Celebrating Federation National Conference
An address by Mr Richard J. Wood - January 26, 2001
My subject this evening is federation, one of the great pillars of our nation. We are this year celebrating its centenary. It is now a little over one hundred years ago the people of Australia, in each and all of the colonies, made a solemn declaration before all the world, that:
"… the people…, humbly relying on the blessing of Almighty God have agreed to unite in one indissoluble Federal Commonwealth under the Crown -- and under the Constitution hereby established."
The words which had the most ringing endorsement from the people were the reminder that all was being done under the guiding hand of Providence, that all that they did was in their humble reliance on the "blessing of Almighty God".
What are the other pillars of our nation? There were, I believe, six. Five preceded federation, four coming with the First Fleet.
- The rule of law
- The English language
- The Crown, the nation's oldest institution, and the one which provides leadership beyond politics, and
- Our Judeo-Christian culture.
The fifth inevitably followed. That was the Westminster model of parliamentary democracy.
Let me say a few words on each of these six pillars.
As I have suggested, these are six -- the rule of law, the English language, the Crown, our Judeo-Christian culture, our Westminster parliamentary democracy and federation. They are not isolated from one another. They enrich, they permeate, they intertwine, they enrich each other. These are the core, the heart of Australia. Everything else is, I believe, derivative or transcendental.
The rule of law and the English language
First, the rule of law. New South Wales was not to be a dictatorship nor a gulag, but a colony, admittedly a penal colony, but one subject to the laws of England. This meant that from the very beginning, we were subject not to the rule of men, but the rule of law. As with all of our inheritance, the common law was adapted and became fully Australian. A point which I shall come back to later.
Then there was the English language. This was not just the language of everyday usage, but at its heart were those glories of our language, the Authorised Version of the Bible, the Book of Common Prayer, and of course the language of Shakespeare.
Then there was the Crown, Australia's first state institution.
As with our common law and the language, it was to be adapted and made Australian, a point specifically recognised by our High Court in 1999 when it ruled, unanimously, that the crown is a separate, Australian, institution.
Those who recently attempted to remove it demonstrated their profound misunderstanding of the Crown. The Crown is the vast institutional, non-political heart of our system of government. It draws the line beyond which the politicians, and the political parties, cannot go. Without the sovereign there could of course be no such vast institution as the Crown. To take the Sovereign out of the Constitution is to destroy the Crown. The Crown has many aspects. I shall mention only six. But above all it is part and parcel of the defence that the Westminster system provides against the fulfillment of Lord Acton's warning. This is fundamental to freedom. It is that power tends to corrupt, and absolute power corrupts absolutely.
The Crown first provides not only the constitutional arbiter in times of tension. It also provides the everyday auditor of the political process. There is a view that the Governor-General exercises his functions only on those occasions when great constitutional decisions must be taken. What is forgotten is that he also ensures that in the day-to-day executive government, that the proper processes have been followed. The serious breaches of financial propriety which brought down the Carnell government in the Australian Captial Territory (ACT) in 1999 would not have occurred had the Hawke government, when it imposed self-government, given the territory an administrator as representative of the Crown. Lamentably, you will not find any constitutional referee and auditor above the political fray in the ACT. But you will find one in every State capital and in Darwin. They (the governors and the Administrator of the Northern Territory) constitute the second aspect of the Crown, the Crown at the state level.
Then there is the third aspect. This is in the direct link between the Governor and the Sovereign, and the Premier and the Sovereign. It is a great bulwark of the States' freedom. It is strange that many if not most politicians from the less populous States have forgotten Mr Whitlam's failed attempt in 1973 to centralise, and thus to control all communication between the Sovereign and the States. Now why did Mr Whitlam want recommendations on the appointment and removal of the Governors to go through Canberra? Whatever the reason, the States were unanimous. They would not have it. But this aspect of the Crown was completely ignored in the 1993 and 1999 republican models.
The fourth aspect was also ignored. This is the direct link between the Crown and the public service, the police, the judiciary, the armed forces. They owe their appointment, their tenure and their loyalty not to the political party which happens to be in power, but to the Crown and thus to the people. In both 1993 and 1999, the proponents of a republic proposed no alternative method of ensuring the independence of these institutions.
And then there are the external aspects of the Crown. The republicans did remember that the Queen is Head of the Commonwealth. (They used it as a consolation to those who wish to retain the Crown. They said, apologetically that in their republic -- "…the Queen would still be Head of the Commonwealth".) But the republicans then ignored another link, that is with the other realms, these countries which keep the Queen as sovereign. These are the nations closest to Australia, New Zealand, Canada and the United Kingdom. They all share the same Sovereign, surely something which offers a link, an opportunity, and is the living symbol of a special, close relationship. And with New Zealand, there always remains the tantalising possibility of federation, made so much more possible by the Crowns of our two nations.
Finally, of course there are the links, the close links, between the Crown, the rule of law, our language, our parliamentary democracy and of course our Judeo-Christian culture.
An Australian Republic?
Now it is undoubtedly possible to remove the Crown from our constitutional system. But to remove it, you must surely replace it. The republicans' principal aim was to get rid of the Queen. In fact they seem to think of little else. But in removing the Queen, they would have given her powers and authority to the politicians, and the above all to the Prime Minister. And having forgotten or disregarded the vast area in which all manner of public life is at present beyond party politics -- criminal prosecutions, the courts, the Army, the public service and the proper process of government -- they provided no substitute for the Crown. Only perhaps the vain hope that the political parties and all the politicians would always behave themselves. They forgot or they ignored Acton's warning. And equally, they forgot the role of the Crown in the federal balance. They forgot so much. Or perhaps they never understood it.
Of course Australia could become a republic, if that were the wish of the people. But to do so it would have to be done properly. Now there are only two republics of greater antiquity than Australia's constitutional system. If you ignore the civil war in each, they have both made a reasonably good fist of it. One, Switzerland, is so specifically designed for that country it could not be followed in its entirely, although we did borrow the excellent Swiss referendum.
The other is the United States. At independence they too were confronted with the same issue Lord Acton later identified, the problem about checks and balances on power. Before independence they were the freest colonies the world had ever seen, how were they to preserve that.
Rather than our solution, which was still being developed in Britain parliamentary government under a non-political crown, they tried to have a strict separation of powers between three institutions. The legislature, the executive and the judiciary. But the result has been not so much a separation of powers, but rather a separation of three institutions with mixed powers. While the Supreme Court has pretended that it is merely interpreting the constitution, it has exercised legislative powers. For example it has legislated in such areas as abortion, and about public prayers. The price is that all three institutions are highly politicised. Moreover they are in a state of perpetual tension and adversarial combat. And many other US institutions are also politicised, including the public service and the diplomatic corps. They operate on a "spoils system" under which the winning party takes all.
Accordingly, there is not, and there cannot be leadership beyond politics. There is no political "no go" area. Rather everything is political. The checks and balances are assured by leaving these institutions in a continuous gladiatorial combat. Thus in the last presidential election the dispute about the count was left first to totally partisan electoral officials, and then to a highly partisan Supreme Court. As Mr Justice Stevens wrote in dissent, in the case Bush v Gore (20 December 2000):
"Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law".
The Americans have solved Acton's quandary. They have established three highly political institutions all in a state of combat. But is this better than Australia's? Moreover the British system has been exported, successfully. Canada, Australia and New Zealand are examples. The American system has also been exported for example in Latin America. But I cannot point to one long-term success outside the United States. Perhaps it could only succeed in a country with a long tradition of the rule of law and parliamentarianism as the United States was. And incidentally Australia is. In any event, I am confident we will stay with the Westminster system, in our crowned republic.
Westminster, especially a federal Westminster system the size of our country, demands constitutional referees and auditors above politics. It ensures that the army, the police force, the public service, the prosecution service and the judiciary are above politics, and that then loyalty is not to the party in power. It ensures leadership above politics, a political no go zone, a heart of the constitution which is beyond the political parties and the politicians. This is not to denigrate politicians. It is to take note of and to understand Lord Acton's dictum "Power tends to corrupt, and absolute power corrupts absolutely".
The 1999 republican simplistically thought replacing the Governor-General with a president, one who was instantly dismissable by the Prime Minister, and replacing the Queen with the Prime Minister, would preserve what we had. Of course it would not. It would have made the Prime Minister more powerful than any Prime Minister of Australia hitherto, or any Prime Minister of the United Kingdom, Canada and New Zealand or indeed more powerful than the President of the United States.
The great failure of the dominant republican faction in Australia is that on the most charitable interpretation, they just did not understand this. So they failed to produce a republican model which is as good as our existing model.
I come now to the fourth great pillar of Australia. This is our Judeo-Christian culture.
Its core is the Holy Bible. It sets the context of and it permeates and enriches all the other pillars of our society. The common law is based on Christian ethics. The canon of our language is found in Scripture and in the Book of Common Prayer. The Sovereign, anointed and set apart, swears to defend the faith, at least in England, Wales and Scotland. Moreover in all her roles she regards herself accountable to the Almighty. As The Queen said in her last Christmas Broadcast:-
"For me the teachings of Christ, and my own personal accountability before God, provide a framework in which I try to lead my life." (25 December, 2000)
As Edmund Burke once said "we know, and what is better, we feel inwardly that religion is the basis of civil society."
At the federal Convention in Adelaide, in 1897, a delegate, Mr P. M. Glynn proposed that the Preamble to the Constitution Act recognise the "invisible hand of Providence" in the federation of our nation.
"Should we not", he said, "at the very inception of our great work give some outward recognition of the Divine guidance which we feel? The spirit of reverence of the Unseen pervades all the relations of our civil life. Right through the ages we find this universal sense of Divine inspiration -- this feeling that a wisdom beyond that a of man shapes the destiny of states; that the institutions of men are but the imperfect instruments of a Divine and beneficent energy, helping their higher aims. Should not we, sir, grant the prayer of the many petitions that have been presented to us, by recognising at the opening of our great future our dependence upon God? Should we not fix in our Constitution the elements of reverence and strength, by expressing our share of the universal sense that a Divine idea animates all our higher objects, and that the guiding hand of Providence leads our wanderings towards the dawn? In doing so we will be but acting on what a great statesman called 'the uniformly considered sense of mankind.' It was from a consciousness of the moral anarchy of the world's unguided course that all races of man saw in their various gradations of light the vision of an eternal Justice behind the veil of things whose intimations kept down the rebellious hearts of earth's children. It was this that made them consecrate their national purposes to God; that their hands might grow strong and their minds be illuminated by the grace of that power Divine through which alone, as Plato says, the poet sings --
'We give like children, and the Almighty plan Controls the forward children of weak man.'
Under a sense of this great truth, expressed some thousand years ago, I ask you to grant the prayer of these petitions: to grant it in a hope that the Justice we wish to execute may be rendered certain, in our work, and our union abiding and fruitful by the blessing of the Supreme Being." (Conv. Deb., Adel., 1897, p. 1185-6)
More petitions were received supporting this proposal than any other aspect of the constitution. If there is one part of our Constitution which received more support than any other, it is the proposition that in federating, in the act of uniting, the nation sought to do so under the guidance and the blessing of the Almighty.
So we find that provision in the Preamble which summarises briefly and succinctly the pith and substance of that great act of unity, that the people of each of the states…
"humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the crown ... and under the Constitution hereby established."
The guidance that the people sought was that of the Gospel. A Gospel which is intrinsically tolerant and loving. As Jesus said: "Thou shall love the Lord thy God with all thy heart, with all thy soul and with all thy mind. This is the first and great commandment. And the second is like unto it, Thou shalt love thy neighbour as thyself. On these two commandments hang all the law and the prophets." (Matthew 22:37-40). This tolerance and love extends beyond the adherents of religions within the Judeo-Christian pale, and includes the adherents not only of that other great abrahamic religion, our Muslim friends, and the great religions of the east, as well as those who do not yet believe.
The first Christian clergyman in Australia, Richard Johnson, in the very first Christian writing in this land, saluted the colonists in this same spirit of love and tolerance:-
"I do not address you as Churchmen or Dissenters, Roman Catholics, or Protestants, as Jews or Gentiles… But I speak to you as mortals and yet immortals…
The gospel ... proposes a free and gracious pardon to the guilty, cleansing to the polluted, healing to the sick, happiness to the miserable and even life for the dead." (Ian H. Murray (ed), Australian Christian Life from 1788, Banner of Truth, Edinburgh, 1988)
Now the proposition that our society and our institutions are still permeated by our Judeo-Christian culture and by the Christian religion may come as an affront to many of those who preside over our cultural institutions, the media, the universities and the arts.
After all, this proposition goes against the cultural relativism of this age.
But facts are facts. The core of Western society remains Christian, even if the humanist avalanche has tried to retain our civilisation while removing its heart. The banishment of religion is a dangerous exercise, for without it the whole cultural and moral edifice will inevitably collapse. While some will scoff at this, those societies which did seek to remove and destroy the beliefs of the people -- the Marxist experiments in Soviet Russia and Eastern Europe -- destroyed themselves.
Before I come to the fifth pillar, let me observe that with the exception of our Judeo-Christian culture, all of the pillars came only because of the colonial power.
Obviously only an English speaking country would have brought English. Only Britain would have brought the rule of law, in the sense that the law would govern both private rights and the public life of the realm. Other European powers of course had highly developed legal systems. But these were invariably Roman law based and thus prone to distinguish between private and public law. The concept of a dictator, Napoleon Bonaparte, being both a great private law reformer and a dictator is inconceivable under the common law, at least in the last half of the millennium.
Because of the great reforms resulting from the Glorious Revolution of 1688, the Crown that came to Australia was a different institution from that of most European powers.
But the fifth pillar, the Westminster parliamentary system, could certainly only have come with the British. It came soon within one generation of the founding of the penal colony. It was soon Australianised and made more democratic. Its coming was inevitable.
The French, the Spanish, the Portuguese did not transmit parliamentary government to their colonies, as the British did to their American colonies long before independence, and as they did to Australia.
Why? Because the other European powers, with the exception of the Dutch, did not have this at home.
So parliament and self-government came very early to Australia. Australians quickly adapted these institutions, making them even more democratic and thus, more Australian.
2. THE EVENTS LEADING UP TO FEDERATION
The origin of the Australian Constitution (and thus Federation) was definitively declared by the former Prime Minister, now financial adviser and cultural commentator, Mr Paul Keating. He said in 1993:-
"The Constitution was framed as a routine piece of British imperial legislation. It shows its age."
In 1994 he said "We have got a constitution which was designed by the British Foreign Office to look over the Australian Government's shoulder".
Apart from his curious reference to the Foreign, and not the Colonial Office, the fact is that the Australian Constitution was written in Australia by Australians and it was approved by the Australian people.
This was an extraordinary event, unprecedented in history, certainly at least until then, and perhaps ever since. The federation of a whole continent, approved by the people themselves, and not the result of war or external pressures.
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