The Australian Republican Movement (ARM) has from its inception premised the case for an Australian President on a falsehood. This falsehood is that the HM Queen Elisabeth II is the “Head-of State,” and not the Governor-General. I intend to divulge truth regarding the status of the Governor-General.The term “Head-of-State,” is not a term that arises from the written words of the Australian Constitution, rather it is a term that enjoys currency at international law. With this status comes various diplomatic duties and immunities, The Head-of-State is said to be par in parem non habet jurisdictionem. Who the Head-of-State is depends on the constitution of said nation. Under the Canadian and New Zealand Constitution the monarch is the Head-Of State. Since, however, this phrase appears nowhere in the Australian Constitution we may turn elsewhere for clarification.
The High Court in R v The Governor of South Australia 1907, clearly said, obiter, that the Governor-General is the Constitutional Head-Of-State. In the appeal of the engineers case to the Privy Council Lord Haldane’s obiter comments are also supportive. He stated that Section 61 of the Constitution:
“(places) the Sovereign in the situation 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.”
It should be noted that both comments were obiter and not binding ratio, so we may look to other events that strongly support the opinion that the Governor-General is our Australian Head-of-State. Sir David Smith argues that the legal affect of the 1926 Balfour Declaration and the Imperial Conference of 1930 neuters any argument that the Queen is the Australian Head-Of-State. The Balfour Declaration 1926 provided, inter alia, that the dominions were equal in status and distinct from the UK in respect of external affairs. Making it impossible for the monarch to represent any Commonwealth nation other than the United Kingdom! The 1953 Royal visit to Australia of HM Queen Elisabeth II is particularly illuminating. The Menzies government sought legal opinion in 1953 as to constitutional implications of the royal visit; the advice supported the case that the Governor-General continued to exercise his statutory powers during the Queen’s visit. Further, that the Queen may not exercise the powers of the Governor-General, these statutory powers may be exercised solely by the office of Governor-General! The Menzies government was so aware of this that as an act of loyalty and solidarity (with the cooperation of the ALP!) they enacted the Royal Powers Act 1953, this allowed the Queen when personally present in Australia to exercise any power exercisable by the Governor-General.
Further, we cannot ignore the fact that the Governor-General has repeatedly been treated as the Australian Head-of-State status during visits abroad, whereas the international community has never afforded HM Queen Elizabeth II this status. Professor David Flint notes in ‘The Cane Toad Republic” the Governor-General between 1971 and 1999 (year of the constitutional referendum) made over fifty-five visits to thirty-three nations for diplomatic purpose!
All of this is either known, or should be, yet, if it is known, it is wilfully ignored by the ARM. The truth is, we do have an Australian Head-Of-State.
Further Reading:
- Sir David Smith, Head of State, Sydney, Macleay Press, 2005.
- David Flint, The Cane Toad Republic, Kent Town SA, Wakefield Press
- David Flint, The Cane Toad Republic, Kent Town SA, Wakefield Press
Author: W.R.Church
Michael Canaris said
Good stuff! I’ll direct visitors to this series in my next post.
Australian Head of State « Mick’s Miscellany said
[...] Head of State Jump to Comments William Church has just started a series outlining the respective positions of the Queen of Australia and the Governor-General. Worth taking [...]
Steven Spadijer said
This post is seriously flawed. As for as the English law doctrine of Super stare decisis is concerned, the High Court, in two cases, has declared the Queen as Head of State. In half a dozen precedents the Supreme Court declared the Queen as Head of State. In five precedents the Federal Court declared the Queen as Head of State. Various territory courts have followed suit. I have collected the following precedents which confirm the above (i.e. they either refer to the Queen as Head of State explicitly or give an inferior role to the GG). I have also provided pin point references:
1. O’Day v Commonwealth [1964] HCA 46; (1964) 111 CLR 599 at 3.
2. Re Howard (1976) 1 NSWLR, 641 at p. 646 (Street CJ).
3. Pochi v Minister for Immigration & Ethnic Affairs [1982] HCA 60 at 9.
4. Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91 at 5 (Deane J).
5. Re Burgundy Royale Investments Pty Limited v Westpac Banking Corporation; the Northern Territory of Australia [1987] FCA 454 at 8.
6. Nolan v Minister for Immigration & Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 at 10-11.
7. The Queen v Sam Scott (1993) 114 ACTR 20 at 66-70.
8. Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32; (1996) 189 CLR 253; (1996) 140 ALR 129.
9. Moller v Board of Examiners [1999] VSC 55 at 19-25.
10. Sue v Hill [1999] HCA 30; 199 CLR 462; 163 ALR 648 at 83-88.
11. Kingsman v Health Administration Corporation [2000] NSWSC 136 at 258-9.
12. Cameron v Peter D Beattie in his capacity as Premier & Ors [2001] QSC 115 at 3 and 9.
13. Re Patterson [2001] HCA 51; 207 CLR 391; 182 ALR 657 at 52, 92, 123, 125-9, 132 and 135 and 139.
14. Buchanan, Donald v Lindisfarne R & SLA Sub-Branch and Citizens Club Inc and Returned and Services League of Australia [2003] TASADT at 13, 69, 79, 81, 85, 87, 94, 115.
15. Shaw v Mima [2003] HCA 72; 218 CLR 28; 203 ALR 143; 78 ALJR 203 at 49, 51 and 83.
16. Buchanan, Donald v Lindisfarne R & SLA Sub-Branch and Citizens Club and The Returned and Services League of Australia Limited (Costs) [2004] TASADT 2 at 14-19, 21-24.
17. Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322; (2004) 209 ALR 355; (2004) 78 ALJR 1383 at 35, 39, 40, 41 and 57.
18. O’Sullivan v Central Sydney Area Health Service (No 2) [2005] NSWADT 136 at 19.
19. Ruddock v Taylor [2005] HCA 48; 79 ALJR 1534; 221 ALR 32 at 58 and 215.
As for your example, R v the Governor of SA (1907), it would seem, then, that subsquent cases have overriden it. Luckily, this is not the case. Instead, what is the case is that you falsely quote and misrepresent what R v Governor of SA says. It declared the state Governors as head of *a* State (not THE state):
The GG also owes duty to the State, namely, South Australia:
“…it is clear that the duty would be one which he owed to the State collectively. It is not easy to see how, in such a case, he could perform this duty without dismissing his Ministers and finding others, and that power is manifestly *one the exercise of which could not be reviewed by any authority but the Sovereign*. The duty, therefore, is one of the duties which the Constitutional Head of a State owes to the State (and in the case of a Governor, but in a slightly different sense, to the Sovereign), and its performance must be enforced in the manner appropriate to the case of such duties. Instances of such duties—duties of imperfect obligation—are familiar to students of Constitutional Law….”
Sorry, what? One the exercise of which could not be reviewed by any authority but the Sovereign. Seems difficult to see how one can be Head of State, cough, I mean *a* State and be subject to a Sovereign’s “reviews”. This is because executive power is NOT vested in the GG, but the Sovereign. The Governor and GG is, in the words of the court, “officiating” (another word you omit) Constitutional Head of State. It implies the GG is simply a functionary, a servant:
“…The Governor, as the *officiating* Constitutional Head of the State, is accordingly named as the person to whom the notification is to be given, and the notification must be regarded as addressed to him in that capacity. So, in certifying to the Governor General the names of the senators elected, chosen, or appointed the Governor must be regarded as acting in the capacity of the Constitutional Head of the State, being in that capacity the proper channel of communication with the officiating Constitutional Head of the Commonwealth, the Governor General.
All this does then is say the GG is an effective Head of State, but not *the* symbolic Head of State. After all, given the Oxford dictionary (State Chamber of Commerce) defines Head of State as being a Sovereign, and given the precedent is calling the King a Sovereign, this allows us to conclude the King is Head of State. A head of state is a Sovereign. The King is our Sovereign. Therefore, the King is Head of State. R v Governor SA simply declared the GG as “the constitutional Head” – but the PRECEDENT quickly clarifies that the GG owes “loyalty to the King” and clearly EMPOWERS the King with ultimate power of review (of executive power by the GG):
“…But the question remains: To whom does he owe this duty? A somewhat analogous duty is cast upon the State Governors under the Constitutions of the States, all of which provide that upon a dissolution of the Houses of Assembly the writs for a general election are to be issued by the Governor. It has never been suggested that if the Governor failed to issue the writs a mandamus would lie from a State Court to compel him to do so. There is, of course, a remedy in such a case but it is to be sought from the direct intervention of the Sovereign and not by recourse to a Court of law….”
In other words, a functionary role to the GG, but power – which is what a Head of State has – to the King. Indeed, it seems difficult to see how they used the term when the term began being used in the 1950s. Anyways, even if, they used it in the sense we did, it simply goes to show ultimate power resides with the King.
So, really, the above argument is weak as far as precedent is concerned and omits a critical reading of the precedent in question.
Cheers,
- Spadijer