Misunderstanding the Crown

The Chameleon Crown: The Queen and her Australian Governors, by Dr Anne Twomey, is a well-written, informative and long-overdue contribution to an understanding of Australia’s constitutional arrangements, particularly in relation to the Australian states and their place within, and as components of, the Australian federation.

Twomey is a constitutional lawyer and an historian, and is well qualified to discuss the matters encompassed by this significant work of reference. The British and state governments and their officials gave her every assistance, including access to their records, but sadly she received virtually no co-operation from the Commonwealth government. Despite this severe limitation, she has produced a most revealing analysis of the relationships between the states, the Crown and the United Kingdom.

In an article, “Truth, Error and Government Obstruction” (Quadrant, January-February 2007), Twomey set out her motivation for writing The Chameleon Crown:

“in the 1990s there was a great deal of public debate in Australia about republic proposals … [including] a constitutional convention … and a publicly funded referendum campaign. There was no such debate about the far greater changes brought about by the Australia Acts. They were drafted and negotiated by state, Commonwealth and British government representatives in confidence, and were later approved, without controversy, by the state, Commonwealth and British parliaments. There was no referendum and little public discussion …
“Courts, when required to interpret the Australia Acts, are faced with a contextual vacuum, and historians are largely ignorant of the important political consequences of the Australia Acts, especially as regards the status of the Queen with respect to Australia.”

At least they were, until Anne Twomey’s book was published. In his foreword, former Justice of the High Court of Australia, the Hon. Michael McHugh, writes that “[f]or the historian, constitutional scholar or political scientist concerned with any aspect of the relationship of the Crown and Australia, it will become the reference point”. He regrets that it was not available in 1979 when he and a colleague, as counsel, wrongly “advised the New South Wales Government concerning the powers of State Parliament to enact legislation concerning the appointment of State Governors”. As Twomey reveals time and time again, McHugh wasn’t the only constitutional lawyer, public official or politician, including Commonwealth and state attorneys-general, to advise or act in total ignorance of the relevant constitutional arrangements.

Twomey begins by discussing the historical constitutional relationship between Britain and the Australian colonies. Despite the attainment of responsible government, there were times when the British government instructed colonial governors to intervene in local matters, and continued to exercise its control over the colonies.

Next she discusses the status of the Australian states after Federation, and draws an interesting comparison between the Australian states and the Canadian provinces, and particularly how the latter became subordinated to the Canadian federal government, with the provincial lieutenant-governors appointed by the governor-general of Canada, and not by the Queen as in the case of Australian state governors; and with the Canadian lieutenant-governors able to communicate with the British government only through their governor-general, whereas the Australian state governors had direct access to the British government. Even this arrangement gave rise to disputes over whether a particular issue was a state or federal matter, and whether the British government should in particular cases deal with the Commonwealth or state government, and Twomey discusses a number of examples.

The pre-Federation constitutional conventions had discussed the method of appointment of state governors after Federation, and there were proposals that they be appointed by state parliaments, or directly elected by the people, and that they should be local rather than British appointees. This gave rise to discussion of their method of suspension or removal, and the suggestion that this might be done by the governor-general in council, after a request from both houses of the relevant state parliament. No one wanted the Canadian position, where the governors of “sovereign states” would be in any way subordinate to the governor-general, and in the end the British government retained ultimate control over its recommendations to the Queen, even after Federation.

In due course each state government moved (or tried to move) to have local rather than British appointees, and Twomey has described their various attempts. Eventually the state premiers were invited to make their nominations to the British secretary of state, and in due course Australians came to be appointed, but it was the British minister who made the recommendation to the Queen under her United Kingdom style and titles, and he was not bound to follow the premier’s advice. While the suggestions by state premiers were normally accepted, there were occasions when they were not.

As these negotiations were handled informally, there was no public rejection of state candidates. This gave rise to an incorrect assumption in Australia that the British government was merely the vehicle for the submission of the premiers’ advice to the Queen, but, as Twomey writes, “the reality was different”. Only after the passage of the Australia Acts in 1986 did the premiers gain the right to advise the Queen directly on the appointment or removal of state governors.

Twomey has delved deeply into British archives, and discusses many examples of the appointment and removal of state governors, but undoubtedly the most interesting case was that of Sir Colin Hannah, Governor of Queensland. Appointed in 1972 by the Queen of the United Kingdom, Sir Colin also held a dormant commission from the Queen of Australia to act as Administrator of the Commonwealth if the governor-general was absent (as did all other state governors). In October 1975 Sir Colin publicly criticised the Whitlam government, and Prime Minster Whitlam advised the Queen to revoke the governor’s dormant commission. At the same time the British government was considering what disciplinary action, if any, it should take against the Governor, and Twomey gives a detailed account of the action taking place in Whitehall and at Buckingham Palace to deal with a governor who had clearly offended against the “principle of vice-regal impartiality”.

In Queensland, the Premier, Sir Joh Bjelke-Petersen, defended the Governor, and declared his intention to recommend that his term of appointment be extended, in the mistaken belief that the recommendation was his to make. This was yet another example of a premier who did not understand the role of the British government in such appointments. Meanwhile, in London consideration was being given to the Governor’s dismissal. In the end, at the suggestion of the Governor-General, Sir John Kerr, dismissal, or trying to force the Governor to resign, were rejected so as not to draw the Queen into the dispute, but it was made clear to both the Governor and the Premier that Sir Colin’s action was unacceptable. The Governor was formally rebuked and the Premier was advised officially that, while the Governor would be allowed to serve out his term, it would not be extended.

As Sir Colin’s term drew to an end, the Premier sought to reopen the question of an extension, but British ministers took “very seriously their duty to protect the Crown from embarrassment”, and the appointment was not extended. As Twomey records, the incident was to have “a significant impact on the negotiations of the Australia Act” a decade later.

Twomey next takes the reader on an examination of the effect of the Statute of Westminster 1931 (UK) and its adoption in Australia in 1942. This Act was designed to free the dominions from the colonial restraints imposed by imperial legislation. Twomey tells us how the states, in 1931, had failed to seek an extension of the liberating measures of the Statute to themselves, preferring instead to seek protective measures against the Commonwealth that was prepared to exploit the Statute to increase its powers over the states. The states thus remained subject to certain British laws.

By 1972 the Commonwealth and the states had agreed to ask the United Kingdom to enact legislation to sever the states’ residual links, but the Whitlam government that was elected in December that year halted the process. As Twomey puts it:

“While the removal of ‘colonial relics’ was one of the priorities of the Whitlam Government, it was trumped by the higher priority of subordinating the States … The Whitlam Government’s desire to assert Australian ‘independence’ and to terminate anachronistic State links with the United Kingdom was overcome by its desire for power over the States.”

Whitlam embarked on a campaign to change the channel of communication between the states and the Queen. This was based on the incorrect assumption in Australia “that the British Government was merely the channel of State advice to the King or Queen on State matters, and that the British Government did not provide its own independent advice”. Whitlam wanted the states to communicate through the governor-general, but the British government regarded this as “constitutionally improper”. This, and other hare-brained schemes suggested by Whitlam to hamstring the states, were due to “the fundamental confusion within Australia as to the status of the Queen”. Not only Whitlam, but even his most senior public servants, could not differentiate between the Queen of Australia and the Queen of the United Kingdom, even though a quick glance at a commission appointing a state governor would have made this perfectly clear.

Another of Whitlam’s obsessions was the existence of appeals from state courts to the Judicial Committee of the Privy Council, and he, his Attorney-General Senator Lionel Murphy, and Commonwealth officials devoted a great deal of time, effort and expense, particularly in travel to and from the United Kingdom, to try and abolish such appeals. As a consequence, state premiers and their officials were obliged to do likewise, as also were British ministers and officials, and Twomey’s account records the many examples of this prodigious waste.

The British government took the view that the most “natural and democratic approach would be for the Commonwealth Government to seek an amendment to the Australian Constitution by referendum”, but Murphy did not want to try that. He proposed that the British simply terminate such appeals at the request of the Commonwealth government, rather than by legislation, but the British government rejected such action as “constitutionally improper”. Whitlam then journeyed to London to propose a treaty between the British and Australian governments, or even unilateral legislative action by the British government in response to an informal request from the federal government. He even went so far as to suggest appointing Australian High Court Justices to the Privy Council and having them sit in Australia as the Judicial Committee of the Privy Council to hear appeals from state courts—a most extraordinary proposition—but none of these proposals was acceptable to the British government.

The irony in all this feverish activity by the Commonwealth government was that the states were not averse to ending Privy Council appeals, but they were united, including the Labor states, in opposing unilateral action by the Commonwealth and its intrusion into state matters. “The British Government strongly encouraged Whitlam to attempt a more co-operative approach with the States,” writes Twomey, but he was not interested. “In short, he wanted to assert Commonwealth dominance over the States and was not prepared to co-operate with the States so that the States themselves could sever their links with the Privy Council.”

Whitlam was driven by an almost pathological hatred of the states, as this reviewer can confirm. In 1975, on Whitlam’s advice, the Queen established the Australian honours system, with the governor-general, as Chancellor of the Order of Australia, responsible for its administration. Stuart Devlin, the Australian who had designed Australia’s first decimal coins in 1966, was commissioned by the Governor-General, Sir John Kerr, to design the insignia for the new honours system. In due course Devlin was ready to show his proposed designs to the Governor-General and the Prime Minister. As Devlin proudly displayed full-sized models of his proposals for the insignia of the Order of Australia, Whitlam almost exploded. There, in the centre of each golden wattle blossom, was an enamelled full-colour representation of the Commonwealth coat of arms, the shield of which contains the emblems of each of the six states. Pointing wildly at these, Whitlam loudly declared that he was not having those state emblems on his insignia, and instructed Devlin to remove the coat of arms from his designs.

As Twomey recounts, the British government was “happy to pull out of the Australian constitutional system if the States agreed, [but] [t]his position was not acceptable to Whitlam”. Whitlam sought a solution that would have seen the Commonwealth government involved in state affairs; the British government had an obligation of trust towards the states and would not cut them adrift without their agreement; and the states were prepared to tolerate the existing system so long as it kept the Commonwealth government out of state affairs. As a consequence, nothing changed during Whitlam’s prime ministership—the substantive issue of who advised which Queen on state matters seemed just too difficult to handle, and they continued to be dealt with by the British government advising the Queen of the United Kingdom.

Twomey has also devoted a chapter to the “Queen of Queensland” dispute, “often simply regarded as a folly of the Bjelke-Petersen Government and a crushing defeat for its monarchical pretensions. The real story, however, is one of a sophisticated tactical battle with the Whitlam Government in which Queensland eventually prevailed.” Along the way we learn that the permanent head of the Commonwealth Attorney-General’s Department did not understand the role of the Queen of the United Kingdom in relation to the states; and that in the 1975 High Court case Commonwealth v Queensland British officials observed that many of Justice Murphy’s “so-called legal observations seem to be more political grandstanding” and that his view was “of interest against the background of the failure of the Bill which he himself put forward in the first place, as Attorney-General”.

We also learn that Whitlam’s decision to replace the terms “Commonwealth of Australia” and “Commonwealth Government” with “Australia” and “Australian Government” respectively was part of his strategy to attempt to subsume the states and deny them any independent legal existence, as was his attempt to have the governor-general become a viceroy, which he presumed would give the governor-general dominance over state governors, as was the case in Canada and its provincial lieutenant-governors.

Queensland’s aim had been “to keep the matter [of state access to the Privy Council] sub judice (or at least contentious) until the fall of the Whitlam Government. No Viceroy had been appointed and no change made to the constitutional position of the States.” Twomey has described the “Queen of Queensland” affair as “a good example of how appearances can be deceiving and the importance of access to government documents to reveal what really happened”.

In similar fashion, Western Australia and New South Wales sought to assert their right to advise the Queen directly on the appointment (or removal) of state governors and in relation to the assent to reserved bills, and to legislate to terminate appeals to the Privy Council, but their refusal to co-operate with a Commonwealth government they regarded with suspicion, coupled with their inability, and that of their legal advisers, to understand their constitutional relationship with the Queen of the United Kingdom, resulted in failure. As Twomey recounts, the United Kingdom government longed for a uniform approach by all states and the Commonwealth that would enable the states to be freed from their status as “self-governing dependencies”, but several years were to elapse, and much more time, money and effort would be wasted by all governments, their officials and their legal advisers, before the demise of the Whitlam government was to see progress towards resolution of this matter.

Although “the new Fraser Government had little interest in pursuing the termination of residual links” pressure from the British government forced the Commonwealth back to the negotiating table. Again we see the different approaches taken by the Common-wealth, state and British governments, each as anxious as the others to sever the anachronistic residual links, but with the states and the Commonwealth suspicious of each other and determined to ensure no loss of “sovereignty” or “independence”. Throughout the negotiations, the British government was determined to see that what was done was lawful and constitutional—quick and easy short-cuts would not be acceptable—and that the Queen would be protected from receiving conflicting advice from more than one set of ministers.

With Prime Minister Fraser declaring that he would only legislate if requests were made by all the states, but with lack of agreement between the states as to the methods to be adopted, the process was repeatedly bogged down, and Twomey takes her reader through each painful step. Without state unanimity there was a danger of ending up with a federation different from that established by the Constitution. In particular, the states were determined to ensure that their “freedom … from colonial restraints should not be bought at the price of Commonwealth domination”. Their fears were a result of the Commonwealth government contending “that the appointment of State Governors was a subject on which the Commonwealth was entitled to tender advice to the Queen, and that the future channel of communication between the States and the Queen should be the Governor-General”.

To further complicate negotiations, Buckingham Palace became concerned. Palace officials wanted to ensure that the Queen was protected from receiving conflicting advice from two sets of Australian ministers. There were also doubts about the constitutional competence of Australian state governments to tender formal advice to the Queen.

The United Kingdom was determined not to act against the wishes of any one state, and the Commonwealth wanted the matter dealt with as a complete package acceptable to all states, so the onus was on the seven Australian governments to reach agreement. But negotiations were again disrupted by a change of government, with the election of the Hawke government in March 1983.

With the British and Australian governments agreeing that parallel legislation was necessary, negotiations eventually turned towards the drafting of what were to become the Australia Acts. The British government and its officials were considered sticklers for a solution that would comply with long-established constitutional principles and conventions, while back in Canberra, the then Secretary to the Department of the Prime Minister and Cabinet, Sir Geoffrey Yeend, was also a stickler for constitutional proprieties. He rejected, and persuaded Prime Minister Bob Hawke to reject, a “post-box” proposal under which the prime minister would be responsible for forwarding state recommendations to the Queen for the appointment of state governors, but would be denied the right to offer his own advice. With the state premiers insisting on direct access to the Queen on the appointment of state governors, the search was on for a solution that would satisfy the genuine concerns of the Palace about advice to the Queen.

Hitherto, the Commonwealth had handled all negotiation with British officials, but towards the end of 1983 a British Foreign Office official reported that “it was abundantly clear that the Commonwealth Government, and probably in particular [its Attorney-General] Senator Evans, has to some extent misrepresented our position so as to disguise the fact that the difficulties stem from the position of the Commonwealth Government itself”. With the British government now aware of the importance of direct communications with the states, the states nominated the West Australian Solicitor-General as their representative, much “to the annoyance of Commonwealth officials who considered that only they should deal with a foreign Government”.

In her description of state negotiations with the British government, Twomey reveals an illuminating account of a 1984 meeting between the British Prime Minister, Margaret Thatcher, and the Queensland Premier, Joh Bjelke-Petersen, also against the Commonwealth’s wishes. “Bjelke-Petersen apparently regaled a bemused Thatcher with tales of how it was no longer possible to play ‘God Save the Queen’ on public occasions” but in this the Premier was quite wrong. This canard has been put around by state premiers’ departments and state governors’ offices since April 19, 1984. On that day the Governor-General, Sir Ninian Stephen, proclaimed “Advance Australia Fair” as Australia’s new National Anthem and also proclaimed “God Save the Queen” as Australia’s Royal Anthem. The Governor-General’s Proclamation stated that the Royal Anthem was to be played in the presence of the Queen or a member of the royal family, but placed no restrictions on it being played or sung at any other time. However, a press statement issued that day by Prime Minister Hawke’s Press Office stated quite incorrectly that the Royal Anthem was to be played “only” in the presence of the Queen or a member of the royal family, and this incorrect information has been given out by state protocol officers and others ever since.

In May 1985 Sir Geoffrey Yeend travelled to London to secure the Palace’s agreement to direct access by the states to the Queen. An official from the Foreign Office was amused that the “Secretary of an Australian Prime Minister, associated with the idea of a republic and an enemy of State rights, is obliged, in face of Palace objections, to argue the case for how the Queen might entrench Her position in the Australian States”. But the tactic worked, and soon all governments were on their way to a solution to what had seemed an intractable problem.

First, each state enacted an Australia Acts (Request) Act. Next, the Common-wealth parliament enacted the Australia Act (Clth) and the Australia (Request and Consent) Act (Clth) requesting the enactment of British legislation. Finally, the British parliament enacted the Australia Act (UK), with the British Act identical in substance to the Australian Act. The Commonwealth Acts were assented to by the Governor-General on December 4, 1985; the British Act was assented to by the Queen on February 17, 1986; and the Queen proclaimed the commencement of the Australia Act (Clth) on March 3, 1986, during her visit to Canberra, the British Act having been proclaimed to commence on the same day.

By these Acts, among other things, the states severed their residual links with the British government and parliament; removed any limitations on state legislative powers that might have been a consequence of their previous links; terminated the application of certain British colonial legislation to the states; terminated appeals and references from state courts to the Privy Council; confirmed the governor as the Queen’s representative in each state; and provided that, with two exceptions, all powers and functions of the Queen in respect of a state are to be exercisable only by the governor. The two exceptions were the power to appoint or remove a governor; and the powers of the Queen when she is personally present in a state. The most crucial provision was the one that provided that advice to the Queen in relation to a state matter would be tendered by the premier.

Twomey concludes her magnificent account with an examination of the divisibility of the Crown. She analyses the special status of the Crown in Australia’s federal system, and concludes that this received scarcely any consideration by the states and the Commonwealth during their negotiations of the Australia Acts. She has shown how little the existing status of the Crown was understood in Australia, even by those who were in its service; nor did they understand, or care, how this would be affected by the changes they wished to bring about by the Australia Acts. The Australian Constitution, and the federation which it created, are unique among all the countries of which the Queen is the sovereign. They therefore posed unique problems in the termination of the residual colonial links between the states and the British government and, in typical Australian fashion, were resolved by a unique solution.

Twomey has rendered sterling service to Australian scholarship and to our (regrettably scant) knowledge and understanding of our constitutional arrangements. She has worked her way diligently and skilfully through the records of the British and state governments, and they are to be commended for giving her free access to them. By contrast, the Commonwealth government was miserly and unhelpful in relation to access to its documents. This has not prevented Twomey from producing an excellent account of the role of the Crown in the Australian polity, and she deserves the thanks and congratulations of all Australians who care about our system of government and our nation’s constitutional arrangements.

Sir David Smith was Official Secretary to five Governors-General of Australia from 1973 to 1990, and the inaugural Secretary of the Order of Australia from 1975 to 1990. His book Head of State: The Governor-General, the Monarchy, the Republic and the Dismissal (Macleay Press, 2005) was launched by former Governor-General Mr Bill Hayden. This review was first published in the Independent Australian (www.theindependentaustralian.com.au), Issue No. 12, Autumn 2007. The Chameleon Crown: The Queen and Her Australian Governors, by Anne Twomey, is published by Federation Press, $49.95.