The Clerk’s tale

One of my great pleasures in retirement is as a part-time volunteer guide at Old Parliament House, Canberra, conducting visitors around that wonderful building that has played such an important role in Australia’s constitutional and political history. The full-time salaried staff includes a team of Public Programs Officers, or PPOs, whose duties include conducting special information sessions for parties of school children from all over Australia, and fostering in them a love of the building and its traditions.

Recently one of my PPO colleagues came to me with a copy of Odgers’ Australian Senate Practice (eleventh edition, 2004). In preparing for one of his schools’ sessions he had come across a passage in Odgers’ which he believed to be in error in its references to sections 59 and 60 of the Australian Constitution. These sections read as follows:

59 Disallowance by the Queen
The Queen may disallow any law within one year from the Governor-General’s assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.

60 Signification of Queen’s pleasure on Bills reserved
A proposed law reserved for the Queen’s pleasure shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the Queen’s assent the Governor-General makes known, by speech or message to each of the Houses of the Parliament, or by Proclamation, that it has received the Queen’s assent.

The current and recent editions of Odgers’ Australian Senate Practice deal with sections 59 and 60 as follows:

Governor-General’s assent
The Governor-General’s assent completes the passage of a bill and makes it a law, although the law does not necessarily have effect immediately (see below). (Provisions in the Constitution, ss 59 and 60, for a bill to be reserved for the Queen’s assent are now not operative.)

On reading the passage I came to the same conclusion as my Old Parliament House colleague, and I decided to write to Mr Harry Evans, the Clerk of the Senate. Harry Evans has been editing Odgers’ Australian Senate Practice since the seventh edition (1995), the first edition not in the hands of J.R. Odgers, Clerk of the Senate from 1965 to 1979, and author of the first six editions (1953 to 1991) of Australian Senate Practice. In recognition of Odgers’ conception and authorship of the work, it has, from the seventh edition, been entitled Odgers’ Australian Senate Practice. (The first edition of the parallel work, House of Representatives Practice,edited by J.A. Pettifer, was published in 1981; the fifth edition, edited by I.C. Harris, appeared in 2005.) What follows is my exchange of correspondence with Harry Evans.

19 February 2008

Dear Harry,

The 11th edition of Odgers’ Australian Senate Practice contains the following sentence at p. 265: “(Provisions in the Constitution, ss 59 and 60, for a bill to be reserved for the Queen’s assent are now not operative.)” It first appeared in the 8th edition and has been repeated in all subsequent editions. I believe the sentence to be wrong.

The error arises from the lumping together of ss 59 and 60 when in fact they refer to two different matters.

On the one hand, section 59 relates to disallowance by the Queen of a bill that has previously been assented to by the Governor-General. It has nothing to do with reservation of a bill for the Queen’s assent. Section 59 has never been used, and since 1926 could never be used. It is otiose.

On the other hand, section 60 relates to a bill to which the Governor-General has not assented, but which has been reserved for the Queen’s pleasure. It has nothing to do with disallowance by the Queen, for there has been no assent to be disallowed. While the statutory necessity for reservation has been removed by the passage of the Statute of Westminster Adoption Act 1942,the Privy Council (Limitation of Appeals) Act 1968, and the Privy Council (Appeals from the High Court) Act 1968, section 60 is very much operative and could still be invoked at any time that the Government thought it appropriate to do so, having regard to the nature of the bill, or the Queen’s presence in Australia, or both.

I hope that the next edition of Senate Practice will address this matter.

Yours sincerely,

David Smith

20 February 2008

Dear David

Thank you for your letter of 19 February 2008.

The phrase “for a bill to be reserved for the Queen’s assent” is simply a shorthand description of the substance of sections 59 and 60, not a full description of their content.

Those provisions are both inoperative in the same sense as a ship is inoperative when she is tied up at the breaker’s yard with her engine dismantled. Until such time as she is finally broken up, it would be mechanically and legally possible for the ship to go to sea if her engine were put back and her registration renewed. The chances of this occurring, however, are, at that stage, slim.

The chances of a bill being assented to by the Queen (and probably of another royal visit) are about the same as those of the Titanic being refloated and resuming her maiden voyage. If it happens, however, I shall dutifully record it. But please do not try to arrange an occasion for my benefit.

Best wishes

Yours sincerely

Harry Evans

28 February 2008

Dear Harry,

Thank you for your letter of 20 February.

I must say I was little surprised to see you use a ship in a breaker’s yard as your analogy for our Constitution. Perhaps you only meant this in reference to those “archaic” parts of the Constitution dealing with the Monarchy and the House of Representatives. On a more serious note, I am even more surprised that you should take it upon yourself to make a judgement about what some future government might or might not do in relation to a section of the Constitution that is still alive and well and full of life. And it certainly wouldn’t need a royal visit to bring section 60 into operation. If, for example, we should decide to alter our Constitution to turn this country into a republic, there must be a considerable probability that the Government of the day would reserve that bill for the Queen’s pleasure. But be that as it may, your description of section 60 as inoperative is not correct.

For example, in early 1975 many thought that the Senate’s power to block supply had become inoperative, simply because it had never been used before in the previous 75 years. History showed otherwise. It is only 35 years since the last discretionary use of section 60. For reasons already explained, occasions may well arise when it will again be used.

But my greatest concern is that you should be content to lump together two different sections of the Constitution, give them a description that applies to only one of them, and justify this as a shorthand description of both. As I said in my previous letter, section 59 deals with disallowance by the Queen of a bill to which the Governor-General has already assented. Section 60, by contrast, deals with reservation for the Queen’s pleasure of a bill to which the Governor-General has not assented. A glance at any printed version of the Constitution will confirm these differences.

I should have thought that in what purports to be a work of scholarship and reference of more than 750 pages, you could afford to allocate the space to describe these two sections separately and correctly, not least for the benefit of readers not as familiar with the Constitution as you are. Their present joint description is not shorthand—it is simply not true, and the error is unworthy of inclusion in the pages of Odgers’ Australian Senate Practice.

Yours sincerely,

David Smith

29 February 2008

Dear David

A few points in response to yours of 28 February.

The last edition of Odgers left by the author did not mention the distinction between sections 59 and 60, but merely referred briefly to bills being reserved and indicated “there are no Constitutional or other legal reasons why Bills should be reserved for the Queen’s assent” (6th ed., p. 519). It has always been a book about the Senate, not a book about every aspect of the Constitution.

Of course, the Senate’s power to “block supply” (a very loose expression) could not be said to be inoperative because every bill passed since 1901 (with the 1974 exceptions) has passed through stages in the Senate with questions of whether it pass put and determined. The ship has been constantly under steam. In any event, as a reader of Odgers, you should know that it is not true that the Senate’s power to “block supply” (given the looseness of the expression) had “never been used before in the previous 75 years”.

Yours sincerely

Harry Evans

5 March 2008

Dear Harry,

Thank you for your letter of 29 February.

I see that you are a follower of the Sir Frederick Wheeler school of discourse—when in difficulty, change the subject. However, I shall resist the temptation to follow you down the path of “block supply”. It has nothing to do with the substance of our current correspondence.

I agree that the 6th edition of Australian Senate Practice did not mention the distinction between sections 59 and 60, and I note your predecessor’s observation that “there is no Constitutional or other legal reasons why Bills should be reserved for the Queen’s assent”, which was and still is perfectly correct. I also note that that observation was preceded by the following sentence, which you chose not to quote: “In particular circumstances a Bill may be reserved for assent—for example, should the Queen be visiting Australia it may be considered appropriate to reserve some Bill for Her Majesty’s pleasure, as was done in connection with the Flags Act 1953.” That sentence also was and still is perfectly correct.

On the other hand, subsequent editions of Odgers’ have contained a so-called “shorthand” reference to sections 59 and 60 as if they both refer to the one matter (when quite clearly the sections refer to two different matters) and have equally incorrectly stated that the provision for the Queen’s assent is now not operative (when quite clearly it is still available, should a government choose to invoke it).

I realise that Odgers’ is about the Senate, and is not a book about every aspect of the Constitution. But if you choose to include references to selected parts of the Constitution, you have a duty to your readers to get those references right. In respect of its current references to sections 59 and 60, Odgers’ has clearly failed this test.

Fortunately, when the matter of the Queen personally assenting to legislation next arises, the government’s advisers will undoubtedly consult House of Representatives Practice, the 5th edition of which contains a clear statement of the constitutional position. For your convenience I attach an extract [follows immediately] with the relevant paragraphs highlighted.

Yours sincerely,

David Smith

Bills reserved for the Queen’s assent
Resulting from the Statute of Westminster in the United Kingdom in 1931 and the passing of the Statute of Westminster Adoption Act 1942 by the Australian Parliament, the necessity was removed of reserving for the Queen’s assent certain shipping and related laws. The Constitution provides that proposed laws containing any limitation on the prerogatives of the Crown to grant special leave of appeal from the High Court to the Privy Council shall be reserved for Her Majesty’s pleasure. However, since the passing of the Privy Council (Limitation of Appeals) Act 1968and the Privy Council (Appeals from the High Court) Act 1975, the latter bill being the last bill of any kind reserved for the Queen’s assent, it would appear that there will be no further bills coming within this ground of reservation.
In respect of other bills reserved for the Queen’s assent, in the lack of any legal requirement a decision would probably be based on the appropriateness of the bill (Flags Act 1954)[sic] or the appropriateness of the occasion (that is, the Queen’s presence in Canberra), or both (Royal Style and Titles Act 1973). In the latter case the Prime Minister informed the House that the Queen had indicated that it would give her pleasure to approve the legislation personally.

7 March 2008

Dear David

Contrary to your letter of 5 March 2008, I did not raise the question of “blocking supply”, you did. If, as you now say, it is not relevant to the subject, why did you raise it?

I am quite happy for readers interested in assent to bills by the Queen to consult the Reps book. They are welcome to do so.

Saying that sections 59 and 60 are inoperative is much more defensible than saying that “we already have an Australian head of state” in the face of sections 1 and 61 of the Constitution, amongst other provisions.

I will defend my position, if anyone else ever asks, and you are welcome to defend yours. We will then both be happy in our different states of knowledge.

Yours sincerely

Harry Evans

25 March 2008

Dear Harry,

Thank you for your letter of 7 March.

I only raised the Senate’s power to block supply as an example of a constitutional power still operative after a long period of disuse. I certainly did not intend it to distract us from the substance of our correspondence.

A careful perusal of sections 1 and 61 of the Constitution, as well as its other provisions, clearly shows that the Queen is our monarch or sovereign, but there is no reference to the Queen as head of state.

You persist in asserting that sections 59 and 60 deal with the same matter (when clearly, on the face of the Constitution, they do not) and that section 60 is inoperative (when equally clearly it is not). You then compound these errors by a spurious, and totally irrelevant, claim that your assertions about these two sections of the Constitution are more defensible than my assertion that the Governor-General is our head of state (as to which I have provided a great deal of documentary evidence supported by many judicial and legal opinions).

We are not in a contest over which one of us has the bigger assertion. This is but another instance of the diversionary school of discourse. Still, it calls for a response.

I simply observe that in the many years that my assertion about the head of state has been on the public record it has not been controverted, nor has any of the evidence on which it is based.

On the other hand, two successive Commonwealth Attorneys-General, when asked to provide evidence that the Queen is our head of state, could do no more than state that it is “appropriate” and “proper” to so describe her. Even they did not seek to invoke the text of the Constitution, as you have sought to do, for they realised that they could not do so. Nevertheless, their two-word attempt to justify their claim that the Queen is our head of state was no answer to all the evidence to the contrary that I have cited in many speeches and articles, and in greater detail in Chapter 3 of Head of State.

Since the release of my book in November 2005, I have become aware of a 1907 judgement of the High Court in The King v The Governor of the State of South Australia, in which the court found that the State Governor was “the Constitutional Head of the State”, and the Governor-General was “the Constitutional Head of the Commonwealth”. As all five judges who comprised the court were involved in the drafting of the Constitution, we can assume that they knew what that document was meant to tell us. This judgement adds weight to the other later legal and judicial opinions that I have quoted so often.

To return to the nub of our correspondence, Odgers’, as an essential work of reference on the Australian Parliament and Constitution, is meant to do more than provide a vehicle for the Clerk of the Senate to vent personal opinion, particularly when not supported by the facts. The book’s references to sections 59 and 60 are clearly wrong. They need to be corrected in the interests of accuracy and scholarship.

I look forward to an appropriate reference in the next supplement and, with the passage of time, in the next edition.

Yours sincerely,

David Smith

26 March 2008

Dear David

I am aware of all the stuff about the Queen not being the head of state (ie, “the titular and sometimes also the actual holder of the executive power in the government of a state”). All sophistry.

I will give consideration to including in the next edition of Odgers’ a very brief statement of why sections 59 and 60 are inoperative. This will go very well with all the other expressions of opinion in the book.

Yours sincerely

Harry Evans

28 March 2008

Dear Harry,

Thank you for your letter of 26 March.

I am saddened by your characterisation of serious discussion about Australia’s Constitution as sophistry. Sadly, much of the agitation on the republican side for a reopening of the constitutional debate is based on a serious lack of knowledge about our present system of government, which in turn leads to unnecessary argument and error in any discussion about change.

Only the other day such eminent republicans as David Marr and Mark McKenna publicly discussed constitutional change by claiming that when the Queen is in Australia she takes over the Governor-General’s constitutional duties and he ceases to function. This has never occurred on any of the Queen’s fourteen visits to Australia because the Constitution does not allow it. The same false claim was made at a university seminar several years ago by former Chief Justice of the High Court, Sir Anthony Mason. Sadly, these republican worthies were relying on opinion rather than fact. Such gross lack of knowledge could only be a result of reading the fallacious opinions of others about the Constitution. Is this perhaps evidence of some sort of contagion in republican circles?

Incidentally, a very distinguished former Common-wealth Solicitor-General has pointed out that the Constitution makes a vital distinction between being a titular holder and an actual holder of executive power, a distinction that was confirmed by the equally distinguished members of the 1988 Constitutional Commission. A wise person would be wary of holding an untutored opinion against the weight of such legal eminence.

I am pleased that you will consider some addition in the next edition of Odgers’, though I await with interest any attempt to justify saying that section 60 is inoperative. Sophistry indeed. Your obligation to your readers is to elucidate and illuminate, not speculate.

I also regret your reference to “the other expressions of opinion in the book.” Expressions of opinion? And here have I been describing it as a work of scholarship.

Yours sincerely,

David Smith

27 May 2008

Dear Harry,

I greatly enjoyed our recent exchange of letters, and was saddened when you brought it to an end. However, I realise that you have more important matters to attend to, and I appreciate the time you gave to me.

It has occurred to me that many readers of Odgers’ Australian Senate Practice, and others, might be interested in our discussion of sections 59 and 60 of the Australian Constitution. Accordingly, I write to let you know that I should like to submit an article based on our correspondence to the editor of Quadrant magazine. Would you have any objections to my doing so?

Yours sincerely,

David Smith

30 May 2008

Dear David

I have your latest letter. It is most amusing. It would have added to the effect had you signed it “Your Most Humble and Obedient Servant”. A little more thinly-veiled menace would also have enhanced the atmosphere.

I have no concern about being denounced in the pages of Quadrant as part of the downmarket culture wars that now seem to find a home in that journal. However, the only basis on which I would agree to your referring to my correspondence would be if the full text of all of my letters appeared with anything you publish. Even some Quadrant readers might appreciate the light humour. Also, I would not want to rely on any quotations or paraphrases.

Failing that, you should base your denunciation only on published sources. Then I may respond on the same basis.

In the meantime, I shall be more wary of responding, facetiously or otherwise, to letters of pretended earnest inquiry, particularly if I suspect that there are undisclosed intentions for future use.

Yours sincerely

Harry Evans

4 June 2008

Dear Harry,

Thank you for your letter of 30 May, and for your permission, though I must say that it saddens me to find you so cynical.

My letter of 27 May was intended to be neither amusing nor menacing. It was nothing more than a courteous request for your permission to publish our correspondence, and it was and is my intention to do so in full. I have been on the receiving end of misrepresentation by selective quotation or paraphrasing, and I would not do that to you or to anyone else. In submitting an article to Quadrant—a quality magazine that certainly does not warrant your offensive put-down—it was always my intention to tell the editor that if he could not find space to publish our correspondence in full, I would not want my article published at all. I have not yet been in touch with the editor, for I could not presume that you would give your permission, so I have no way of knowing whether or not he will publish it.

You are under a grave misapprehension if you believe that there was any pretence in my correspondence with you, or that I had any undisclosed intentions in initiating it. My original letter of 19 February was written in good faith to point out errors in Odgers’ Australian Senate Practice in relation to two sections of the Australian Constitution. It was a polite and friendly letter, and I expected nothing more than a polite and friendly reply admitting the errors and telling me that they would be corrected. Had you done that, it would have been the end of the matter.

Instead, you mounted your high horse, refused to admit error, dragged in some red herrings, and claimed the right to use a reference book on the Senate as a vehicle for your personal opinions, in defiance of the facts. When I began our correspondence I could have had no expectation that you would react in this way. I was astonished that you did so. It was your own obduracy that turned what should have been a simple exchange of two short letters into the saga that it has become.

Yours sincerely,

David Smith

6 June 2008

Dear David

Two points stand out in your latest magisterial epistle.

First, it has not yet occurred to you that a statement with which you disagree does not become an error which demands correction simply on the basis that you disagree with it. As I have pointed out, some of your statements are regarded by me and others as quite bizarre, but we do not write letters demanding that you correct your errors.

Secondly, if you have not yet noticed that the book is full of statements of opinion, and always has been, there is definitely something wrong with your perception. Quite a few people, over many years, have disagreed with those statements of opinion, but none have ever written letters demanding that the “errors” be corrected.

Now this letter will have to be included in the complete publication, and any further responses, and responses to responses, etc. It will be a very thick issue of Quadrant!

Yours sincerely

Harry Evans

18 June 2008

Dear Harry,

Thank you for your letter of 6 June.

You have greatly misjudged our exchange of correspondence if you believe that it has been based on two equally valid personal opinions.

My view of the Governor-General as Australia’s Head of State is based on the published opinions of others distinguished in the law and much more knowledgeable than I could ever be about Australia’s Constitution. And you know who they are:

• Andrew Inglis Clark, one of our Founding Fathers and Senior Judge of the Supreme Court of Tasmania (1901)

• William Harrison Moore, another Founding Father and Professor of Law, the University of Melbourne (1901)

• Chief Justice Griffith and Justices Barton, O’Connor, Isaacs and Higgins, all of them Founding Fathers, in a unanimous judgement of the High Court of Australia (1907)

• Lord Haldane, the Lord Chancellor, in two cases before the Privy Council (1916 and 1922)

• Sir Kenneth Bailey, Commonwealth Solicitor-General (1953)

• Sir Maurice Byers, Commonwealth Solicitor-General (1975)

As a consequence of the above opinions, Prime Minister Bob Hawke advised the Queen in 1984 to revoke certain documents relating to the office of Governor-General, which had been issued by Queen Victoria in 1900 on the basis of erroneous advice from her British Ministers. This action by Prime Minister Hawke was in accordance with, and completely vindicated, the views expressed by Inglis Clark and Harrison Moore in 1901, and which were in turn supported by the views of the other eminent legal authorities quoted above.

On the other hand, your erroneous opinions about sections 59 and 60 of the Constitution, as expressed in Odgers’ Australian Senate Practice, are supported by no one else and fly in the face of the text of the Constitution itself. Furthermore, my polite request for a correction could in no way be described as a demand.

Yours sincerely,

David Smith

19 June 2008

Dear David

I am afraid that it is you who have misjudged my correspondence. Perhaps we could start the whole process again based on an undertaking by me that I will treat any letter from you with the same deadly seriousness that you attach to everything (or at least, everything involving the monarchy, which is everything), and not respond in any facetious fashion (no more plays on Queens—ships—ships of state, etc.).

You have also missed the points in issue.

The question of who is the head of state is not a question of constitutional law, as the concept is not a legal concept, but a question of political science about a political science concept (I know, it is not a science, but that is the term). The appropriate way for you to advance your case is to dispute the political science dictionary definition of head of state that I offered, instead of calling down your Great Constitutional Authorities, of whom, as you correctly surmise, I am well aware. I can provide some further hints about how you may argue the issue in future.

In relation to sections 59 and 60, as I endeavoured to point out, too jocularly I admit, provisions in the Constitution may be “inoperative” because they are legally spent or because they are spent as a matter of practical government practice. Again, the case you make is not to the point.

Now this letter forms part of my correspondence.

Yours sincerely

Harry Evans

14 July 2008

Dear Harry,

Thank you for your letter of 19 June.

I make no apology for treating our correspondence with deadly seriousness. I believe that any error in such a significant work of reference as Odgers’ Australian Senate Practice should be taken seriously, and your initial facetiousness worried me, so I am glad that you have at last decided to treat the matter seriously too.

The issue of who is Australia’s head of state is of no great moment right now. In any event, I regard the matter as having been settled by the High Court in 1907, something of which I was not aware when I wrote Head of State. However, I must say that it is pleasing to see that the results of my own research in recent years brought me to a conclusion that, unknown to me, had been reached by five of our Founding Fathers in their later judicial offices so many years ago.

For now, the republicans are so bereft of ideas as to just how our Constitution might be amended that they have had to resort to meaningless slogans, stupid stunts, and the deceptive and dishonest plebiscite proposal that they keep putting forward, instead of producing the draft bill that they will have to produce eventually to meet the requirements of section 128. If and when the republicans get serious, I should be glad to take up your kind offer of some hints as how I might argue the issue in future. In the meantime, I should like to know which political science dictionary you have consulted.

If you are deadly serious about the matters on which we have been corresponding, may I again exhort you to differentiate between sections 59 and 60, as the Constitution itself does, instead of lumping them together under a single and therefore incorrect “shorthand” description; and at least to qualify your incorrect dismissal of section 60 as inoperative, because clearly it is not, at least in the constitutional and legal sense, despite your personal views about the likelihood of it being invoked again. You are indeed being “courageous”, as Sir Humphrey Appleby might have said, in predicting what future governments might or might not do about a constitutional provision that is still alive and well.

Throughout our correspondence, the only case I have tried to make is that readers of Odgers’ Australian Senate Practice should not be misinformed about matters relating to the Constitution. To that extent, I believe that my case has been well and truly to the point.

Yours sincerely,

David Smith

Clearly this exchange of correspondence is now at an end, for there has been no reply to my letter of 14 July 2008. Sadly, the next issue of Odgers’ Australian Senate Practice will contain the same errors of fact which caused me to initiate this correspondence with its editor, Mr Harry Evans, Clerk of the Senate. He will continue to lump together, under a single “shorthand” description, two sections of the Constitution which that document itself describes differently. He will continue to dismiss, as now not operative, a section of the Constitution that is still alive and well and truly capable of being invoked at any time, should the government of the day decide to do so.

Odgers’ Australian Senate Practice is a very large volume of more than 750 pages, so there is no excuse for resorting to “shorthand” to misdescribe sections of the Constitution. Users of Odgers’ Australian Senate Practice will, I hope, share my disappointment at the attitude of its editor, as revealed by the foregoing correspondence. It is a classic book, a premier work of reference about the Australian Parliament, and it should be marked, in its successive editions, by meticulous accuracy, insight and wisdom, rather than the personal opinions of the editor for the time being. Editors of such works are trustees. And it is as trustees that they should invariably discharge the grave responsibilities so reposed in them.

Sir David Smith was Official Secretary to the Governor-General from 1973 to 1990. His book Head of State: The Governor-General, the Monarchy, the Republic and the Dismissal was published by Macleay Press in 2005.