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October 01st 2011 print

David Smith

Why the Governor-General is Australia’s Head of State

During the last weekend in August I attended a conference of the Samuel Griffith Society. Although the society has been in existence for only nineteen years, this was its twenty-third conference. As befits a national society, it aims to move its conferences around Australia, but this was its first conference to be held in Hobart. Members of the society showed their approval of the venue by making it our best-attended conference yet, and with more women and more young people than at our previous gatherings.

The Samuel Griffith Society, which bears the name of the first Chief Justice of the High Court of Australia, was launched in July 1992 by its founding president and former Chief Justice of the High Court, Sir Harry Gibbs. The society’s aim is to uphold the Australian Constitution, and it was launched, in the words of Sir Harry, “in the hope that it will take an active part in the discussion of [the Australian Constitution] so that no change is made to the Constitution unless it is clearly seen to be for the good of the people of Australia”.

Over the years, in fulfilment of Sir Harry’s hope, the society’s conferences have been addressed by distinguished speakers on a wide range of subjects—federalism, centralism, current political and legal issues, the monarchy–republic debate, the Constitution itself, the High Court, public health, the role of state and local government, human rights, property rights, a bill of rights, taxation, international law, the role of upper houses, judicial appointments, to name but a few. Each conference paper is followed by a brief, but vigorous, period of questions and discussion, which continues during the meal and refreshment breaks, and this year’s conference was no exception.

This year we were privileged to have an excellent paper by Dr Margaret Kelly from Macquarie University. Dr Kelly’s paper, “The Case for Repealing the Victorian Charter of Rights”, was well received and warmly applauded by her audience: one of the several judges attending the conference later described it as perceptive—praise indeed from a senior judicial officer. However, in the introduction to her paper Dr Kelly used seven words that aroused loud disapproval from her audience when she said that the Queen is Australia’s head of state. The remark was unrelated to her paper, and she provided no evidence in support of it. Her dogmatic statement was obviously intended to get her audience’s attention right at the beginning of her presentation, and it certainly did that.

I believe that Dr Kelly is wrong, and I now provide a dogmatic statement of my own, for which I shall provide supporting evidence—the Queen is Australia’s sovereign, and the governor-general is the head of state. 

I begin with some examples of what I describe as anecdotal evidence—not persuasive on its own, but making a not insignificant contribution to the constitutional, judicial and legal evidence that follows. 

• As long ago as December 8, 1977, the Canberra Times referred to Governor-General Sir Zelman Cowen as the head of state.

• From 1992 to 1996, fifteen editions of the Commonwealth Government Directory described the governor-general as the head of state.

• On May 31, 1995, in a Williamson Community Leadership lecture in Melbourne, former Governor-General Sir Zelman Cowen referred to the governor-general as the head of state.

• Scholars such as Brian Galligan, Professor of Political Science at the University of Melbourne, in his A Federal Republic: Australia’s Constitutional System of Government (1995), and Stuart Macintyre, Professor of History at the University of Melbourne, in his Australian Senate Lecture “A Federal Commonwealth, an Australian Citizenship”, February 14, 1997, described the governor-general as the head of state.

• On June 7, 1995, in a ministerial statement to the House of Representatives, Prime Minister Paul Keating referred to the governor-general as the head of state.

• On June 24-25, 1995, the Weekend Australian published an editorial in which it referred three times to Governor-General Bill Hayden as the head of state.

• On September 6, 1996, the Australian referred to Governor-General Sir William Deane as the head of state.

• On May 13, 2003, in an article in the Age, former Governor of Victoria and a former judge of the Victorian Supreme Court, Richard McGarvie, referred to Governor-General Dr Peter Hollingworth as the head of state.

• On May 14, 2003, in an article in the Sydney Morning Herald, George Winterton, Professor of Law at the University of New South Wales, referred to Governor-General Dr Peter Hollingworth as the head of state.

• On May 28, 2003, in an article in the Australian, Editor-at-Large Paul Kelly asked, “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.” Kelly obviously had in mind such examples as the Age editorial, April 23, 2001; and articles by Louise Dodson, Age, April 23, 2001; Crispin Hull, Canberra Times, February 22, 2002; Fia Cummings, Sun-Herald, March 10, 2002; Greg Hywood, Age, November 2, 2002; Mike Seccombe and Michael Millett, Sydney Morning Herald, May 10, 2003; and Doug Conway, Canberra Times, May 10, 2003. I could go on and quote many more examples from the media, but I believe I have made the point.

• In addition, the governor-general has been described as the head of state by former Prime Minister Bob Hawke while conducting a television interview with Governor-General Bill Hayden on July 27, 1993; by Governor-General Bill Hayden in his farewell address to the parliament on February 15, 1996, on the eve of his retirement; and by New South Wales Premier Bob Carr, the Australian, March 22, 2002.

• On March 6, 2009, in a press release announcing Governor-General Quentin Bryce’s visit to Africa, Prime Minister Kevin Rudd referred to her as the head of state. 

I turn now to the constitutional, judicial and legal evidence for my assertion that the governor-general is Australia’s head of state

On July 9, 1900, Queen Victoria assented to the British Act of Parliament that brought the Australian Constitution into being. On October 29, 1900, Queen Victoria signed letters patent relating to the office of governor-general and issued royal instructions to the Governor-General.

In 1901 two of Australia’s constitutional scholars who had been involved in the drafting of our Constitution, Andrew Inglis Clark and William Harrison Moore, described Queen Victoria’s letters patent and royal instructions as superfluous and 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. Clark and Moore went on to point out that the Australian Constitution was unique in that it gave to our governor-general powers and functions not given to any other governor or governor-general in the British Empire.

Unfortunately, British ministers advising Queen Victoria had failed to appreciate the unique features of the Australian Constitution, and Australian ministers failed to appreciate the significance of the letters patent and the instruction which Queen Victoria had issued to the Governor-General. It was not until 1984 that these errors were corrected.

In 1916, during a Canadian case before the Privy Council, and again in 1922, during an Australian case before the Privy Council, Lord Haldane, the Lord Chancellor, noted that section 61 of the Australian Constitution had put the sovereign in the position of having parted, so far as the Commonwealth of Australia was concerned, with every shadow of active intervention in Australian affairs and, unlike the case of Canada, handing them over to the governor-general.

In 1953, before the first visit to Australia by Queen Elizabeth II, the Commonwealth Solicitor-General, Sir Kenneth Bailey, advised Prime Minister Robert Menzies that nothing could be done to delegate the governor-general’s constitutional powers to the sovereign, other than by a constitutional amendment under section 128 of the Constitution. No such constitutional amendment has ever been put to the Australian people. The Solicitor-General further advised that while section 61 of the Constitution vests the executive power of the Commonwealth in the Queen, it also provides that the executive power of the Commonwealth is exercisable by the governor-general, with exercisable being the operative word. This means that the Queen, even when present in Australia, cannot exercise in person the powers and functions which are specifically assigned by the Constitution to the governor-general.

That is why, in 1975, Buckingham Palace advised the Speaker of the House of Representatives that the Queen could not intervene to reinstate Gough Whitlam as Prime Minister after he had been dismissed by the Governor-General Sir John Kerr: 

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. 

In 1975 the Commonwealth Solicitor-General, Sir Maurice Byers, advised Prime Minister Whitlam that all existing 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 (“The Executive Government”) of the Constitution may not lawfully be the subject of instructions; and that this had been the case 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. Thus, the governor-general is the Queen’s representative under section 2 of the Constitution, but also the holder of an independent office under section 61 in which he does not act as the Queen’s delegate or agent.

On August 21, 1984, on the advice of Prime Minister Bob Hawke, Queen Elizabeth revoked Queen Victoria’s letters patent, all amending letters patent which had subsequently been issued, and all existing royal instructions to the governor-general. New letters patent were issued which strengthened the governor-general’s constitutional position by not purporting to create the office and by acknowledging that it had been created by the Australian Constitution. No new royal instructions were issued and none are now in existence. The 1901 views of Clark and Moore were finally vindicated, and the governor-general was acknowledged to be the holder of an independent office created by the Constitution and not subject to royal, or any other, instructions.

In 1988 the Hawke government’s Constitutional Commission, with former Prime Minister Gough Whitlam as one of its members, and with the advice of an advisory committee on executive government chaired by former Governor-General Sir Zelman Cowen, confirmed the earlier advice of the Solicitor-General that the governor-general, although the Queen’s representative in Australia, is in no sense a delegate of the Queen, and that the independence of the office was highlighted by recent changes to the royal instruments relating to it, namely, by the advice which Prime Minister Hawke had given to the Queen four years earlier, and by the Queen acting on that advice, revoking the invalid documents which had been issued by Queen Victoria in 1900, and issuing new letters patent.

In 1947 King George VI transferred his Canadian head-of-state powers to the governor-general of Canada. In 1983 Queen Elizabeth II transferred her New Zealand head-of-state powers to the governor-general of New Zealand. No similar transfer of head-of-state powers has been made in relation to Australia because Australia’s head-of-state powers were given to our governor-general by the Australian Constitution on January 1, 1901.

But the clincher has to be the unanimous judgment of the High Court of Australia on August 8, 1907, in The King v The Governor of the State of South Australia. The five justices who constituted the full court in 1907 had all been involved in the drafting of the Constitution, so we may assume that they knew what it said and what it was meant to say. They said that the King is the sovereign and that the governor-general is the constitutional head of the Commonwealth of Australia.

Sir David Smith was Official Secretary to five governors-general from 1973 to 1990. His book Head of State: The Governor-General, the Monarchy, the Republic and the Dismissal (Macleay Press, 2005) was launched by the former Governor-General, the Hon. Bill Hayden. He also wrote on this subject in an article in the July-August 2004 issue.