The 2013 Edmund Barton Lecture

April 23, 2013

Thank you very much Vice Chancellor. That was a very flattering and undeserved introduction. It reminds me of what Disraeli once said about flattery. He said, “the flatterer is seldom interrupted, but in the case of royalty make sure to lay it on with a trowel.” So you laid it on with a trowel and I’m a notorious republican, so I’m doubly thankful. Can I say how thrilled I am to be here, here in this wonderful hall, wonderful audience, in the city of Newcastle. I am just very grateful that you have invited me here to speak. I’m honoured to be speaking at a lecture that commemorates Edmund Barton, one of the fathers, as they say – there weren’t too many mothers in those constitutional conventions – but one of the fathers of our constitution; a document that I have found more frustrating than inspiring I have to say over the years. While, as I’ll note, he is responsible for some very important and significant victories in drafting the constitution, where he fell into error, as did the rest of them, was in making it almost impossible to amend. But I’ll come and explain why that is so in a moment.

Can I also, together with the Vice Chancellor, welcome my State parliamentary colleagues, Tim Owen the member for Newcastle and Andrew Cornwall the member for Charleston. And of course the leadership of the university: Diane Allen, the deputy chancellor, members of the university council, the faculty pro-vice chancellors. And of course we have to acknowledge those heroic people, the three candidates for parliament and I know what that’s like. The liberal candidates for Newcastle, Jaimie Abbott, for Shortland, John Church, and for Charleston, Kevin Baker. This is a very exciting time that we face at the moment here in the lead-up to the Federal election. A time when all of us, I think, have been reflecting over the last few years on the nature of politics often very disappointed about the nature of politics and questioning whether we can have a better, a more civil, public discourse.

I though I would cast our minds back to the time of Edmund Barton. A different world. He was born in 1849 as you know, and served in the NSW parliament and was active in the lead-up to the formation of our Commonwealth and was one of the key members – people used to say at the time, I think rather unkindly, that he wasn’t the brightest, or most learned contributor to the constitutional convention debates. But he had a mastery of politics. He was a master politician. And a master of compromise. And as we all know, compromise is the very stuff of politics. So often the best political objectives, the most important goals, are frustrated because people lose sight of the need for compromise and allow their idea of the perfect to be, indeed, the enemy of the good. And Barton was very canny in terms of his approach to these issues and he was responsible for a very important compromise right at the very end. As an Australian nationalist, although not by any means a Republican, and I’ll come back to his view of Australia – his view of Australia in that period in a moment – as an Australian nationalist he wanted to ensure that the High Court of Australia on which of course he later became one of the first judges, he was of course on the first bench of the High Court of Australia, so he served as both Prime Minister and as justice of the High Court, the only person in our history to have done that. And, of course as you know, the first Prime Minister.

But Barton wanted the High Court to be the final court of appeal. Now this offended the government in London. And you have to understand, we have to understand, that when we think of Australia in 1901, in Edmund Barton’s day, it was not by any means an independent country. When we became a federation, the Commonwealth of Australia, we were not becoming an independent country, not by any means. Australia remained a dependant, subordinate, although largely self-governing, dominion within the British Empire. And the tension, if you like, was the extent of that autonomy. The extent of that dependency. And Barton wanted there to be no appeals to the Privy Council. This was quite offensive to the imperial government in London because the Privy Council was one of their means of ensuring there was quality control throughout the empire. That is to say, in their vast empire, with many colonies being essentially self-governing, this was to ensure that legal issues could ultimately be resolved by the Privy Council in London which was of course effectively a committee of the judicial committee of the House of Lords. So it was the same as the Supreme Court, the ultimate court of appeal in the United Kingdom. And the project nearly came unstuck over that. But Barton was able to negotiate a very considerable concession from the British which was enshrined ultimately in section 74 which provided that there would be no appeals from the High Court to the Privy Council on matters involving the powers of the Commonwealth versus the states or the rights of the states between themselves. In other words, what Barton saw as the essence of our constitutional bargain. And what he was saying to the British, the imperial government, was we’ve done our deal between ourselves as six colonies and if we have an argument about the nature of that deal we want to be able to determine it locally. And he was able to win that concession and that is , of course, what led finally to our Constitution being enacted as a schedule to a part of a British act of parliament.

But let’s just cast our mind back to the world of Edmund Barton. A world not entirely dissimilar to the world we find ourselves in today. There was a member for Hunter, it was him, he was the first member for Hunter. And of course he was, while not a Novocastrian himself, he married a girl from Newcastle and married her here in Newcastle. So he had a strong connection to this city.

But the world that Australia was part of was thoroughly different. Australia’s constitution was not, as some people have described it, the birth certificate of an independent nation. Indeed, when you read our constitution today, and I know there are many law students here, but it is important to recognise that the Queen, referred to throughout our constitution and of course it is referring to Queen Victoria, and is defined as being Queen Victoria her heirs and successors in the sovereignty of the United Kingdom. The Queen was not so much and individual, the Queen meant her Majesty’s Government in right of the United Kingdom. It meant Whitehall. It meant London. It meant the imperial power. That is why we still have provisions in the Constitution which are absolutely relics – although not doubt perfectly enforceable – relics of that colonial past. Section 58, for example, allows the Governor General, who in 1901 and right up until the 1930s was appointed by the British Government as a British, in effect, a British viceroy and ambassador. The Governor General was, right up until 1933, the representative of the imperial government in Australia. But the Governor General is empowered under section 58 to withhold assent from a bill passed by both houses of parliament and refer it to the Queen for her assent, for her consideration. And all that meant was that if he had doubts about some legislation he could send it back to London to be looked at by the bureaucrats and Whitehall who could see if they could decided whether it was a good law, whether it offended some imperial interest or other. And that’s still there. Now of course the Queen, the British monarch and our head of state, acts on the advice of the Australian government but that wasn’t so when our constitution was enacted.

Section 59 was an even more interesting provision. That allows the Queen to actually annul any Australian law within 12 months of its enactment even if it had been signed and assented to by the Governor General. So that meant if the Governor General failed to adequately protect the imperial interests, the imperial government in London if became aware of this could in 12 months, with the stroke of a pen, annul that Australia law, notwithstanding it had been passed by both houses of parliament. So Australia was not under any measure an independent country at that time. And it is no criticism of men like Edmund Barton to say that he was happy with that because the view that was taken by his generation and several generations that followed, right up to Menzies time, was that Australia was part of a greater British entity. Menzies said, in 1948, “the boundaries of Britain are not found on the Kentish Coast, but at Invercargill”, the bottom of the south island of New Zealand and Cape York, the northern tip of Australia. And in 1953, Robert Menzies said, when it was proposed and indeed there was provision made to included reference to Australia in the royal style and title, Menzies said that it would be absurd not refer to the Queen as the Queen of the United Kingdom. And she’s not in Australia, she’s the Queen of Australia. He said in 1953 it would be absurd not to refer to the Queen as the Queen of the United Kingdom because, he said, the Queen sits on the throne not because of any law of Australia but the laws of the United Kingdom and he said she is the symbol and the crown in the symbol that wherever we are in the world we are one people. We are one British people.

And so, you look at the world that Edmund Barton lived in, you look at the Constitution that he helped to create and it was a world where Australia was geographical separate from the United Kingdom but it was still a British country. Australia which was in large measure autonomous, but did not seek to have its own foreign policy the United Kingdom. And then if you go forward to Robert Menzies’ day you have Australia on any view by the 1950’s certainly being an independent country in every respect but none the less seeing itself, or many Australians seeing themselves as essentially British, as Australia being a British country and the Crown being the symbol of that Britishness.

So when we judge the founders of our constitution it is important to remember that they were not – some people try to portray them as being colonial lickspittles of a foreign power – they were not at all. They saw themselves as being as every much part of Greater Britain as any citizen of the United Kingdom. They saw themselves as being both Australian and British, and being inheritors to that tradition and carving out in the spirit of the British people, carving out a greater right for self government, because after all there was no more important political value that the British settlers in this country brought here than a deep commitment, a deep belief in their right to choose democratically their own rulers.

And so we wonder now where does that leave us in terms of constitutional reform and constitutional change. Regrettably and this is where I must say I can’t be entirely full of praise for Sir Edmund Barton, regrettably he left in the Constitution and amendment provision that has made the constitution almost impossible to change. Since federation, since 1901, there have been 46 attempts to change the constitution, only eight have been successful. And the last proposal that was even remotely controversial that was successful was in 1946. We have got to the point where the only proposals of which you can be completely confident will succeed are those that don’t simply have bipartisan support, that is certainly not enough, there’ve been a number of proposals that have been lost with bipartisan support, but they need to have almost no opposition. And so they either have to be effectively technical amendments such as the changes to the provisions for replacing senatorial vacancies or provisions relating to the retirement of federal judges, or of course the really critically important referendum relating to the Aboriginal people of Australia which was passed, under a Liberal government I might say, in the 1960s with overwhelming support.

And the provision as you know says that you need to have a majority of people in all of Australia plus a majority in the majority of the states, so four out of the six states. But it doesn’t actually end there because the big battle that you have and I say this as someone with a distinguished track record in not changing the constitution, the challenge that you have is that thrown up by compulsory voting. The combination of that double majority plus compulsory voting make changing the constitution very difficult indeed. Because anybody that is not familiar with the proposition that either doesn’t understand it, or isn’t interested in it, doesn’t seek to understand it, is much more likely to vote no than yes. And if you think about it that’s not an irrational point of view, if I put a proposal to you about some change it might be changing the configuration of a power station nearby and I say we have to change this generator and change that generator and dig this up and replace it with something else, and you don’t understand anything about it, you’re going to say well perhaps we should just leave it as it is. That’s a perfectly sensible, rational point of view. So if you don’t know, vote no is not an entirely unreasonable proposition. And that coupled with the double majority has made it very hard to change the constitution.

Which brings me really to the Republican issue, which as you know I was the leader of the Republican movement and the leader of the ‘Yes’ case in the Republican referendum in 1999. Which regrettably we lost, we didn’t do as badly as a lot of other referendums have done but in constitutional politics, as in most politics, there are no prizes for coming second even if it’s by a relatively narrow margin. The challenge we faced there was not simply the inherent one of changing the constitution, but the problem that the republican side was divided over whether we should have a president chosen by parliament in a bipartisan fashion or whether the President should be chosen by a popular vote. And you’ll remember that that campaign showed I think what was probably the most – well one of the most, there have been quite a few – one of the most dishonest campaigns we’ve seen in politics in Australia. And this was the campaign that went along and said if you vote no to the proposition that the president would be chosen by a parliament don’t worry you’ll get another chance with the direct election model a few years later. Well it’s not 2013 and I’m reminded that I said in ’99 it’s one of the most accurate predictions I’ve ever made, I said if you vote no it means no for a very long time.

And the challenge that we face now, that republicans and republican reformers face now is what is the prospect of changing the constitution, a threshold question of course, do we need to? Do we want to? Is the journey that was begun by Edmund Barton fighting for a greater degree of Australian autonomy albeit as part of the British Empire, that journey which was begun by him and his colleagues in the Constitutional Conventions, sparked if you like initially by Henry Parkes, or indeed before that by John Dunmore Lang, that journey is the final step, the time when Australians choose their own head of state. When the head of state of Australia is not whoever happens to be the King or Queen of the United Kingdom but an Australian citizen, chosen by Australians. Now I believe it should be, I believe it is. I believe that we should as Australians, as patriots, love this country and its people so much, so much, that we should insist that only one of us, an Australian can be our head of state. So the republican cause is not about economics, it’s not about finance, it’s not really about the power of the Commonwealth Government, it is simply the end, the final point, the final summation of that journey, that constitutional journey that began with an autonomous self-governing but subordinate colony and is now here today with a great and powerful and independent nation which still nonetheless has a foreign citizen as its head of state.

So I believe it is important, but it’s important that the next referendum, if there is to be one, is one that can be won. And so what are the circumstances? In terms of timing I’ve always said, always since ’99 and I may be wrong, that the next occasion when it can be effectively considered is after the end of the Queen’s reign, Queen Elizabeth’s II reign. I’ve always felt that there are many more Elizabethans in Australia than there are monarchists and I believe that. I think the Queen, I was having lunch today with some Newcastle business people and there was a picture of the Queen on the wall of the dining room, would have been there for 60 years and I was reflecting on how long a part of everybody’s lives, all of most Australians’ lives she has been. And so I think when the Queen’s reign ends, whether it ends in her abdication or her death, will be an extraordinary watershed when Australians will reconsider what it means to have a head of state that is a foreign monarch. They may decide, many people may decide that the glamour of Katherine and Will is enough to sweep all before it, they may not feel so quite enamoured of the glamour of Charles and Camilla but none the less who knows. But I have to say that I think there is a great difference between thinking about somebody as a glamorous celebrity as it were, and thinking they should be one’s head of state.

So let’s assume for the sake of this discussion that that’s the right time, that’s the best time, that’s my judgement in any event. The next question then is how do you deal with the direct election issue. And this is a very difficult one indeed. When George Winterton, the late George Winterton, the great constitutional lawyer, when George and I looked at this issue 20 years ago in the work we did for the Republic Advisory Committee of which I was chair and George was a member, we looked at the sort of changes you’d need to make to the Constitution if your president was to be a Governor-General like figure with essentially the same powers as the Governor-General, Inheriting effectively the reserve powers. Or whether the President was to be with exactly the same powers but directly elected. We didn’t consider a model whether the President was like a United States president, both head of state and head of Government. We didn’t see there being much interest in that – and certainly, we complain about the level of dysfunctionality in politics in Canberra but it looks positively efficient compared to the train wreck in Washington.

So I don’t see Australians being attracted to the American model. So the question then is, if you’re going to have a President who is effectively a non-executive head of state, a largely ceremonial figure, and you have different means of electing them, how do you go about it? What do you say in the constitution?

We recognised of course that even if you drafted the constitutional amendments so that the President had absolutely no power – there was absolutely no room for a President to declare himself or herself in charge of the army or take over the running of the country, or anything like that. If you put all of that beyond doubt, and you can with drafting, what does that say about the viability of the two options?

Now the problem that you face then, is that even if you’ve drafted the constitutional provisions carefully enough to eliminate any risk of the abuse of power, nonetheless a directly elected President would be the only directly elected federal official in the country. The Prime Minister is not directly elected. John Howard was never elected by the Australian people directly. He was Prime Minister because he had a majority in the House of Representatives. He was elected by the people of Bennelong. Tony Abbott if he becomes Prime Minister – and I believe he will – his name will have been on only one electoral paper, that in the electorate of Warringah.

So a directly elected President would be the only person whose name had been on a ballot paper in the hands of every Australian voter. And regardless of what powers you allow that figure to have, that is an enormous bully pulpit. Enormous credibility. Enormous standing. Enormous ability to influence by every speech, by every public utterance, if the President so concerned desired that.

And so that raises an issue. This is of course why I have advocated in the past that the President should be elected by a two-thirds majority of the Parliament – a bipartisan majority – that would ensure that the candidate, the successful candidate, was a non-political, bipartisan figure. Along the lines of the people who have generally been made Governor General.

But the difficulty is that – and we found this in ’99 – that people say, no unless we can elect the President we don’t want it. And so you had the Republican vote split. Whether we could have won it without that is an interesting question – but we certainly would have come a lot closer at the very least.

So the obvious solution is to say, well you had a go with one model in ’99, you should go with direct election. And I’m not – I wouldn’t campaign against direct election, so long as the constitutional provisions were satisfactory. And I’m sure they would be – that’s not beyond the wit of draftsmen and women. But the thing for Republicans and all of us to reflect on very carefully is this – at that time, whenever there was a focus group, small or very large like the deliberative poll that was held in the Old Parliament House about two weeks before the referendum. This was several hundred people, a statistically representative sample brought together to discuss the issue, polled on the way in and polled on the way out.

In every case, direct election started off with very high support and then plummeted as soon as people realised that if you elected the President you would be having a very partisan political process to choose an office-holder who is meant to be thoroughly non partisan and non-political. And therein lies the risk. And I remember Paul Keating warning the Republican movement about this many years ago and I think he was right. He said, the risk is you start off with the direct election model and you start off with very high popular support to being with which plummets very quickly.

And if you go back to ’99 and you think of the dynamics of that time. And you think of the people from the Labor side and the Liberal side and the judiciary, that supported the model that we took to the people and said it was safe – like Gough Whitlam and Malcolm Fraser, two former Prime Ministers from the opposite sides of Parliament, Zelman Cowan a former Governor General, Sir Anthony Mason a former Chief Justice, Sir Gerard Brennan a former Chief Justice. So many people on the conservative side of politics, like Peter Costello and many others. All of that bipartisanship would be at risk because you would have plenty of conservatives who would say from – constitutional conservatives from both the left and the right of the political spectrum – saying, no this would put a tension, a risk, a competitiveness needlessly into our political structure. This is not the way to go.

And one thing I am absolutely convinced of is that if you have strong or concerted opposition to a constitutional change, it cannot possibly be carried. So that’s the challenge that Republicans face. The answer, I believe, lies in Edmund Barton’s example. The answer must lie in compromise. The answer must lie in Republicans and I think conservatives who may prefer the monarchy to remain in place but nonetheless see its diminishing relevance to a modern Australia, that no longer sees itself as part of Britain or indeed even British, the answer lies in a spirit of compromise. Whether that can be achieved, time will tell. But there will need to be a few laws students and perhaps professors here who will need to be a part of that discussion.

It’s an important issue. It’s not, in my judgement, an issue for today. In the sense that it’s an issue to talk about today but I don’t believe it is an issue that will be decided any time soon because the last thing that all of us would look for is a referendum that is put up and lost. And so timing will be absolutely critical.

But when we do make that step – if we do make that step – it will in many respects be the last step in our constitutional journey. Putting the full stop, if you like, on the declaration of independence that began fitfully in 1901 and will end thoroughly and emphatically, symbolically as well as practically, in the 21st Century.

So I’m delighted to be here tonight to commemorate Sir Edmund Barton. I am pleased to revisit the issues of constitutional change despite Edmund’s role in making it all too difficult. And I look forward now to your questions. Thank you very much.

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