‘Soap Oprah’ unleashed two Canberra MPs, Liberal Jason Falinski and Labor’s Matt Thistlethwaite who holds the curious portfolio of ‘ Shadow Assistant Minister for the Republic’. Given there is no Minister for the Republic in the government, the need for a shadow minister is not clear. His role is apparently to plan for the imposition onto a clearly reluctant nation some sort of politicians’ republic. Falinski and Thistlethwaite were to be joined in the media by the NSW Liberal Minister for Energy and Environment, Matt Keane.
Still fresh from swearing allegiance to their Queen, they preside over cosy taxpayer-funded clubs of ‘parliamentary friends’ to achieve something which they know or should know has long existed: our having an Australian as head of state.
This was demonstrated in 1987 when Labor PM Bob Hawke did what any Australian PM would do. He called off a state visit to Jakarta when President Suharto, probably badly advised by an Australian diplomat, declined to receive our Governor-General, Sir Ninian Stephen, as the Australian head of state. He would be received in a way which would be demeaning to the office and frankly insulting to Australia. The Indonesian government immediately saw that they had been misled.
The term ‘head of state’ is not to be found in the Australian Constitution or any of what can be described as our founding documents. Its origin is as a diplomatic term governed by international and not constitutional law. It replaced the previous generic term, ‘prince’. As the number of republics increased especially after the First World War, the term ’prince’ was increasingly judged inappropriate.
Whether ‘prince’ or ‘head of state’, either term has been used essentially in relation to the immunity to which a head of state is entitled from the laws of foreign countries, and the dignity with which he, she or indeed they ( Switzerland has seven) should be received when visiting those countries. The longstanding rule is that when a state visit is being made to a foreign country, the person held out by the sending state as their head of state is accepted by the welcoming state.
Although the term ‘head of state ‘ does not exist in the Constitution, it has increasingly been used as a description of vice-regal offices in Australia. A key example was in 1907, in an early High Court case, R v Governor of South Australia. The Court then was made up of judges who have been described as a bench of Founding Fathers, such was their grasp of and understanding of the constitutional system of the new Commonwealth of Australia which they had been intimately involved in designing.
Both by background and thinking, it was as diverse as any modern court. Yet they were unanimous in describing the Governor of South Australia, and thus all governors, as the “Constitutional Head of State,” or “Head of State”, the Governor-General to be the “Constitutional Head of the Commonwealth,” and the King as the “Sovereign”.
These are terms which were carefully used by Australians for Constitutional Monarchy in the 1999 referendum to contrast the role of The Queen as Sovereign or Monarch with the role of the Governor-General as Head of State.
The High Court would have been well aware of the provision in the Constitution, unique in the Empire to declare in section 61 that the “executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General …’’ Before Federation, the exercise of the executive power was for the Queen who then gave Royal Instructions as to its exercise.
This section was central in guiding the Palace in 1975 when the Speaker of the House of Representatives asked the Queen to reverse the decision of Governor-General Sir John Kerr to dismiss the Whitlam government. The Palace responded that, while they were following events in Canberra with close attention, it would not be proper for the Queen to intervene in matters so clearly placed within the jurisdiction of the Governor-General under the Australian Constitution.
In the meantime, the Governor-General’s national and international status had significantly changed as we moved towards full independence after the First World War. In recognizing that the Australia and the other Dominions and the United Kingdom were “equal in status,” and “in no way subordinate one to another in any aspect of their domestic or external affairs,” the 1926 Balfour Declaration had determined that the Governor-General is “the representative of the Crown, holding in all essential respects the same position in relation to the administration of public affairs in the Dominion as is held by His Majesty the King in Great Britain…”
Thus the Governor-General, when on a state visit, is entitled to be held out as and to be received as a Head of State and, as such, is at all times to be immune from the laws of foreign countries, just as the Sovereign or Monarch is as regards the United Kingdom.
It is relevant to note that while the term ‘head of state’ was gradually introduced into some constitutions, it has never been so used in Australia, Canada , the United States or the United Kindgom.
Somewhat inauspiciously for republican arguments in Australia, early domestic use seems to have occurred in countries under fascist governments. The first such use seems to have been by Generalissimo Franco who during the vacancy in the Spanish throne became became El Jefe del Estado Español . Then in 1940 Maréchal Philippe Petain became Le Chef de l’État in Vichy France.
At this stage the question must be asked why the term ‘head of state’ is so relevant to the moves to make Australia some form of ‘politicians republic’? (To some constitutional monarchists, including John Howard and Tony Abbott, Australia is already a republic, a crowned republic’.)
The reason the term became relevant is that that the official republicans in the Australian Republican Movement could not give any other reason for this change. The reasons advanced in the Nineties were so ridiculous they had become a laughingstock, with former politicians Al Grassby and Neville Wran even claiming unemployment was caused by the Crown and would be cured by their politicians’ republic. Other reasons given were almost as ridiculous.
They then fell on the term ‘head of state , a term then so obscure it was not in the then current edition of the Macquarie Dictionary, the first edition.
While Australians are not lying awake at night wondering who their head of state is, when the term is included in a question in a poll in a deceitful way, it can significantly increase the Yes vote.
An example of such a question is: “ Are you in favour of Australia becoming a republic with an Australian as head of state.’’ The clear implication explained in associated argument is that only in a republic can we have an Australian as head of state. This is manifestly untrue.
The Australian Republic Movement (ARM) seeks to use such a question both in any plebiscite and referendum.
Australians for Constitutional Monarchy (ACM), who conducted the winning NO case campaign in the 1999 republic referendum, argued strongly that we already had an Australian as head of state. This was the very first point in the initial draft of the NO case in the official YES/NO booklet which I was invited to prepare for those members of Parliament who voted against the Constitution Alteration (Establishment of Republic) Bill, 1999.
In the meantime, Australians for Constitutional Monarchy has a standing team of experts on this head of state question.
This is headed by the internationally respected legal authority and author of several publications, the Hon. Ken Handley AO C StJ QC, formerly a judge of the NSW Court of Appeal, the Court of Appeal and the Supreme Court of Fiji and the Courts of Appeal of Tonga and Kiribati. He was also Vice President of the Court of Appeal of Tonga.
The team includes Sir David Iser Smith, KCVO, AO, Official Secretary to Governors-General Sir Paul Hasluck, Sir John Kerr, Sir Zelman Cowen, Sir Ninian Stephen and Bill Hayden. Sir David wrote the authoritative book, ‘Head of State. The Governor-General, the Monarchy, the Republic and the Dismissal, 2005’.
The ACM team also includes former judge the Hon Lloyd Waddy QC RFD and Wing Commander (Rtd) Nick Hobson ADC to Victorian Governor Sir Henry Arthur Winneke, AC, KCMG, KCVO, OBE, QC Governor of Victoria.
Having written on the subject in two books and several articles and having been invited by a foreign university to sit on a doctoral assessment as an expert on the head of state issue, I should confirm that I am a member of this group.
As with the High Court of Founding Fathers in 1907, we remain unanimous in our strong opinion that the Governor-General is the Australian head of state, without qualification, and that the Queen as Queen of Australia is the Sovereign or Monarch.
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Professor David Flint is an emeritus professor of law and was chairman of the Australian Broadcasting Authority and the Australian Press Council, president of the National Federation of the English Speaking Union, Associate Commissioner with the Australian Competition and Consumer Commission and convenor of the Committee of Australian Law Deans. He has been National Convenor of Australians for Constitutional Monarchy since the 1999 referendum campaign. The author of several books, he has published widely on topics such as the media, international economic law and on the Constitution. At Barcelona in 1991, he received a World Jurist Association award as World Outstanding Legal Scholar. He was made a Member of the Order of Australia in 1995.