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"...I feel it my bounden duty to remind you at once that you derive your authority from His Majesty, through me, and
that I cannot possibly allow the Crown to be placed in the position of breaking the law of the land.

I must ask you, therefore, either to furnish me with proof that the instructions in the circular are within the law, or,
alternatively to withdraw the circular at once.

I do not wish to press you unduly, but the matter appears to me to be of an urgency which admits no delay, and I must ask
for a definite reply by 11 a.m., tomorrow, 13th May."

                               Letter from Sir Philip Game, Governor of New South Wales, to Premier Jack Lang, 1932.



Illegality and the Crown.


Witnessed earlier was a "passive" way in which the Crown defends against executive lawlessness, by making the legality of orders and directives a burning question for all servants of the Crown. But what should– or could– Her Majesty’s representative do personally when confronted with a delinquent government?

 

Replying to that question necessarily involves answering another, namely, what do the Queen and her representatives actually do on a day-to-day basis? A popular misconception is that their role is purely ceremonial: making speeches, cutting ribbons, bestowing awards and opening fêtes. But, echoing Evatt, "It is a profound mistake to regard the royal functions as merely ceremonial or formal in character." Although rarely seen by the public, the main activity of the Crown is as the ultimate guarantor of constitutional government, an activity manifested most days by the tedious duty of the red boxes.


Rather than by some glittering bauble, the emblem best summarising the Crown’s work is the red box that Cabinet papers are carried in. Usually the Prime Minister and his Cabinet impose their will upon the country in an executive fashion, without the use of Parliament. They dictate orders relevant to their portfolios and these orders are obeyed directly by the Public Service, through the departmental hierarchies, and imposed upon the public. Although these orders are devised and written by elected politicians, they are formally issued in the name of the Crown and take one of two forms: ordinary ministerial directives, and Orders in Council.


An Act of Parliament (say, a Motor Vehicle Registration Act) creates a law concerning some aspect of the community (in this example, commanding that all cars be registered before driven on public roads). It will often refer to the Minister responsible for administering it (here, the Transport Minister) and give him or her discretionary powers to make regulations to make the law work (to flesh out all the details and guidelines). The details of these regulations can be written, revised and revoked by Ministers on their own authority whenever they think it necessary; the personal instructions issued by Ministers to their own staff to do this are "ministerial directives".

The same Act may also confer much broader discretionary powers to Ministers over the administration of the law it creates (say, the power to command different scales of fees for different sorts of vehicles). Given the inter-departmental rivalry between Ministers (a Transport Minister may want to whack a hefty levy upon heavy trucks thundering along his lovely roads, while the Agriculture Minister may protest that those same trucks are the lifeline for her farmers to get their produce to market, and shouldn’t be disadvantaged), a safeguard over the way these broader powers are wielded is for the Act to require them to be exercised "by Order in Council".

An Order in Council is a formal document stating that a particular executive power is to be exercised a specific way. Its content, decided by the relevant Minister, must also have the unanimous support of Cabinet (usually expressed by their initials scribbled on its folder), a useful constraint. More relevant to our concerns, the Order also requires for its validity the final signature of the Governor or Governor-General. Orders in Council are commands issued by the Executive Council, i.e. the Cabinet plus the Queen’s representative. Technically speaking, they are orders given by the Governor for the administration of his government; in reality this is an almost empty historical form, and has been for well over a century. The Cabinet is the issuer of the commands, Her Majesty’s representative merely a witness. Yet as the Orders are given as a consequence of his signature, it’s the Governor’s responsibility to understand what is being done in his name by the true Executive.

The scale of his task is best understood through an example: in the early 1980’s Queensland’s Executive Council used to meet 51 weeks in the year, as well as for special meetings. In each meeting the Governor would sit at a table, attended by a number of Ministers (usually including the Premier). On the desk would be a stack of Orders in Council awaiting signature, a stack usually twelve inches or more in height per meeting. For each Order there might also be a bundle of accompanying papers explaining it. For the Governor to understand the implications of signing, all of this documentation– carried about in the now-notorious red boxes– has to be read each week before the meeting. My father tells the story of when he was a newly-elected backbencher, proudly showing a group of schoolchildren from his constituency around Old Parliament House. Barging into an anonymous-looking room with the children, he realised it was already occupied by a elderly man sitting at a desk, surrounded by paperwork. It was Governor Sir Colin Hannah, "doing his boxes" in private preparation. Much chastened, my father retreated before his baleful viceregal glare.

 

But the vital phrase is "almost empty historical form": although the Queen’s representative is reduced to being a witness, the role enables him to exercise the famous rights "to be consulted, to encourage and to warn" as a non-politician observing politicians. How much notice they take of his advice depends on them; the transient nature of viceregal office implies he won’t have the lifetime’s experience of such briefings that lends weight to the Queen’s advice, although the fact he’s a distinguished Australian suggests life experiences that would make his opinions worth hearing. And when such a witness within the highest echelons of the Executive discovers unlawful behaviour being done in his name, what is he to do about it?

 

In 19th Century Canada this problem was contemplated by Alpheus Todd, who wrote that if a Governor has "reason to believe that their [that is, the Cabinet Law Officers’] legal judgement has been unconsciously biassed by political considerations, so that he cannot accept their interpretation of the law", he is not bound by these opinions and is "free to ask further assistance from elsewhere to aid him in his judgement". Todd’s view gained some weight in a despatch from the Colonial Secretary Sir M. Hicks-Beach on the 5th of June 1878, warning that a Governor couldn’t shelter himself behind the responsibility of his Ministers in justifying the legality of any questionable proceeding. The dispatch stated that in all doubtful cases the Governor should require a written memorandum from the Colonial Law Officers certifying that no infraction of law is involved– a memorandum from them in their capacity as lawyers, not as political advisers. If no such memorandum was forthcoming, then the Governor’s responsibility to his office might require him to delay the controversial action advised by his Ministers until he could decide, upon the circumstances, whether to accede to the advice or to refuse. This refusal might cost him the resignations of his Ministers.

 

This view proved controversial, the chief danger being that, for a Governor to decide to act upon the illegality of ministerial advice, he would need impartial judicial advice identifying its illegality. For a Governor not learned in law this implies external advice, from lawyers who might well have private political agendas colouring their opinions. Merivale, a British permanent Under-Secretary for the Colonies, had warned that for a Governor:

    "His responsible Ministers may (and probably will) entertain views quite different from his own. And the temptation to surround himself with a camarilla of special advisers, distinct from these Ministers, is one which a Governor must carefully resist."

Based on this and a few other examples of acquiescence Evatt concluded that

    "constitutional practice excludes from the consideration of the Governor in any Dominion the determination of all legal questions because direct responsibility for the action of the Governor in assenting to Bills or any proposed administrative act rests upon the Ministers holding office."

Were any other principle adopted, he warned, it would cause difficulties:

    "Unless the Governor is a specially trained lawyer...he will be unable to determine the disputed legal issue without seeking advice from outside the circle of his responsible Ministers. How can he be sure that the official advisers are wrong, and that the outside advisers are right? He is on perfectly safe ground if he allows all legal questions which are at all susceptible of argument to await determination at the hands of the judicial power."

But Evatt’s view is vulnerable to a number of strong criticisms. It is logically flawed and in many cases impractical in real politics; the most obvious example being a crisis in Australia during the Depression.


New South Wales in 1932 had as its Premier one John T. Lang, or "Jack" Lang, a Labor Premier who had been re-elected in October 1930 with a large majority in the NSW Lower House (the Legislative Assembly). Four months later his government had run into trouble with its attempts to abolish the NSW Upper House (the Legislative Council) without referendum, attempts thwarted by the High Court of Australia who in March 1931had declared a referendum would prove necessary. Lang, having resolved to appeal to the Privy Council in London against this decision, promptly found himself engaged in political warfare by the NSW Upper House, in which his own supporters were in a minority and which rejected his Bills. The Lang Ministry retaliated by advising the NSW Governor, Air Vice-Marshal Sir Philip Game, to appoint eighty additional Labor members to the Legislative Council, thus swamping it. Angered at what he saw as grossly improper advice, Sir Philip refused, reminding Lang of the existence of the reserve powers. The latter retaliated publicly: the Sydney Morning Herald reported the Crown Law Department had been ordered to draft documents to be dispatched to London demanding the recall of the Governor. At the time the risk of terminal confrontation was defused by Sir Philip, who wrote a letter to Lang warning him that although advice to override the Legislative Council by stacking its membership wouldn’t be acceptable, he saw no reason to demand Lang’s resignation or to take any further action. The recall documents were not sent to London.

 

Observing at the end of June that the struggle between Lang and the Council persisted, he wrote another letter to Lang offering his assistance in mediation. In Britain a recent crisis among political parties had been resolved by King George V exploiting his position as apolitical Head of State: he had summoned a Conference in London, inviting all relevant political leaders to participate for the good of the country. Politicians who would never have responded to their opponents’ overtures were able to accept the King’s invitation without loss of face, and resolve some of their grievances around a table. Game offered to do the same in Sydney, providing a neutral venue for political differences to be resolved and pleading with the Premier to attempt it, but Lang rejected his offer of mediation, angrily describing it as "impertinance", and refused to avert a confrontation over the Council. Finally in November 1931 Sir Philip acquiesced to Lang’s demands and appointed twenty-five new Labor nominees to the Council, provoking public outrage. (The Sydney Morning Herald, for instance, telephoned Government House to inquire whether its occupants were all mad, and condemned the appointments in an editorial leader.) As events would show, even this measure would prove inadequate for some of the Premier’s legislation to pass through the Council.

 

Trouble had already been brewing on another front. Crippled by the Depression, wool and wheat prices having collapsed, New South Wales found itself owing both the Commonwealth of Australia and overseas private investors considerable sums of money, of which it was unable to pay even the State’s interest liabilities. The entire country was already deep in debt to overseas sources in London and New York, and the Federal Government of Labor Prime Minister James Scullin had implemented earlier the Niemeyer Plan (named after Scullin’s adviser, the Bank of England’s Sir Otto Niemeyer) to manage the current financial crisis. Part of this had involved the Melbourne Agreement– an agreement among the Federal and all the State Governments to strive to balance budgets, avoid further overseas loans, seek no internal loans but for reproductive works, and to pay all interest on accounts falling due into a special account with the Commonwealth Bank. Commonwealth and State debts had been amalgamated, with the Federal Government assuming responsibility for the States’ public debts.The NSW Labor Party had been in Opposition at the time of the Agreement, and many of its members – including Lang – hated both Niemeyer and his proposals, attacking both in incendiary terms. Lang subsequently called Scullin "only a small country grocer who found it difficult to think in terms of millions, instead of half-pennies", and as Premier, refused to abide by the Agreement.

 

Becoming desperately short of money, the Lang Government failed – indeed, flatly refused – to pay its debts, embarrassing Canberra and isolating New South Wales. Federal Labor disowned Lang, renounced its NSW counterpart and threatened to expel its members. At the same time Government House was inundated with petitions demanding Lang’s sacking. Newspapers throughout the State published editorials, articles and letters to this effect, sentiments echoed throughout the rest of the country. The Canberra Times, for example, demanded (30th April 1931) that under the circumstances "the need for a review by the electors of the vote given last October is now a matter of extreme urgency. Every possible step towards that object should be taken immediately, the most important being to urge the Governor to dismiss his present advisers". Sir Philip, mindful of the previous mandate given to Lang – and aware of the cost of a general election to a near-bankrupt State– refused.

 

In February 1932, after the Scullin Government had been defeated at the general elections and replaced by a United Australia Party Government headed by the ex-Labor Joseph Lyons, the Federal Parliament served a writ:


To the State of New South Wales.

We command you that within fourteen days after the service of this writ upon you, inclusive of the day of such service, you do cause an appearance to be entered for you in our High Court of Australia in an action for the full amount due to the overseas bondholders, a sum officially stated to be £958, 763 - including between £200, 000 and £300, 000 for exchange and remittance charges.


In the interests of Australian credit the Lyons Government paid the the overseas debts owed by the renegade State...and then moved to ensure its own sacrifice was repaid. On St Valentine’s Day the Federal Parliament passed legislation to seize the revenues of New South Wales. All people owing taxes to that State were to pay the money to the Commonwealth instead, and only by paying the Commonwealth could they discharge their tax debts. The response of the Lang Government was both extraordinary and illegal. It, and Sir Philip’s reaction, are best expressed by reproducing the actual correspondence, beginning with an unlawful Government directive to all public servants.They were ordered to violate the Audit Act, to evade all usual forms of financial accountability, and avoid all methods of transacting business that would enable conventional auditing to take place. Banks were to be avoided. All this was to be done with taxpayer's money (see text of individual letters, below):



12th April 1932:

Illegal orders from the NSW Treasury.
 

10th May 1932:

Circular from the
Premier's Department,
supporting the illegal orders. 

12th May 1932:

Letter from the Governor to the Premier, urgently requesting advice over the legality of orders issued.
 

13th May 1932:

Premier replies to the Governor, and refuses either to confirm legality or withdraw orders.
13th May 1932:

The Governor, worried by this ambiguity, requests urgent meeting with the Premier.   
13th May 1932:

After meeting, the Governor warns the Premier to restrict his Government to lawful activities.     
13th May 1932:

Lang spurns warning.




13th May 1932:

Sir Philip Game sacks Lang Government and appoints caretaker Ministry to oversee general elections, forcing the issues to the people of NSW.




In reading Sir Philip’s letters, a few more remarks must be made in parentheses to clarify the circumstances surrounding his final sacking of Lang. At the end of April the Full Court of the High Court began sitting in judgement upon the legality of the Federal legislation seizing the State revenue. While awaiting its decision seven King’s Counsel sent a letter to Sir Philip, signed by them all, stating


    After discussion, the undersigned King’s Counsel have come to the following conclusions and respectfully submit the same to His Excellency the Governor.

    The Governor is entitled on action being taken by his Ministers in breach of the law of the land whether Federal or State (or where such action manifests the clear intent to frustrate such law, when such action interferes to a considerable degree with the carrying on of the King’s Government) to take steps under the letters patent constituting his office to seek new advisers.

    Any or all of the signatories hereto humbly express their readiness if it should seem good to His Excellency to discuss any matters bearing thereon.

    April 11th, 1932.

Chambers,

Signed, A.B. Shand

R. Windeyer

G.E. Flannery

R. Clive Teece

H.E. Manning

F.A.A. Russell

A.V. Maxwell.



Sir Philip tersely declined the offer to consult with them. The High Court’s decision confirmed the validity of the Federal legislation, and a second ruling, on the 22nd April, upheld the Lyons Government’s seizure of the State’s money deposited in bank accounts. By the 23rd April, when Sir Philip sent a telegram to the Secretary of State reporting on the events then unfolding, he had already been handed the NSW Auditor-General’s opinion that the Audit Act of 1902 was being flouted, and had received the Chief Justice’s opinion stating that in the absence of any other responsible advisor it was ultimately the Governor’s task to decide upon the legality of the Circular of 12th April. Sir Philip had therefore met with Lang and demanded formal reassurance on the matter: as the telegram put it, he

"told [Lang] that I wanted my doubts cleared up because if the Audit Act was disregarded I felt that if I remained inactive I would be in the position of condoning illegality. The Premier promised to send me the opinion of the Law Officers of the Crown...".


Meanwhile large sums of money were being hoarded and guarded in government offices in Sydney, with the New South Wales Railways being used to distribute the cash required for paying government servants. The advice from the Law Officers never came. Lang eventually refused to provide any formal assurance that his Government was remaining within the law, despite the fact both Sir Philip and the Chief Justice felt his Government’s instructions were violating federal law. On the 13th of May Lang was sacked and the Leader of the Opposition, Mr Stevens, was invited to Government House, where he was sworn in as Premier. Parliament was prorogued and then dissolved, and general elections held, which the Stevens caretaker government won, going on to form the Stevens-Bruxner coalition government.

 

Although Evatt refused to condemn Sir Philip’s conduct, it’s clear from his assessment of both the Game-Lang affair and Todd’s doctrine that he believed Sir Philip should have acquiesced to Lang and left the matter to the courts to decide. But with the benefit of hindsight Evatt’s general doctrine of royal or viceregal aquiescence, relying instead upon the courts to remedy illegality, has shortcomings.

 

The blanket statement that a Governor should allow "all legal questions which are at all susceptible of argument to await determination at the hands of the judicial power", if applied as a universal principle, creates a logical absurdity. Our system of law expects ordinary citizens witnessing a crime to take reasonable steps to aid prevention of the crime or eventually help apprehend the criminal. To this end all citizens possess the power of "citizen’s arrest", whereby they can incarcerate a suspect if certain that police in the same predicament would do the same. Having a duty to help uphold the law, ordinary people– without taking any special oath or occupying any special office– are endowed with some powers to enable them to fulfill that duty. But Evatt’s proposal suggests the Queen’s representative, who has solemnly sworn a specific oath to defend the Constitution and the laws of the land, who represents a Queen who swore a similar oath at her Coronation and a Crown which since 1689 has held its power through a contract exchanging allegiance for this guardianship, who holds reserve powers over appointment and dismissal of Ministers, isn’t to use them. We have a witness of illegality able to intervene but to be stripped of the duty to do so. Worse: Evatt’s doctrine imposes a duty not to intervene. So ordinary citizens who haven’t sworn an oath to defend the laws of the land are to exert themselves upholding those laws, but the one citizen who has promised to defend the laws is to be forbidden to do anything of the kind.

 

A valid way of appreciating the value of an institution is by observing what happens when that institution is lost or non-existent. The authors of The Lawless State, writing on behalf of the American Civil Liberties Union, weren’t protesting about something rotten in the state of America for the sake of a good whinge but for the purpose of reform. A major obstacle to their endeavours in establishing a polity under the rule of law was (and still in 1999 remains) the Executive branch and its partisan self-interest: in the Intelligence community, for example,

    "the only authority to whom a lower-echelon official with a troubled conscience can turn is the president’s ... Oversight Committee set up by...executive order. There are literally no provisions for taking information of wrongdoing outside the executive branch’s system of self-interests. An official with knowledge of abuses is told to go through channels within the hierarchy that spawned those abuses, a process guaranteed to be ineffective."

Within the highest council of our hierarchy is someone normally passive, whose interests are different from those of the elected politicians who wield the active power of government; someone to whom information of wrongdoing can be given, and who, in direst emergency, holds the reserve power to do something about it.Surely this is an inheritance we should be very reluctant to lose?

 

What legal argument is not "at all susceptible of argument"? For centuries questions of Law have enjoyed a reputation for obscure complexity and the plausibility with which both thesis and antithesis can be argued. The courtrooms of the world are filled each day with reluctant lawyers constructing defences for people caught with a corpse, a smoking gun and the plea they Didn’t Do It. It would be a pathetic lawyer who’d be incapable of composing any defence at all, so the obvious ploy for a guilty Executive is to "get closer to [its] attorney". If Teapot Dome, the scandals of the Truman era and Watergate offer any guide, it’s that the Attorney-General of a government caught playing in the mud is likely to have got as dirty in the game as other members of the Cabinet. So what can we expect an Attorney-General to tell a Governor-General? Do we seriously expect the following conversation to take place:

G-G: Is this legal?

        A-G: Ah...well no, actually. I was hoping you weren’t going to ask that question. Damn...

Instead I regret to suggest that Attorneys-General may deal in pork pies, dine out on whoppers, exhibit ontological inexactitude, display a weakness for Little White Ones or a proclivity for Big Black Ones. In short, they may be untruthful.

 

"Unless the Governor is a specially trained lawyer" he’ll be in no position to judge either the illegality of advice tendered him or the repercussions it may hold. But does this necessarily imply we must deliver him entirely into the hands of his Ministers, or desirable to do so? In the next chapter the existence and necessity of the reserve powers shall be argued– powers that imply in times of dire crisis that the Queen’s representative can consult informally beyond the circle of responsible ministers. I can do more than argue the abstract necessity for the Queen’s representative to be able to consult eminent lawyers– I can point to precedents. In refutation of the claims of Whitlam’s apologists, suggesting that Sir John Kerr’s 1975 consultation with Chief Justice Sir Garfield Barwick was somehow extraordinary and improper, D.J Markwell (then of Trinity College, Oxford) and Richard Lucy (Senior Lecturer in the School of Political Science, UNSW) provided a long list of Australian precedents, enumerating eight Governors-General and three Chief Justices involved and other eminent authorities who approved this practice. These consultations were cited as having been made to obtain advice regarding the Governor-General’s constitutional authority on a particular matter, rather than over the legality or illegality of a Government’s measures, but they establish at least that the necessary communication channels exist.

 

Merivale’s objection to these judicial consultants, that they may be politically biased against the Ministers, could surely be better resolved by recruiting them from across the political spectrum rather than by abolishing them altogether. In the next chapter the idea of a judicial aristocracy shall be contemplated, a body of life-tenured judges whose expertise in the law is used as an excuse for granting them far-reaching legislative and executive authority, for which they have no particular competence or public accountability. A conspicuous irony of the republican debate in both Australia and the UK is that the same people who favour the creation of such a body condemn the prospect of consultants to a Crown fenced about by responsible ministers, despite the fact that the latter offers far less scope for judges’ personal political views to shine through their legal opinions.

 

Meanwhile, what’s to become of servants of the Crown confronted with the unlawful orders derived from the Executive’s unlawful agenda? Our system of government demands their disobedience, but surely we can only expect to impose this turmoil upon them provided we can promise them relief from the displeasure of their renegade superiors? Spare a thought for people like R.H. Beardsmore, an accountant in the Lands Department who, confronted with Lang’s circular on the 11th May, refused to follow these orders which appeared clearly to conflict with the law and his duty to obey it. He was forced by Lang’s Minister for Lands to go on leave immediately. (It’s interesting to note that Sir Philip intervened the next day, demanding a copy of the offending circular, which prompted his subsequent letter of the 12th May.) Given that public servants are put in this way of harm through being servants of the Crown, surely the Crown ultimately has the duty to protect them in their service to the rule of law? Then a Governor’s refusal to intervene surely can only be justified provided the Crown’s courts of law can provide adequate remedy against lawlessness.This is certainly where Evatt, as a Justice of the High Court, expected relief to come from, and when this relief is available he’s right to have said that for a Governor to intervene over apparent illegality "may amount to an attempt to deprive the ordinary Courts of law of their exclusive responsibility for exercising the judicial power". But in modern retrospect his faith in the courts’ ability always to provide remedies appears excessive.

 

Despite his presence on the Bench– or perhaps because of it, in a country and era that never knew thorough executive lawlessness– Evatt’s civilised mind seems to have failed to grasp the nature of the beast. One of the bizarre aspects of the Lang-Game crisis, for instance, was the covert civility with which it was conducted. In public Lang ranted against Sir Philip, claiming in 1931 that "The Governor had torn the charter of democracy in two, and the people do not count", and (in 1958) that Sir Philip had "loved power no less than Governor Bligh", so that although he "made every effort to convince me that he was friendly, I was under no illusions. He hated my guts". In private reality relations between the two men were generally cordial, to the extent that they exchanged gifts after the sacking and parted as friends: Game gave Lang a pipe and a book, who replied in a private note expressing appreciation of the gift and enjoyment of their past talks, and giving Sir Philip a book in return. The crisis was not played by either protagonist with a hard ball: Sir Philip gave Lang ample warning of his misgivings, despite the risk the Premier might demand the Governor’s recall by London; Lang never took this obvious step despite its tactical advantage. We as late-20th Century observers have an advantage over Evatt, in that we’ve witnessed in France under the Fifth Republic the authority of the judiciary eroded by an Executive engaging in flagrant illegality, setting up kangaroo courts to sentence political rivals to death; in the United States, a lawless Executive whose servants have been able to engage in decades of outrageous behaviour, immune to the sanctions of law; in Italy, judges like Giovanni Falcone murdered by the same criminal organisation that permeated the government and the Parliament in the early 1990s. By the modern standards of the Western world the Game-Lang affair appears mild-mannered and courteous.

 


In real life the courts may fail to cope with a government’s sins in a number of ways. An offence may theoretically be dealt with by the courts and yet in reality never see the light of day for three reasons: knowledge, time and money. Civil servants executing an illicit plan devised by their political masters are often bound by– among other things– the Official Secrets Act, making exposure of scandals difficult. If this public exposure fails to occur within adequate time then the implications of an offence may have escalated beyond the hope of adequate redress. (One example is a hypothetical near-bankrupt State engaging in an illicit financial agenda with disastrous consequences. By the time knowledge of this agenda becomes public, allowing the matter to come before the courts, the economy may have collapsed entirely. Another is a government planning military overthrow of the Constitution. By the time the relevant unlawful activities from the prelude of the coup come before the courts, soldiers may be in the streets.) And once this exposure takes place, what private citizen or company has the resources– the money– to litigate against the Government? These obstacles are about getting a matter before the judiciary, but it’s at this point that the real nastiness begins. The challenge to a government fearing exposure is to "use the available federal machinery to screw [its] political enemies"– use of "national security" concerns, for instance, to silence witnesses. Silence can be procured by other means. "You know that if the administration gets its back to the wall, it will have to take steps to defend itself". These measures can be applied, not only to witnesses, but to judges themselves: either Watergate-style blackmail or Falcone-style murder, achieved through misusing the instruments of State.

 

In contemplating the behaviour of individuals, we speak of their acts as being either lawful or unlawful. But in contemplating the unlawful acts of governments a new line must be drawn, between simple illegality and catastrophic illegality, the former being offences that may readily be remedied in a court of law and the latter, offences that threaten the continued functioning of the civilised State under the rule of law, that threaten the operation of the courts themselves and so cannot find secure remedy within those courts. We possess at the moment what other countries lack, and in its absence find danger: an apolitical figure– Her Majesty’s viceregal representative– drawn from within our own community and seated at the top of the Executive hierarchy, under all normal circumstances quiescent, obeying the advice of elected politicians, but who in times of emergency has the capacity of stripping an apparently unlawful agenda of its catastrophic implications by stripping its architects of executive office. Why should we be in haste to throw this institution away?

 

In 1975 CIA Director William E. Colby was asked if he would refuse a presidential order to carry out an operation he regarded as improper. He replied by saying he had both the authority and the committment to the US Senate to refuse. This question and its answer provide a stark contrast to Her Majesty’s Governments throughout the world, in which patently unlawful orders could never carry legitimate authority to the servants of the Crown, and so must be disobeyed– irrespective of seniority or a commitment to Parliament or to anything else. The Crown on the uniforms of its servants is a symbol of promise, warning and twofold sanctuary: the promise and warning over the nature of executive authority flowing through the hierarchy, a sanctuary to its servants confronted with unlawful orders... and through this, sanctuary to all citizens under the Government. The title "Her Majesty’s Government" has changed greatly in its meaning since the 17th Century, but one of its implications, the most important, remains unaltered: the formal symbolic source of executive authority "cannot command ill or unlawful things. And whatever ill events succeed, the executioners of such designs must answer for them".

Author's Notes:
Some law lecturers in Sydney and Melbourne have recently taken the Evatt view to its extreme, claiming that Governors-General or Governors should never intervene when confronted by illegality but simply remain passive, because otherwise they might be usurping the judicial authority.

As argued below, although that idea may apply under ordinary conditions, it is a naive position to expect universally. Watergate and Iran-Contra have illustrated overseas the face of modern executive lawlessness, and the ineffectiveness of judicial remedies under sufficiently extreme circumstances.

Rather than simply following Evatt, there is a more significant— and interesting— line to be drawn, between those illegal actions that can be effectively remedied in the courts, and ones that are politically catastrophic and beyond effective judicial restraint. It is in this latter case that the presence of the Queen's representative may take on a new dimension.

The late Sir Walter Campbell, who had served both as Chief Justic of the Supreme Court of Queensland and Governor of Queensland, was typically both shrewd and blunt about the issue, dismissing Evatt's view (and those of his followers at the Universities of Melbourne and NSW) as simplistic. He was very clear that, under suitable circumstances, he would have intervened just as Sir Philip Game did. In which case it would be as an executive adjunct to, and not an infringement of, judicial authority. After reading my first draft of this chapter, Sir Walter also kindly furnished me with some further materials from his private library, giving further details of the Game-Lang affair .  

The Game-Lang affair is also interesting as it shows the general public energetically exercising its right to petition the Governor on an issue of public importance; most dramatically, the formal petition of the seven King's Counsel, offering an external source of information and legal opinion during the crisis (if desired). The brackets in their petition (as reproduced here) were pencilled in by Sir Philip, who wrote in the margin "Agree generally, but words I have put in brackets are too indefinite to be of any particular value. P.G."  


Further background reading:

Greenwood, N.J.C, For the Sovereignty of the People (Australian Academic Press, 1999);

The following publications may also be of interest (see Sovereignty's bibliography for a full listing):


Evatt, H.V., The King and His Dominion Governors (2nd ed.), Frank Cass, London 1967; 
 
Foott, B., Dismissal of a Premier, Morgan, Sydney 1968; 

Halperin, M.H., Berman, J.J., Borosage, R.L. and Marwick, C.M., The Lawless State, Penguin, New York 1976;

Jennings, W.I., Cabinet Government, Cambridge University Press, London 1936;

Morrison, A.S., "Dominions Office Correspondence on the New South Wales Constitutional Crisis 1930-1932", J. Royal Australian Historical Society, vol.61 pt.5, March 1976, 323-345;

Todd, A., Parliamentary Government in England, vol. II, Longman Green, London 1869;

Todd, A., Parliamentary Government in the British Colonies (2nd ed.), Longman Green, London 1894.