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

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

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

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

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

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

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

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

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

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

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

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[ The first High Court ]


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

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

His letter follows:   

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

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

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

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