Australia (Government)

One aspect of modern Australia probably causes more confusion than any other to foreigners. That is how can be we a Federated Commonwealth with a Constitutional Monarchy and a President. Like most Australian political history it is skipped over in our schools and that in itself probably accounts for most of the different versions told to the curious visitor.

It really isnt that complicated, and it all revolved around the exact wording of the Daventry Broadcast. For those who need a bit of background, one of the first acts of the Halifax Government after it took power in Britain was to isolate the Royal Family, this was mainly because the King was about the only threat to the Coup who wasnt and could not be arrested or disappeared. So obviously he had to be controlled with out alarming the populace or worse the British armed forces, who after all owed their loyalty to the Crown not Parliament.

Needless to say His Majesty wasnt exactly thrilled with either the Coup or his new protective accommodation, which looked remarkably like one of the Grace and Favour apartments built into the wall of Windsor Castle.

Of the many plots and schemes hatched in Britain during this period, the majority involved the Royals in some form, so it was not altogether surprising that Lord Halifaxs cone of silence rapidly developed a few leaks. In the brief period between the Coup and the Great Escape, which involved most of the Royal Navy and the compliance of the other two services, George VI had to face the prospect that he would not regain his freedom. This inturn lead him and the rest of the loyalists to develop plans for various contingencies. The most obvious of which was a message to the rest of the Empire.

This message was smuggled out of Windsor and broadcast on September the 19th 1940 in place of the Midday BBC short wave news bulletin from the main overseas transmitter at Daventry (hence the name) outside London. The communiqu was in two parts, the first a spoken message addressed to all, and the second transmitted in encoded Morse directed at the various Dominion and Colonial governments, sent twice each time in a different cipher, both of which were specifically for the use by the Crown.

It was this last portion that was in effect the living will of the Crown, and literally the fate of an Empire rested on it. As might be expected there are theories galore about alleged changes, missing words, punctuation and variations that only prove there is no limit to the human imagination. The reader is free to hold their own opinions, but those two messages were probably recorded by more people in more places than any other Morse transmission in history. They were decoded in every outpost of the Empire with access to the keys and almost immediately compared between them. There is even a web page from Canada (and I think another from South Africa) that offer Java Scripts that allow you to encode in any message you like including the original transmissions (which are available from numerous sources, just Google) and decode it in exactly the same encryption, correct for date of broadcast. Ive done it myself along with several test messages of random gobbledegook, and the published version always matches.

Anyway, back to Australia at 2 am one fateful morning in 1940. The effective part of the communiqu reads: Be it known that it is our will that in the event of direct communication with the Crown being severed. The Powers of the Crown will pass through the direct Representative to the DomCol Cabinet in Committee in trust George VI Rex.

Forty two words; forty two words that have probably been the root of almost as much controversy as Thou Shall Not Kill for over 60 years and will probably still be debated long after Im gone, or I dare say anyone else reading this.

Obviously the key was and is in the interpretation of those two sentences and the intent. Since clarification was at the time impossible, every Colonial Administration and Dominion Government was free to make their own guess at both, and they generally fell into two schools of thought.

The first, which is the generally accepted formula, is that it was a safety clause, intended to cover those actions already taken by the Empire and Commonwealth namely telling Halifax and Co to go boil their heads, and at the same time provide for the worst case, that is the King remaining under the control of the Halifax Government. Historians generally agree that the intent was for everyone wait and see, only using the text if and when they absolutely had too.

The second group were those governments who sized on it to further their own agenda in various ways. First among these was Australia, the Coalition Government of the day was lead by the Australian Labor Party in the person of John Curtain. The ALP was based on a blue collar and trade union foundation that included a large Irish and Catholic membership. Of the two major parties, it was the least enamoured with the Empire and while it cloaked its self with a loyalist faade, the party had a strong Republican bent and was the one most willing, nay eager, to shed our Dominion status for complete independence.

The conservative Australia Party was staunchly monarchist but had no more idea about how to take the Kings message than anyone else. However there was one thing they were certain about and that was Labor wasnt going to get away with anything so partisan on their watch thank you very much.

Curtain and the Labor Caucus were hell bent on taking advantage of this golden opportunity to gain one of the principal historical aims of their party, and with the balance of power in the parliament there was going to be change. The only question was how much and in what direction, the Australia Party could swing enough votes to affect the outcome, but they couldnt stop it outright. The compromise that resulted hung on that last sentence.

Labor wanted to read it as the Crown passing its powers to the local legislature to dispose of at their discretion. The conservatives insisted on a literal interpretation, as this was seen to be the least workable one, so offering the most obstruction to Labor in the hope they would can the whole idea.

The whole process was pushed through with indecent haste by Labor, in an effort to steamroll the opposition, just as the Loyalists (there was a fair bit of cross bench movement over this issue) dug their heels in hoping to delay.

Ill reprint the original sentence:

The Powers of the Crown will pass through the direct Representative to the DomCol Cabinet in Committee in trust George VI Rex.

The Powers of the Crown are constitutional and laid down (in relation to Australia) by our Constitution and the Common Law, there was no real argument here.

will pass through the direct Representative to the DomCol The direct Representative in the case of Australia was the Governor General and the Crowns powers pass through him anyway, DomCol was a simple contraction of Colonial and Dominion that was in regular use, so there was not much to argue about here either.

to the DomCol Cabinet in Committee in trust George VI Rex. Is where all the trouble begins. There are two main questions here.

The first issue is a matter of punctuation, or rather the lack of it. By inserting commas the passage can be manipulated in any number of ways. For example put one after DomCol to read to the Dom/Col, Cabinet in Committee in trust George Rex. It begs the question which cabinet? If the reference to DomCol was only to identify the Governors of the Colonies and Dominions, then the only Cabinet with a general purview was London and that would rather defeat the whole purpose of the statement in context. Obviously this was the version preferred in London at the time and indeed they repeated the transmission at midnight with that very change. But they rather over egged their pudding by making several other changes to the original and no one at the time excepted the Halifax Revision, I dont think they fooled themselves either, as they sent it in plane language.

The other favourite place to add a comma is after Committee to read to the DomCol Cabinet in Committee, in trust George VI Rex. This is by far the most popular revision because by re associating DomCol with Cabinet it transfers the power to the local authority; and by reducing the words in trust to a parting salute, it also removes the one possible condition imposed by the King on that power.

However if we accept the original transmission as sent, it renders all this moot at the cost of opening an even bigger can of worms. That is, what the hell does The Powers of the Crown will pass through the direct Representative to the DomCol Cabinet in Committee in trust George VI Rex. Bloody well mean?

Naturally the first instinct was to refer this to the courts, but ironically the only court with authority to rule on such an issue was the Privy Council in London, so that wasnt much help. With time pressing as more and more Commonwealth countries adopted a wait and see approach, the Labor Party found themselves hemmed in by judges at every level, the majority of which insisted that the only legally supportable interpretation was the literal one; which was of course the same position held by the loyalists. This was that the authority of the Crown was to pass through the Governor General to the Cabinet, there to be held in trust by the Cabinet sitting as a Committee of Trustees.

In the end Curtain decided to accept the unworkable interpretation, in an effort to get something that could be reworked later into a more acceptable form. And that was his mistake.

Politicians, Government Ministers and especially Cabinet members are long used to wearing more than one hat. But I dont think the Cabinet of the day really had time to mull through exactly what they were letting themselves in for, if they did, I doubt theyd have ever accepted this solution. On the surface it seemed like a simple transfer of power from the Crown to the Cabinet, but there was no mention of what fate should befall the position of Governor General. Power was to pass through him but what happened then?

The office of GG was not abolished, he was specifically acknowledged as the direct representative of the Crown and the Crown was to be held by a body that was in theory a separate entity to the Cabinet it was directed to. Therefore it seemed logical that the Crown still had a direct representative, this left the situation where the GG acting for the Crown hired and fired the Government (through the PM), with the Government acting as the Committee of Trustees hired and fired the GG who was nominated by the PM. The actual Cabinet acting as a Cabinet was in fact at the bottom of the pecking order.

In reality the Australia Act of 1940 didnt change that much in terms of practical governance during WWII. The only visible effect was a switching of titles in line with the new hats everybody was wearing. As the head of the Cabinet, the PM was now his own boss as head of the Committee of Crown Trustees, and since this was obviously the more senior of the three positions he held, its title was superior to and superseded that of Prime Minister. I suppose Curtain could have chosen to be the Chairman but really President was not only the more logical choice but fitted with the Republican flavour that was his partys goal.

It wasnt until after the war that the wider implications started to be felt. One of the first things the King was asked in 1942 on his arrival in Canada was of course to clarify Daventry, while he never explained his reasons for doing so, the accepted rationale for his refusal to comment further on the matter, is that he was unwilling to undermine the decisions of his appointed Governments by expressing anything that would conflict with the positions they had taken. Given the wide range of these decisions there wasnt really anything he could say that would not set him across one or another of his Governments.

The only point he ever did provide an answer to, was the direct question of who the Crown was supposed to be held in trust for (this for Australias benefit), the Crown itself (in other words the King) or (his subjects) the People. His answer was as brief as it was concise, he said one word Both. Whod ever have though a King of England could have such an evil sense of humour?

Buy setting the terms of the trust in such a broad way, the unworkable nature of the Australia Act of 1940 became truly apparent as soon as people had the time to look at the implications. As a Trust set up under the auspices of the Courts, the Committee had been established with Text Book terms of reference. That is they were to control the Trust for the benefit of the beneficiary or beneficiaries. By defining the beneficiaries as both the Crown and the People, the Cabinet found its self in the unenviable position of being personally liable in law for the decisions they made as a Cabinet and so open to legal suit by both the Crown and the populace if they failed in their duty of care.

The only saving grace for our politicians was that any suit had to come from both parties, that is a suite by a private individual or organization had to be a joint action with the Crown. This is where that little loose end that was the office of Governor General came into its own, as it was after all still the direct representative of the Crown. The other angle was that the beneficiaries (ie we the people) are entitled to petition the Trustees.

In practice the GG is nominated by the President as PM and confirmed by both the Crown Committee and the Parliament. So in theory the GG should be under the thumb of the President and so Cabinet should be protected from litigation as Trustees or unwanted petitions because the GG has to join any such action. I repeat - in theory. The thing is, that the GG is confirmed by the Parliament where as the President is not (as the President). So the dismissal of a GG invokes an automatic motion of no confidence in the PM, making any confrontation a between the President and GG a fight to the political death.

There is also the little problem of the present GG not being under any obligation to former Committee/Cabinet members who might now be in opposition. And this isnt taking into account the rogue factor of the GGs personal conscience and his Oath of Office. GGs being typically respected public figures in the final years of their working lives, they are usually former Judges, political elder statesmen, retired Generals/Admirals even the odd Churchman has snuck in over the years; people of great reputation with nothing much else to lose. Their pension is guaranteed and they are not held to be liable for their actions as GG once they have passed from office.

Let us say the Office of Governor General calls for great tact and diplomacy. But that isnt the end of the story, because the GG now had to deal with legal matters relating to the Committee, he of course required legal advice. Normally the Attorney General would handle any public legal issues for the GG, but the AG was a Cabinet post and the direct conflict of interest was obvious. Thus the GG ended up with his own autonomous legal office The Office of the Crown Solicitor for the Governor General or CSGG for short. People being people and lawyers being lawyers, the potential suits against Trustees and petitions are a never-ending stream. These had to be dealt with and in doing so from case to case precedents were set and a new branch of Common Law evolved (the GG often being sued in relation to join actions the CSGG has rejected).

So today the Crown still rules Australia, but it does not only at the behest of its subjects, but through their elected representatives who in turn hold the crown in trust. The executive Cabinet have almost unrestricted powers but are personally responsible and liable for their actions not only through the ballot box, but also under the full weight of Civil Law, and both the Government and people have an effective Ombudsman in the form of the GG.

The whole arrangement has been codified to some extent under the Governance Act of 1976; to the point where the GG if presented with sufficient evidence and obvious support (a big enough petition) can call for a referendum on any issue under the authority of the Committee of Trustees. Strangely enough, some opinion has it that the GGs position was reinforced under the Industrial Relations Act of 1990, because as an Employee of the Crown but not the Commonwealth Government, he/she would be entitled to claim under the Unfair Dismissal laws.

This isnt the full story of course, doctorial theses have been written about the various shenanigans between the GG and Cabinet over the years and if you care enough I suggest you research the subject for yourself, there are certainly enough books on the topic.

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