|Peter FitzSimons - Still dreaming about the head of state|
|Written by Professor David Flint AM|
|Sunday, 06 November 2011|
I have received the following note from Peter FitzSimons – sent also to the 1,076,999 other readers of the Sydney Sunday newspaper The Sun-Herald on 6 November. In it Mr FitzSimons returns to the debate about the head of state, one which the late Professor George Winterton - a considerable constitutional lawyer - eventually dismissed as “arid”.
“Where are you, Professor David Flint?
“I still don't understand why, when British Prime Minister David Cameron convened a meeting at CHOGM last week for "the 16 countries who have the Queen as they head of state", you did not vigorously protest.
“Why didn't you shrilly cry, as usual, that in Australia are Governor-Ggeneral is our true head of state, so there's no need to become a republic?
“If you still maintain it, you might care to correct The Queen herself.
“’Meet the Press”” ran a clip from her first visit to Australia in 1954 where she clearly states "proud I am to be the head of such a country.” ( I know Peter–they interviewed me DF).Oh, and another you might correct on the whole issue is the chief justice of the High Court, Robert French. (We have - see “Republican dreams”, 4 August 2008 and “With the utmost respect,Your Honour”, 31 July 2008. DF)
In a speech in May His Honour said:
“ 'It is unacceptable in contemporary Australia that the legal head of the Australian state, under present constitutional arrangements, can never be chosen by the people or their representatives, cannot be other than a member of the Anglican Church, can never be other than British and can never be an indigenous person. Our nationhood is not complete until the change to a republic is made.'
Dear Peter,I have to let you know that the rank and file Australian is not lying awake at night wondering who his or her head of state is.
And I should say we didn't raise this as an issue.
So you came up with the argument that it is only under a politicians’ republic could an Australian be head of state. (Until then most Australians had not heard of a head of state.)
You might remember, Peter, that the well-publicised centrepiece for that was a free republican sausage sizzle on the Sunday before Australia Day on Bondi Beach. With your republican heavies there, all it attracted was about 50 people - including the republican heavies. In the meantime, Aussies were lining up to pay for their sausages at the nearby North Bondi Surf club.
The conclusion was that the term is not to be found in our federal constitution, in any state constitution, in the Statute of Westminster, or in the Australia Acts. Its a precise diplomatic term which is therefore governed by international law.
There is no doubt at all that under international law our Governor- General is a head of state. (That is not to say that The Queen cannot be a head of state if she is asked to act in this way, as the Canadians do. And by the way, Peter, it is quite possible to have more than one head of state. I can give you several examples.)
The term head of state can also be used as a description in relation to our constitutional system. The best example of this usage was in the 1907 unanimous decision of the High Court of Australia in which the following style is adopted : 'The King is sovereign, the governor general is the constitutional head of the Commonwealth, and the governors are the constitutional heads of state'.
That decision Peter, is particularly relevant. The bench consisted of founding fathers including Sir Samuel Griffith, the chief justice. They had written the constitution, above all they knew what it meant.
There is good reason to describe the Governor -General as our constitutional head. The Queen herself confirmed this in 1975 when her secretary advised the Speaker that under the Australian Constitution the power to appoint and to remove a prime minister was vested in the governor -general and only the governor-general.
Peter I hope this helps you.
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