The Governor-General is our Head of State
Written by Sir David Smith   
Friday, 20 August 2004
" Constitutional reform is a serious matter. Unlike ordinary law reform whose effects are confined to specific areas and which may be modified or repealed if it turns out to have been ill-advised, constitutional reform impacts upon the entire system of law and government and is virtually irreversible. It follows that we have an obligation not only to ourselves but to our descendants to consider any proposals to change the constitution of the Commonwealth or a State rationally, deliberately and with a complete understanding of the nature of that which is being changed and of what the consequences of the change will be.”

Item (a) of the terms of reference given by the Senate to its Legal and Constitutional References Committee on 26 June 2003 requires the Committee to inquire into “the most appropriate process for moving towards the establishment of an Australia republic with an Australian Head of State.” This submission addresses the question, “Who is Australia’s Head of State?”

The case for Australia becoming a republic is almost invariably based on the argument that the Queen, as well as being our Sovereign, is also our Head of State, and that an Australian republic would give us an Australian Head of State. Yet there is a considerable body of constitutional and legal evidence that suggests that we already have an Australian Head of State in the Governor-General. It would therefore be appropriate for the Committee to consider this evidence and examine the question of just who is the Head of State.


The Queen plays an important role under our system of government as Queen of Australia, as does the Governor-General as the Queen’s representative and as the embodiment of the Crown in Australia. These separate and distinct roles are carried out without detriment to our sovereignty as a nation, and without detriment to our independence.


The Australian Constitution does not contain the words “Head of State”, nor was the term discussed during the constitutional debates which resulted in the drafting of the Constitution and its subsequent approval by the Australian people. In the absence of a specific provision in the Constitution, we need to see who actually performs the duties of Head of State in order to determine who is the Head of State.

As discussed in this paper, these duties are performed by the Governor-General, and by the Governor-General only. The Sovereign’s only constitutional duty is to approve the Prime Minister’s recommendation of the person to be appointed Governor-General, or to approve the Prime Minister’s recommendation to terminate the appointment of a Governor-General. Although the Governor-General is the Queen’s representative for the purposes of exercising the Royal prerogatives of the Crown in Australia, when he carries out his constitutional duties to exercise the executive power of the Commonwealth under Chapter II of the Constitution – “The Executive Government” – he does so in his own right and not as a delegate or surrogate of the Queen. The evidence for this statement is set out in this paper.


The claim that the Governor-General is our Head of State is not some bizarre theory dreamed up for the purposes of the republic debate in Australia. A Canadian Governor-General, Lord Dufferin, described a Governor-General as a constitutional Head of State in a speech given in 1873.

Constitutional scholars such as Professor D.A. Low, formerly Vice-Chancellor of The Australian National University, President of Clare Hall, Cambridge, and Smuts Professor of the History of the British Commonwealth, Cambridge; Professor David Butler, Emeritus Fellow, Nuffield College, Oxford; Professor Brian Galligan, Professor of Political Science at the University of Melbourne; and Professor Stuart Macintyre, the Ernest Scott professor of History at the University of Melbourne, and Chairman of the Keating-appointed Civics Expert Group, have referred to the Governor-General as a Head of State, albeit on occasions prefixed by an adjective such as “constitutional” or “de facto”.

Prime Minister Gough Whitlam considered Governor-General Sir John Kerr to be Australia’s Head of State, and ensured that when the Governor-General travelled overseas in 1975 he did so as Head of State and was acknowledged as such by host countries.


The media refer to the Governor-General as Head of State. In 1977 the opening sentence of an editorial in The Canberra Times was: “We shall have today a new Governor-General, Sir Zelman Cowen, as our Head of State.” After a speech by Mr. Bill Hayden to the Royal Australasian College of Physicians in 1995, The Australian published it under the heading: “The Governor-General has made one of the most controversial speeches ever delivered by an Australian Head of State.” The next day’s editorial in the same newspaper said that “it is perfectly appropriate at this stage of our constitutional development that the Head of State address important issues of social policy.” In 1996 The Australian referred to the Governor-General, Sir William Deane, as Head of State, and soon such references became commonplace, and without the customary adjectives such as “de facto” or “virtual” or “effective”.


By the time Dr. Peter Hollingworth had succeeded Sir William Deane in 2001, any media coyness about referring to the Governor-General as Head of State had virtually disappeared, and scholarly commentators such as Richard McGarvie, formerly Governor of Victoria and a Judge of the Supreme Court of Victoria; and Professor George Winterton, Professor of Constitutional Law at the University of New South Wales, referred to the Governor-General as Head of State.


Once Dr. Hollingworth started facing the crisis which was to result in his resignation in 2003, the fact that he was the Head of State was used to justify the criticism of him over events in the Anglican Archdiocese during his time as Archbishop of Brisbane, and became the basis for calls for him to resign. So much so that The Australian’s Editor-at-Large, Paul Kelly, was able to ask: “have Australians decided not by formal referendum but by informal debate that the governor-general is our head of state? … Take the media eruption of calling the governor-general head of state, pursued in the papers, the ABC and commercial media. Simon Crean [then Leader of the Opposition] now refers to the office as the head of state.” So does at least one member of the Opposition’s front bench.

Even Sir Zelman Cowen, himself a distinguished and learned constitutional lawyer, has described the Governor-General as Head of State. He did so in an interview he gave in 1977 as Governor-General designate, and again in a major lecture given in 1995, almost thirteen years after leaving office as Governor-General.


A most significant contribution to the debate about who is the Head of State was the sudden appearance in the Commonwealth Government Directory, in 1992, as part of a list of the Governor-General’s functions, of the following: “He is the head of state in whom the executive power of the Commonwealth is vested.” The description was used in fifteen successive editions of the Directory over more than four years: it first appeared in the August 1992 edition and disappeared just as suddenly from the December 1996 edition.


But all this is only anecdotal evidence: of much more significance in determining this important question is the legal evidence for the view that the Governor-General is our


Head of State.

During 1900 Queen Victoria signed a number of constitutional documents relating to the future Commonwealth of Australia, including Letters Patent constituting the Office of Governor-General, and Instructions to the Governor-General on the manner in which he was to perform certain of his constitutional duties.


Two distinguished Australian constitutional scholars, A. Inglis Clark, who had worked with Sir Samuel Griffith on his drafts of the Constitution, and who later became Senior Judge of the Supreme Court of Tasmania, and W. Harrison (later Sir Harrison) Moore, who had worked on the first draft of the Constitution that went to the 1897 Adelaide Convention, and who was Professor of Law at the University of Melbourne, expressed the view that the Letters Patent and the Royal Instructions were superfluous, or even of doubtful legality, on the grounds that the Governor-General’s position and authority stemmed from the Australian Constitution and that not even the Sovereign could purport to re-create the Office or direct the incumbent in the performance of his constitutional duties.

Inglis Clark pointed out that sections 2 and 61 of the Australian Constitution relating to the powers and functions of our Governor-General were unique within the British Empire. They conferred upon our Governor-General a statutory position which the Imperial Parliament had not conferred upon the Governor-General or Governor of any other part of the British Empire. Clarke noted that the powers and functions of every other Governor or Governor-General were conferred upon him by the Letters Patent which created the Office which he held, and by the Commission by which he was appointed to that Office, whereas the Office of Governor-General of Australia was created by, and the incumbent derived his powers and functions from, the Constitution itself.


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. Clarke thought it difficult, so far as the Commonwealth of Australia was concerned, to reconcile the continued existence of an independent right in the Crown to create and constitute the Office of Governor-General by Letters Patent when the express provisions of the Constitution had already created the very same Office and had given it its powers and functions.


That view was shared at the time by Harrison Moore, who pointed out that, while in all other Colonies the prerogative powers were exercised by a Governor under an authority committed to him by the Crown, in Australia they were placed in the hands of the Governor-General by the Constitution. Furthermore, the Sovereign could not detract from the Governor-General’s powers by any prerogative instrument, nor enlarge them by granting them over again by Letters Patent.


The views expressed by Clarke and Moore at the time of federation were to be shared by Justice of the High Court of Australia, Dr. H.V. Evatt, 35 years later; and by the Solicitor-General of Australia, Sir Maurice Byers, in 1975.


Unfortunately, British Ministers advising Queen Victoria failed to appreciate the unique features of the Australian Constitution, and Australian Ministers failed to appreciate the significance of the Letters Patent and the Instructions which Queen Victoria had issued to the Governor-General. Thus, between 1902 and 1920, King Edward VII and King George V were to issue further Instructions on the advice of British Ministers, and in 1958 Queen Elizabeth II amended the Letters Patent and gave further instructions to the Governor-General on the advice of Australian Ministers.


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 – an application by the State Governments for special leave to appeal to the Privy Council from the High Court’s decision in the Engineers’ 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 our constitutional arrangements in respect of the Governor-General’s powers which had been expressed earlier by Clark and Moore.

The views of Clark and Moore about the Governor-General’s status under the Constitution, and the observations by Lord Haldane about section 61, highlight what I consider to be one of the saddest aspects of the republican debate over the past decade or more. While much of the debate has concentrated on specific provisions in the Constitution, a major tactic has been to try and denigrate the entire document in general. But our Founding Fathers crafted and drafted a better Constitution than they have been credited with. Although they were producing a Constitution for a Dominion that was not yet fully independent, they were also drafting a Constitution that would enable Australia to become a fully independent sovereign nation of the world, without one word of the Constitution needing to be altered. In particular, they gave to the Governor-General an additional independent constitutional position not given to any other representative of the Crown anywhere else in the British Empire, and sadly it took Australian Governments eighty-four years to realise that fact. Sadder still, most Australians still don’t realise it.


Our early Governors-General were British, and they were appointed by the Sovereign on the advice of British Ministers. They were in reality British civil servants, and their principal duties and responsibilities were to the British Government. After federation, the Governor-General’s office became the Australian Government’s channel of communication with Britain and with other nations.

In 1910 the Australian Government appointed its first High Commissioner to Britain. However, it was not until 1931, with the appointment of Sir Isaac Isaacs as our first Australian-born Governor-General, that the British Government appointed its first High Commissioner to Australia: up until that time its representative in Australia had been the Governor-General, who had often been compared to the head of a diplomatic mission.


In 1919 Prime Minister W.M. Hughes asserted that the time had come for Dominion Governments not only to be consulted on the appointment of Governors-General, but to have “a real and effective voice in the selection of the King’s representative.” Prime Minister Edmund Barton had made a similar request nearly twenty years earlier, but Hughes went further, suggesting that Dominion Governments should be able to submit their own nominations, including the names of their own citizens. Hughes’s efforts met with some success when, in the following year, 1920, he was invited to choose Australia’s next Governor-General from a list of three names provided by the Secretary of State at the Colonial Office. However, Hughes’s choice was recommended to the King by the British Secretary of State.

In 1925 the appointment of Australia’s eighth Governor-General was made in accordance with the procedure that Hughes had insisted upon in 1920, but by now all Dominion Prime Ministers were feeling dissatisfied with the process.

The matter of Vice-Regal appointments was raised again at the 1926 Imperial Conference. This time the Prime Ministers declared that the Governor-General of a Dominion was no longer to be the representative of His Majesty’s Government in Britain, and that it was no longer in accordance with a Governor-General’s constitutional position for him to remain as the formal channel of communication between the two Governments. The Conference further resolved that, henceforth, a Governor-General would stand in the same constitutional relationship with his 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. It was also decided that a Governor-General should be provided by his Dominion Government with copies of all important documents and should be kept as fully informed of Cabinet business and public affairs in the Dominion as was the King in Great Britain.


The 1926 Imperial Conference also made another decision which is of direct relevance to the contemporary debate in Australia. The Prime Ministers recognised that the Sovereign would be unable to pay State visits on behalf of any Commonwealth country other than the United Kingdom, and it was agreed that Governors-General of the various realms would pay and receive State visits in respect of their own countries. Buckingham Palace made it clear that it expected that Governors-General would be treated as the heads of their respective countries and would be received by host countries with all the marks of respect due to a visiting Head of State. Canada exercised this right almost immediately and its Governors-General began visiting other countries the following year, 1927, but Australia waited until 1971, 44 years after Canada, to follow suit.


Early in 1930 Prime Minister J.H. Scullin was informed that the British Government would welcome an Australian indication of a suitable successor to the Governor-General. The Cabinet considered the names of Sir Isaac Isaacs, then Chief Justice of the High Court of Australia, and General Sir John Monash, a distinguished engineer and soldier who had been Australia’s highest-ranking soldier in the First World War. The choice fell on Isaacs, formerly a member of the Victorian Legislative Assembly and State Attorney-General; a member of the 1897-98 Constitutional Convention; a member of the House of Representatives and Commonwealth Attorney-General; a Justice of the High Court; and now Chief Justice.


News of Cabinet’s choice soon leaked out. Newspapers reported that King George V would not accept the recommendation. Amid a welter of public controversy, objections were voiced to the appointment of an Australian rather than someone from the United Kingdom; to the appointment of someone who had been involved in politics in Australia; and to the promotion of a holder of judicial office, on the basis that judges should have nothing to hope for and nothing to fear from any government. The Leader of the Opposition in the Federal Parliament, Mr. (later Sir) John Latham, took the view that, while the Commonwealth Constitution provided for Federal Executive Councillors to advise the Governor-General, there was no constitutional provision that would enable them to advise the King.


With some arguing that the 1926 Imperial Conference prevented the British Government from advising the King on the appointment of a Governor-General, and others arguing, as Latham did, that the Australian Government had no power to do so, it seemed that there was no-one who could advise the King on the appointment. While all this was going on, the King himself was seeking a personal role in the appointment of Governors-General, a role which he had not possessed when the British Government had been responsible for these appointments, and which he would not have under the changes made by the 1926 Imperial Conference nor under the new arrangements which Australia was proposing to follow. The fact that there were differences between the King and the Australian Government over the appointment of Isaacs was by now well known.


Against this background, the 1930 Imperial Conference resolved that, in appointing a Governor-General, the King should act on the advice of his Ministers in the Dominion concerned. It was also resolved that the making of a formal submission should be preceded by informal consultation with the King to allow him the opportunity to express his views on the nomination.


While in London, Scullin had discussions with the British Prime Minister, the King’s Private Secretary, and the King himself. It was clear that the King was unhappy with the prospect of being represented by a local man. The chief concern was that such a person would inevitably be, or would become, involved in local politics, whereas a nominee from Britain would have no such involvement and could stand aloof from all politics in the same way as the King did at home.


The particular criticisms of Isaacs were that he had been in politics, even though it was 25 years ago; that he was not known personally to the King; and that he was 75 years of age. With the King conceding that he had no personal objections to Isaacs, and with Scullin insisting that an Australian should have the appointment, the King finally acknowledged that, as a constitutional monarch, he had no alternative but to accept Scullin’s advice. However, the Buckingham Palace announcement of the appointment departed from precedent and was carefully worded so as to indicate the King’s displeasure. Isaacs was sworn in as Australia’s ninth Governor-General, and the first Australian to hold the Office, on 22 January 1931.


The (Melbourne) Age welcomed the appointment and spoke highly of Isaacs. The Sydney Morning Herald took the opposite view, expressing concern about possible damage to the Empire link and the possible bias of an Australia appointee, though it too praised Isaacs's personal qualities. But the mould had been broken and a new constitutional precedent set. Henceforth, in Australia and throughout the Empire (and later, the Commonwealth), the appointment of Governors-General, whether imported or native-born, would be made by the Sovereign on the advice of the Prime Minister of the country concerned. The Canberra Times editorialised: “The present appointment is one, therefore, which should be regarded by constitutionalists as a constitutional triumph.”


From the British point of view, the problem was that, if Governors-General were not to be appointed on the advice of British Ministers, and if the King himself could not select his representatives, then they would be the nominees of the Party in power in Australia, and, should they be required to exercise their prerogatives, their political impartiality was likely to be called into question. This was an interesting point of view, particularly if it was feared in London that Australian appointees might unduly favour the Party that had recommended their appointment, for the Australian experience has been quite the contrary.


Isaacs was called upon several times to exercise constitutional functions in potentially politically troublesome circumstances, but he handled each situation impeccably. He also had to cope with the coming to office of an Opposition which had opposed his appointment. He handled that successfully and set a pattern for future incumbents who would be so placed. His term as the first Australian in the post has been described as one of the most important in the history of the Office.

In the words of Dr. Christopher Cunneen, then Deputy General Editor of the Australian Dictionary of Biography and the author of Kings’ Men: “As Hopetoun had been the model for Isaacs’s predecessors, Isaacs was to set the pattern for subsequent Australian-born governors-general. ... [He] was the fore-runner of a series of appointments of Australians which significantly altered the nature of the institution. Prior to Stonehaven the monarchical element in the Australian Constitution, exercised by British officials, was overtly linked with the protection of British interests. The 1926 Imperial Conference removed from the formal structure the justification for this supposition, and the term of office of Isaacs completed the process. When Isaacs passed constitutional judgement in areas of political discretion, he was acting as a local constitutional monarch, not because of any inclination to further the interests of the British government.”


The 1926 and the 1930 Imperial Conferences changed the status of the Vice-Regal Office and established a new relationship between Governors-General and their Governments. In Australia we were able to alter our constitutional arrangements to meet evolving constitutional needs and to give effect to the resolutions of the two Imperial Conferences, but without having to alter one word of the Constitution itself. These changes are perfect examples of the far-sightedness of our Founding Fathers, and evidence of the adaptability and flexibility of our Constitution.


In 1953, in the course of preparing for the 1954 Royal visit to Australia, Prime Minister Robert Menzies had wanted to involve the Queen in some duties of a constitutional nature, in addition to the inevitable public appearances and social occasions. It was proposed, in particular, that the Queen should preside at a meeting of the Federal Executive Council and open a session of the Commonwealth Parliament. As this was the first visit to Australia by a reigning Sovereign, it was thought necessary to ensure that it was constitutionally in order for her to carry out these functions, and the Commonwealth Solicitor-General, Sir Kenneth Bailey, was asked for a legal opinion.


In the matter of presiding at a meeting of the Federal Executive Council, the Solicitor-General advised that it would be necessary to arrange the business of the meeting with some care. His view was that such a meeting would not be able to exercise any of the statutory functions conferred on the Governor-General in Council unless Parliament in the meantime were to pass an Act to empower the Queen in Council to exercise these functions.


By means of the Royal Powers Act 1953, Parliament did provide that, “when the Queen is personally present in Australia, any power under an Act exercisable by the Governor-General may be exercised by the Queen.” The Act further provided that the Governor-General could continue to exercise any of his statutory powers even while the Queen was in Australia, and in practice Governors-General have continued to do so.


Special provision was also made to enable the Queen to open the Commonwealth Parliament. On at least three former occasions, (1901, 1927 and 1934), so the Solicitor-General advised, a quite different question had arisen as to whether the Sovereign could confer, on a visiting member of the Royal family, authority to perform a function in relation to the Parliament which would ordinarily be performed by the Governor-General. On each of these occasions, the view of the Australian Government of the day had been that the Sovereign could not do so, a view with which Sir Kenneth Bailey agreed.


Section 5 of the Constitution provides for the Governor-General to appoint the times for the holding of sessions of the Parliament. In similar fashion, the Standing Orders of both Houses of the Australian Parliament provide for the Governor-General to do certain things in relation to the Parliament, including in relation to the opening of the first session of a new Parliament following a general election, or the opening of a new session of an existing Parliament following the prorogation of that Parliament. In 1953 both the Senate and the House of Representatives amended their Standing Orders to provide that, when the Queen is present in Australia, references to the Governor-General should be read as references to the Queen.


Thus, although the Constitution and the Standing Orders of the Parliament confer the necessary powers and functions to preside over meetings of the Federal Executive Council and over the opening of Parliament on the Governor-General in his own right, the Queen is able to perform these functions of the Governor-General when she is in Australia, but only because Parliament legislated on the one hand, and amended its own Standing Orders on the other, to enable references to the Governor-General to be read as references to the Queen.


However, 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 Sovereign. As Sir Kenneth 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.”


After commenting on the changes which had occurred since 1900 in the relationship between Australia and the United Kingdom, Sir Kenneth Bailey said: “I do not think it follows that the Constitution must be read as permitting the Sovereign to perform each and every function which the Governor-General may perform. In respect of the particular functions which the Constitution vests nominatim in the Governor-General, the Constitution must, as it seems to me, be regarded as having designated the mode or instrument in or by means of which the relevant Royal function is to be performed. In the light of the current conventions of Dominion status, it may very well be that some of the constitutional provision expressly vesting specific functions in the Governor-General would not now be necessary, as they were though to be in 1900, in order to assure the full working of responsible government in Australia. As a matter of law, however, I do not think that the change in the constitutional conventions, important though it is, can deprive the express designation of the Governor-General, in respect of these matters, of its ordinary legal effect in the interpretation of the Constitution.”


Sir Kenneth Bailey went on to discuss further the questions of the Queen opening Parliament and presiding over a meeting of the Federal Executive Council, and then said: “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.”


This 1953 opinion by the Commonwealth Solicitor-General confirms that the Governor-General is not the Queen’s delegate in the exercise of his constitutional, i.e. 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 Sir Kenneth Bailey’s final sentence quoted above is the reason why the Queen, in November 1975, could not intervene, as asked to 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, Mr. (later Sir) Maurice Byers, gave Prime Minister Gough 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, as amended from time to time, “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. Sir Maurice Byers went on to advise, in particular, “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 his conclusions “do not depend in any respect upon constitutional development since 1901.”


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. “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 and suggests (as section 61 makes clear) a viceregal status. So much was suggested by Harrison Moore in 1900 … The same view has also been expressed by the present Chief Justice of Australia more than once …”

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 dismissal of the Whitlam Government on 11 November 1975, two months after the Prime Minister had received the Byers Opinion, was to provide further evidence in support of all the legal opinions which had been given over the previous seventy-five years. Writing after the event, Governor-General Sir John Kerr, former Chief Justice of New South Wales, said: “I did not tell the Queen in advance that I intended to exercise these powers on 11 November. I did not ask her approval. The decisions I took were without the Queen’s advance knowledge. The reason for this was that I believed, if dismissal action were to be taken, that it could be taken only by me and that it must be done on my sole responsibility. My view was that to inform Her Majesty in advance of what I intended to do, and when, would be to risk involving her in an Australian political and constitutional crisis in relation to which she had no legal powers; and I must not take such a risk.”


After the Governor-General had withdrawn the Prime Minister’s Commission, the Speaker of the House of Representatives wrote to the Queen to ask her to restore Whitlam to office as Prime Minister. In the reply from Buckingham Palace, Mr. Speaker was told: “As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of the Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and the Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.”


As the defining head of state power, sine qua non, is the power to appoint and remove the Prime Minister, that reply confirmed, if confirmation were needed, that the Governor-General is indeed Australia’s Head of State. Even so, it took another nine years before the matter of Queen Victoria’s Letters Patent and Royal Instructions, as amended, was finally resolved.


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 Bob Hawke, the Queen revoked Queen Victoria’s Letters Patent relating to the Office of Governor-General, all previous emending 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 Clarke and Moore finally were 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 Parliament passed a Bill, the purpose of which, as set out in its long title, was “to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation.” This became the Australia Act 1986.


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, the Sir Isaac Isaacs Professor of Law at Monash University; and Professor Leslie Zines, formerly Dean of the Faculty of Law and the Sir Robert Garran Professor of Law at the Australian National University. The other two members of the Constitutional Commission were former heads of government – the Hon. Sir Rupert Hamer, former Liberal Premier of Victoria; and the Hon. E.G. 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 said: “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.”


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 that were to be used by republicans during the 1999 referendum campaign, namely, that the republic would give us an Australian Head of State and would give us our independence from Britain.


On 7 June 1995 Prime Minister Paul Keating made a Ministerial Statement in Parliament on the republic, in which he said: “The President will perform essentially the same functions as the Governor-General.” He went on to list presidential functions that now are performed by the Governor-General, yet he added no new presidential functions, so why he needed the word “essentially” was not at all apparent. In fact, he clearly intended that the President would inherit all of the Governor-General’s powers and functions, including the reserve powers, without alteration. After describing his Government’s attempts to codify the reserve powers, and referring to some of the unintended consequences that codification could bring in its train, including the possibility of fundamental changes to our system of government and to the status of the High Court, the Prime Minister said that: “for these reasons the Government believes that, on balance, whatever the immediate attraction of this course might be, it would not be desirable to attempt to codify the reserve powers: and that the design, processes and conventions at present governing their exercise by the Governor-General should be transferred to the Australian Head of State without alteration.”


During the election campaign that preceded the federal elections held on 2 March 1996, the then Leader of the Opposition, John Howard, had promised that a Howard Government would hold a Constitutional Convention to determine what kind of republic would be put to the Australian people at a referendum as an alternative to the existing constitutional arrangements. On coming to office, the Howard Government set in train arrangements that were to lead to the holding of a Constitutional Convention in 1998.


The Constitutional Convention convened in Old Parliament House, Canberra, on 2 February 1998. The Convention consisted of 152 delegates – 76 elected in a national voluntary postal ballot, and 76 appointed delegates drawn from a cross-section of the Australian community and including members from the Federal, State and Territory Parliaments. The task of the Convention was to consider whether Australia should become a republic; which republic model should be put to the electorate to consider against the status quo; and in what time frame and under what circumstances any change might be considered.


In the course of his opening address to the Convention, Prime Minister John Howard said that: “Whatever may be our views on the threshold issue of whether or not Australia should become a republic and whatever form we believe any such republic should take, we owe it to ourselves and to the rest of the Australian people to conduct this Convention in an open, positive and constructive fashion. The issues before us do not involve a debate as to who is the better Australian. Nor do they involve a debate about whether Australia is a truly independent nation. There are passionate Australians on both sides of the argument. We need the permission of no-one to remake our constitutional future. This Convention is a time for plain speaking. Those who oppose change should say why. Those who want change should not only say why but also articulate the kind of republic they want. … I inform the Convention that if clear support for a particular republican model emerges from this Convention my government will, if returned at the next election, put that model to a referendum of the Australian people before the end of 1999.”


A particular republican model did emerge from the Convention, albeit with the support of only 73 (48%) of the 152 delegates. The Howard Government was returned at the elections held on 3 October 1998. The Convention model was put to the Australian people by referendum on 6 November 1999. It was rejected by a majority of electors nationally and by a majority of electors in all States and in the Northern Territory, and approved by a majority of electors in the Australian Capital Territory.

The republican model which emerged from the Convention was virtually the one which had been proposed by Prime Minister Keating in 1995 and supported by the Australian Republican Movement, though it had been modified in some of its details in the closing stages of the Convention. Its significant feature was that: “The powers of the President shall be the same as those currently exercised by the Governor-General.”


The Convention also resolved that the reserve powers of the Crown exercised by the Governor-General would continue to exist under a republic and would be able to be exercised by the President.

The underlying argument used by those seeking constitutional change to a republic is that the Governor-General is not the Head of State. This is despite the fact that the occupant of that office is the only person constitutionally able to exercise the powers and functions of the Head of State of Australia, including, in particular, the defining head of state power to appoint, and if necessary remove, the Prime Minister. It has never been explained how a President carrying out the duties, powers and functions of the Governor-General would be a Head of State, but that a Governor-General carrying out the very same duties, powers and functions is not a Head of State. If such a President would be Australia’s Head of State, then that is precisely what the Governor-General is now. The Office of Head of State is defined by the duties performed by the occupant of the Office, not by the label attached to the occupant.

During the public debate which preceded the 1999 referendum, republicans drew much comfort from statements made by former Governor-General Sir Zelman Cowen and former Chief Justice of Australia Sir Anthony Mason in support of a republic. It therefore might be useful to look closely at what each of these two distinguished constitutional lawyers actually said.


In a major lecture given in Washington D.C. in 1997, Sir Zelman restated his earlier view “that the case for conversion to a republic had not been made out, since we had achieved the substance of independence within the existing framework of government, and I believed that it served no significant national interest to go further, to create community division without compensating benefit.” But he went on to add: “On further reflection, I have come to the conclusion that this symbolic change [to a republic] should be made, and that it is a matter of importance for an independent Australia to state simply and unambiguously our national status in constitutional terms.”


In 1999, as the date for the referendum approached, Sir Zelman addressed the National Press Club in Canberra. He acknowledged that, since federation, “there has been a constitutional evolution, so that the Governor-General is now invariably Australian, is appointed by the monarch on the advice of the Australian Prime Minister, and exercises the functions and powers of the office to the exclusion of the monarch herself. It is said that with this evolution in our institutions, Australia is in practice a republic. (Emphasis in the original.) This being so, the opponents of the republic argue that we have achieved the substance of independence within the existing framework of government, and that it serves no national interest to go further, risking community divisions without compensating benefit.”


Sir Zelman spoke of his own work as Governor-General in travelling and speaking widely, in representing Australia to itself and to others; noted that the President would have the same role as the Governor-General; confirmed that in the 1980s the above argument against a republic had commended itself to him; and attributed his subsequent change of mind to a “sea change” and to what he called a “highly compelling” argument given by an Australian who lives and works overseas and who constantly finds herself defending our independence and identity from the assertion that Australia is still essentially a British outpost.


Given that the Constitutional Commission, on the advice of Sir Zelman’s Committee on Executive Government, had reported in 1988 that Australia had ceased to be a British outpost in 1926, it was a strange argument to describe as highly compelling in 1999. For Australians to be persuaded to alter our constitutional arrangements simply because of what foreigners quite wrongly might think of those constitutional arrangements seems a strange way indeed to assert and defend our national sovereignty and our independence.


Right at the end of his address Sir Zelman said that he had great difficulty in understanding the argument put by monarchists that the Governor-General is our Head of State. He did not advert to the argument itself nor to the long list of legal opinions and precedents upon which it is based, and which have been recited in this paper. But Sir Zelman should have been familiar with them: they had then been on the public record for a decade and, more particularly, I had included them in a chapter which I contributed in 1997 to a volume of essays about Sir Zelman’s life and work. Nor did Sir Zelman reconcile his rejection of the view of the Governor-General as Head of State with his own earlier descriptions of the Governor-General as Head of State, and with his oft-expressed view that, in carrying out his constitutional duties, the Governor-General acts in his own right and not as a representative or surrogate of the Sovereign.


It is not surprising that most Australians do not understand the provisions of the Constitution relating to the Governor-General. We now have evidence that this aspect of our Constitution is not understood by a person as distinguished in the law as the former Chief Justice of the High Court, Sir Anthony Mason.

Like Sir Zelman, Sir Anthony Mason also took a prominent role in the republic debate. When asked, in a 1997 television interview, about the monarchists’ view that we already had an Australian Head of State in the Governor-General, he replied that “They should re-read section 2 of the Constitution.”

Sir Anthony seemed not to know that Professor Leslie Zines, ten years earlier, had expressed the view that section 2 now has “little or no operation” Former Chief Justice of the High Court, Sir Gerard Brennan, in 2001, was to express a similar view of section 2, casting doubt on whether it “has any present relevance”. Sir Anthony made no reference at all to section 61 under which the Governor-General exercises the executive power of the Commonwealth; he ignored the fact that section 2 and section 61 refer to two different sets of powers; and he ignored the fact that the monarchists’ view of section 61 and the Governor-General’s executive powers is based on the writings of such eminent lawyers and jurists as Inglis Clark, Sir Harrison Moore, Lord Haldane, Dr. H.V. Evatt, former Solicitors-General Sir Kenneth Bailey and Sir Maurice Byers, former Chief Justice of New South Wales Sir John Kerr, and former Chief Justices of Australia Sir Harry Gibbs and Sir Garfield Barwick .
One of the most significant and most disturbing interventions in the debate by Sir Anthony Mason – disturbing because of its many errors of law and of fact – occurred in May 1998, when the former Chief Justice delivered a paper at a seminar that was part of a series on “The Republic: What Next?” jointly sponsored by the Public Policy Program and the Centre for International and Public Law in the Faculty of Law at The Australian National University, Canberra.


Shortly after the 1998 Constitutional Convention I was invited to give a paper at the first seminar in the series, and I did so under the title “Evaluating the Constitutional Convention: Reflections of a Convention Delegate”. Two months later Sir Anthony gave his paper entitled “The Republic and Australian Constitutional Development”.

Sir Anthony’s paper was mainly an analysis of the republican model which had emerged from the Constitutional Convention, and the constitutional and legal issues arising from that model. But first, as the former Chief Justice put it himself, “I shall, however, indulge myself to the extent of commenting on some observations made by earlier speakers in this Seminar series.” He spoke about my view of the role of the Governor-General, but he made no reference at all to the many distinguished legal and constitutional authorities on whose pronouncements my view is based.

Sir Anthony labelled my description of the Governor-General as our constitutional Head of State as diversionary and incorrect. Again he relied solely on section 2 of the Constitution, the section which no longer has any relevance, and he made no reference at all to section 61, which is, of course, the relevant section. He stated that “the Constitution makes the Queen our constitutional Head of State”, when in fact it does no such thing. As already noted, the Constitution does not contain the term “Head of State”. In aid of his argument Sir Anthony referred to a particular viceregal overseas State visit, but was wrong about the name of the Governor-General, the date of the visit and the nature of the visit. He referred to the transition of the role of the Governor-General from being the representative of the British Government to being a part of the Australian Government, and spoke of it as occurring over a period of years, when it took place at once following a decision of the 1926 Imperial Conference. He stated that the Royal Style and Titles Acts 1953 and 1973 were enacted to enable the Queen to deliver the address at the opening of Parliament, but these Acts did no such thing: that result was achieved by each House of the Parliament amending its Standing Orders, as discussed above. Sir Anthony obviously meant to refer to the Royal Powers Act 1953, but had he done so he would still have been wrong about the purpose and effect of the Act, for it says absolutely nothing about the opening of Parliament. He spoke of the Queen taking over from the Governor-General the Head of State functions whenever she was in Australia, but that has never happened, and this paper has already canvassed at length the reasons why that can never happen.


Any, or even all, of these errors might have been pardoned as slips of the pen or slips of memory, but then followed the most egregious error. The former Chief Justice claimed to have discovered what he described as a “robust” constitutional convention, which does not exist and has never existed, and he based its purported existence on so-called precedents that have never occurred.


Sir Anthony sought to demean and diminish the Vice-Regal Office by asserting that the Governor-General could not attend functions in Australia when the Queen herself was present, and he described this as a constitutional convention that was “robust and full of life”. But the former Chief Justice was quite wrong. Governors-General have on many occasions attended functions in Australia when the Queen herself was present.


As evidence of his non-existent constitutional convention, Sir Anthony referred to the opening of the High Court by the Queen in 1980, an event at which the then Governor-General, Sir Zelman Cowen, had wished to be present but was not. But Sir Anthony was quite wrong in the reason which he gave for Sir Zelman’s absence – the Constitution had nothing to do with it.


Sir Zelman had indeed indicated to me that he wished to attend the opening of the High Court. His life-long interest in the law gave him a personal reason for wishing to be there. Moreover, the fact that, in addition to all of the Justices of the High Court, the official party was to include the Parliament, represented by the President of the Senate and the Speaker of the House of Representatives, and the Government, represented by the Prime Minister, made it all the more appropriate that the Governor-General should also be present.


I knew of no constitutional or practical reason why the Governor-General should not be present, but I took the precaution of checking with Buckingham Palace. Not only did the Palace confirm my view: next day I was told that the Queen herself had said that she would be pleased if Sir Zelman were present, and I so informed the ceremonial officers of the Department of the Prime Minister and Cabinet. Draft orders of arrangements were prepared which provided a place for the Governor-General in the official party. When the draft orders were submitted to Prime Minister Malcolm Fraser for his approval, it was Fraser’s selfish and self-serving prime ministerial whim and fiat, and not constitutional convention, that decreed otherwise. With the Governor-General not being present, the Prime Minister would move up in precedence in the official party. So the Governor-General was told that there would be no place for him at the High Court opening. Sir Zelman was later publicly to describe Fraser’s actions as “wanting in principle and demeaning to the Office of the Governor-General.”


The next Governor-General, Sir Ninian Stephen, was more fortunate. The Queen visited Australia three times during his term of office – 1982, 1986 and 1988 – and on each visit the Governor-General attended a major function when the Queen was present. Probably the most significant of these, at least from a constitutional point of view, was the opening by the Queen of the new Parliament House in Canberra on 9 May 1988. A painting of the occasion, showing the Queen addressing the gathering in the Great Hall and with the Governor-General seated on the dais behind her with all the other members of the official party, hangs in Parliament House, Canberra. Yet ten years later Sir Anthony Mason was to claim that such an occasion, (and the many others like it that have occurred during the Queen’s fourteen visits to Australia), had never occurred, and could never occur, because he had discovered a “robust” constitutional convention that prevented it. What is more, on that occasion on 9 May 1988, the then Chief Justice of the High Court of Australia, Sir Anthony Mason, was present as an honoured guest and was seated in the very front row!


Our great misfortune, as we continue to consider the possibility of constitutional change, is that most Australians do not know enough about our present Constitution to be able to understand any proposals for change. To make matters worse, there are those who ought to know better yet would ignore or misrepresent its current provisions in order to advance their case for change.


The media, who might have been expected to take a role in informing the electorate during the 1999 constitutional referendum campaign, behaved disgracefully, and no doubt would do so again in future. Instead of reporting, the media were active partisans and conducted their own campaign for the republic. For example, when former Governor-General Sir Zelman Cowen and former Chief Justice Sir Anthony Mason signed an open letter for the republic, it was published on page 1 of The Australian. The open letter in reply, signed by, amongst others, former Governor-General Bill Hayden and former Chief Justice Sir Harry Gibbs, was published on page 10 of The Australian. Support for the present constitutional arrangements was equated with disloyalty to Australia, and there were some particularly nasty and offensive examples, such as The Daily Telegraph’s “Queen or Country” masthead; and The Australian’s “scales of justice” motif featuring a crown versus a slouch hat.
Writing just after the referendum, Tony Abbott, himself a former journalist at The Australian, noted that “the reputation of the media can hardly be enhanced by so consistently misreading the public mood, so unrelentingly barracking for the losing side – and by subsequently insisting that voters got it wrong. ... But if the media’s job is to reflect (as well as to lead) a pluralist society, journalists as a class should be embarrassed at the way they have allowed ideological enthusiasm to get the better of professional detachment.”


Even the editor of The West Australian, himself a direct electionist republican, had this to say about The Australian’s coverage of the referendum debate: “I think it’s one of the lowest ebbs in Australian journalism because The Australian’s become totally partisan. It’s boosterism at its worst and it’s propaganda that goes beyond the rights of a newspaper to have a point of view. It was semi-hysterical most days and as it became apparent that the yes case was in trouble, it got more hysterical.”
And the doyen of British journalists, W.F. Deedes, out here to cover the referendum for The (London) Daily Telegraph, sent back this comment: “I have rarely attended elections in any country, certainly not a democratic one, in which the newspapers have displayed more shameless bias. One and all, they determined that Australians should have a republic and they used every device towards that end.”

Even one year after the referendum, the ABC could not restrain itself. In a television news item about separate functions held in Sydney by Australians for Constitutional Monarchy and the Australian Republican Movement in November 2000 to mark the first anniversary of the referendum, the voice-over commentary by the ABC news reader told viewers that the republic would continue to be an issue “because most Australians still wanted independence.” What was that about ABC bias?

For years the constant repetition of “it’s inevitable” has replaced reasoned argument and debate. But Quick and Garran, in their magnum opus on the Constitution, have reminded us that the purpose behind section 128 was not to frustrate or prevent constitutional change, but to encourage public discussion and to delay change until there was strong evidence that it was “desirable, irresistible, and inevitable.” The republican case must meet all three criteria and not just the last one.


A republic is defined as a system of government in which all office-holders are either elected by the people or are appointed by those who have been elected by the people. Thus our Executive Government consists of elected members of Parliament, and it is the elected Government that appoints our other office holders – senior public servants, senior diplomats, holders of statutory office, defence force chiefs, judges and magistrates, and the Governor-General. Thus, while our Constitution gives us a system of government known as constitutional monarchy, in fact our system of government meets all the requirements of a classical democratic parliamentary republic, but with the addition of an absent monarch. That is why it has been described as a crowned republic.


As Mr. Harry Evans, the Clerk of the Senate, has described it: “The Australian Constitution exhibits many characteristics of republican government. The federal system divides the power of government between the central government and the States in accordance with constitutional prescription, and provides a basis for the division of the legislature at the centre, so that changes to the law can be made only by two separately constituted majorities, representing the States by population and the States as equal units. The separation of legislative, executive and judicial powers is also constitutionally prescribed. The Constitution can be changed only by the sovereign people in a referendum, with a special majority to ensure that support for a change is geographically distributed. These are the devices by which successful republics have sought to avoid a concentration of power that would turn them into de facto monarchies or closed oligarchies. Australia’s Constitution provided the equipment for sound republican government.”


My own position on constitutional change to a republic is well known – I am utterly opposed to it. I am also enough of a democrat to acknowledge that if and when a majority of my fellow Australians vote for constitutional change then change must happen. But a democratic vote for change not only requires the people’s consent – it also requires an informed consent. And that means that the case for the republic must be made out openly and honestly, and supported by facts, not rhetoric and slogans.
Writing in The Canberra Times, Professor John Warhurst, Chairman of the Australian Republican Movement and Professor of Political Science at The Australian National University, claimed that the Governor-General is not the Head of State, and that “[t]here is an overwhelming consensus among independent constitutional experts that this is the case.” When invited to provide the names of the independent constitutional experts to whom he had referred, and references to published accounts of their views, Professor Warhurst could provide no names and no references. Instead he replied: “I believe that a survey of all the professors of constitutional law and Australian politics in Australia’s universities, for instance, would support my position.” This is hardly an adequate response to the independent constitutional experts quoted in this paper in support of the opposite view. Scholarship has to be about more than just firmly held personal opinions, even by university professors.


The republic will not give us independence, for we have that already, despite what the ABC’s news department might think – the Hawke Government’s Constitutional Commission settled that argument. The republic will not give us an Australian Head of State – our Constitution settled that argument, and the evidence has been documented in this paper. The republic will not even give us a republican system of government for, as Harry Evans has pointed out, we already have that too.


The republic is simply about removing the Queen from our Constitution and from our system of government. But most republicans will not admit that, and for the same reasons that their leaders gave when they objected to the inclusion of the words “republic” and “president” and a reference to the president’s method of election by the Parliament in the long title of the Constitution Alteration (Establishment of Republic) Bill 1999, namely, that a true and accurate description of the Bill would be confusing and misleading and might provoke a negative reaction from voters! So much for a well informed electorate.


After more than a decade of argument and debate among themselves, republicans still cannot tell us how our system of government would be improved by removing the Queen from our Constitution, nor can they agree over who or what they want to put in her place. After squandering nearly thirteen years and millions of dollars of public money on the search for a republic, they still have six models on the table.


The time for anti-British rhetoric has passed. The time for confusing and misleading the Australian people has also passed. The time for misrepresenting our present constitutional arrangements has certainly passed. It is time to stop telling us that the republic would enable us to sever our ties with Britain and become an independent nation. It is time to stop telling us that it would give us an Australian as our Head of State. It is time to stop misrepresenting the Constitution that has given us more than a century of stable, democratic, parliamentary and republican government.


We have the Queen of Australia as our Sovereign. We have the Governor-General of Australia as our Head of State. We are a sovereign and independent nation. If we can all agree on these three simple propositions, (all of which are true, and the evidence of which is set out in this paper), then we just may have the basis for a sensible debate about constitutional change, a debate in which supporters of our present constitutional arrangements are also entitled to be heard. Such a debate would be greatly facilitated if this Committee, acting on the basis of the evidence now before it, were to confirm that the Governor-General is indeed our Head of State.



Sir David Smith was Official Secretary to five Governors-General from 1973 to 1990. He was an appointed delegate to the 1998 Constitutional Convention; and a member of the No Case Committee for the 1999 Constitutional Referendum. Since his retirement he has held appointments as a Visiting Fellow in the Political Science Programme of the Research School of Social Sciences at The Australian National University, and a Visiting Fellow in the Faculty of Law at The Australian National University. He is currently a Visiting Scholar in the Faculty of Law at The Australian National University.