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December 21st 2009 print

David Flint

Hiding the Crown

The Victorian Attorney-General’s word changes do not address the real problems of declining law and order and an effectively inaccessible  civil law system.

Victorian Attorney-General avoids the real issues

The Victorian Attorney-General, Mr. Rob Hulls, has proudly announced that he has modernised the legal system. He has not only suppressed a Latin term, his pièce de résistance is that  prosecutions will no longer be instituted in The Queen’s name.

So will this measure restore law and order? Will people have more confidence in walking the streets at night? Will they be able to take the bars off  their windows? Will there be an increase in confidence in the legal system?

When some constitutionalists questioned this measure, Mr Hulls declared them “rabid monarchists.”  That is, he said, they were dangerously mad, infected by disease.

Mr. Hull presents his measures as a “reform”. Be wary whenever a politician talks of reform.

Reform can mean one of three things. It can mean genuine reform, some improvement in the public interest. But it can mean the opposite, something which is against the public interest and which should be challenged. Just as one example, take the removal of planning powers from local government in NSW and the abuse of power with the temptation of corruption which followed.  

And finally, a reform can often be little more than a distraction from the real issues. A favourite device of politicians is name changing. How many times has the response to complaints about our public transport systems been a very expensive change of name?

The suppression of prosecutions in the name of the Crown is nothing more than a distraction from the real issues, and an exercise in creeping republicanism. It is against the public interest.

Creeping republicanism is a petty act of revenge by republican politicians for the people’s refusal in1999 to abandon their “Federal Commonwealth under the Crown” – their Crowned Republic – in favour of a politicians’ republic.

Announcing this just before the visit of Prince William recalls a  studied insult the NSW politicians engaged in at the time of the Melbourne Commonwealth Games. Knowing The Queen was coming, they abolished the Oath of Allegiance – the very Oath which so many of them had sworn, often more than once.  

The underlying reason for this behaviour is that the republican elites object to the fact that our oldest institution, the Australian Crown, provides leadership beyond politics and remains a significant check and balance on the politicians. They want the constitutional system to be fully under the control of the political class.

Recently a leading republican academic, Professor George Williams, conceded that the politicians’ republic put to the people in 1999 was in fact seriously defective.   The president could be dismissed without notice, without reasons and without recourse. As Australians for Constitutional Monarchy said at the time, this would have been the only republic in the world where it would have been easier for the prime minister to sack the president than his cook. This republic – the preferred choice of the republican politicians -would have made the political class more powerful and less accountable.

The republican politicians now want to hide the Crown, the institution which is a check on them, from the people. They calculate that it will then be easier to remove the Crown in some future referendum.

Mr. Hulls claimed prosecutions have hitherto been made in the name of The Queen of England. As Attorney General, surely he must know that the High Court has ruled that the Australian Crown is a separate institution, and what he has done is to remove references to The Queen of Australia.  

He points to the 1986 Australia Act in justification, forgetting this allows the Premier to advise The Queen on matters relating to his state, a privilege accorded only to the Australian premiers and not, for example , the premiers of Canadian provinces.

In dismissing prosecutions in the name of The Queen as a mere colonial relic, Mr Hull ignores what he presumably learned as a law student. This was that the birth of our modern criminal law came with the acceptance that a crime not just a matter between the criminal and his victims.

As the great legal historian FW Maitland said, a crime became “a wrong against the nation,” with “the King as the nation’s representative”.  And a crime today remains a breach of The Queen’s peace, whether or not Mr. Hulls hides this.  

Is he doing this because of the corollary of the concept of The Queen’s peace? The corollary is that the corresponding duty on the government is to maintain the Queen’s peace, that is provide the community with a decent standard of law and order.

But instead of treating the maintenance of law and order as a core function, the government has in part abdicated from this function. Both in terms of an adequate police presence and ensuring that the guilty are caught and convicted, the government’s performance is extremely poor. Indeed it has been so poor that the Indian government protested at the appalling lack of protection of its citizens.

Apart from under resourcing, the efforts of the police are stymied by a criminal justice system weighted towards the rights of the criminal rather than the victim. A few years ago a prominent barrister was pilloried, and I believe punished, for observing that there seemed to be a fashion among barristers in criminal matters that it is somehow a noble thing to assist a criminal to evade conviction.

She told a distinguished audience at the University of Newcastle that much of a criminal trial today involves restricting evidence which may be considered by a jury. A complicated and convolute patchwork of detailed controls has been erected to remove evidence claimed to have been illegally or improperly obtained. An enormous amount of time and resources are taken up in appeals against rulings by the trial judge, to the immense frustration of the victims and the police.   

She did not say this, but in my view this structure – introduced over the last few decades – reflects an extraordinary distrust by the legal establishment of the ordinary people who make up a jury.

Why not let much of this challenged evidence go to the jury, with the benefit of defence arguments on what weight should be place on it? Surely we can trust them to be fair.

The barrister pointed out this structure had been erected to maintain public confidence in the administration of justice. But every time a guilty person is acquitted, the law has failed the community it exists to serve.

“Perhaps it is time for us to consider whether public confidence in the courts is now being eroded by the perception that the pendulum has swung rather too far in the direction of the protection of the rights of the accused person,” she said.

What has Mr. Hulls done about this? He has hidden the fact that any crime is a breach The Queen’s peace. But he has not succeeded in hiding the fact that the government has a core duty to ensure the citizen can live free from fear about rampant crime.

And as for the civil courts today, we have a situation where an ordinary citizen would be well advised to think twice before attempting to enforce his or her rights. Now it has been said that the courts are open to all…. just like the Ritz Hotel.

The process today is so convoluted that a citizen risks bankruptcy by going to law. Not only must he pay his lawyers, if he loses he will have to pay the defendant’s costs too. If he wins against a wealthy company, it may appeal involving more costs.

The criminal and civil justice systems both need urgent and real reform in the public interest. They need neither distraction, nor a vain attempt to hide the fact Australia is a crowned and not a politicians’ republic.