The Head of State Revisited

Speech by Sir David Smith, Sydney, 21 April 2010

Today is the Queen’s actual birthday, and it is right and proper that we mark the occasion. Her Majesty came to the throne on 6 February 1952, and has served Australia as its Queen for more than half of our life as a nation.

In 1953 Prime Minister Robert Menzies introduced a Bill into the Australian Parliament – the Royal Style and Titles Bill 1953 – which formally designated the Queen as Queen of Australia. Popular mythology has it that it was Prime Minister Gough Whitlam who did this when he asked Parliament to pass the Royal Style and Titles Act 1973, but that is simply not true. The 1973 Act removed the words ―United Kingdom and ―Defender of the Faith from the 1953 style and titles as no longer appropriate for use in Australia, but added nothing to what was already there. Whitlam also wanted to remove the words ―by the Grace of God, but the Queen would not hear of it.

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Royal Style and Titles Bill 1953

As Sir Garfield Barwick, former Chief Justice of the High Court of Australia and former minister of the Crown, has put it: ―Under the Constitution, this country is unquestionably completely independent of the United Kingdom, its ministry and Parliament. If any prerogative powers have devolved upon the Queen and remain with her in relation to Australia, she as Queen of Australia would hold them in trust for the Australian people and, as a constitutional monarch, would only exercise them for the benefit of the Australia people on the advice of her Australian Ministers.

Australia’s system of government is that of a constitutional monarchy. Queen Elizabeth II is our Monarch or Sovereign, and the crown she wears is the symbol of the Australian state. It appears on the buttons and badges of rank of the Australian Defence Force, and on the buttons and badges of uniformed Commonwealth and state public servants, or at least it still does in those places where it has not yet been removed in a rush of premature republicanism.

The law courts are the Queen’s courts and they administer justice in the Queen’s name, except in Victoria, where the Attorney-General, Rob Hulls, recently proudly announced that he has modernised the State’s legal system by ensuring that prosecutions will no longer be instituted in The Queen’s name. Hulls claimed that prosecutions in Victoria ―have hitherto been made in the name of The Queen of England. But Hulls is a constitutional and historical ignoramus – the last Queen of England was Queen Anne, and she lost that title and became the Queen of Great Britain on 1 May 1707, following the union of the kingdoms of England and Scotland ninety-six years before the first European settlement in Victoria. So prosecutions in Victoria have never been made in the name of the Queen of England.

Parliamentarians and judges take an oath of allegiance to the Queen, or at least they still do in those places where it has not yet been altered in a rush of premature republicanism. Members of the Defence Force take an oath of allegiance to the Queen, as does the Governor-General. I did too, almost fifty-seven years ago; first on entering the Commonwealth Public Service, and again, only weeks later, at the start of my military service. Our governments consists of the Queen’s ministers of state, and their parliamentary opponents are more formally described as Her Majesty’s Loyal Opposition.

The Queen is mentioned many times in the Constitution of the Commonwealth of Australia, yet she has only one constitutional duty, and that is to appoint the Governor-General on the advice of the democratically elected Prime Minister. It is a duty which she performs as Queen of Australia. All of the other constitutional duties which the Queen performs in the United Kingdom or in other Commonwealth monarchical countries as Head of State are in Australia’s case performed by the Governor- General. In this respect Australia’s Constitution is unique, thanks to the skillful and far-sighted drafting of our founding fathers.

 

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Constitution of Australia, 1901

Those two great constitutional scholars and commentators, John Quick and Robert Randolph Garran, in their 1901 scholarly and definitive work on the Australian Constitution, reminded us of the reasons why our Founding Fathers ensured that the Constitution could not be altered by Parliament or by Government, but only with the approval of the people, and then only by the double majority provided for in section 128 of the Constitution. As Quick and Garran put it, ―These safeguards have been provided, not in order to prevent or indefinitely resist change in any direction, but in order to prevent change being made in haste or by stealth, to encourage public discussion and to delay change until there is strong evidence that it is desirable, irresistible, and inevitable.

We were told often enough that the Keating/Turnbull republic was inevitable, but the 1999 referendum showed that the Australian people overwhelmingly found it neither desirable nor irresistible. We know that the republic will come again, provided, of course, that the republicans can reach agreement as to which republican model they wish to run with.

Sir Guy Green, a former Chief Justice and Governor of Tasmania, who also served as Administrator of the Commonwealth in the absence of the Governor-General on three separate occasions, had this to say in his 1999 Sir Robert Menzies Oration: ―Constitutional reform is a serious matter. Unlike ordinary law reform whose effects are confined to specific areas and which may be modified or repealed if it turns out to have been ill-advised, constitutional reform impacts upon the entire system of law and government and is virtually irreversible. It follows that we have an obligation not only to ourselves but to our descendants to consider any proposals to change the Constitution of the Commonwealth or a State rationally, deliberately and with a complete understanding of the nature of that which is being changed and of what the consequences of the change will be.

The case for changing our system of government from a constitutional monarchy to a republic is almost invariably based on two propositions, both of which are simply not true. The first is that Australia must become a republic in order to become independent. But Australia has long been a fully independent nation, and that was confirmed in 1988 by a Constitutional Commission established by the Hawke Government. The Commission found ―that at some time between 1926 and the end of World War II Australia had achieved full independence as a sovereign state of the world. The British Government ceased to have any responsibility in relation to matters coming within the area of responsibility of the Federal Government and Parliament. And just to complete the story, the British Government ceased to have any responsibility in relation to matters coming within the areas of responsibility of State Governments and Parliaments with the passage of the Australia Act 1986.

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The Australian Crown

The second proposition upon which the case for a republic is based is that the Queen, as well as being our Monarch or Sovereign, is also our Head of State, and that an Australian republic would give us an Australian Head of State. This proposition is also untrue. Furthermore, it is based on the equally untrue proposition that the Governor-General is nothing more than the Queen’s representative, and has no independent constitutional role.

The fact is that the Australian Constitution gives the Governor-General two separate and distinct roles – one as the Queen’s representative, under section 2 of the Constitution, and another as the holder of an independent office under section 61 of the Constitution, in which he is in no sense a delegate of the Queen. And this too was confirmed by the Hawke Government’s Constitutional Commission in its 1988 report.

To argue that the Queen is not Australia’s Head of State does not in any way diminish the important role that the Queen has in our Constitution and under our system of government as the Monarch. It is simply the case that she does not have, and therefore does not exercise, and never has exercised, head of state powers and functions.
Our Constitution has been described as one of the great democratic instruments of the modern world. It was drafted by legislators who had been specially elected by the people for just that purpose; it was submitted to the people for their approval before it was enacted; and it may only be altered with the approval of the people. It is the only Constitution in the world with that triple pedigree, and through it we became the first nation in the history of the world to be formed as the result of a popular vote by its people.

Our Founding Fathers gave us a Constitution that was unique, for they gave to our Governor- General powers not previously given to any other Governor or Governor-General anywhere else in the British Empire. Every other vice-regal office was created by Letters Patent issued by the Monarch, and was given instructions in the performance of the duties of the office by Royal Instructions issued by the Monarch. But the office of Governor-General of Australia was created by the Constitution, and the Governor-General’s powers and functions were given to him by the Constitution, and not by the Crown.

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Souvenir of the Federation of Australia, 1st, January, 1901

No-one would ever have dreamt of describing Queen Victoria as ―head of state: the term was not in use in the Australian colonies prior to their forming a federation in 1901. The term was not used or discussed during the constitutional debates in Australia in the 1890s which resulted in the drafting of the Constitution by Australians and its subsequent approval by the Australian people. Hence the term ―head of state does not appear in the Australian Constitution.

In the absence of a specific provision in the Constitution, it is necessary to see who actually performs the duties of head of state in order to determine who is the head of state. These duties are performed by the Governor-General, and by the Governor-General only. The Sovereign’s only constitutional duty is to approve the Prime Minister’s recommendation of the person to be appointed Governor-General, or to approve the Prime Minister’s recommendation to terminate the appointment of a Governor-General. Although the Governor-General is the Queen’s representative for the purposes of exercising the royal prerogatives of the Crown in Australia, when carrying out these constitutional duties to exercise the executive power of the Commonwealth under Chapter II of the Constitution, which is headed ―The Executive Government, the Governor-General does so in his own right as head of state, and not as a delegate or surrogate of the Queen.

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Sir Peter Cosgrove, Current Governor-General

In my book Head of State I have recorded the many judicial pronouncements and legal opinions that led me to conclude that the Governor-General is Australia’s Head of State.

It was only after my book was published in November 2005 that Professor David Flint discovered that the High Court of Australia had come to the same conclusion in 1907. As that Court consisted of five judges, all of whom had been Founding Fathers and thus involved in drafting our Constitution, we may presume that they knew what they were talking about.

But if republicans cannot understand judicial pronouncements and legal opinions, they should be able to comprehend two very simple practical examples. The first is the reply which the Labor Speaker of the House of Representatives received to his letter in November 1975, asking the Queen to reinstate Whitlam as Prime Minister. Mr. Speaker was told that the Queen could not intervene in a matter which the Australian Constitution placed in the hands of the Governor-General. As the power to appoint or remove a prime minister is the most important function of a head of state in a parliamentary democracy, the Palace letter surely put the matter beyond doubt.

The second example flows directly from the various republican models that have been proposed. In every case, the republicans have said that the president should inherit all of the powers and functions of the Governor-General, without alteration. If a president exercising the same powers and functions as the Governor-General would be a head of state, then the Governor-General exercising those powers and functions must also be a head of state.

Despite the humiliating rejection of their last attempt in 1999, the republicans are once again beginning to hanker for a republic. But there is no such thing as a republic. There are some 150 or more republics in the world, and all of them are different. Asking the people whether they want a republic, and telling them that you will let them know later whether it’s going to be the Mary Robinson model or the Sadam Hussein model has been compared by one Canadian commentator with asking the people whether they want a monarchy, and telling them afterwards whether they will get Queen Elizabeth II, Emperor Bokassa or mad King Ludwig of Bavaria.

On Friday 13 February 1998, in the House of Representatives Chamber of Old Parliament House, Canberra, republican delegates to the 1998 Constitutional Convention began to clap and cheer and embrace each other as the vote on the final resolution was taken. Spectators in the public gallery stood and cheered with them. But in the months that followed, the republican euphoria dimmed, even for some who had so enthusiastically joined in the clapping and the cheering and the embracing back in February. Not only did some of them predict that the referendum to turn this country into a republic would fail, some even dared to suggest that it would be a disaster for Australia if the referendum were to be carried.

The final resolution recommended to the Prime Minister and the Parliament that the republican model supported by the convention be put to the people in a constitutional referendum. This resolution received the votes of 133 of the 152 delegates. It was supported by delegates representing Australians for Constitutional Monarchy because we, too, wanted the issue of the republic settled once and for all. We welcomed the opportunity to have it taken out of the hands of the various elites who had controlled and stifled the debate and to have it put to the Australian people.

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29th and current Prime Minister of Australia and Leader of the Liberal Party since 2015

Of more significance was the preceding resolution which called for the convention to support the adoption of the Malcolm Turnbull republican model in preference to our present constitutional arrangements. The Turnbull model, which went under the grandiloquent title of the Bipartisan Appointment of the President Model, and under which the president would be appointed by the Commonwealth Parliament, and would be removable simply by the Prime Minister, received the votes of only 73 of the 152 delegates, or 48 per cent — hardly a ringing endorsement.

It is interesting to note that, of the four resolutions put to the convention on the final day, the one which received the smallest number of votes, and the only one which failed to get the support of even a bare majority of delegates, was the Turnbull republican model which was to be pitted against the present Constitution at the following year’s referendum – a pathetic outcome after seven years of so-called public debate.
In the 22 months between the Constitutional Convention and the referendum, republicans invented weird and wonderful reasons for wanting to remove the monarchy from our Constitution. Peter Collins, a former senior Liberal minister in New South Wales, and later Leader of the Opposition in the State Parliament, declared that he was a republican because the ultimate decision-making process for Australians rested with the British Government. The assertions made by Peter Collins are simply not true and, what is more, they ceased to be true two years before he was born.

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Australian Republicans Today

Al Grassby, a minister in the Whitlam Labor government, claimed that the monarchy was responsible for the recession of the late 1980s, for the one million Australians who were unemployed at the time, for the business excesses of that period, and for the exodus from Australia of our top scientists.

Michael Lynch, then general manager of the Australia Council for the Arts, asserted that the monarchy stifled artistic talent and prevented our artists from fully expressing themselves.

Former Chief Justice of the High Court of Australia, Sir Anthony Mason, confessed that he had become a republican at the age of eight, while watching a cricket test match between Australia and England during the 1932-33 bodyline series. He waited for sixty-five years before revealing it, meanwhile accepting two imperial honours in the Order of the British Empire from the Monarch along the way between conversion and confession. More about him in a few moments.

Janet Holmes a Court, an Australian Republican Movement delegate to the 1998 Constitutional Convention, told a delegation from the British Chamber of Commerce that she wanted a new flag and a new Constitution because an Asian cabinet minister had told her that his country would help the Australian people in their struggle for independence from Britain! It also worried her that her Asian acquaintances were confused by the Queen’s portrait hanging on Australian Embassy walls. Prime Minister Paul Keating saw to that – he had them removed.

Sallyanne Atkinson, former Liberal Lord Mayor of Brisbane, former Australian Trade Commissioner to France, and also an Australian Republican Movement delegate to the 1998 Constitutional Convention, said that she was a republican because she had found the French confused by the fact that the Queen of England was also Queen of Australia. I should have thought that the French would have been more confused by the fact that, following their bloody revolution of 1789-92 and the execution of their monarch, they have had no less than ten major changes in their system of government, including five republics. And still they have not got it right, for there are moves from time to time towards a sixth republic. The trade commissioner might more usefully have spent her time in Paris in telling the French something about the enduring stability of our constitutional arrangements.

Unfortunately, Atkinson was typical of so many of Australia’s foreign service officials. The former Secretary to the Department of Foreign Affairs and Trade, Richard Woolcott, and other former diplomats from that department, have argued for constitutional change in order to simplify matters for our diplomats when it comes to explaining our constitutional arrangements to foreign heads of state and their officials. Woolcott mentioned particularly his own difficulties in explaining the 1975 dismissal of the Whitlam Government to the former dictator President Suharto of Indonesia, himself no paragon of democratic virtue, as a reason for altering our Constitution. If our diplomats and trade representatives cannot understand, explain and defend Australia’s present system of government they should get off its payroll.

Bill Ferris, the former chairman of the Australian Trade Commission, and then the chairman of the Australian Venture Capital Association, boasted that the republic would present a windfall marketing opportunity for Australian exporters because our present constitutional arrangements were harmful to the overseas promotion of our products and services. According to Ferris, the republic would help gain international recognition for our technology and our inventions, and would ensure that much more venture capital would flow back into our newer industries. It would seem that the monarchy is even responsible for our trade deficit!

Lindsay Fox, founder and chairman of Fox Group Holdings and an Australian Republican Movement delegate to the 1998 Constitutional Convention, together with other business leaders, saw the republic as an opportunity for Australia to ―rebadge and ―re-brand itself, thus reducing the nation, its history, its Constitution and its system of government to the level of a new car or a packet of detergent.

Neville Wran, former Premier of New South Wales and an Australian Republican Movement delegate to the 1998 Constitutional Convention, told us that changing to a republic would boost jobs and invigorate Australia’s spirits.

One of the most revealing contributions to the debate came from Michael Sexton, the Solicitor-General for New South Wales. Sexton argued that the office of president of Australia should be dumbed down. He claimed that our governors-general have been men of eminence and intelligence and ability, and therefore far too highly qualified for what he described as essentially a ceremonial position. Their extraordinarily high qualifications suggested to Sexton a wild case of overkill for a position which he believed calls for someone like the assistant secretary of the glass blowers’ union – not the secretary, mind you, but the assistant secretary – someone who, as Sexton put it, could be relied upon to take orders and keep out of the limelight.

How grown people, all holding senior public office, thought they could get away with such twaddle, and use it to justify drastic change to our system of government, has always mystified me.

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One of the silliest interventions in the debate about our Constitution came from Sir Anthony Mason, former Chief Justice of the High Court. Soon after the 1998 Constitutional Convention, the Australian National University’s Law School held a series of seminars on various aspects of the Constitution. I was invited to give the first paper, and I spoke about the two roles of the Governor-General – as the Queen’s representative under section 2, and as the person who exercises the executive power of the Commonwealth under section 61 as Head of State.

Sir Anthony Mason gave his paper several months later and he was to speak on constitutional matters unrelated to the republic. However, he began his lecture by rubbishing everything I had said about the role of the Governor-General. He claimed that the Governor-General was nothing more than the Queen’s representative, and he tried to prove it by alleging that when the Queen was in Australia the Governor-General ceased to function. He further claimed that he had discovered a robust constitutional convention that supported this practice and prevented the Governor-General from appearing in public with the Queen.

Unfortunately for Sir Anthony Mason’s reputation as a constitutional lawyer, none of his claims was true. Governors-General have never ceased to function while the Queen was in Australia but have always continued to carry out their constitutional duties. Furthermore, they frequently have appeared in public with the Queen. As one example of this, there hangs in Parliament House, Canberra, a painting of the Queen opening the new building on 9 May 1988, and the then Governor-General, Sir Ninian Stephen, is shown seated on the dais with the rest of the official party. What’s more, the then Chief Justice, Sir Anthony Mason, was present in the audience as an honoured guest, and was seated in the very front row. Sir Anthony’s new-found robust constitutional convention does not exist, and he based it on precedents that have never occurred.

The debate of the 1990s revealed just who the Turnbull republicans really want as Australia’s head of state – a political puppet who will do as he is told, and face instant dismissal if he does not. That is why they resent the present system which gives us governors-general of intelligence and ability and integrity. As the Australian people showed in 1999, we don’t want our constitutional watch-dog and umpire reduced to the status of the Prime Minister’s lap-dog.

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The 1999 referendum saw the republic rejected by all six States and the Northern Territory – it was approved only in the Australian Capital Territory. Ever since then the republicans have tried to keep the issue of the republic alive by resorting to a succession of silly slogans and stupid stunts. Last year in Canberra they marked the tenth anniversary of their defeat by laying wreaths in front of Parliament House. This year they chose April Fools’ Day – how appropriate – to change the street signs on Melbourne’s Queen Street to Republic Street.

With the republican movement having among its membership more academic constitutional lawyers and political scientists than you could poke a stick at, they still have not been able to come up with a new republican model to put to the people. They prefer to bang the drum about what they are against than to tell us what they are for. But at the end of the day they will still have to come up with a bill that sets out the words that they wish to remove from our Constitution, and the words that they want to put in their place. Deceptive and dishonest plebiscites will not save them from the task of complying with section 128 of the Constitution.

That is proving to be a difficult task for the republicans because they have never been able to do what altering the world’s most successful Constitution would require of them. No republican has ever been able to identify a single defect in our present system of government that would be remedied by removing the Queen from our Constitution. Until they can do that, they are whistling in the dark. Long may they continue to whistle.

End of Speech

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And long have they whistled. Until recently the Australian Republican Movement (ARM) have aligned themselves with the Shorten Labor Party. The ARM have also said that they will emulate the modern & technological tactics used in the same-sex marriage postal plebiscite in order to push for a Republic.

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As seen here, the Republicans intend on pushing with the same mantra of “Do you want an Australian Head of State” without the constitutional knowledge that we already do. They just hope that the people of Australia are oblivious and ignorant of our Constitution (Even to it’s existence) so they can push for their Republic in the most dishonest way possible.

Last month there was a formal meeting between the Australian Republican Movement and Shorten Labor to discuss using Labor MPs & Senators to promote the self-styled ‘Republic Campaign Day’ on September 1.

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Proof of the Labor/ARM alliance

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And those that will be paying for the upcoming Republic plebiscite are the Taxpayers of Australia. If you’ve been reading this, you’d come to the understanding that Australia does indeed have an Australian as our Head of State and whom of which is important in not only representing Australia on the world stage but also in being our protection against the Politicians that wish to demolish our Constitution in order to pursue their agendas.

Nor do any of these Republicans understand the Can O’ Worms they are about to unleash upon Australia. Because our Constitution is also bound by the Magna Carta and is the Act of Federation. Without the Crown, we lose our rights, liberties and freedoms and the States unified under the Crown will become self-defined Republics. I ask you, due to our Multicultural and Multi-Ethnic Demographics, do you believe that the Asians, Africans or Muslims within our borders currently do not want to create their own Republics or Caliphates within our Fair Country?

Well, if given the chance, why wouldn’t they carve out their own Chinese Australia, Islamic Australia or Sudanese Australia?

I do not want to be controlled by politicians bound to Unions or Big Businesses. The Crown has served us well and should continue to do so for another hundred years. Because it is not about us in the present, it is about our children and their childrens children. The Crown serves us, do you really think our politicians would be so kind?

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Advance Australia

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