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«The Hon Sir Gerard Brennan AC KBE, formerly Chief Justice of Australia. 17 February 2011 1. I acknowledge the Gadigal people of the Eora nation on ...»

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George Winterton Memorial Lecture 2011


The Hon Sir Gerard Brennan AC KBE, formerly Chief

Justice of Australia.

17 February 2011

1. I acknowledge the Gadigal people of the Eora nation on whose

traditional lands we are gathered this evening – a people to whom

this City is irredeemably indebted. That acknowledgement is

particularly fitting at the commencement of this, the George Winterton Memorial Lecture in succession to the Inaugural Lecture by the Hon. Robert French, Chief Justice of Australia. These two men, friends from their days at the University of Western Australia, were two of the founders of the Aboriginal Legal Service in that State and in later years contributed much in their respective ways to the elimination of the inequalities to which Aborigines have been subject in this country. For those who knew George, or read his work, he was the profound and uncompromising scholar. After I retired, I was privileged by his request to co-teach a class on the High Court, in the course of which I discovered the riches of his research into the institution from which I had recently departed and, as a virtual student, I benefitted from his erudition. He was a convinced republican and, although our views about some aspects of a republican Constitution were proximate but not co-incident, I am delighted to honour his memory by speaking about a pathway to an Australian Republic.

2. But why should we trouble? Australia is, as Donald Horne said, the lucky country. We have been born into, or have become citizens of, a free society under the rule of law, enjoying a comparatively relaxed way of life, a good educational system, a stable political democracy, an economy which survived the global financial crisis, a reasonable level of health care and a shared set of values which make for a peaceful and productive life in a rich, wild and beautiful land. With Dorothea Mackellar, most Australians would say “Her beauty and her terror - The wide brown land for me!” 1 Living in such a peaceful country and enjoying such freedoms, why should we trouble ourselves about changes to our Constitution? Monarchists sum up this view with the aphorism “If it ain’t broke, don’t fix it.”

3. But our Constitution – the principal charter of legislative, executive and judicial power whether federal or state - does need fixing. Our Constitution was given to us as a Schedule to the Commonwealth of Australia Constitution Act 1900, an Imperial Statute. Appropriately to our status in 1900 when Australia was colonial in sentiment and in law 2, we were given the British Monarch as our Head of State by Covering Clause 2 which provided that references to the Queen in the Constitution “shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom”. Yet, a century later, the United Kingdom has been found to be a “foreign power” whose citizens are ineligible to sit in our Parliament 3. It is both anachronistic and anomalous to maintain the sovereign of the United Kingdom, a foreign country, as our Head of State.

4. The sovereignty of the United Kingdom is determined by the Act of Settlement 1701, which opened the way to the union of England and “My Country”: I love a sunburnt country, A land of sweeping plains, Of ragged mountain ranges, Of droughts and flooding rains. I love her far horizons, I love her jewel-sea, Her beauty and her terror - The wide brown land for me!

Per Barwick CJ in China Ocean Shipping Co v South Australia (1979) 145 CLR 172, 183.

Sue v Hill (1999) 199 CLR 462.

Scotland three centuries ago. It was enacted in an age of male primogeniture and religious intolerance. Nowadays its provisions sit uneasily with notions of gender equality and with s 116 of our Constitution. That section guarantees that Australians may adhere to any religion of their choosing or to none 4, yet the Act of Settlement requires the Australian Head of State to “join in communion with the Church of England” and would be ineligible to be our Head of State if she or he “shall profess the popish religion or shall marry a papist”. There are some suggestions that these provisions may be removed by the United Kingdom Parliament. But it is surely anomalous that Australia should have to rely on the legislative will of a foreign power to broaden the criteria for selection of our Head of State5. Our Constitution should accord with the reality of our political organization.

5. Proposals for change excite objections, just as there were objections to Federation. Then, free inter-colonial trade was a major objection that had to be resolved. That was an issue of policy but the objection to a Republic is largely political, social and emotional.

Tony Abbott has said 6 that “[t]he wellsprings of [the Monarchy’s] appeal are instinctual as much as rational: more akin to loyalty to a team, solidarity within a family or faith in a church than they are to Church of the New Faith v Commissioner of Payroll Tax (Vict.) (1983) 154 CLR 120, 132.

Assuming that any amendment to the Act of Settlement could affect the selection of an Australian Head of State: See the discussion in the Final Report of the Constitutional Commission (Vol 1,

1998) pp 80-82.

Neville Bonner Memorial Lecture, Australians for Constitutional Monarchy 11th National Conference, 21 November 2010.

support for a policy. Deep down, they are the heart’s reasons that reason doesn’t know”.

6. There are many Australians who are monarchists because they are proud of their British origins, of the values which we have inherited from British sources (not least a commitment to the rule of law), and who wish to keep continuing ties with Britain; many are attached to the symbolism of the Union Jack in our flag and are proud to have fought wars under the King’s or Queen’s colours; many feel a personal warmth towards Her Majesty and respect her lifetime devotion to duty as Monarch, wife and mother. These and similar factors lead many Australians to reject the republican proposal as antithetical to their tradition and culture.

7. But there are many Australians who, while they share the same sentiments, view a move to a republic as a natural, perhaps inevitable, development – a Republic which owns its history, its culture and its institutions and gratefully acknowledges their origins, but a nation which should now bring its Constitution into conformity with its independent status in the world community and its destiny as a nation completely separate from the United Kingdom. Many of our indigenous citizens, proud of their culture and their historical custodianship of our country, understandably do not share Tony Abbott’s affection for the Monarchy.

8. And, of course, there are many Australians who come from different traditions and cultures and who do not identify with the traditions and cultures of earlier generations of Anglo-Celtic Australians. For many of these Australians, the Monarchy has no significance except as an anachronistic element of our current form of government.

9. All of these views are deserving of respect but it is not possible, either by argument or the niceties of textual drafting, to reconcile opposing views which owe so much to familial history and sentiment and to differing visions of our national identity and destiny. Yet republicans might well respect the sentiments of the monarchists in choosing the appropriate time for Australia to become a republic.

10.The next occasion when Covering Clause 2 will remit the selection of our Head of State to the provisions of the Act of Settlement will be at the end of the reign of Her Majesty Queen Elizabeth II.

Monarchists and many republicans hold Her Majesty in great respect and affection. It might well accord with majority opinion to select the end of the Queen’s reign as the time for an Australian Republic.

That would mark the affection and respect in which Australian people hold Her Majesty and deny to the Act of Settlement any further operation. But Australians will not assent to a Republic without understanding and agreeing to the form of government that would result from the constitutional change.

11.No simple change of “Queen” to “President” in the Constitution would allow a stable form of government to survive. To fashion a republican Constitution, we need to understand how the present Constitution fashions the form of government we now enjoy. I assume that we would not want to alter the structures of the Parliament or the Judiciary7 but we would introduce an Australian President as the principal repository of Executive power and our Head of State. There are three major issues to be addressed. First, do we wish to retain our Parliamentary system of government with a Prime Minister whose government is responsible to the Parliament and depends on the confidence of a majority of the House of Representatives? Second, what is the preferable mode of selecting a President? And, third, will the States be republican if we have a republican Commonwealth?

12.To respond to these issues, I see a need for a small Constitutional Council to supervise the exercise of a President’s reserve powers, an Electoral College to select a President, an amendment to s 106 to maintain the self government of the States within a republican Commonwealth and, finally, a repeal of Imperial laws including the Preamble and Covering Clauses of the Constitution Act in favour of a constitution resting on the will and authority of the Australian people. I focus on the maintenance of responsible government, not on the mode of selecting a President, as the primary issue of substance.

Any proposed reforms of the Parliament or the Judiciary should be considered on their merits, separate from the proposal for a Republic.

The powers and functions of a President

13.At present, the Government is responsible to the Parliament for executive decisions, even though many of the most important decisions are taken in the name of the Governor-General. The Founding Fathers recognized 8 that responsible government rests on control of executive power by the elected government. This is effected by requiring the Governor-General to exercise executive power only on the advice of the Government in accordance with long established convention. Sir Anthony Mason has explained: 9 “The principle that in general the Governor defers to, or acts upon, the advice of his Ministers … is a convention, compliance with which enables the doctrine of ministerial responsibility to come into play so that a Minister or Ministers become responsible to Parliament for the decision made by the Governor in Council, thereby contributing to the concept of responsible government.”

14.Informed by practical experience, former Governor Richard McGarvie observed: 10 “The basic constitutional convention that binds the Governor-General to exercise powers as advised by Ministers of the elected Government is the essential link between the exercise of those powers and the sovereignty of the people.”

15.When the Governor-General acts on advice by ministers in the elected Government, the political consequence of such action is borne by the Government which is responsible to the Parliament.

The convention is sustained by a long history and by contemporary practice. But convention may not always be sufficient to control a See, for example, the speeches of Mr Barton in the Debates of 19 April 1897, p 910.

FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 364.

Richard E McGarvie, “Democracy – choosing Australia’s republic” (Melbourne, MUP, 1999), p 61.

fixed term President – whether directly elected or not. A fixed term President could not be threatened with removal, a constraint on a recalcitrant Governor-General 11. Although it has been suggested that existing conventions should bind a President 12, I venture to suggest that law is the preferable constraint to ensure that a President acts only on ministerial advice. But the law would have to discriminate among the powers presently exercised by the GovernorGeneral.

16.These powers fall into three classes: first, the executive power of the Commonwealth which s 61 vests in the Queen to be exercised by the Governor-General 13; second, powers vested in the GovernorGeneral in Council14; and third, powers simply vested in the Governor-General. Convention requires that all these powers are exercised only on the appropriate governmental advice but, exceptionally, the powers vested simply in the Governor-General may be exercised without or even contrary to ministerial advice in particular circumstances and then the powers are known, somewhat loosely, as the reserve powers. Australians became familiar with the The 1999 Referendum proposal maintained governmental control of Presidential powers by conferring the power to terminate the appointment of the President on the Prime Minister, who is presently empowered to effect the termination of a Governor-General’s appointment by advising the Queen to do so. Sir Zelman Cowen, Sir Anthony Mason and I publicly acknowledged that the change would be effective to preserve responsible government even if the proposal was not ideal.

The rejection in 1999 of the Prime Ministerial power to terminate excludes it from current consideration.

See para 25 below.

Professor Winterton accepted that, at least since 1926, s 61 should be read as “exercisable only by the Governor-General”: see Parliament, the Executive and the Governor-General (Melobourne, MUP, 1983) p 51.

Section 63. “These are powers which the framers of the Constitution considered to be purely

statutory or which had, by custom or statute, been detached from the prerogatives of the Crown”:

Final Report of the Constitutional Commission (1988) vol. 1 p 342, par 5.147. But cf par 5.148.

term when Prime Minister Whitlam was dismissed by the GovernorGeneral on 11 November 1975. The major constitutional issue to be resolved if Australia should become a Republic is control of the reserve powers, a question addressed below.

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