“A Mate for Head of State?”
An Address by Sir David Smith* to The Sydney Institute,
Dixson Room, State Library of New South Wales, Sydney
24 January 2007
As a democrat, I recognise the right of my fellow Australians to campaign for a change to our Constitution and our system of government, so long as they recognise mine to defend our present Constitution and our present system of government. What republicans do not have the right to do is misrepresent the provisions of our present Constitution or misrepresent the effect of the changes that they wish to make to it.
One leading republican has stated that “debate over the identity of Australia’s head of state is an arid and ultimately irrelevant battle over nomenclature.” However, he was prepared to let his fellow republicans launch that debate and he allowed it to rage for more than a decade before he delivered himself of these words of wisdom. Another leading republican – one responsible for launching that misbegotten and still-born campaign for a mate for head of state – has declared Australia to be a “backwater” and a “racist, inward-looking pigsty”. How dare he, of all people, claim the right to alter the Constitution which our founding fathers crafted and drafted so carefully? However, The Sydney Institute having invited me to discuss a mate for head of state, I gladly accept the challenge.
At the outset let me assert that we already have an Australian mate as our head of state in the person of the Governor-General. As Dr. Gerard Henderson has correctly reminded readers of the Autumn 2006 number of The Sydney Papers, when I first entered this debate in 1991, shortly after my retirement as Official Secretary to the Governor-General, and for some years afterwards, I accepted the conventional notion of the relationship between the Queen and the Governor-General – the Queen as Monarch and Head of State and the Governor-General as her representative. But then I started to do some research into our constitutional arrangements. At first my language was clumsy, and I tried to differentiate their roles by saying we had two heads of state and by describing the Queen as our Monarch and our symbolic head of state and the Governor-General as our constitutional head of state. After further research I realised that the Queen is our Monarch but is not our head of state at all, and that the Governor-General has two separate and distinct roles – one as the Queen’s representative and the other as our head of state. And each of these changes, and my reasons for them, I also placed on the public record.
My research into the archives and in the libraries produced information that was not known to me when I headed the Government Branch of the Department of the Prime Minister and Cabinet, nor was it known at the time by my colleagues or by my senior officers. It was not known to me during my time as Official Secretary to the Governor-General, nor was it known to the Governors-General whom I had the privilege of serving, a point which Dr. Henderson has also alluded to in The Sydney Papers by pointing to writings of Sir Paul Hasluck in 1972 and Sir Zelman Cowen in 1985, many years before I began my research. So my withers are completely unwrung by being reminded of views which I once held. Changing one’s views in the face of more and better particulars is not yet a sin.
Before I say something about the results of my research, may I just take up two other points made by Dr. Henderson in his paper. Dr. Henderson quoted with approval from Vernon Bogdanor, a distinguished commentator on the British Constitution, who simply asserts, but without providing any supporting evidence whatsoever, that the Queen, and not the Governor-General, is Australia’s head of state. Bogdanor is an expert on the British Constitution but he is dead wrong about the Australian Constitution. He lists, as functions of a head of state, appointing a prime minister, dissolving a legislature, carrying out public engagements and ceremonial duties, receiving the credentials of foreign envoys, and representing the nation, particularly abroad – all functions of the Governor-General and not the Monarch. Bogdanor then goes on to describe as crucial the role of the head of state to interpret the nation to itself, a description which both Sir Zelman Cowen and Sir Ninian Stephen had given years before to their roles as Governor-General. So I don’t think that quoting Bogdanor assists the republican cause. (Bogdanor’s description of the role of the Official Secretary to the Governor-General is also out of date and wrong, but that is a story for another time.)
The second point on which Dr. Henderson places great reliance are the reasons given by Attorneys-General Daryl Williams and Philip Ruddock for describing the Queen as our head of state, namely, that it is “appropriate” and “proper”. Can you just imagine trying to use those two words to argue a case before the High Court for a constitutional interpretation? Dr. Henderson chides me and my monarchist colleagues for rejecting the views of the Attorneys-General, as we certainly do, and for arguing a proposition for which he claims we have no legal authority. On the contrary, we have a great deal of legal authority for our view, and I am about to set it out. It is the Attorneys-General who have no legal authority for their view, for when challenged to provide evidence for their view, neither could provide any at all.
I am grateful that Dr. Henderson did not quote former High Court Chief Justice Sir Anthony Mason to support the republican view. In his attempt to dismiss my arguments and to deny to the Governor-General the independent constitutional role which I assert that he has, Sir Anthony said that when the Queen arrived in Australia the Governor-General ceased to function. Not true – it has never happened. As evidence, Sir Anthony claimed to have discovered a “robust” constitutional convention which prevented the Queen and the Governor-General from appearing together in public. But sadly for Sir Anthony, they have done so on many occasions – in fact, as Chief Justice, he was present as an honoured guest on one such occasion and was seated in the very front row! The former Chief Justice’s non-existent constitutional convention was based on precedents that have never occurred.
But to return to the evidence which I have not invented, but actually found, about the Governor-General’s two independent roles under our Constitution. It is true, as republicans regularly remind us, that the Governor-General is the Queen’s representative. We know that from section 2 of the Constitution. Sadly, many republicans stop reading the Constitution once they reach section 2, and constantly repeat the mantra that the Governor-General is the Queen’s representative and not the head of state. But if they were to press on to section 61 they would find that the Governor-General is indeed both.
Section 61, headed “Executive power”, is the first section of the Constitution’s Chapter II, which is headed “The Executive Government”. Section 61 reads as follows:
“The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”
Republicans love to latch on to the words “as the Queen’s representative” as if they placed some limitation on the Governor-General’s powers under this section. But the words are merely descriptive, and not prescriptive, as was made clear by a 1975 legal opinion by the Commonwealth Solicitor-General to Prime Minister Whitlam, and by the 1988 report of the Hawke Government’s Constitutional Commission. I shall return to these later.
When our founding fathers set about drafting our Constitution they had the Canadian Constitution to guide them. The distinctions they made in the Australian Constitution were quite deliberate. The Canadian Constitution, and later the New Zealand Constitution, recognise the Queen as head of state – ours does not. As a consequence, the Monarch signed Letters Patent transferring all head of state powers from the Monarch to the Governor-General – King George VI in 1947 in the case of Canada, and Queen Elizabeth II in 1983 in the case of New Zealand. No such transfer has been necessary in the case of Australia because our Constitution conferred head of state powers on the Governor-General in 1901.
In other words, the Canadian and New Zealand Governors-General received their powers from the Crown, while Australian Governors-General received their powers from the Australian people via the Australian Constitution. To further highlight the deliberate distinctions made by our founding fathers, while our section 61 provides that the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General, the equivalent Canadian provision simply vests the executive government of Canada in the Queen. And while our section 68 provides that the command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General, the equivalent Canadian provision vests the command in chief of the Canadian naval and military forces in the Queen.
Australian republicans are not the only people to fail to recognise the unique features of our Constitution – Queen Victoria’s advisers in 1900 suffered from the same handicap. On 9 July 1900 Queen Victoria assented to the Commonwealth of Australia Constitution Act. On 17 September 1900 Queen Victoria proclaimed 1 January 1901 as the date for the establishment of the Commonwealth of Australia. So far so good. On 29 October 1900 Queen Victoria signed Letters Patent and Royal Instructions relating to the office of Governor-General of Australia. Big mistake. Two of our constitutional scholars who had been involved in the drafting of our Constitution, Inglis Clark and Harrison Moore, wrote in 1901 that the Letters Patent relating to the office of Governor-General and the Royal Instructions to the Governor-General were superfluous, or even of doubtful legality. They pointed out that sections 2 and 61 in our Constitution relating to the powers and functions of the Governor-General were unique – they gave to our Governor-General powers and functions not given to any other Governor or Governor-General within the British Empire. In their view, the Constitution had created the office and given it its powers, thus depriving the Crown of the right to purport to recreate the office and give instructions to the incumbent four months later. Clark specifically rejected any notion that section 2 placed any limit or control over the Governor-General in the exercise of the executive power of the Commonwealth under the Constitution, as conferred on him, and on him alone, by section 61.
The views expressed by Clark and Moore at the time of federation were to be shared by Justice of the High Court, Dr. H.V. Evatt, 25 years later, and by the Commonwealth Solicitor-General in 1975, but it was not until 21 August 1984 that Prime Minister Hawke advised the Queen to revoke Queen Victoria’s Letters Patent and Royal Instruction, on the grounds that they should never been issued. However, a lot of constitutional water was to flow under the bridge between 1901 and 1984. The various legal and judicial pronouncements on the subject are dealt with in some detail in my book, Head of State: The Governor-General, the Monarchy, the Republic and the Dismissal, published by Macleay Press in 2005 and launched by former Governor-General Bill Hayden. The limitations of this paper permit me to refer to them only briefly.
In 1916, during a Canadian case before the Privy Council, Lord Haldane, Lord Chancellor of Great Britain and president of the judicial committee of the Privy Council, commented on the absence, from the British North America Act, of any provision corresponding to section 61 of the Commonwealth of Australia Constitution Act. In 1922, during the hearing of an Australian case, Lord Haldane had occasion to make a similar observation when he asked, with reference to section 61, “does it not put the Sovereign in the position of having parted, so far as the affairs of the Commonwealth are concerned, with every shadow of active intervention in their affairs and handing them over, unlike the case of Canada, to the Governor-General?” Clearly Lord Haldane shared the view of Australia’s constitutional arrangements in respect of the Governor-General’s powers which had been expressed earlier by Clark and Moore.
At the 1926 Imperial Conference, the Empire’s Prime Ministers resolved that, henceforth, a Governor-General would stand in the same constitutional relationship with the dominion government, and hold the same position in relation to the administration of public affairs in the dominion, as did the King with the British government and in relation to public affairs in Great Britain.
The 1930 Imperial Conference resolved that, in appointing a Governor-General, the King should no longer be advised by British ministers but should act on the advice of ministers in the dominion concerned. The Conference reached this decision at the urging of the Australian Prime Minister, James Scullin, who was determined to appoint Sir Isaac Isaacs as Australia’s first Australian-born Governor-General
As Australia prepared for the first visit by a reigning monarch in 1954, Prime Minister Robert Menzies asked the Solicitor-General, Professor Kenneth Bailey, for a legal opinion as to whether the Queen could carry out any constitutional duties while she was in Australia. The Solicitor-General advised that nothing could be done, except by way of a constitutional amendment under section 128 of the Constitution, to delegate the Governor-General’s constitutional powers to the Monarch. As Professor Bailey put it:
“the Constitution expressly vests in the Governor-General the power or duty to perform a number of the Crown’s functions in the Legislature and the Executive Government of the Commonwealth. In this regard, the Australian Constitution is a great deal more specific and detailed than is the earlier Constitution of Canada. … The executive power of the Commonwealth, by section 61 of the Constitution, is declared to be vested in the Queen. It is also, in the same section, declared to be ‘exercisable’ by the Governor-General as the Queen’s representative. In the face of this provision, I feel it is difficult to contend that the Queen, even though present in Australia, may exercise in person functions of executive government which are specifically assigned by the constitution to the Governor-General. The appointment of a Minister of State (section 64) is an example.”
That 1953 opinion by the Solicitor-General confirmed that the Governor-General is not the Queen’s delegate in the exercise of constitutional, that is, head of state, powers and functions; and explains why the Queen has never exercised any of these constitutional powers and functions, even when in Australia. And Professor Bailey’s final sentence quoted above is the reason why the Queen, in November 1975, could not intervene, when asked by the Speaker of the House of Representatives, to reinstate Gough Whitlam as Prime Minister after he had been dismissed by the Governor-General, Sir John Kerr.
In 1975 the Commonwealth Solicitor-General, Maurice Byers, gave Prime Minister Whitlam a legal opinion in which he (the Solicitor-General) concluded that the royal instructions to the Governor-General were opposed to the words of the Constitution; that the executive power of the Commonwealth exercisable by the Governor-General under Chapter II of the Constitution may not lawfully be the subject of instructions; and that this had been the case since 1901.
The Solicitor-General’s first conclusion was that, as the office of Governor-General was created by the Constitution, and as the Constitution also prescribed the nature and functions of the office, Queen Victoria’s letters patent “were in many, if not most, respects unnecessary.” The Solicitor-General next noted that royal instructions to the Governor-General had been issued in 1900, 1902, 1911 and 1920, and he concluded that they were not only anachronistic and unnecessary, but that they were also opposed to the words of the Constitution and therefore unlawful.
The Solicitor-General’s Opinion also dealt specifically with the widely-held but incorrect view that the Governor-General, because of the description of the office as “the Queen’s representative”, could therefore act only as her representative. He wrote:
“The Constitution binds the Crown. The constitutional prescription is that executive power is exercisable by the Governor-General although vested in the Queen. What is exercisable is original executive power: that is, the very thing vested in the Queen by section 61. And it is exercisable by the Queen’s representative, not her delegate or agent. The language of sections 2 and 61 had in this respect no contemporary parallel.”
The Solicitor-General went on to refer, with approval, to the views expressed in the Privy Council by Viscount Haldane in 1916 and 1922 in relation to section 61 of the Australian Constitution and concluded his opinion with: “I think no place remains for instructions to the Governor-General.”
The Solicitor-General’s 1975 opinion had seen work begun under the Whitlam government on a revision of the letters patent, continued almost to completion under the Fraser government, and brought to finality under the Hawke government. On 21 August 1984, on the advice of Prime Minister Hawke, the Queen revoked Queen Victoria’s letters patent relating to the office of Governor-General, all previous amending letters patent, and all royal instructions to the Governor-General, and issued new letters patent which, in the words of the Prime Minister, would:
“achieve the objective of modernising the administrative arrangements of the office of Governor-General and, at the same time, clarify His Excellency’s position under the Constitution. I would emphasise that the new letters patent do not in any way affect the position of Her Majesty as Queen of Australia or diminish in any way the constitutional powers of the Governor-General.”
On the contrary, the new letters patent strengthened the constitutional position of the Governor-General by not purporting to create the office, as the original letters patent had done, and by acknowledging the creation of the office by the Australian Constitution. At long last, the royal instructions that should never have been issued in the first place were revoked. No new instructions were issued and none are now in existence. The 1901 views of Clark and Moore were finally vindicated, and the Governor-General was acknowledged to be what in fact he had always been, namely, the holder of an independent office created by the Australian Constitution and not subject to royal, or any other, instructions.
In 1985 the Hawke Government set up a Constitutional Commission charged with carrying out a fundamental review of Australia’s Constitution. Three of its members were constitutional lawyers – Sir Maurice Byers, a former Commonwealth Solicitor-General and chairman of the Commission; Professor Enid Campbell, professor of law at Monash University; and Professor Leslie Zines, professor of law at the Australian National University. The other two members of the Constitutional Commission were former heads of government – Sir Rupert Hamer, former Liberal Premier of Victoria; and Gough Whitlam, former Labor Prime Minister of Australia. The Commission was assisted by an advisory committee on executive government under the chairmanship of former Governor-General, Sir Zelman Cowen. In 1988, in its final report, the Constitutional Commission wrote:
“Although the Governor-General is the Queen’s representative in Australia, the Governor-General is in no sense a delegate of the Queen. The independence of the office is highlighted by changes which have been made in recent years to the Royal instruments relating to it.”
The Commission was referring to the amendment of the letters patent and the revocation of all royal instruction. So, to summarise the position: under section 2 of the Constitution the Governor-General is the Queen’s representative and exercises certain royal prerogative powers and functions; under section 61 of the Constitution the Governor-General is the holder of a quite separate and independent office created, not by the Crown, but by the Constitution, and empowered to exercise, in his own right as Governor-General and not as a representative or delegate of the Queen, all the powers and functions of Australia’s head of state.
One of the commission’s terms of reference had asked it to report on the revision of our Constitution to “adequately reflect Australia’s status as an independent nation”. In its report, the commission traced the historical development of Australia’s constitutional and legislative independence, and concluded:
“It is clear from these events, and recognition by the world community, that at some time between 1926 and the end of World War II Australia had achieved full independence as a sovereign state of the world. The British Government ceased to have any responsibility in relation to matters coming within the area of responsibility of the Federal Government and Parliament.”
And the commission found that “The development of Australian nationhood did not require any change to the Australian Constitution.” Thus did the 1988 Constitutional Commission report dispose of the two arguments used by republicans during the 1999 referendum campaign, namely, that the republic would give us an Australian head of state and would give us independence from Britain.
As Dr. Henderson has placed such reliance on the view of the Attorney-General that it is “appropriate” and “proper” to describe the Queen a our head of state, I should like to conclude by referring to Daryl Williams in particular – the First Law Officer of the Crown who put aside legal impartiality and became a partisan republican during the 1999 referendum campaign.
When Prime Minister Keating launched his republican campaign in 1995 he proposed that the president would inherit all of the powers of the Governor-General without alteration, and he referred to the Governor-General as head of state. At least he realised how impossible it would be to argue that the Governor-General was not a head of state but that a president with exactly the same powers and functions would be a head of state.
When Daryl Williams became Attorney-General in 1996 he sought to assist the republican campaign that claimed that the Governor-General was not our head of state. So in January 1998, just before the February 1998 Constitutional Convention, the Attorney-General’s Department published a revised edition of Australia’s Constitution, a pocket edition of the Australian Constitution. In a section headed “Overview” it stated that “Australia’s Head of State is Queen Elizabeth II.” This “Overview” was subsequently added to the full-size publication of The Constitution in the edition published by the Attorney-General’s Department in 2003. Despite repeated written requests for information about the authority for this assertion, neither the Attorney-General nor his department have been able to provide any supporting documentary evidence, nor any constitutional or legal justification for describing the Queen as head of state, other than that it is “appropriate” and “proper”. I am delighted to report that in the most recent edition of the Attorney-General’s Department’s booklet, Australia’s Constitution, the assertion that the Queen is Australia’s Head of State has been removed.
As I said at the beginning, republicans have a perfect right to seek to change our Constitution and to alter our system of government. But I would remind them of the words of the late Rufus Davis, foundation professor of politics at Monash University: “Neither the present Constitution, nor any other constitution, can protect us against unwise government … [but] to replace a known constitution that has served us well with an unknown, in the belief that the new will be better than the old, is to gamble with the future of a nation in the name of a disintegrating philosophy of centralised power that has been found wanting everywhere in the world.” The onus is on republicans to produce their Constitution, and to convince a majority of us that it would be better than the one we have now. This they will never do by resorting to meaningless plebiscites, stupid stunts or silly slogans. My challenge to the republicans is this: “Comply with section 128 and show us your Constitution.”
[Sir David Smith, Official Secretary to five Governor-Generals is the author of Head of State, 2005, Macleay Press Sydney 2005. A review has been published on this site.]