In his essay against the restoration of the rank of Queen’s Counsel, James Falk adopts an approach more practiced by Marxists and their acolytes than someone claiming to be a conservative with views ”forged by Hume, Burke, Oakeshott and even Scruton.” Instead of an analysis of the arguments, his is essentially a very nasty and personal attack on constitutional monarchists. Indeed, the essay is a lengthy argumentum ad hominem.
Falk has even devised a shorthand insult: constitutional monarchists are dismissed as ”Toff-Tory strawman” whom he dismisses as “the useful idiots of the left who can be relied on to undermine hapless conservatives whenever they argue that capitalism, small government and a liberal democratic culture are the greatest forces for fairness and poverty-alleviation in human history.” Further, those Senior Counsels who would prefer to be known as Queen’s Counsel are dismissed by Falk as a mere ”conga line of status-seeking, precedent-bound stuffed shirts rubbing their hands at the chance of a little more social and professional cachet.”
If Falk is correct he has damned the overwhelming majority of the nation’s leading advocates and future judges: whenever they are given the opportunity of trading in their SC’s, the overwhelming majority, both in Australia and New Zealand, have done precisely that. Instead of concentrating on egregious insult, Falk has not even bothered to inform himself as to the origins of the movement to withdraw the rank of Queen’s Counsel. It was not, as he asserts, a Labor government which began the process.
It was, in fact, a Liberal government. In 1993, New South Wales Liberal Premier John Fahey announced the end of Queen’s Counsel appointments. It was part of a ”reform” of the legal profession which, until then, had inspired little public interest. Until Fahey hit on this headline-maker, about the only thing achieved by this ‘reform’ was to give barristers and solicitors, (then solicitors, proctors and attorneys) a brand new and exciting name, ”legal practitioners.” The legal profession was not impressed and, as far as its members were able, essentially ignored this change by retaining the time-honoured division of the profession into barristers and solicitors.
The day Fahey’s thunderbolt was announced I happened to be with a group of senior journalists and editors. With their republican inclinations, and no doubt recalling unpleasant moments in the witness box when cross-examined over things they had written, the members of the Fourth Estate could not restrain their delight at the announcement.
It was widely believed that the controversial president of the Law Society, the late John Marsden, had asked the Attorney General that he be made a silk, and that this request was rejected. Marsden was close to the Premier, with whom he had practised law, and is widely believed to have expressed his disappointment to Fahey, an ardent republican in a party of overwhelmingly monarchist sentiment. Not only were further appointments not made, but a bill was introduced to stop the Governor from ever again appointing another Queen’s Counsel.
All of this was done without debate or mandate. It was another example of the scourge of creeping republicanism, which has seen politicians remove the symbols of the Crown without granting the people an opportunity to vote on whether the Constitution should be amended in order to facilitate the move to a republic. Fahey was able to introduce republicanism into the very party founded by Sir Robert Gordon Menzies! Any true conservative approaches ”reform” of almost any kind with great care, knowing that the pulling down of long-standing institutions, unless the case has been carefully considered, is the very last thing that should be done. The key must be that the substitute for whatever is to be scrapped must be both an improvement and in the public interest.
Fahey was not alone in advancing the creeping movement toward republicanism. A subsequent Premier, Labor’s Bob Carr, surprised everyone, including the caucus and his cabinet, when he decided to expel then-Governor Gordon Samuels and his successors from their purpose-built home, Government House. In response, Australians for Constitutional Monarchy under National Convenors Lloyd Waddy and Executive Director Kerry Jones (who had just succeeded Tony Abbott in that role) called the only significant public demonstration in the long monarchy/republic debate. Some 20,000 people filled Macquarie Street to protest the move, with the reaction against Carr being so hostile that Paul Keating subsequently blamed his defeat in the 1996 election on this act. Just in passing, let it be noted that every attempt by republicans to convene a mass demonstration has ended in embarrassing failure – something that can be taken as a telling reflection of the public’s lack of passion for their cause.
Falk may choose to dismiss constitutional monarchy as not working – a mindset typical among the elite establishment, consisting of politicians and journalists, but atypical of conservatives. The fact on this and so many other matters is that the elites were then, and remain today, completely out of touch. Notwithstanding the campaign journalism and media bias in covering the 1999 referendum campaign – no major newspaper supported the ‘no’ case — and the support of at least two thirds of the politicians, republicanism was rejected by a landslide majority. Not only did the nation as a whole vote against a republic, so did every state and 72% of all federal electorates. Any examination of the ongoing polling since the referendum demonstrates that backing for a politicians’ republic has fallen significantly, with support among the young especially low. Instead of proposing changes to our system, which would reduce the overwhelming power of the political establishment and empower the people, Falk is clearly a devotee of the ‘politicians’ republic’ which, as we have seen in the 1999 model, will only result in a greater concentration of power among the elites.
A true conservative must surely understand that in our federal Westminster system, our crowned republic, the Crown is an important check and balance on the exercise of power — a safeguard the establishment targeted for destruction in 1999, partially in revenge for the dismissals of the governments of Jack Lang and Gough Whitlam, both of which were behaving unconstitutionally. As Bob Carr remarked when he evicted the present and future residents of Government House, ”This one’s for Jack Lang.” Republicans have long memories.
Any move against the symbols and offices of the Crown, whether it be removing oaths, QC’s or evicting the Governor, can only be viewed as part of an agenda to undermine and ultimately remove the traditional and vital system of checks and balances. Further, any observer of political history will be well aware that the only model of successful constitutional government to have been exported, and to have provided stability, is the constitutional-monarchy model. Those who wish to demolish our crowned republic, and who claim to be conservatives, are duty-bound to produce something at least as good as this system. But no Australian republican is proposing the adoption of a proven model which will make Australia more democratic and less subject to the rule of the powerbrokers who so dominate our political duopoly.
No persuasive argument was advanced for the removal of the Queen’s Counsel title, nor has there been a compelling case against its return.
Indeed, the Australian Law Reform Commission, no bastion of conservatism or royalism, recommended the retention of the term “Royal Commission”. In doing so it recognised and understood that the Australian people recognise the royal signifier as the highest form of judicial enquiry.
David Flint is the author with Jai Martinkovits of Give Us Back Our Country, Connor Court , 2nd edition, 2014. He is National Convenor of Australians for Constitutional Monarchy www.norepublic.com.au