When Sir John Kerr dismissed the Whitlam government, only welded-on Labor Party supporters and a handful of Marxist university students objected. Kerr claimed that he possessed a royal prerogative, ‘a reserve power’ with which to dismiss that government, but if you read Kerr carefully, his prerogative was nothing more than a personal discretion that permitted him to dismiss Whitlam under Section 64 of the Constitution without ministerial advice.
Some six years later, Sir Garfield Barwick wrote that there was no such thing as ‘reserve powers’. The Governor-General could use Section 64 whenever he believed there was a crisis – a sort of ‘how long is a piece of string’ criteria. Another Chief Justice (that makes three), Sir Anthony Mason was found to have been coaching Kerr throughout the events of 1975.
As if that wasn’t enough, Prince Charles, we discover, wrote to Kerr at the time to say that he supported what Kerr had done. So you see, three Australian Chiefs Justice and one Prince of Wales – who is soon to be the British and Australian King – believe that monarchs and their representatives have a special power with which they can dismiss an elected government, even one that has the confidence of the popularly elected House (Representatives or Commons), when he disagrees with how they govern.
With such serious legal minds all of one mind, it is little wonder that Australia’s academic lawyers cling to the notion of a Governor-General with reserve powers stepping in at that moment of crisis to wrest control from elected representatives; and this is what they teach to each generation of young impressionable minds in Australian universities.
It does not even matter to those grey-bearded, university dons that the men who drafted the Constitution denied that such a power existed. One of their learned number actually criticised the Convention for omitting the reserve powers from the Constitution; even though the Convention denied their existence. Go figure!
It is a common complaint that the older men become, the less likely are they to read anything which might change their minds. They read only what confirms their opinions of themselves. A very senior lawyer with extensive High Court experience argued to me that Kerr’s action was justified by Fraser’s subsequent electoral victory. He changed his mind and agreed with me when I pointed out that if Kerr’s action was illegal then Fraser’s electoral victory didn’t make it legal. Only in writing, never in debate, can arguments be truly settled.
It is our Commonwealth. We authorised and ratified the Constitution so you might wonder what can be done to ensure it remains our Constitution?
The Daily Mail reports on a documentary based on Andrew Lownie’s book, Traitor King: The Scandalous Exile of the Duke & Duchess of Windsor, which aired recently on the BBC. It relates the wartime exploits of the Duke of Windsor, formally King Edward VIII, who abdicated in 1936 so he could marry Mrs Wallis Simpson. The previous narrative relates that they set up home in Paris, living privately and peacefully as plain old Duke and Duchess of Windsor.
Lownie’s book reveals that far from living privately, newly discovered German cables held in British archives show that Edward prepared military reports on weaknesses in the French army which he showed to a Nazi informant, Charles Bedaux. Bedaux then forwarded the reports to Berlin, allowing the German army to target those particular weaknesses when invading France.
The documentary discovered a speech recorded by Edward in May 1939, four months before the outbreak of war, that had been held in BBC archives. In it, Edward asked the British to surrender to Hitler. While the BBC never broadcast the speech for obvious reasons, it (and other material) show that when war broke out Edward desired a Nazi victory so that Hitler could return him to the British throne.
After the outbreak of hostilities, Edward and Mrs Simpson fled to Lisbon, Portugal and the documentary recounts how the Duke advised Nazi sympathisers that ‘continued severe bombing by the Germans would make England ready for peace’.
The agile-minded among you will already have seen the connection between these two threads, for the latter is a warning to those highly trained lawyers with no political wisdom whose opinions of reserve powers pose a terrible risk for every democratically responsible government. If, as the Australian lawyers and Prince Charles argue, that the monarch and its agents in the dominions have these special reserve powers, then there was no legal impediment to Edward VIII seizing control of the government and acting without ministerial approval. It should be noted, that the monarch has command of all the armed services.
We can only speculate on what he might have done had he actually believed he held those powers; but first, he could have dismissed Baldwin’s government which was forcing his abdication. Then, he had only to find an alternative government that had his confidence, for there were many who did not desire war with Germany. In fact, the architect of appeasement, Viscount Halifax, would have been the most obvious choice.
The coup de grâce could have come on September 3, 1939. Instead of declaring war on Germany, Edward VIII – by exercising his prerogative – could have signed a non-aggression pact with the Nazis on mutual terms or even surrender.
The British have no written Constitution, one with defined powers for the particular parties. It relies totally on the goodwill of gentlemen. Edward’s actions would have been unimpeachable.
Returning to Australia we are entitled to ask, why didn’t Australia’s Constitution protect Whitlam’s elected government? The answer actually lies with the legal profession who are so blinded by the British plain text disease that they cannot see past the political woods.
Our written Constitution was designed to protect the democratic rights of the majority to select the representatives who would govern the nation. The men who drafted the Constitution agreed that the Governor-General held no personal discretionary powers. He acted only with ministerial advice.
Suddenly, you are speechless.
Three of the nation’s leading legal figures, Kerr, Barwick, and Mason, with nothing more than a partisan reflection on a parliamentary dispute between two men, overturn the whole superstructure of responsible government by giving the Governor-General a personal discretion to which he was not entitled.
Congratulations are in order to the legal experts who have managed in less than fifty years to throw our self-governing democracy away. They have given no consideration to the fact that the new monarch, Charles, actually believes that he will have reserve powers. Thank God new Australian citizens know nothing about the Constitution and swear allegiance to the Australian people.
God bless Australia.
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