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ACM Home arrow Head of State arrow Head of State? Prime Minister in two minds

Head of State? Prime Minister in two minds Print E-mail
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.

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[ 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”. 


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[ 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....


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[ 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.”        

 
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