A Response to Paul Kelly on our Head of State

So far as I am aware, no Prime Minister or academic, nor any other commentator or journalist, has subsequently recanted their description of the Governor-General as the head of state in the way that Paul Kelly has.  I turn now to the constitutional, judicial and legal evidence for my assertion that the Governor-General is our head of state

On 9 July 1900 Queen Victoria assented to the British Act of Parliament that brought the Australian Constitution into being.  On 29 October 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 theAustralian 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 Australia 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 havingparted, so far as the Commonwealth of Australia was concerned, with every shadow of active intervention in Australian affairs and handing them over, unlike the case of Canada, to the Governor-General.

In 1953, prior to the first visit to Australia by Queen Elizabeth II, the Commonwealth Solicitor-General, SirKenneth Bailey, advised Prime Minister Robert Menzies that nothing could bedone 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 Constitutionvests 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 theConstitution, 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 21 August 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 latters 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 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 herNew 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, and to our Governor-General only, by the Australian Constitution on 1 January 1901.

But the clincher has to be the unanimous judgment of the High Court of Australia on 8 August 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 ruled that the Queen is the Sovereign and that the Governor-General is the constitutional head of the Commonwealth of Australia.

To borrow some words from Paul Kelly’s 2011 incorrect view of our Constitution, “the somewhat elementary point we need to get right” is that the Queen is our Sovereign and the Governor-General is our head of state.  Republicans disappointed by the results of the 1999 referendum should stop misrepresenting our present Constitution and should get down to what they need to do if they wish to alter it to give us a republican system of government – identify those defects in our Constitution and in our present system of government which they believe would be remedied by removing the Crown; identify who they would put in the Queen’s place, and how that person would be chosen, and by whom; and draft a bill for an Act of Parliament that would meet the requirements of section 128 of theConstitution.