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Wednesday, 22 August 1973
Page: 256


Mr KILLEN (Moreton) - I suppose that this is a very curious time of the day to be discussing what appears to be a Bill of no great consequences. The Bill, in my view, nevertheless represents an historic mark in the march of our people. It seeks to change the royal style and titles of Her Majesty the Queen as the sovereign of this country. According to the Prime Minister (Mr Whitlam), 2 specific changes will be made. The first change is an amendment to delete from the royal style and titles all reference to the United Kingdom. The second change is to delete reference to the title 'Defender of the Faith'. I suppose that at first blush this would seem to be no other occasion than merely one upon which in some curious nostalgic way to trace the development of the title 'Defender of the Faith' and to look at the links which this country has with the United Kingdom. I intend to excuse myself from such an excursion.

I wish to look at what I regard as the significant feature of this Bill. In my view, it does more than make 2 rather meagrely casted amendments. It does far more than delete reference to the United Kingdom in the royal style and titles. It does far more than merely seek to delete the title 'Defender of the Faith'. One of the curious things in life - I hope I will be forgiven for engaging for a moment or two in a philosophical foray - is that so seldom does any generation believe that it is actively associated with history. I suppose most of us take the view that history, by the large, is something which has gone before us and is in no way actively associated with us. We tend to regard the times in which we live as in no way actively participating in the great spread of history. Of course, a moment's reflection shows that this simply is not the case.

I can vividly recall on one occasion at Easter, shortly after the Soviet invasion of Czechoslavakia, going across the border between Austria and Czechoslovakia. I hope, Mr Deputy Speaker, that I will have your indulgence to speak of this occasion; you will see the relevance of it in a moment. Just near the border of those 2 countries is to be found what remains of an old Roman fort. The fort was part of a Roman line of communications stretching from Rome itself right through the whole of Western Europe and to the British Isles. All that remains of the Roman Empire today, as far as that part of the world is concerned, is a collection of stone and rock. As I looked at it - I can see it in my mind's eye - these words came back 'to me:

.   . the words of Caesar might

Have stood against the world: now lies he there And none so poor as to do him reverence.

The Roman Empire disappeared, and today we are involved in the consideration of the disappearance of yet another empire - the British Empire. I voice no complaint about that. The complaints of years gone by largely went unnoticed, indeed by some in this House. But that is a controversy of years gone by. The simple fact is that we have been and we are involved in this tremendous change. Probably the last generation has seen more change in this Australian institution and probably more change in the Commonwealth of Nations and the Empire than has been seen in any other empire.

I think it does us good occasionally not to pretend that something has not happened but to look back and to see what in fact has happened and why it has happened. The position of the monarchy in relation to Australia and its position in relation to what I might without offence describe as being the other Crown countries in the British Commonwealth of Nations, are by no means identical. This is the substantial thesis that I want to put to the House this evening, to beg of its time for a few moments so to do. The fact remains that the British Empire, which Field-Marshal Smuts was able to describe in the 1930s as one of the 4 great powers, has gone. The Commonwealth of Nations today is one of those amorphous gatherings of nations from which it is very difficult to distil anything in common. If one comes more definitively to those countries which still regard themselves as monarchies one finds great changes indeed going on in relation to the nation in its corporate sense and to the monarchy as an institution.

In 1961, when the United Kingdom sought to join the European Economic Community it was a move which I must confess - I suppose the national Parliament should not be despised as being a confessional box - was the end of what I regarded and held deeply as all prospect of the Commonwealth emerging as a third world force - something to fit in those days between the messianic mood of Moscow and what I might without offence describe as the egregiousness of Washington. I thought the Commonwealth could act as something to bridge the two. I saw that hope and that world shattered before me. I wrote at the time about it. I know that a lot of people thought that what I wrote at the time may have been a long distance away from reality. Be that as it may. But at times we all are victims of dreams and of hopes, and if men ever get to the stage where they are not to be inspired by hope or not to be persuaded by dreams, we will live in a pretty desperate and dull world.

In 1961, when Britain sought to join Europe, I wrote to the 'Times' of London on the point of the royal style and titles and on the effect on the monarchy. This is what I want to put to the House. I wrote:

Mr Macmillanhas given assurancesto Commonwealth leaders that Britain will not join the Common Market without seeking to make adequate provision to safeguard their respective trading positions. These . assurances have been welcome. Nevertheless, Mr Macmillan has given no assurance whatsoever regarding the ultimate political consequences of British membership of the Common Market.

What is to become of the monarchical institution within the framework of European unity? No British Minister has made the slightest attempt to answer this question. How, one may ask, can allegiance be given to a European Parliament and to the monarchy? What if circumstances promoted a conflict between the allegiances? Which allegiance would have priority?

I raise that not to seek to vindicate a view, be it regarded as puny or substantial, of 10 years ago, but to persuade a reflection upon the importance of institutions within our framework. If one reads a White Paper prepared by the Lord Chancellor in May 1967 on the legal and constitutional implications of the United Kingdom membership of European communities one is left with an overwhelming impression that British membership of Europe transcends completely any consideration of joining some tariff, some economic or some merchant operation. For example, I shall read from paragraph 4 of the Lord Chancellor's paper. He said:

The novel features of the European Treaties lie first in the powers conferred on the Community institutions to issue subordinate instruments which themselves may impose obligations on the Member States or may take effect directly as law within them;

This proposition, of course, expressed to any person with a tolerable acquaintance with the legal relationship between the monarchy and Parliament and the monarchy and the individual, can only be described as being profound. As confirmation of that view I refer the House to the views expressed by that distinguished writer, Professor Wade, when writing in the 'Law Quarterly Review' of January 1972. He observed:

We are now to enter a new sort of international club where the rules require more than mere restraint: they require the integration of 2 legal systems which may conflict at many points. Our obligation is to ensure that community law is paramount.

Again, with a view to pointing out what has happened I refer to what was written by Lord Denning when he was Master of the Rolls and who is again Master of the Rolls, in a foreword to a book entitled 'Common Market Law' which I think was published in 1961 or 1962. With typical Denning perception and vigour he wrote:

Our Constitutional law must be rewritten so as to show that the sovereignty of these islands is not ours alone, , but shared with others. Large parts of our Statute and common law must over the years be adjusted.

His Lordship continued:

The last word on the Treaty will rest, not with our courts, not even with the House of Lords, but with the Court of Justice at Luxembourg.

What I have quoted is in my opinion evidence of one simple but very profound prop osition, namely, that the political consequences of British entry into Europe upon the institution of the monarchy are as yet unseen and this even by those who live in the United Kingdom itself. The consequences in an indirect way for Australia 1 shall seek to invite the House to consider in a moment or two. It is impossible to read the Treaty of Roma without coming again, I would submit, to the conclusion that what is aimed at ultimately is a political unity.

Within the context of the United Kingdom these propositions emerge. It is the Queen, in Parliament, which makes the laws. When a person seeks a writ from a court it is the Queen's writ which flows. When a person seeks an order of prohibition, an order of certiorari or an order of mandamus it is the Queen's orders which flow. The Common Market treaty seeks ultimately to have a common citizenship. How can the citizenship of the British citizen be diminished without affecting pro tanto the position of the citizen in relation to the monarchy? Merely to ask these questions is to identify what is happening. In relation to Australia that happily has not happened. Let us not forget that the Prime Minister is Her Majesty's Prime Minister of Australia and the Leader of the Opposition (Mr Snedden) is Her Majesty's right honourable Leader of the Opposition. Every person who comes into this Parliament commits himself in one way or another to allegiance to the Queen. Part I, section 1, of our Constitution states:

The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called 'The Parliament', or 'The Parliament of the Commonwealth'.

Do not for one moment think that this is talking about some abstruse point of law. This is a Constitution not to be lightly altered and which, indeed, experience has shown cannot be lightly altered. The three - the Queen, the Senate and the House of Representatives - make up the Parliament of the Commonwealth of Australia. I know there are some who take the view that this is mere fiction - something which over the years has degenerated into a formality where the Prime Minister gives advice to the GovernorGeneral, the Queen's representative, and that advice is automatically taken. I wonder whether the Prime Minister will forgive me if T remind him of the words of a very distinguished predecessor of his, not in the office of

Prime Minister, but as Leader of the Australian Labor Party, the right honourable Dr Evatt who, in his great treatise, 'The King and His Dominion Governors' wrote:

Surely it is wrong to assume that the GovernorGeneral ... a mere tool in the hands of the dominant party.

Those words were written with very great authority. Wherever one goes one finds that that is the case. It would not be out of point to observe that Professor Eugene A. Forsey in Royal Powers of Dissolution' - the word 'dissolution' is on the lips of a surprising number of people on both sides of this Parliament - wrote: the danger of Royal absolutism is passed; but the danger of Cabinet absolutism, even of Prime Minister absolutism, is present and growing. Against that danger, the reserve power of the Crown, and especially the power to force or refuse dissolution, is in some instances the only safeguard. The Crown is more than a quaint survival, a social ornament, a symbol, an automation with no public will of its own. lt is an absolutely essential part of the Parliamentary system. In certain circumstances the Crown alone can preserve the Constitution or ensure that if it be changed it shall only be the deliberate will of the people.

I refer again to Part I, section 1, of the Australian Constitution. Whatever the Prime Minister's views may be on the -

Debate interrupted.







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