An Im­pe­rial Mess

The High Court vs the Crown

The Monthly (Australia) - - CONTENTS - Com­ment by James Boyce

It is no co­in­ci­dence that ev­ery one of the nine par­lia­men­tar­i­ans who have so far had to re­sign be­cause of dual cit­i­zen­ship are ci­ti­zens of the United King­dom, New Zealand or Canada, and most of the out­stand­ing cases caus­ing con­ster­na­tion are also fel­low sub­jects of the Queen. From 1948 to 1982 all Aus­tralians were dual na­tion­als of a sort – ev­ery­one was both an Aus­tralian ci­ti­zen and a Bri­tish sub­ject, and be­fore this time we had no of­fi­cial na­tion­al­ity but Bri­tish. When the UK, New Zealand, Canada and Aus­tralia jointly de­cided to cre­ate their own na­tional cit­i­zen­ship af­ter World War Two, they also agreed to pre­serve a shared le­gal iden­tity, and Aus­tralians trav­elled on Bri­tish pass­ports un­til 1963. This was not an im­pe­rial com­pro­mise (the ne­go­ti­a­tions were un­der­taken by Ben Chi­fley’s La­bor govern­ment and an even more left-wing Labour govern­ment in the UK) but an ex­pres­sion of full sovereignty based on a com­mon al­le­giance to the Crown. It has been widely stated that last Oc­to­ber’s High Court rul­ing is a lit­eral read­ing of the Con­sti­tu­tion. What­ever the judge­ment’s le­gal worth (and given the wide di­ver­gence of opin­ion, in­clud­ing from the so­lic­i­tor­gen­eral, this seems to be no straight­for­ward mat­ter), it is cer­tainly not that. The men who wrote the Aus­tralian Con­sti­tu­tion would be shocked at how sec­tion 44 is now be­ing in­ter­preted. It is not that the na­tion’s founders couldn’t have

imag­ined that Aus­tralia might have bro­ken all ties with the UK 120 years af­ter the Con­sti­tu­tion was drafted. In­deed, the repub­li­can de­bate was prob­a­bly more an­i­mated and bet­ter in­formed in the 1890s than it was to be in the 1990s. Rather, they would not be able to com­pre­hend how fel­low sub­jects of the Crown could be as­sumed to be un­der an “ac­knowl­edg­ment of al­le­giance, obe­di­ence, or ad­her­ence to a for­eign power” while Aus­tralia had a largely un­changed Con­sti­tu­tion that still had the Crown at its heart (and in ev­ery other metaphor­i­cal or­gan). The first words of the sa­cred text set the tone: the peo­ple of Aus­tralia “have agreed to unite in one in­dis­sol­u­ble Fed­eral Com­mon­wealth un­der the Crown of the United King­dom of Great Bri­tain and Ire­land”. The Con­sti­tu­tion is clear that “the ex­ec­u­tive power of the Com­mon­wealth is vested in the Queen”, and sec­tion 42 re­quires that par­lia­men­tar­i­ans swear to “be faith­ful and bear true al­le­giance to Her Majesty Queen El­iz­a­beth the Sec­ond, Her heirs and suc­ces­sors, ac­cord­ing to law”. No lit­eral read­ing of sec­tion 44 could ex­clude Aus­tralian ci­ti­zens from par­lia­ment sim­ply be­cause they were also a sub­ject of the monarch in one of her other realms. The test of loy­alty to the Aus­tralian na­tion in the Con­sti­tu­tion is al­le­giance to the Crown. I know that con­sti­tu­tional law is a spe­cialised field that or­di­nary ci­ti­zens are not qual­i­fied to com­ment on. I re­alise that it re­lates not just to the orig­i­nal Con­sti­tu­tion but also to sub­se­quent ju­di­cial in­ter­pre­ta­tion and leg­is­la­tion, the to­tal ef­fect of which has been the sev­er­ance of al­most all le­gal ties with the UK and a dif­fer­en­ti­a­tion be­tween the con­cept of the Crown and the ac­tual monarch. We now have, at least in the­ory, a di­vis­i­ble Crown with sep­a­rate realms – mean­ing that El­iz­a­beth II is the Queen of Aus­tralia, dis­tinct from her be­ing Queen of the United King­dom, New Zealand or Canada. But this is not a straight­for­ward is­sue (given the Queen is still one per­son!), and it is naive to sug­gest that how the law is in­ter­preted bears no re­la­tion to how his­tory is un­der­stood. The process by which Aus­tralia be­came in­de­pen­dent from the UK is a story of al­most im­per­cep­ti­ble shifts that have proved dif­fi­cult to con­vey. In­evitably, the fo­cus is on land­marks such as the Statute of West­min­ster 1931, which af­forded Aus­tralia full statu­tory in­de­pen­dence, or John Curtin’s turn­ing to the United States in Aus­tralia’s hour of need. The prob­lem is that th­ese mo­ments dis­tort the story as much as il­lu­mi­nate it. The Aus­tralian par­lia­ment did not rat­ify the Statute of West­min­ster for more than a decade, and even then it was to al­low “for the more ef­fec­tual pros­e­cu­tion of the war in which His Majesty the King is en­gaged”. And it was Curtin who, at the 1944 Com­mon­wealth Prime Min­is­ters’ Con­fer­ence, pushed to es­tab­lish in­stru­ments for a com­mon defence pol­icy, and was to ap­point the King’s brother to be gov­er­nor-gen­eral. Gough Whit­lam was a monar­chist be­fore the Dis­missal, al­beit re­badg­ing the monarch as the Queen of Aus­tralia. What’s more, the Aus­tralia Act 1986, which sev­ered al­most all re­main­ing le­gal ties with the UK, did noth­ing to change the cen­tral­ity of the Crown in the Con­sti­tu­tion. Be­cause it is so dif­fi­cult to com­mu­ni­cate the Aus­tralian jour­ney to in­de­pen­dence, loy­alty to the monarch has widely come to be seen as a mere han­gover from colo­nial times. I sym­pa­thise with this sen­ti­ment. As a his­to­rian, I am cog­nisant of the suf­fer­ing and snob­bery in­her­ent in the idea and prac­tice of monar­chy and em­pire. Nor can I see how the Queen of the United King­dom can be reimag­ined in a cul­tur­ally mean­ing­ful way as the Queen of Aus­tralia. I don’t ques­tion the pre­vail­ing par­a­digm be­cause I am a sup­porter of the monar­chy but be­cause it is an in­cor­rect read­ing of his­tory. Loy­alty to the Crown was not op­posed to the dom­i­nant form of na­tion­al­ism ex­pressed in Aus­tralia but in­te­gral to it. Al­le­giance to the Crown was not a bar­rier to achiev­ing in­de­pen­dence but the pri­mary means by which it was achieved. Those who sup­ported an Aus­tralian iden­tity grounded in loy­alty to the Crown were no less pa­tri­otic than repub­li­cans. Re­gard­less of one’s pol­i­tics or pref­er­ences, the re­al­ity is that the na­tion-builders who emerged tri­umphant from the ide­o­log­i­cal strug­gle of the 1880s, and who would be dom­i­nant on both sides of pol­i­tics at least un­til the 1960s, had the Crown at the cen­tre of their un­der­stand­ing of Aus­tralia. While a le­gal break with the UK was not re­alised in 1901, most of the found­ing fa­thers looked for­ward to this oc­cur­ring, and no change was re­quired in the doc­u­ment they wrote when it did. Th­ese men were na­tion­al­ists com­mit­ted to end­ing a colo­nial iden­tity. Their idea of the em­pire (which was sup­ported by many in Bri­tain, not least the sec­re­tary of state for the colonies, Joseph Cham­ber­lain) was for it to be a com­mu­nity of equals. Each in­de­pen­dent realm was to re­main bound by the fa­mil­ial ties and cul­tural val­ues em­bod­ied by the monarch. This vi­sion was re­alised with the pass­ing of the Statute of West­min­ster, whose pream­ble notes that mem­bers of the Bri­tish Com­mon­wealth of Na­tions re­mained “united by a com­mon al­le­giance to the Crown”. Of course there were small-minded roy­al­ists (just as there were nar­row-minded repub­li­cans), but th­ese men did not write the Con­sti­tu­tion. The doc­u­ment was a tri­umph of an ide­al­is­tic view, which saw the Crown as em­body­ing prin­ci­ples and free­doms that the his­to­rian Alan Atkin­son has called the na­tional con­science. The Queen ex­pressed this ideal in her 1953 Corona­tion Day broad­cast, in which she em­pha­sised that the “liv­ing prin­ci­ples” of “par­lia­men­tary in­sti­tu­tions, with their free speech and re­spect for the rights of mi­nori­ties”, were “as sa­cred to the Crown and monar­chy as to its many par­lia­ments and peo­ples”. It’s a sad re­flec­tion of our times that the Queen’s speech now reads as strangely sub­ver­sive.

What it means to be “Aus­tralian” has be­come ever more rigidly de­fined.

It is true that the com­mit­ment to Aus­tralia be­ing a white na­tion was taken for granted by the found­ing fa­thers but this was true of all sides in the de­bate, in­clud­ing the over­whelm­ing ma­jor­ity of repub­li­cans. While no­tions of em­pire, race and na­tion­hood gen­er­ally re­in­forced one an­other, the fo­cus on the Crown could also sub­vert mono­lithic racist thought. The com­par­i­son be­tween what sec­tion 44 meant in 1947 and what it means to­day il­lus­trates the point. There are fewer than 15 mil­lion peo­ple now el­i­gi­ble to sit in the Aus­tralian par­lia­ment. But 70 years ago, there were close to half a bil­lion peo­ple who shared the same na­tion­al­ity as Aus­tralians. Fel­low Bri­tish sub­jects were spread from the Hi­malayas to the Kala­hari. Of course, re­stric­tive im­mi­gra­tion laws pro­hib­ited most of th­ese peo­ple from com­ing to Aus­tralia, but they were not barred from par­lia­ment by their cit­i­zen­ship. The cen­tral place af­forded to the Crown in the Con­sti­tu­tion means that the found­ing fa­thers’ sense of Aus­tralia was in one re­spect larger than ours. The big­otry of prom­i­nent monar­chists has ob­scured the fact that the em­pha­sis placed on al­le­giance to the Queen meant that loy­alty to Aus­tralia was not to be de­fined only by bound­aries and bor­ders. This con­trast has be­come more pro­nounced in re­cent decades, as what it means to be “Aus­tralian” has be­come ever more rigidly de­fined.

The repub­li­can task will be to sus­tain an un­der­stand­ing of na­tion­hood that is not nar­row-minded or jin­go­is­tic.

In the repub­li­can de­bate of the late 20th cen­tury, for­mer High Court jus­tice Michael Kirby ar­gued for the re­ten­tion of the monar­chy largely on the ba­sis of the ad­van­tage of hav­ing a head of state who tran­scended na­tional bound­aries. Kirby’s vi­sion of the Crown de­fined the Con­sti­tu­tion and the na­tion’s dis­tinc­tive path to in­de­pen­dence, but has been vir­tu­ally for­got­ten to­day. Un­til the Con­sti­tu­tion is changed, the cen­tral place af­forded to the Crown should re­mind the High Court, par­lia­ment and ex­ec­u­tive govern­ment that loy­alty to Aus­tralia can­not be rigidly pre­scribed. In spirit and let­ter, the cur­rent text, for all its glar­ing short­com­ings, sub­verts the nar­row na­tion­al­ism that in­creas­ingly threat­ens hu­man de­cency, mi­nor­ity rights and le­gal free­doms. Be­cause of the danger posed by per­verted pa­tri­o­tism, all our na­tional in­sti­tu­tions could ben­e­fit from more fully en­gag­ing with what it has meant to be a sub­ject of the Queen. The need to hon­our the legacy of the Crown will be even more im­por­tant when the Con­sti­tu­tion is fi­nally changed. Both the repub­lic and In­dige­nous recog­ni­tion de­bates point to the ur­gency and op­por­tu­nity for a com­pre­hen­sive over­haul that goes far be­yond sec­tion 44. When all ref­er­ences to the Queen are re­moved, the repub­li­can task will be to sus­tain an un­der­stand­ing of na­tion­hood that is not nar­row-minded or jin­go­is­tic. There could be no more ap­pro­pri­ate place to be­gin the task of find­ing a new way to em­bed con­science within the Aus­tralian Con­sti­tu­tion than to over­come the great­est fail­ure of the found­ing fa­thers: their racism and ne­glect of the coun­try’s In­dige­nous peo­ple.

© Max Mumby / Indigo / Getty Im­ages

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