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ACM Home arrow Head of State

Head of State

Head of State

The only serious argument republicans make to advance their cause is that "we need an Australian as Head of State".

It was argued nine times in the official Yes case sent to all electors in the 1999 referendum. Malcolm Turnbull told the Parliamentary Committee investigating the referendum bill that replacing The Queen with an Australian citizen as Head of State was the most important part of the change.

There is overwhelming evidence that the Governor-General is Head of State. We have posted a large number of articles on this website dealing with this question,  including republican attempts to deny that the Governor General is Head of State.

If you wish to point friends or family to this section, they can  click on the icon "Head of State" in the left hand column of our frontpage at www.norepublic.com.au

A selection of our reports and videos follow. The most relevant outside links are:

   
  • Quadrant: Head of State debate resolved  Further discussion of the decision in R v South Australia with an account of republican attempts to ignore the overwhelming argument that the Governor-General is Australia's Head of State.
 

 

 



Head of State: The Last Word Print E-mail
Head of State
Written by Sir David Smith KCVO AO   
Saturday, 01 May 2010

[There is no greater authority in Australia or indeed in the world on the office of the Governor-General of Australia than Sir David Smith KCVO AO. His magisterial tome, Head of State, published in 2005 remains unanswered.

The book is reviewed
here.  It may be purchased through ACM..

At a luncheon on the 84th Birthday of Her Majesty, Sir David delivered a most important paper, ““The Head of State Revisited”. The full paper may be read here.

 

 Extracts from his comments on the principal republican argument, that only a republic can give us an Australian Head of State, follow.  The extract were selected by the editor.

In the full text, Sir David recounts some of the sillier arguments surprisingly put by prominent people to justify our adopting their politicians’ republic.

In addition, we are posting below a filmed interview wth Sir David]



...Our Constitution was unique....  



 The case for changing our system of government from a constitutional monarchy to a republic is almost invariably based on two propositions, both of which are simply not true. 

The first is that Australia must become a republic in order to become independent.

The second is that the Queen, as well as being our Monarch or Sovereign, is also our Head of State, and that an Australian republic would give us an Australian Head of State. 

This proposition is also untrue.  Furthermore, it is based on the equally untrue proposition that the Governor-General is nothing more than the Queen’s representative, and has no independent constitutional role.


Image
[ Sir David at the centre of events ]



To argue that the Queen is not Australia’s Head of State does not in any way diminish the important role that the Queen has in our Constitution and under our system of government as the Monarch. 

It is simply the case that she does not have, and therefore does not exercise, and never has exercised, head of state powers and functions.

Our Founding Fathers gave us a Constitution that was unique, for they gave to our Governor-General powers not previously given to any other Governor or Governor-General anywhere else in the British Empire.





...judicial pronouncements and legal opinions...


   No-one would ever have dreamt of describing Queen Victoria as “head of state”: the term was not in use in the Australian colonies prior to their forming a federation in 1901.

In the absence of a specific provision in the Constitution, it is necessary to see who actually performs the duties of head of state in order to determine who is the head of state. 

These duties are performed by the Governor-General, and by the Governor-General only.  In my book Head of State I have recorded the many judicial pronouncements and legal opinions that led me to conclude that the Governor-General is Australia’s Head of State.  

It was only after my book was published in November 2005 that Professor David Flint discovered that the High Court of Australia had come to the same conclusion in 1907. 

As that Court consisted of five judges, all of whom had been Founding Fathers and thus involved in drafting our Constitution, we may presume that they knew what they were talking about.





...two practical examples....




 

But if republicans cannot understand judicial pronouncements and legal opinions, they should be able to comprehend two very simple practical examples.

 The first is the reply which the Labor Speaker of the House of Representatives received to his letter in November 1975, asking the Queen to reinstate Whitlam as Prime Minister.  Mr. Speaker was told that the Queen could not intervene in a matter which the Australian Constitution placed in the hands of the Governor-General.

Image
[ ...still unanswered...]


As the power to appoint or remove a prime minister is the most important function of a head of state in a parliamentary democracy, the Palace letter surely put the matter beyond doubt.

The second example flows directly from the various republican models that have been proposed.  In every case, the republicans have said that the president should inherit all of the powers and functions of the Governor-General, without alteration. 

If a president exercising the same powers and functions as the Governor-General would be a head of state, then the Governor-General exercising those powers and functions must also be a head of state.



 
...Conclusion....




 To repeat, to argue that the Queen is not Australia’s Head of State does not in any way diminish the important role that the Queen has in our Constitution and under our system of government as the Monarch. 

It is simply the case that she does not have, and therefore does not exercise, and never has exercised, head of state powers and functions.

Image

 

 

 

 
Head of State is no rubber stamp Print E-mail
Head of State
Written by Sir David Smith   
Friday, 26 February 2010

[Editorial note: There is no greater authority on the Australian Crown than Sir David Smith, the Official Secretary to five Governors-General from 1973 to 1990.

The following account answers Malcolm Fraser's recollections of crucial events preceding the grant of the 1983 double dissolution election, which Mr. Fraser lost.

In his 2005 book, Head of State he has presented an unanswered case on the role and function of the Governor-General as the Australian Head of State. We suspect that his book has these five years because it is unanswerable.
This comment appeared in The Australian on 26 February 2010 as “The truth about an ex-PM's great mistake”.

There can be no better example than Sir David's account  in demonstrating that the Governor-General, the  constitutional head of state, is no rubber stamp.

On 27 February, the Australian published the following:

Dear Editor,

Sir David Smith (26/2)  demonstrates that Malcolm Fraser’s recollection of the way he obtained a double dissolution in 1983 is seriously defective.

So is his recollection of 11 November 1975.  He claims that he was in effect tipped off by Sir John Kerr before Gough Whitlam was dismissed. In fact it was Sir David, acting on Sir John’s instructions who contacted Mr. Fraser’s secretary asking him to come to Government House. This is set out in detail in Sir David’s book, Head of State, 2005 at page 244.

Why gratuitously reflect on the reputation of a man who was doing his duty as he saw it and who cannot now reply?

David Flint 






 
In the meantime, Mr. Fraser remains a controversial figure, as the video at the foot of this column demonstrates.] 



Image
[Sir David reads the Proclamation dissolving the Parliament in 1975. The dismissed Prime Minister, Gough Whitlam looks on ]



The first extract from former prime minister Malcolm Fraser's political memoir (The Weekend Australian, February 20-21) contained the following paragraph: "Fraser contacted the office of governor-general Ninian Stephen to seek a double-dissolution election, shortly after midday on February 3, 1983, but Stephen was not available to see him."

That paragraph is totally untrue. When Fraser arrived at Government House at about 12.30pm he was ushered immediately into the study and spoke with the governor-general.

Furthermore, Fraser made no prior contact with the governor-general's office before turning up at Government House; he gave no warning whatsoever of his arrival.

A second paragraph reads: "While Fraser waited for an opportunity to see the governor-general, Hayden announced his resignation." That paragraph is also totally untrue. By the time Bill Hayden announced his resignation as opposition leader, Fraser had already seen the governor-general; he had not waited at all.

At 9am on February 3, 1983, the governor-general's deputy official secretary received a telephone call from the head of the Department of the Prime Minister and Cabinet, Geoffrey Yeend, who asked what the governor-general's engagements were for that day.

He was told that Stephen would be spending most of the day at his desk, and his only engagement was a farewell call at 12.45pm by the departing Polish ambassador and his wife, who would stay for lunch. Nothing else was said.




...unexpected arrival...





At about 12.30pm, Fraser arrived at Government House, unexpected, and demanded to see the governor-general. He was taken straight to the governor-general's study, whereupon he handed Stephen a five-page letter recommending the dissolution of the Senate and the House of Representatives: a double dissolution.

The letter was accompanied by an eight-page attachment and 26 pages of legislation, a total of 39 pages.  The prime minister asked the governor-general for an immediate decision.

The governor-general told the prime minister that he would need some time to read the documents and that, with the Polish ambassador and his wife due at any moment, an immediate decision was not possible. Stephen told Fraser that he would have his answer by 3.30 that afternoon.

We learned later that before leaving Parliament House to make his ambush call on the governor-general, Fraser had called a 1pm press conference.




....attempt to force decision....


On his return to Parliament House, Fraser asked Yeend to telephone me and ask me to tell the governor-general that the prime minister needed an immediate answer and was standing by his telephone. I told Yeend that the prime minister would have his answer by 3.30pm. The 1pm press conference had to be cancelled.

At 3.30pm, the governor-general telephoned the prime minister to tell him that he (the governor-general) required some further advice from the prime minister on a particular matter. Yeend handed that additional advice to the governor-general, by way of a further letter from the prime minister, at 4.45pm.

After reading that letter, the governor-general told Yeend that he would approve the prime minister's recommendation and would dissolve both houses of the parliament. Fraser held a press conference at 5pm to announce the double dissolution and the election.

Image

On February 3, 1983, the ACT was on daylight saving time and Queensland was not. Fraser had wind of Hayden's intention to resign later that day as opposition leader and hand over the leadership to Bob Hawke. Fraser hoped to use the one-hour time difference to pre-empt Hayden's announcement with his own announcement of an early election. He reasoned that Labor would be unlikely to change leader after an election had been called.



...the Governor-General is no rubber stamp....

Hence Fraser's attempts to pressure the governor-general into giving him an immediate decision, though why he chose to ambush the governor-general and arrive without prior notice, and why he expected an immediate response to a 39-page document, simply beggars belief. Stephen was accustomed to reading and absorbing lengthy documents but he did need time to read them.

Had Fraser sought an early appointment and presented his advice in good time, he could have had his answer, even with the governor-general's request for additional advice, and he could have had his 1pm press conference.

Instead, he timed his arrival just before the arrival of the Polish ambassador and expected an immediate answer.



...why did Fraser go ahead?...




Even more puzzling than his actions that morning is Fraser's failure, once his timing had come unstuck and he found himself facing Hawke as opposition leader, to withdraw his request for an early election. The one thing that he had schemed to prevent had occurred, but still he pressed on with his request, and lost the early election that he didn't have to have just then.

Fraser's decision not to withdraw his request was one of the most stupid political decisions that he made. His decision to falsify his account of that day in his memoirs is another.









 
Head of State? Prime Minister in two minds Print E-mail
Head of State
Written by Professor David Flint AM   
Friday, 12 February 2010

  During the referendum campaign leading republicans advanced all manner of curious arguments for change to a politicians’ republic.   Sir David Smith collected most of these and put them in his authoritative 2005 book, Head of State.  I added some.

What a hoot they are. I suppose that if ever there were another vote, they’d be revived.
 
They included ending the recession, stopping the brain drain, boosting immigration, reducing unemployment, freeing up artists, revenge for the Bodyline Cricket affair ( former Chief Justice Sir Anthony Mason), becoming independent (we are), confusion  among  certain foreign governments, the Olympic Games, the marketing opportunities which would flow from rebadging,and  invigorating spirits.

Image
[ First High Court hearing, 1903 ]


We were told change was necessary because Australians are confused with the English in other countries, the relationship between Spain and Argentina, if we voted yes we would become an international laughing stock (a university vice chancellor who then moved to England), “I’ll become a citizen”( a foreigner who was the editor of The Sydney Morning Herald) and “anyone who votes No is stupid” ( expatriate Robert Hughes).



But the republicans thought they had really found the killer application with having an Australian as head of state. Paul Keating even threatened a plebiscite on this. But he went quiet when ACM’s National Convenor Lloyd Waddy said he would advise supporters to vote Yes because we already had an Australian as head of state - the Governor-General.




...diplomatic term...

The words head of state are actually not to be found in any of one of our several constitutional documents. That’s because it’s essentially a diplomatic term, a point made in chapter 3 of The Cane Toad Republic, 1999.  It gradually emerged in the late nineteenth and early twentieth centuries as a replacement for the previous generic term,”prince”. 


Image
[ Sir David Smith: Head of State...there has been no equivalent republican reply ]


Its usage is thus governed by international law. And it is elementary under international law that the Australian Governor-General is our head of state.

Subsequently, the term was gradually introduced into the formal constitutional laws of some countries. The fascists were the first with General Franco in Spain, and Marshal Petain in France. It has never been the case here.




...High Court Founding Fathers rule...





However in 1907 (R v Governor of South Australia [1907] HCA 31; (1907) 4 CLR 1497; 8 August 1907) a High Court made up of Founding Fathers Sir Samuel Griffith, Sir Edmund Barton, Sir Isaac Isaacs, and Justices O’Connor and Higgins  declared the Governor- General  the “Constitutional Head of the Commonwealth”, the Governor  the “Constitutional Head of State” and The King the “Sovereign”.  The Founders were unanimous.

In addition the Constitution, unique in the British Empire, provided that the executive powers of the Commonwealth were vested in The Queen , that is the Crown, but exercisable by the  Governor- General.  (Elsewhere they were exercisable by the Sovereign and then delegated under instructions to the Governor-General.)

So much so that in 1975, the Palace informed the Speaker that The Queen was not empowered to  reverse the decision of the Governor-General to remove Gough Whitlam’s commission as Prime Minister. The Governor- General is not an agent or delegate; she exercises the powers of the Crown.





....Official No Case from MP's to all voters very clear....




So one of the arguments put in the official No case approved by all No case members of Parliament and Senators, and  sent by the AEC to all voters,  was this clear piece of advice: “Our constitutional Head of State, the Governor-General, is an Australian citizen and has been since 1965”And the people in all states and 72% of electorates clearly preferred the No case.ant




...arid and irrelevant...





  The late Professor Winterton – a leading republican and prominent constitutional lawyer - came to the conclusion that the monarchists had won the head of state debate, which had become an “arid and ultimately irrelevant battle over nomenclature” (Quadrant , September, 2004.)  The term certainly causes confusion.  You have to ask yourself whether the user is talking about the diplomatic situation or the domestic situation. One is governed by international law, the other is not a term of art constitutionally.

On the latter, the best persuasive guide is the ultimate authority on the Constitution, and especially the bench which included those who wrote the Constitution. (See above)





...the Palace was not referring to the constitutional definition...




 A recent media release about The Queen addressing the General Assembly describes her as Head of State of sixteen countries which are listed. Australia is among them. Republicans should not get too excited about this. As the Palace told Tom Dusevic from The Australian (12/2), the reference to the Queen as Australia's head of state “was used in a collective sense in relation to the ...(16) realms. It was not intended to refer to the constitutional definition of the role of the Queen in Australia in particular.”

The Palace stressed the release was just an “information bulletin to describe a forthcoming event.” the spokesman stressed it was not a “policy document.”  





 ...Prime Ministerial views....


Image
[ Visited Africa as Head of State ]





The Prime Minister previously declared the Governor-General the head of state, but his representative told Mr. Dusevic The Queen is.  Perhaps he believes we have two heads of state, or that they change from time to time. These propositions are not as ridiculous as they sound. Andorra has, and England under William III and Mary II had two heads of state. Canada has on rare occasions been represented internationally by The Queen as head of state, but more often by the Governor-General.

It’s all very confusing, and as an argument for constitutional upheaval,  failed in 1999. It won't work next time, if there is one.

That’s why Professor Winterton saw it as an “arid and ultimately irrelevant battle”

And unlike 1999, the republicans have gone backwards. They can’t or won’t say what sort of republic and new flag they want..

It is as if they are marching down the street chanting:

 “We want a republic.....but we haven’t the foggiest idea what sort of republic we want.”        

 
Head of State: 10th Anniversary Sky TV debate Part 4 Print E-mail
Head of State
Written by Professor David Flint AM   
Thursday, 26 November 2009

On the 10th Anniversary of the republican referendum, 6 November 2009, Sky News (Australia) broadcast a debate on this issue.   In this fourth part, Thomas Flynn refers to the 1907 decision of the  High Court of Australia,  R v Governor of South Australia, where a bench of Founding Fathers unanimously  described the Governor General as  the Constitutional Head of the Commonwealth, the Governor of South Australia as the  Constitutional Head of State and The King as the Sovereign. 

ACM undertook careful and expert investigation of the relevant aspects of international and domestic law in the nineties, and came to the conclusion that the Governor-General is indeed Head of State. 


Image
[ Tony Abbott: no republican model as subtle, as sophisticated as our crowned republic ]


Then Senator Bob Brown argued that the powers of the Irish President are  similar to the Australian Governor General. They are not; and the Republican Advisory Committee set up in 1993 by PM Paul Keating and chaired by Malcolm Turnbull agreed. The difference lies in the reserve powers which in 1975 allowed the Governor-General to resolve a dispute between the two houses.

Senator Brown argued that the wrong model was put in 1999, and that the people would have approved a model involving the direct election of the president. Tony Abbott said this would result in a government with two heads. He condemned the “adolescent sloganeering “ the republicans.  He said no model the republicans advanced was a subtle and as sophisticated as our crowned republic. 

 

[In the debate Tony Abbott, ACM’s first executive director* and now a prominent parliamentarian joined the current ACM national executive director, Thomas Flynn against Greens leader Senator Bob Brown and chairman of the republican movement, Major-General Keating.  This is the third part of the debate.

* The original text said "executive secretary". Nick Hobson, who continues to play a major role in defending the constitution, was ACM's first company secretary. His site is Australian Republic Unplugged  ]

 

 
Head of State question resolved, says leading lawyer Print E-mail
Head of State
Written by Professor David Flint AM   
Tuesday, 02 June 2009

Since the republican movement raised the issue, ACM has established beyond doubt that the Governor General is head of state. This is significant. The only substantial argument mounted by republicans in the nineties was about the need for an Australian head of state.

When the former Prime Minister Paul Keating said he would have a plebiscite asking voters whether they were in favour of an Australian head of state, ACM’s National Convenor Lloyd Waddy QC indicated he would be advising supporters to vote yes. The reason was, he said, that we already have one.

The same clear proposition can be found in the ACM Handbook, prepared by the then ACM Executive Director Kerry Jones, and first published in 1996. She was strongly criticised for saying the Governor-General is head of state by the leader of a small monarchist organisation. But he then changed his mind, adopting by words and action a position identical to that of ACM.      

Then those of us involved in the preparation of the official No case sent to all voters by the Electoral Commission ensures that it  described the Governor-General as the constitutional head of state.

                              Image

In The Cane Toad Republic, written for the referendum, I explained the diplomatic origins of the term and how it was governed by international law. It is without doubt that in international law terms the Governor- General is head of state, a fact recently confirmed by the Federal government. Under international law, the Governor-General is not just an effective head of state. He or she is a head of state.

(Having studied international law at the Universities of Sydney, London and Paris, and having written and taught the subject, I feel I can speak with some authority in this area.)

 As to the question whether the Governor -General is the constitutional Head of State, it should be remembered that the term is not used in our constitution. As Sir David Smith explains in his magisterial work, Head of State,  most of the powers of the Crown were vested in him under the  Federal Constitution. This was not the case in Canada or New Zealand where such powers remained with The King or Queen.

                               Image

Accordingly ACM has long believed the Governor-General to be the constitutional Head of State, which in no way reflects on The Queen who is the Sovereign.

Without The Queen there can of course be no Australian Crown, and without the Crown there can be neither Governor–General nor Governors providing leadership above politics and as a check and balance against the political power. The Queen is not only central to she is indispensable to the working of the Australian Constitution as intended by the Founders and approved by the people.

 In recent years my research led me to a hitherto unknown 1907 High Court decision by a bench consisting of some of our most eminent of our Founding Fathers.

Image
[ The first High Court ]


They used language close to ACM’s, designating the King as Sovereign, the Governor – General as the constitutional head of the Commonwealth, and the Governors as constitutional heads of state. The results of this research were published in June July 2008 issue of Quadrant  under the title  ” The Head of State debate resolved.”

It was good then to see a similar position on the head of state argued in The West Australian on 1 June by a leading Perth lawyer, Neal Fearis, who is Convenor of the Western Australian Division.

His letter follows:   

It was certainly heartening to read the piece from Gerard Henderson on the office of Governor-General ("Respect for office of GG part of democracy", Opinion, 26/5).

In a thoughtful and balanced article Mr Henderson, a committed republican, acknowledges that the Governor-General occupies a position above party politics (a position unlikely to be maintained in a republic of whatever hue), and that the office of Governor-General is at the core of Australian democracy and deserves respect.

Without wishing to appear churlish, however, we at ACM would take issue with two of Mr Henderson's statements. First, he describes the dismissal of the Whitlam Government as a "constitutional" crisis. On the contrary, this was a political crisis, brought on by the Liberal Party blocking supply in the Senate, which was resolved by wholly constitutional means. Mr Whitlam's fate has been a rallying cry for republicans for the last 34 years, but in truth it stands as testimony to the efficiency and resilience of our constitutional monarchy.

Secondly, Mr Henderson asserts that the Constitution requires that the Queen, as our head of state, be represented in Australia by the Governor-General. As Mr Henderson would presumably be aware, the Constitution contains no reference at all to Australia's "head of state", which is a term of international rather than constitutional law. To the extent that Australia has a head of state at all this role is filled by our Governor-General, as the High Court has confirmed on more than one occasion. This is the "inconvenient truth" which republican deniers simply refuse to accept.     

 

 

 
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