AUSTRALIA'S HEAD OF STATE

BY SIR DAVID SMITH KCVO AO

An article appearing in the Australian National Review

of October 1996

Under our Constitution we have two Heads of State - a symbolic Head of State in the Sovereign, and a constitutional Head of State in the Governor-General. This is not some bizarre theory which I have dreamed up for the purposes of Australia's current debate about our Constitution. The earliest record which I have been able to find of a Governor-General being described as a constitutional Head of State was in 1873, in a speech by a Canadian Governor-General, Lord Dufferin.

One of the most recent descriptions of the Governor-General as an Australian Head of State was by Professor Brian Galligan, Professor of Political Science at Melbourne University, in his A Federal Republic : Australia's System of Constitutional Government, published late last year. And between 1873 and 1995 there has been much direct legal evidence of the truth of my proposition.

The Commonwealth of Australia's first Sovereign was Queen Victoria, who issued and signed our first constitutional documents. On 9 July 1900 she issued Letters Patent assenting to the Commonwealth of Australia Constitution Act and signed two assent copies of the Act itself. On 17 September 1900 she issued a Proclamation declaring the first day of January 1901 to be the day on which the Federal Commonwealth of Australia was to come into being. On 29 October 1900 she signed Letters Patent constituting the Office of Governor-General, and a document of instructions to the Governor-General.

Two Australian legal scholars were quick to notice the constitutional significance of these last two documents. A. Inglis Clark, in Studies in Australian Constitutional Law, published in 1901, and W. Harrison Moore, in The Constitution of the Commonwealth of Australia, published in 1902, both expressed the view that the Letters Patent and the instructions were superfluous and probably of doubtful legality, on the grounds that the office of Governor-General and its powers and functions were specified in the Constitution and could not lawfully be subject to any other document, not even one issued by the Sovereign herself.

However, no notice seems to have been taken of the views of Clark and Moore. Between 1902 and 1920 further instructions were issued by King Edward VII and King George V on the advice of British Ministers; and amended Letters Patent and further instructions were issued by Queen Elizabeth II in 1958 on the advice of her Australian Prime Minister.

In preparing for the 1954 Royal visit to Australia - the first by a reigning monarch - the Government wanted to involve The Queen in some of the formal processes of government, in addition to the inevitable public appearances and social occasions. Parliament had to pass the Royal Powers Act 1953, which enabled The Queen, whenever she was in Australia, to exercise any of the Governor-General's statutory powers, but nothing could be done to delegate any of the Governor-General's constitutional powers. The Government's legal advisers suddenly discovered what had been apparent to Clark and Moore at the time of federation, namely, that the Constitution placed all constitutional powers, other than the power to appoint or remove the Governor-General, in the hands of the Governor-General, that he exercised these constitutional powers in his own right, and that they could not be performed by the Sovereign.

Despite this advice, no attempt was made to deal with the matter of the superfluous Letters Patent and the (probably) illegal Instructions, and the issue lay dormant until 1975. In that year, Prime Minister Whitlam sought the advice of the Commonwealth Solicitor-General, Sir Maurice Byers, Q.C. who confirmed that the Governor-General powers could not properly be the subject of Instructions from the Sovereign. Even so, it took another nine years before the matter was resolved. On 21 August 1984, on the advice of Prime Minister Hawke, Queen Elizabeth revoked Queen Victoria's Letters Patent and all previous Instructions to the Governor-General. No new instructions were issued but the Queen was advised to issue new Letters Patent which, in the words of the Prime Minister, would 'achieve the objective of modernising the administrative arrangements of the office of Governor-General and, at the same time, clarify His Excellency's position under the Constitution.'

The year 1975 also saw further confirmation of the Governor-General's position as our Constitutional Head of State, and it came from Buckingham Palace. Immediately after the Dismissal, the Speaker of the House of Representatives wrote to The Queen to ask her to over-rule the Governor-General, to halt the election which he had already set in train under Australian law, and to restore Mr Whitlam to office as Prime Minister.

The reply from the Palace pointed out that the Australian Constitution placed all constitutional matters squarely in the hands of the Governor-General in Canberra, and that the Queen had no part in the decisions which the Governor-General must take in accordance with our Constitution. That reply confirmed, if confirmation was needed, that in the exercise of his constitutional duties he does not act at the representative or surrogate of the Sovereign, nor can he be directed by the Sovereign in the performance of those duties.

Against this background, is it any wonder that most Australians were either confused by, or ignorant of, our constitutional arrangements. In 1988 the Constitutional Commission appointed by the Hawke Government reported that almost 50% of all Australians were unaware that we even had a written constitution, let alone knew what was in it, and that in the 18-24 age group the level of ignorance rose to nearly 70%. The Civics Expert Group appointed by the Keating Government in 1994 reported that nothing had changed, and that our present system of government and the principles underpinning it were still well-kept secrets, with 82% of all Australians knowing nothing about the content of our Constitution.

With the move underway to try and alter our Constitution, and to change our system of government, the degree of community ignorance about the way in which we are governed is quite disturbing. Most Australians don't know enough about our present system to enable them to understand any proposals for change. For my part, I don't want any change at all, but I am also enough of a democrat to acknowledge that, when a majority of Australians, voting in a constitutional referendum, want change, then change must happen. But it would be a major calamity for this nation, and for its political future, if constitutional change came about, not be deliberate and informed choice, but as a result of sheer ignorance, as to what we were doing.

In recent weeks we have seen sudden media interest in the Government's pre-election promise of a people's constitutional convention, and a determined and mischievous attempt to replace it by a plebiscite.

This plebiscite proposal is aimed at capitalising on the widespread community ignorance about our present Constitution, while at the same time, preventing the essential educative purpose which a people's convention, preceded by a campaign to elect half of the delegates, would help to bring about. Leading republicans are urging the Howard Government to dump the people's convention and go straight to a plebiscite. The media are campaigning to try and persuade the Howard Government that it has a duty to break this particular pre-election promise, while castigating it for breaking any other pre-election promises. Apparently not all bastards who need to be kept honest are in the Parliament.

The first monarchy versus republic poll conducted after the election of the Coalition Government showed a fall in support for a republic and rise in support for the monarchy. It was suppressed by the press. You can imagine the headlines had the poll gone the other way. The same poll showed that only 20% of Australians would want the Parliament to elect the President, but the media kept telling is that parliamentary election of the President is what we must have, that the people are wrong, and that they must not be given a choice.

Had the former Prime Minister been returned on 2 March, he was going to have us voting on the question "Do You Want an Australian as Head of State?" Even I would have answered "yes", though I would have added "and we have had one for the past 31 years." It would have been yet another classic case of asking a loaded and dishonest question to produce the answer you want.

Senator Nick Minchin, Parliamentary Secretary to the Prime Minister, has spoken publicly about the matters of Government will have to consider in preparing for the promised people's convention. The indication of the Government's intention to press on with the convention has obviously disturbed those sections of the media which do not want a convention, particularly one which might be a genuine constitutional convention and which might provide the people with an opportunity to consider a wide range of constitutional issues, not just one.

Leading the campaign to have the people's convention abandoned and replaced by a plebiscite is The Australian, a newspaper which has nailed its colours to the republican mast even more firmly than most. Having said that, may I also add that my friend and one time public service colleague, Paul Kelly, the paper's Editor-in-Chief, is never the less prepared to publish letters and articles from those who hold the opposite view, which is more than can be said for some of his competitors.

A recent editorial in The Weekend Australian urged the Prime Minister to focus debate on the republican issue and to ignore other constitutional issues. The editorial claimed widespread support for a plebiscite, without giving one shred of evidence for the assertion other than it was supported by Kim Beazley, Cheryl Kernot and Malcolm Turnbull. Well those names would be bound to convince John Howard, wouldn't they? The editorial stated that it was imperative that the plebiscite question be clear and simple. It should ask the people to choose between the existing constitutional monarchy or a republic. If the answer was a republic, then we could have a people's convention later to discuss the details. The reason for this dishonest approach becomes clear if we remember that a much earlier poll had shown that 52% of republicans would vote against the republic if they were not to be given the choice of electing the President.

On the same day, The Sydney Morning Herald editorial said that the promised people's convention should be dropped lest pressure groups for other causes hijack it for their own purposes. Apparently hijacking of the debate by those, for example, who might want to see the States given a say in High Court appointments, or four year terms for the House of Representatives, or the creation of new States, or constitutional recognition of local government, or the amending of section 44 in relation to the qualifications of Members of Parliament, must not be allowed. It would seem that only those pressure groups in favour of a republic should be allowed to hijack the debate.

The Sydney Morning Herald acknowledged that its recent poll showed strong antagonism to the President being elected by the politicians. 88% of those polled wanted the President elected by the people, and 65% of those polled, were opposed to Parliament making the choice. The editorial ended by assuring the Prime Minister that it would be OK to break the convention promise and hold a plebiscite instead, because Beazley and Kernot were in favour of a plebiscite and therefore, would be unlikely to complain. As for those Australians who had voted for a Government which had promised a people's convention and who might complain if one were not held, they obviously didn't matter to The Sydney Morning Herald.

A few days later The Australian published the results of yet another poll. This time there was no question of leaving the method of election of the President to be worked out later. The poll simply decided the matter for its respondents. They were asked to choose between The Queen remaining Head of State, and a Republic with a President elected by the Parliament. And that question was preceded by one which asked respondents to choose between an Australian or The Queen as Australia's Head of State. Again we had two loaded questions.

Buoyed by this example of guided democracy, "The Australian" editorialised that support for an Australian Head of State had increased since the Coalition's election. But what about the earlier poll which I have already mentioned - the once which found that support for the constitutional monarchy had increased and support for a republic had decreased since the Coalition's election? Simple: just ask the right question and you will get the right answer. And why had those polled favoured a President elected by the Parliament? Simple: they had not been offered an alternative of a President elected by the people .

A few days later, Mike Steketee, The Australian's national affairs editor, wrote that senior members of the government were considering two proposals: the first was to replace the half-appointed, half-elected people's convention with one solely appointed; the second was that if a plebiscite were to be held, it should not simply ask voters to choose between the present system of government and or a republic, but should also call for a vote on the method of electing the President. Steketee pointed out that both of these developments raised potential obstacles for republicans, the principal one being that public opinion favoured popular election, which would make the President too powerful and result in substantial change in the system of government. He went on to say, 'It would mean that the republican movement would be delivering a confused message, arguing for a republic against one in which the people had a direct say in the choice of Head of State.'

Three days later The Australian's editorial tried to resolve this dilemma for the republicans, pressing again for a plebiscite on the monarchy versus the republic, with the convention later on the type of republic. The editorial writer declared that 'A plebiscite is the essence of democracy. It gives the people a chance to decide'. But democracy and choice, it would seem, are not to be given to everyone, and certainly must not be given to the majority of republicans who would rather vote against the republic than have Parliament choose the President.

Recently, Michelle Grattan, formerly political correspondent for The Age and The Canberra Times, and now writing for The Financial Review, finally put all of these problems into a clear perspective. This doyenne of Canberra's Parliamentary Press Gallery made several points: that the people's convention promise deserves to be broken; that what is needed is for the people to speak on whether they want a republic; but that the strong feeling in the community in favour of a popularly elected President is one issue on which the government should show firm leadership - against the idea; that this question is not something that should go to the plebiscite; or if it does, it should be woven into the republic option by asking the people whether they support switching to a republic with the President chosen by a two-thirds parliamentary majority.

Note the nasty bit that the people mustn't be allowed to vote on should be, in Michelle Grattan's word, 'woven' into the question. What she really meant by woven is 'hidden, suppressed, concealed from the people'. Her final piece of advice was 'The best way of charting a community course on the republic is to put to the people a simple 'for or against' vote. Here we have the nub of the political journalist's concept of democracy; we have to ask the people, but we can't trust them to give the right answer, so she urges the government to 'chart a community course' for them, to ask a loaded question in order to get the required answer.

At last we see clearly why republicans, inside and outside the media, have started to recoil in horror from the promised people's convention and to push for a quick and simple plebiscite instead. The last thing they want, given that 82% of the electorate know nothing of our present constitutional arrangements, is anything which might allow discussion and debate, which might result in better knowledge and more understanding of our present system of government, and which might produce an electorate which is better able to evaluate proposals for change before it is asked to vote for them.

To sum up, we know that Commonwealth government legal advisers down the years confirmed that the Governor-General is Australia's constitutional Head of State. We know Buckingham Palace confirmed that advice. We know that some republicans aided and abetted by sections of the media, are intent on ensuring that the Australian electorate will be ill-informed about our Constitution. And we know that they want to ensure even republicans are denied choice.