Part I: The Governor-General (not HM The Queen Elizabeth II) is the Head of State
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
July 14, 2008 at 5:31 am
Good stuff! I’ll direct visitors to this series in my next post.
July 14, 2008 at 5:58 am
[...] 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 [...]