought to be removed because in their terms they fly in the face of the claim that we are truly independent of Great Britain. S58 give the Governor-General the power to reserve a law for the assent of the Queen, S59 enables the Queen to disallow a law within one year from the Governor-General's assent, and S60 provides that any proposed law reserved for the Queen's assent has no force unless and until the Governor-General within 2 years of it being presented for assent makes known to the Parliament that it has received her assent. These sections must be taken out.
S74 of the Constitution allows the High Court to certify that any question as to the power inter se of the Commonwealth and a State/s or between States may be referred to the Privy Council. The High Court will no longer grant such a certificate, so the section must go.
The sections I have referred to mislead those people in our nation who really do not understand our Constitution and who cannot understand how the sections can still form part of our Constitution. Perhaps if Mr Beazley's claim that there will be a Plebiscite on the question of Australia becoming a republic is fulfilled we could save a lot of money by having a referendum to alter the Constitution in those respects at the same time! -- all political parties would probably agree to these sections going out.
But is that the only reinforcement necessary? Some might put a case for reinforcement in respect of the Senate -- there are frequent claims made that this or that should be changed or added to. I do not need to go into detail because I am firmly of the opinion that if there are to be alterations in regard to the Senate or matters pertaining to it, the initiative for change should not at this time come from ACM but should be left till later or be initiated by the government as a matter upon which ACM and republicans and other persons interested should deal with on a national basis. But ACM should be vigilant to maintain at all times that the Senate was intentionally created as an integral part of the Parliament of our country with Legislative powers equal to that of the House of Representatives except in taxation and money bills (S53), and that that state of affairs should not be tampered with in any way.
Now, a brief word of warning. In all matters pertaining to reinforcement of the Constitution -- indeed in relation the operation of the Constitution in any particular respect -- we, ACM, should be careful to present our Constitution as it is, not as we may wish it to be. I am referring to the question whether the Governor-General is properly called "Head of State." I would point out that at the present time, I have no firm point of view one way or the other and I merely wish to make the point that as John Howard has said, the Governor- General, on any view, is "effectively" the Head of State. If you ask me -- whom does the Constitution put at the pinnacle of the system created by the Constitution? I would say -- undoubtedly the Queen. The Queen as such is the sovereign, and section (1), provides that "the Parliament" consists of the Queen and the two Houses, and the Legislative power of the Commonwealth is vested in "the Parliament." S61 vests in the Queen the executive power of the Commonwealth and states that that power is exercisable by the Governor-General. But the word "Head of State" is nowhere used in the Constitution (not surprisingly, because it was, in Internation Law and usage, treated as descriptive of the highest dignitary in a republic and "sovereign" was the appropriate word for King or Queens in a monarchy) but in my opinion the provisions of the Constitution vesting in the Queen Legislative and executive power thus plainly put the wearer of the Crown at the pinnacle of the system of government created by the Constitution.
The claim that the Governor-General is "the Head of State" rests essentially upon the factual basis that the Governor-General exercises all the powers of a Head of State (except the appointment and dismissal of a Governor-General) and is thus the "monarch" in Australia. I will not go deeper into this question whether you are satisfied that the Governor-General is our "Head of State." If you are so satisfied then act accordingly. If not, use John Howard's words "effectively our Head of State." Whatever view you may take let me say and say as forcefully as I can, that our Constitutional Monarchy is the most advanced form of Constitutional Monarchy in the world because what it does is to give the Australian people through their elected representatives the power to govern the country and the Queen, the monarch, steps aide to allow the Governor-General to exercise, all her powers independently. Our Constitution is wholly free of the problem that besets a republic when you have an elected President with powers alongside a Prime Minister, and that of course is one of the reasons why people should see our unique Constitution as preferable to that of a republic.
I return now to the topic of reinforcing our Constitution and would remind all that the republicans themselves do not suggest alterations be made to our Constitution to make it work better. Indeed, the republicans are at pains to tell the people that a change to a republic will need only "minimal" changes. We know of courses that you cannot imbue a republican constitution with the strength and flexibility of a constitution forged from a constant struggle between King and Parliament over centuries. The role of the Governor- General and the President are as different as chalk and cheese. We are in strong ground in asserting the superiority of our Constitution when we highlight our Constitutional Monarchy as one that has given us 100 years of stable constitutional government, a record Sir Harry Gibbs pointed out, only approached by 2 republics -- USA and Switzerland -- 2 republics out of 136. I counted them up in the latest Brittanica Year Book in the Stanton Library one Sunday.
The greatest reinforcement of our Constitution can be achieved by educating our people in the strength of our Constitution and by answering the spurious claims Republicans make. They constantly tell the people that now that we are independent it is a "natural step" to become a republic with an Australian as Head of State, as if a republican constitution offers some higher status than that of a constitutional monarchy. That of course is nonsense. Most republics are not even free. Most of the political trouble in the world comes from republics. Australia, Canada and New Zealand all enjoy substantially the same constitutions and they are seen by the world as right at the top of the free nations of the world. Our Constitutional Monarchy has everything that makes a successful republic (there are not many) and a lot more, in its checks and balances and strength. Australia has been called a "Crowned Republic." Perhaps Cromwell would have called it a "Crowned Commonwealth"?! The concept of a subservient Queen in Australian, a Governor-General with powers of the Queen and government by the people of Australia through their elected representatives is, as I have already said, the most advanced form of monarchy in the world.
In reinforcing our constitution by educating the people, let us stress that the role of the Governor-General as keeper and guardian of the peoples' right to stable constitutional government cannot be replicated in a republican constitution with an elected president without running the serious risk that the President and the Prime Minister will come into collision.
Let us take our education of the people beyond just the Constitution -- let us make the public see that they can be proud of their Constitution, proud of their flag, proud of their history and proud of their heritage.
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