On 16th September, Australia’s nearest neighbour - Papua New Guinea - will celebrate thirty years as an independent state within the Commonwealth of Nations. Significantly, it achieved independence with a truly home grown constitution. Back in the 1950s there had been little talk of self-government (let alone independence) for Papua New Guinea. Indeed, at that time, self-government was thought to be a century or more away. However, the wave of decolonizations in the early '60s encouraged an accellerated timetable. In June 1972, when Andrew Peacock was Minister for External Territories, Papua New Guinean leader Michael Somare established a Constitutional Planning Committee charged with developing a constitution for an independent nation. The committee began a thorough process of consultation throughout the length and breadth of the country. This was, traditionally, the Pacific way. However, Australia was soon to force the pace.
After December 1972, the overriding aim of the Whitlam government was to grant independence as rapidly as possible. So rapid did the hand-over become, that changes ordinarily taking twenty years to effect were compressed into less than two, and would have been compressed even further were it not for Papua New Guinean objections. Self-government was granted in December 1973, leaving the Australian administration with responsibility for the courts, the legislature, electoral affairs, foreign affairs and defence. Within twenty months, these remaining responsibilities were also transferred.
The expectation in Canberra was that Papua New Guinea would opt for a republican form of government with a president as head of state and a prime minister as head of government. Indeed, the first constitutional drafts out of Port Moresby provided as much. Chief Minister Somare and other PNG leaders gave due consideration to the republican model but rejected it, deciding instead to invite Queen Elizabeth to become Queen of the independent nation. Eyebrows were raised in Canberra but the decision was accepted. The Queen in due course agreed, Sir John Guise was appointed the first Governor-General, and Michael Somare (as he then was) the first Prime Minister. That a newly independent nation in the South Pacific should, of its own volition, take such a step, confounded the republican commentators, but it was very popular amongst Papua New Guineans. My interest in these events lay in the processes by which the invitation to the Queen was extended and accepted. This provided some fascinating insights into the workings of our constitutional machinery.
Firstly, some historical background. By the early 1880s, the Australian colonies had become extremely anxious about Imperial German activities in the region. When, in 1883, it seemed likely that the German government would annex eastern New Guinea, the Premier of Queensland, Sir Thomas McIlwraith took the extraordinary step of attempting to annex it for Queensland. This was disallowed by the British Secretary of State for the Colonies, Lord Derby on the basis that a colonial government had no authority to annex other colonies. However, on 3rd November 1884, the German government did indeed annex the northern part of New Guinea as Kaiser-Wilhelmsland, prompting the British government three days later to annex Papua as British New Guinea. These events were crucial in stimulating interest in federation amongst the Australian colonies and, within a decade, the movement towards federation was well and truly under way.
German New Guinea was occupied by Australian forces during World War I. It was mandated to Australia by the League of Nations in 1920 and became known as the Territory of New Guinea. This was reconfirmed by the United Nations in 1947. In 1949 the territories of Papua and New Guinea were merged administratively, but remained separate constitutional entities until self-government in 1973.
Ethnically, the indigenous people fell into four main groups: New Guineans (principally from the north of the main island), Papuans (from the south), Highlanders, and Islanders. The existence of these groupings, and differences amongst them, has played a considerable part in shaping the country’s political and constitutional history. In the Western Highlands in particular, the population was strongly against self-government, and remained so even after a date for this was set. Some parliamentarians were threatened with physical violence by their own constituents if they voted for self-government. “We will kill you and cut you into pieces and throw you into the river” one MP was told. There was a widespread belief that independence would be a kind of Australian desertion, and that when the Australians left they would take all the wealth with them. In such a climate of cultural anxiety and uncertainty, one can see how the continuing presence of the Queen, whose image had appeared on coinage, paper currency and countless publications for decades, would be particularly reassuring.
For Michael Somare, it also made good political sense not to have an indigenous President, whose unknown ambitions, ethnic loyalties and untested powers might, in time, make him a political rival. The functions of a constitutional monarch on the other hand, were already well-known and carefully circumscribed. They were governed by long-standing conventions, and it was precisely because these were conventions that they could continue to apply even after the severing of legal ties with Australia. Somare, the father of the nation, went on to hold the office of Prime Minister on three separate occasions and he holds it at the present time.
In 1975 I was at the Australian High Commission in London, with responsibilities that included matters relating to Papua New Guinea. Early in that year we received a request from Canberra on behalf of Chief Minister Somare, asking the High Commissioner to inquire of Buckingham Palace whether the Queen would be willing to accept the crown of the soon-to-be-independent nation. It was explained that preliminary drafts of the constitution, which had anticipated the creation of an office of President, would be redrafted to accommodate the change, if Her Majesty agreed.
The High Commissioner at that time was Sir John Bunting, a very distinguished and experienced Australian public servant. Lord Carrington, who knew him well, described Sir John as ‘shrewd, wise and kindly’, which is exactly how I remember him. For many years he had been Secretary of the Prime Minister’s Department and Secretary to the Cabinet, notably during the Prime Ministership of Sir Robert Menzies. He had also worked as Official Secretary at Australia House some years earlier, and knew the London scene very well.
Sir John and I called on the Queen’s Private Secretary, Sir Martin Charteris and we were advised that before the Queen could respond to the invitation, she required - as a constitutional monarch - proper constitutional advice, which is to say, advice from her Prime Minister. The procedure for this had been well established during Britain’s long imperial history, when former colonies had chosen to be realms rather than republics at independence. However, in those cases it had been the British Prime Minister who had advised the Queen. In the case of an Australian territory, it was the Australian Prime Minister who was expected to perform this role. Chief Minister Somare would become Prime Minister at independence but, until that time, he had no direct constitutional link to the Sovereign and so had no standing to advise Her Majesty. Equally, of course, the British Prime Minister had no standing in a matter concerning an Australian territory.
In the circumstances, one might have thought it simple enough for the Australian Prime Minister to offer advice to the Queen at the request of the Chief Minister (or, more formally, the PNG Constituent Assembly), but Mr Whitlam preferred not to perform this role. The Queen therefore was left in the position of having no one to advise her. For a constitutional monarch, this is an uncomfortable position in which to be.
To understand the context of Mr Whitlam’s reluctance, we must look at some of the issues in the Australian political and constitutional environment of the mid 1970s and, in particular, relations between the Commonwealth and the States. I mentioned in my earlier paper that, notwithstanding the impact on the Commonwealth of the 1931 Statute of Westminster, the United Kingdom could (in theory) until 1986, legislate for the States, intervene in the workings of State governments, and oversee gubernatorial appointments. Appeals from decisions of State Supreme Courts could go to the Judicial Committee of the Privy Council even though this channel had been closed from the High Court, to all intents and purposes. These anomalies existed because of the States’ residual constitutional links with the former imperial power.
In their tussles with the Commonwealth in the 1970s, the States were suspicious of Canberra’s motives for constitutional reform, and drew comfort from their residual links with the United Kingdom. They regarded these links as an insurance policy against a marauding Commonwealth. They certainly did not want to see the Commonwealth providing the sole channel for communications with the Queen, for whoever controlled the channel controlled the advice, and whoever controlled the advice had the last word on what might become important constitutional issues.
For its part, the Commonwealth Government was keen to see the residual links severed as quickly as possible. In 1974, the Commonwealth took the unusual step of exploring with the United Kingdom Government the possibility of acting bilaterally to sever the remaining links between the States and the United Kingdom. A meeting was convened in London at Australia’s request, involving officers of the Commonwealth Attorney-General’s Department, the Lord Chancellor’s Office and the Foreign and Commonwealth Office. I attended from the High Commission. The British listened politely and expressed their willingness to terminate the obsolete constitutional links but only if requested to do so by all of the Australian States. They explained that they could not come to an arrangement with Canberra alone in respect of matters that materially affected the States. It is worth recalling at this point that the Statute of Westminster expressly provides that:
‘Nothing in this Act shall be deemed to authorize the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia.’
Eventually of course the issue was revisited, the States did request changes, and the Australia Acts of 1986 were the result. However, twelve years earlier, the States were in no mood to embrace Canberra’s plans for their constitutional future.
Against this background, the Australian Government was determined not to leave open the possibility of any residual constitutional ties between Papua New Guinea and Australia. And so, it was decided that Australia would not ‘cede’ independence to Papua New Guinea by any formal action, nor would it create a ‘Papua New Guinea Constitution Act’ with a Constitution attached (equivalent to the United Kingdom Parliament’s Commonwealth of Australia Constitution Act). Instead, Australian laws applying to Papua New Guinea would simply be withdrawn by an Act of Parliament, thereby creating a vacuum which would be filled by the new constitution authorized by a Papua New Guinean Constituent Assembly.
It was felt that if the Australian Prime Minister formally advised the Queen to accept the Crown of an independent nation, this might, in itself, imply a constitutional nexus between Australia and Papua New Guinea after independence. With hindsight, I think this concern was exaggerated, especially since the invitation to the Queen had not originated with Australia but with the Papua New Guineans themselves. However, such was the reasoning at the time.
What alternatives did Papua New Guinea have? Its Constituent Assembly could hardly have adopted a monarchical constitution in the hope that the Queen would consent after the event. Equally, it would have been absurd to create an office of President at independence, only to abolish it a few weeks later in favour of a monarchy. Even if the latter course had been chosen, the Queen would still have needed advice, but would have turned to her United Kingdom Prime Minister since, by then, Australia would have been out of the constitutional picture.
The Australian Prime Minister’s reluctance did not help the Queen who, in the continuing absence of advice, would probably have felt unable to accept the invitation. Nevertheless, Australia was still responsible for Papua New Guinea at that time, and the High Commission had been charged with pursuing the matter on PNG’s behalf. So, I had two further meetings with Sir Martin Charteris - at Buckingham Palace and Windsor Castle - and also with Sir Denis Dobson, constitutional expert and Permanent Secretary to the Lord Chancellor, to see whether a formula could be devised that would satisfy Australian concerns whilst enabling the Queen to accept the invitation.
The formula that emerged required the Australian Prime Minister’s advice to be couched in negative terms. He was to advise the Queen that nothing in the draft constitution would cause her embarrassment or provide a reason not to accept the Crown, should she wish to do so. An examination of the draft text revealed that there was nothing in its provisions that would, prima facie, cause difficulties for Her Majesty. This formula was endorsed by all concerned, including Mr Whitlam, and events took their intended course. Fledgling Papua New Guinea thus acquired the continuity and well-established conventions of the monarchy, whilst a distinguished Papua New Guinean brought national qualities and priorities to the role of Governor-General. The Prince of Wales represented the Queen in Port Moresby on Independence Day and read a message from her to the new nation.
There had been no Sir Samuel Griffith or Sir Ivor Jennings to assist the newly emergent country in drafting its constitution. The Australian Government deliberately stayed at arm’s length from the drafting process, which was left to a small band of relatively inexperienced PNG lawyers and some independently engaged expatriates. Frankly, Papua New Guinea was far from ready to be tossed out of the constitutional nest in September 1975, but having seen which way the wind was blowing, the Government there made a great effort to be as ready as possible. It is to their credit that the constitution has worked as successfully as it has over the past thirty years.
The PNG document as a whole is far more wide-ranging, detailed and aspirational than its Australian counterpart. For example, it contains a catalogue of national goals and principles, including a provision that sovereignty should not be undermined by dependence on foreign assistance of any sort and, in particular, that no investment, military or foreign-aid agreement or understanding should be entered into that leads to substantial dependence upon or influence by any country, investor, lender or donor. Australia remains the largest single donor, with aid to PNG approaching $500 million per annum. This requires a fine line to be walked between assistance and interference, particularly bearing in mind recent efforts by Australia to improve the quality of governance and delivery of services within Papua New Guinea. Australian government irritability over Papua New Guinea’s unwillingness to provide immunity from prosecution for an Australian police contingent, and suggestions that even the constitution itself should be amended to accommodate an Australian aid programme, show how important the issue of national sovereignty remains. It seems to me that economic dependence on such a scale is a far greater threat to sovereignty, national dignity and bilateral relations, than any theoretical constitutional ties could ever be.
The provisions in the PNG Constitution relating to the Queen and to the Governor-General are notably different from those in the Australian Commonwealth Constitution, and are spelled out more precisely and in greater detail, particularly in respect of the Governor-General. Matters which, in our system, are covered by unwritten conventions, are codified in the PNG instrument. This happened, I suspect, because the drafts were originally prepared with a republican structure in mind, and in that case, monarchical conventions would not have applied. The decision to replace a President with the Queen (or more particularly, with a Governor-General) was taken relatively late in the day, and was not confirmed until quite close to independence. By then most of the other drafting work had been completed and had received general acceptance. There are only half-a-dozen short provisions of a formal or descriptive nature relating to the Queen, but almost sixty substantial provisions dealing with the Governor-General. The latter would have applied equally well to a President and were no doubt originally drafted for this purpose.
In keeping with its republican origins, the PNG Constitution declares that sovereignty is vested in the people. It states that Queen Elizabeth II had been requested by the people through their Constituent Assembly to become the Queen and Head of State of Papua New Guinea and had graciously consented so to do. The provisions referring to the Queen are described as extending to Her Majesty's heirs and successors in the sovereignty of the United Kingdom. The Constitution provides that the privileges, powers, functions, duties and responsibilities of the Head of State are exercised and performed through the Governor-General, and that references to the Head of State are to be read as applying to the Governor-General, except where there is specific provision to the contrary – say, in relation to the appointment of a Governor-General. Generally, the Head of State acts only in accordance with the advice of the National Executive Council or another body or authority prescribed for a particular purpose. The Constitution provides that the question of what (if any) advice was given to the Head of State, or by whom, is non-justiciable.
The Governor-General must be a citizen who is qualified to become a member of Parliament. He or she must also be a mature person of good standing who enjoys the respect of the community (although the latter is also non-justiciable). No person may occupy the Governor-Generalship more than once without a two-thirds majority vote of Parliament, and no person is eligible for appointment for a third term. The Governor-General is appointed by the Queen on the advice of the National Executive Council acting in accordance with a nomination of the Parliament. The nomination is made by a simple majority vote, and the Speaker is required to call a meeting of the Parliament within three months of the expiry of a Governor-General’s term to nominate the next Governor-General. The normal term of office is six years. A Governor-General may be dismissed from office by the Queen on the advice of the National Executive Council given in accordance with either a decision of that Council or a decision by an absolute majority of the Parliament. There is also provision for dismissal on grounds of physical or mental incapacity, and suspension for failure to act on the advice of the Executive Council or for action without, or contrary to, advice. If there is a vacancy in the office or the Governor-General is removed from office or is unable to perform his duties for some other reason, the Speaker of the House becomes acting Governor-General, and if the Speaker is absent or incapacitated, the Chief Justice (if a citizen) undertakes the role.
The Papua New Guinea Constitution makes specific provision for the office of Prime Minister. It allows the Parliament to move a motion of no confidence in a Prime Minister without going to an election, provided it nominates a replacement Prime Minister. The Head of State (which in practice means the Governor-General) is required to dismiss the Prime Minister if Parliament passes such a motion of no confidence. There is also provision for suspension on grounds of physical or mental incapacity. The Constitution provides for allegiance to be sworn to the Queen, her heirs and successors according to law.
The Australian Constitution, now one hundred and five years old, is remarkably compact and to the point compared with the Papua New Guinean. It is tempting of course, to try to make any constitutional document as idealistic and all-embracing as possible, but the loftiest and most detailed formulations are as nought if they are not backed up by widely accepted standards and practices. Consider, for example, the constitution of the now-dismantled Soviet Union, where I served in the late 1970s. On paper, this was the charter of an exemplary society. Its articles guaranteed freedom of speech, the press, assembly, street processions and demonstrations, freedom of conscience, non-discrimination on national or racial grounds, the inviolability of the person, the inviolability of the homes of Soviet citizens and the privacy of their correspondence. We know that the words of the constitution were a sham because, in practice, the State was all-powerful. Not the media nor the parliament nor the courts could protect ordinary citizens in the face of such power, even though the constitution proclaimed otherwise. Ultimately then, the health of a society depends on the preparedness of its people to find out how their rights and freedoms are guaranteed and to keep the instruments of those rights and freedoms in working order.
Australia’s shares the Queen with four of our neighbours: Papua New Guinea, New Zealand, Solomon Islands and Tuvalu. She is Queen of another dozen or so countries as well and, occasionally, it is claimed that this compromises in some way the projection of our national identity. If that is so, then the other fifteen countries must be compromised as well – although they don’t seem unduly troubled by this. After all, the characteristics of the Crown are identified with the Sovereign, but its practices are entirely a matter for ourselves.
In the course of five very different overseas postings, I was never conscious of any problem arising from the fact that we share our Sovereign with other countries. Indeed, it was often an advantage. In Commonwealth countries, I felt it gave Australia an entrée, not for everything of course, but for many things. It proclaimed, in effect, that we could deal with each other not just as friendly nations but as constitutional kin with similar standards and shared institutions. In authoritarian countries, where there was scant regard for individual liberty and the rule of law, I was glad that Australia belonged to a community of nations which had such a long tradition of personal freedom and parliamentary government. In my view, our place in the world is enhanced, not diminished by this association.
As a young man on my first posting, with an interest in constitutional law as well as diplomacy, I found the Papua New Guinea issue a fascinating exercise. Amongst other things, it confirmed my view that constitutional monarchy is a most flexible and accommodating system, which can not only adapt pragmatically to the requirements of modern government but can also cross boundaries without compromising national integrity or sense of identity. Thirty years on, I have no reason to change this opinion.
* Peter Bassett joined the Australian Diplomatic Service in 1972 and, over the next twenty years, served in the Department of Foreign Affairs and Trade and in Australian embassies and high commissions in London, Moscow, Rangoon, Wellington and Tarawa where he was Australian High Commissioner. From 1992 to 1999 he was Official Secretary to two Governors of South Australia.