The hidden hand of her majesty

February 10, 2007

The misconception the monarch has a hands-off role in Australia has been exposed, writes Tony Stephens.

The 55th anniversary this week of the Queen's accession to the throne didn't go entirely unnoticed in Australia. Professor David Flint, the national convener of Australians for Constitutional Monarchy (ACM), and other monarchists, raised a glass or two to Elizabeth II. The Australian Monarchist League lunched at the Union Club. Church services were held at St James's and St Stephen's in Sydney, and around the country.

What's more, ACM yesterday launched a campaign to have the Queen's representative in NSW, the governor, return to Government House, which had been the vice-regal home until the former premier Bob Carr decided in 1996 to give the famous pile to the people.


The historian and constitutional lawyer Anne Twomey argues: "Whether there is one Crown in relation to Australia or seven remains the subject of debate."

Twomey writes in The Chameleon Crown, The Queen and Her Australian Governors that, like a chameleon, the Crown is unusual within Australia's constitutional law and little understood. "It takes great care to protect itself by blending into its background so carefully that its presence is barely perceptible."

Twomey exposes a misconception about the Queen in Australia. Her role in the events of November 1975 is usually remembered by her refusal to become involved in the struggle which led to the sacking by the governor-general, Sir John Kerr, of the Whitlam government. Yet, unknown to the public, the Queen and the British government remained deeply involved in constitutional matters, particularly with Sir Joh Bjelke-Petersen's Queensland government and Neville Wran's in NSW.

Using previously secret government and Buckingham Palace documents, Twomey makes clear that the Australian states remained colonial dependencies of the British Crown until 1986, when the Australia Acts were passed, and that doubt still exists about their exact status.

In October 1975, the Queensland governor, Sir Colin Hannah, provoked calls for his removal by indulging in partisan criticism of the Whitlam government. Gough Whitlam advised the Queen to remove Hannah's dormant commission to act as governor-general when Kerr was away. She did so. The British government later advised the Queen not to dismiss Hannah, because it would be too hard to explain why, when Sir John Kerr, who had involved himself more in political controversy, survived. However, the British rejected Bjelke-Petersen's recommendation that Hannah's term be extended.

Bjelke-Petersen said the premier advised the Queen on the appointment of governors. Twomey makes it clear he was wrong. It was the Queen of the United Kingdom, advised by her British ministers, who performed state constitutional functions, not the Queen of Australia, who dealt only with Australian matters at the commonwealth level.

When Malcolm Fraser became prime minister, he sought the restoration of Hannah's dormant commission, but was refused. The British foreign secretary, Lord Carrington, informed Hannah that his remarks were not in keeping with regal and vice-regal impartiality. Australians believed that, although the British government advised the Queen about state matters, this was an idiosyncratic formality, and, in practice, state ministers advised her. State premiers were rattled when the extension of Hannah's term was refused.

Neville Wran was particularly concerned. When it came time to seek the extension of Sir Roden Cutler's term as governor, he asked the British government that the governor-general not be advised in advance. When British officials ignored this, Wran took it as proof they acted independently on state matters.

The Wran government said in 1978 that it would introduce legislation to abolish appeals from state courts to the Privy Council and to ensure that advice to the Queen on the appointment of the governor came from state ministers. British legal advisers took the view that if the Queen were to act on the advice of NSW ministers, she would have to become Queen of NSW.

Cutler warned the British that Wran was determined to make changes. In 1979 the Wran government obtained advice from Michael McHugh, QC, and John Bryson that the NSW parliament had power to enact legislation concerning the appointment of governors. McHugh now regrets Twomey's revelations were not available to him.

The British government decided to acknowledge the existence of the proposal and seek to deal with it through diplomatic means. Buckingham Palace was dissatisfied. This forced the foreign secretary, Lord Carrington, to write to Cutler: "I recalled to her majesty that it was my duty to advise her to refuse her assent to legislation which in my view was unconstitutional whatever my view of the merits of such legislation might be."

The NSW government announced in 1980 its renewed intention to introduce a bill requiring the Queen to be advised by state ministers. British officials were outraged. One accused the government of having "contradicted a despatch from the secretary of state which, although cast in more courteous terms, amounts to an instruction on behalf of the Queen".

Gerry Gleeson, secretary of the NSW Premier's Department, complained to the British consul-general that NSW was "being buggered about" and suggested that British officials needed their "backsides kicked".

The British government declared it would free the states from their status as dependencies only after a uniform approach by all states and the Commonwealth. Eventually, this was achieved and the role of the British in advising on state matters was removed by the Australia Acts 1986.

Twomey says, however, that it's possible a separate crown was created for each state. This would matter, for example, in any proposal for Australia to become a republic.

The Chameleon Crown - The Queen and Her Australian Governors, by Anne Twomey (Federation Press, $49.95).

