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Queensland University of Technology Law and Justice Journal |
BOOK
REVIEW
JOHN
PYKE[*]
Anne Twomey, The
Chameleon Crown; the Queen and her Australian
Governors
(Federation Press 2006) 272 pp
When I studied law in the 1970s I was shocked to be taught that this
country, which I had assumed to be independent at least since
I was
born[1], was still subject to the
paramount power of the United Kingdom Parliament – then still referred to
in anachronistic terms
as the ‘Imperial’ Parliament. The alleged
consequences were that, in theory at least (whatever ‘in theory’
was
supposed to mean), the UK Parliament could repeal the Commonwealth
Constitution and the Statute of Westminster, and that, in some sense that was
rather more than theory, the States were still British colonies.
Now, thanks to
the Australia Acts 1986 (Cth and UK) (‘the Acts’) we
don’t have to teach this nonsense to our students – indeed some of
them were
born since the Acts commenced on 3 March 1986 and they are certainly
entitled to take Australia’s independence for granted.
Dr
Twomey’s book is principally about the history of the negotiations leading
up to the passage of the Acts. The book starts
with a few chapters about the
development of responsible government in Australia and the history of the
appointment, and sometimes
dismissal, of State Governors, and the role played by
the United Kingdom government in those appointments and dismissals. Then the
rest of the book tells the story of the above negotiations, in more-or-less
chronological order. Though the subtitle makes it seem
as if it is simply about
the position of the State Governors, the book covers all of the problems
that annoyed State governments before 1986 – the impossibility of
repealing ‘Imperial’ laws that
applied by paramount force, Privy
Council appeals and the channel of communication with the Palace in respect of
the appointment
or dismissal of Governors.
The writing of the book is a
historical tale in itself. In order to tell the main tale, the author needed
access to the archives
of all the governments involved in the negotiations
– six States, the Commonwealth and the United Kingdom. As some of the
documents were less than 30 years old, she had to ask governments to agree to
the release of Cabinet documents before the expiry
of the 30-year embargo. The
United Kingdom government and most of the States readily agreed, but the
Commonwealth refused –
rather pointlessly, because copies of relevant
Commonwealth correspondence were in the files of the other parties anyway. One
has
to ask, from what level within the Commonwealth government does this spirit
of non-cooperation and pointless secretiveness originate?
The
governments that did cooperate were somewhat ‘courageous’ (in Sir
Humphrey Appleby’s usage of the word) because
the records revealed a
degree of confusion and pettiness, not only on the part of the Commonwealth, but
on the parts of all the governments
involved. The United Kingdom government was
concerned for the position of the Queen; concerned not only that she should not
receive
conflicting advice from both State and Commonwealth governments –
which is quite understandable – but also that she
should not be advised
to assent to a reserved bill that might be unconstitutional – which
reveals an inability to understand
that under Australia’s written
Constitution the constitutionality of an Act is determined by the courts and
that executive assumptions about validity can be wrong and are, in
the end,
irrelevant. As to the State governments, while one must have sympathy for their
position, their constant harping on their
‘sovereignty’ indicates
that they, likewise, did not fully understand their own situation as creatures
of the Commonwealth
Constitution. The States also managed not to understand
that the United Kingdom government did not see itself as merely a ‘channel
of
communication’ for advice from State Premiers to the Queen, but felt
that it had an active responsibility for giving the Queen
advice as to what
it thought was best. It is hard to blame either the UK or the States for
this situation. If a State Premier had ever asked the Foreign
Secretary
“Why didn’t you tell me?”, the reply could well have been
“You never asked” – it seems
that until the late 1970s each
‘side’ simply operated on the basis of inconsistent and
uncommunicated assumptions.
The Commonwealth government, especially in
the early parts of the story, also comes across as quite petty. Under Gough
Whitlam it
refused to agree to quite reasonable requests from the States because
Whitlam was concerned that removing Imperial paramountcy would
increase
States’ powers. Since the Commonwealth has the advantage of a very
centralist Constitution – 40 express heads of power in s 51 (including a
general taxation power with no subjects of taxation reserved to the States and
one excluded from them and an external
affairs power with both a treaties and an
external matters aspect), a necessarily-implied ‘nationhood’ power,
the conditional
grants power under s 96, the appropriations power in s 81, the
power to override inconsistent State laws under s 109 and the power to
appoint the High Court Justices who interpret the Constitution – what did
it have to lose by freeing the States from the constraints of a few paramount
British laws? (Admittedly the breadth
of the appropriations and nationhood
powers was not made clear until two weeks before the
Dismissal[2], and the
Commonwealth’s power over coastal waters not until a week after the
election that confirmed the
dismissal[3], but Whitlam’s
determination to beat down the States on every little issue does not
reflect well on him.)
Happily the Commonwealth became more cooperative
in the years after 1975, and negotiations slowly made progress (just how slowly
is
made clear by the number of chapters needed to tell the story – 15 of
them). Attorney-General Senator Durack and then the
Hawke government moved from
a position of automatically opposing the States to being prepared to agree with
any reasonable request,
though as the author points out (at pp 240-41) the
Commonwealth and States would still, on occasions, misrepresent each
others’
stance to the British. In the last year of the negotiations the
sticking point became the Foreign Office’s, and the Palace’s
worry,
that Her Majesty might receive conflicting advice from a State and the
Commonwealth. At this point a perhaps unlikely hero
stepped in –
expatriate Australian, theorist of natural law and States’-rights-oriented
constitutional adviser Professor
John Finnis of Oxford, who pointed out that if
Her Majesty’s only remaining role with respect to the States was
the appointment and dismissal of Governors, and if the Commonwealth could be
persuaded
that that was something they had no right to interfere in, there would
be no conflicting advice. (Perhaps this shows that sometimes only a
philosopher can see a blindingly obvious point that everyone else
is missing
– because in retrospect it is so obvious that one wonders why anyone
thought there was a problem.) Eventually everyone
was persuaded that this was
true, the final drafting was agreed on, eight parliaments passed complementary
legislation and the two
Acts commenced on 3rd March 1986.
Now where, you might ask, is the “Chameleon Crown” in all of
this? It seems to me that the title, though alliterative
and catchy, does not
really represent the theme of the book. If we mean by ‘Crown’ the
Queen and her advisers in the
Palace, the Crown remains throughout the story an
extremely visible bejewelled object. If its nature was camouflaged at all, it
was through the earnest endeavours of the Foreign Office to protect it, and
through its failure to explain to the States how it saw
its protective role. To
the extent that the role of the Foreign Office was kept hidden from the States,
it is the chameleon in the story – though as noted above, the
misunderstanding may have been more a matter of two parties not
communicating
their assumptions than of one party using camouflage to hide itself among the
trees. The role of ‘the Crown’
remains as it has been ever since
1837 – to act on advice from responsible Ministers. What the story is
about and what the
Australia Acts achieved, is the change in identity of these
Ministers from British ones to the ones in the States of Australia.
Though the
title and subtitle both misrepresent the contents, it is a significant story and
generally well told (though a few of
the departures from chronological order
irritated me). The young students mentioned in the first paragraph above would
probably
not find it very interesting, but as someone who had lived through
those times I found it quite absorbing.
[*] BSc (Syd), LLB (UNSW), LLM
(Syd), Lecturer, Faculty of Law, Queensland University of
Technology.
[1] Murphy J
notoriously held, in Bistricic v Rokov [1976] HCA 54; (1976) 135 CLR 552, that Australia
including the States had been independent since the commencement of federation.
He is reported to have confessed
to Professor Tony Blackshield that he had been
tempted when writing the judgment to put the date of independence as his own
date
of birth. Though not logically defensible, I can understand the intuition
behind this – he must have felt, like myself, that
the country he grew up
in had been independent at least as long as he had been there to observe
it.
[2] Victoria v
Commonwealth (the AAP case) [1975] HCA 52; (1975) 134 CLR 338, decided 29 October
1975.
[3] New South Wales v
Commonwealth (the Seas and Submerged Lands case) [1975] HCA 58; (1975) 135 CLR 337,
decided 17 December 1975.
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