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But We Already Have A Head of State
The republican movement has cleverly capitalised on the ignorance of most Australians about the Constitution and the federal system of government under which we all live. This had enabled them to wage a campaign based on misrepresentation. A person who knows little or nothing about our present constitutional arrangements is hardly in a position to be able to evaluate proposals for change. As a first generation native-born Australian whose family came from a non English speaking background in the late 1920s, I am grateful that my parents and grand-parents were able to find in this country the peace and happiness that was denied to them in the land of their birth because of their religion. Australia is rightly proud of what has been, and still is, the most comprehensive and the most generous immigration programme the world has ever seen. Down the generations, those who have chosen to come and live in this country have brought with them their own languages and customs and traditions, and some they have chosen to hold on to. At the same time, most of them have become loyal Australians and have also adopted Australian customs. They have made their own contributions to what they found here, and our cultural mixture has become all the richer for it. Sadly, this cultural diversity has become, for some republicans, an excuse for rejecting this country's basic British cultural traditions which have given us our language, our literature, our Constitution and our system of parliamentary government, our laws and our legal system, our traditions and our customs. Whether we like it or not, the fact remains that these aspects of our Australian way of life are of British origin: we cannot alter our history, no matter how hard or how often some might try to do so. Donald Horne has described Australia as the most tolerant country in the world. The distinguished Australian author, Morris West, has said that one of his most famous works had been inspired by the words of Pope John XXIII: "Let us seek that which unites us and not that which divides." Today our population of 18 million people is made up of people born in 240 separate countries, speaking 70 different languages, so Donald Horne must be right. Those republicans who argue that we must reject any aspect of our Australian cultural inheritance, including the constitutional monarchy, solely because of the presence among us of people to whom it is unfamiliar or who do not understand it, are selling all of us, including the new arrivals, very short indeed. To do so would not only be to ignore the Pope's advice: we would also be declaring ourselves to be a BYO nation - bring and retain your own culture because we haven't got one to give you. That would have to be the ultimate cultural cringe. No other country in the world would tolerate such a proposition, and neither should we. As for the specific proposal that we should reject the Monarchy because it is British, that seems to fly directly in the face of our much-vaunted multiculturalism. The Monarchy has provided strength and stability to our system of government, and a sense of unity to our nation. It is part of our history, and it is no less Australian just because its story began in England or because we share it with Canada or New Zealand or Papua New Guinea or The Bahamas or Barbados or Jamaica or The Solomon Islands or Tuvalu, to name some of the sixteen monarchical countries in the Commonwealth of nations. Most of these nations are not of Anglo-Celtic origin and most of their people are not white, and I should have thought that a multicultural Australia would be proud to share their Monarch with all of them. Our Constitution may be altered only with the approval of the people at a referendum. This is a rare and precious provision in a world where most Constitutions may be altered by parliaments or by governments, without the consent of their people. But if the people are required to give their consent it must be an informed consent. In 1988 the Hawke Government's Constitutional Commission found that almost 50% of all Australians were unaware that Australia has a written Constitution, and that in the 18- 24 year age group the level of ignorance rose to nearly 70%.2 In 1994 the Keating Government's Civics Expert Group found that 82% of Australians knew nothing about the content of the Constitution. 3 Sadly, as these reports have shown, we do not have a well-educated or a well-informed community when it comes to constitutional matters, and without some knowledge of our present system of government it will be very difficult to understand and evaluate the various proposals for change. The report of the Constitutional Commission also provided the final answer to those who say that we must become a republic in order to assert our independence of Britain. Set up by the Hawke Government in 1985, the Commission consisted of three very distinguished constitutional lawyers and two former heads of government - Sir Maurice Byers, former Commonwealth Solicitor-General; Professor Enid Campbell, Professor of Law at Monash University; Professor Leslie Zines, former Professor of Law at the Australian National University; the Hon. Sir Rupert Hamer, a former Liberal Premier of Victoria; and the Hon. E.G. Whitlam, a former Labor Prime Minister. The Commission was advised by an
Advisory Committee on Executive Government, and that committee had been chaired by the Rt. Hon. Sir Zelman Cowen, a former Governor-General of Australia. 4 One of the Commission's terms of reference required it to report on the revision of our Constitution to "adequately reflect Australia's status as an independent nation". 5 In its final report, presented in 1988, the Commission traced the historical development of our constitutional and legislative independence, and concluded: "It is clear from these events,and recognition by the world community, that at some time between 1926 and the end of World War 11 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 the area of responsibility of the Federal Government and Parliament. "6
The Commission went on to report unanimously that "The development of Australian Nationhood did not require any change to the Australian Constitution". 7 The argument that we need to become a republic in order to become more independent is simply not true. More recently the republicans have argued that we must become a republic in order to have an Australian head of state. This argument is also untrue. The fact that the republican cause had some support last year from former Governor-General Sir Zelman Cowen and former Chief Justice of Australia Sir Anthony Mason does absolutely nothing to diminish the strength of the constitutional monarchist view. That view, based on legal opinions and political decisions over the past 97 years, is that Australia has two heads of state: a symbolic head of state in the Queen, and a constitutional head of state in the Governor-General, and we have had no one but an Australian in that office since Lord Casey became Governor-General in 1965. Though republicans are agreed that they want to remove the Queen from our Constitution, they are utterly divided and confused over who or what to put in her place. They are also hopelessly divided over their reasons for wanting to remove her: some say she interferes, so let's get rid of her; others say she plays no part, so let's get rid of her! The reality is that the Crown, which the Queen wears and which the Governor-General embodies in Australia, has a most important role in ensuring the stability of our system of government. Behind it lie almost a thousand years of history and tradition which none of the several republican models on offer could hope to replicate. In this country the constitutional head of state is chosen by the Government of the day, is advised by the Government of the day, and may be removed by the Government of the day. Nothing could be more democratic or more republican. The role of the Crown in the appointment and removal processes ensures that the Governor-General's allegiance is to the entire nation and not just to those, whether in the community at large or in the Parliament, who voted him or her into office. In our democracy, election to a public office, as distinct from appointment, carries with it the notion of a mandate, with policies to pursue and supporters to be rewarded, and there is no place for such influences on the person who occupies the desk at Government House, Canberra. I have known Governors-General who have been deterred from acting or speaking in a particular way simply because they knew they had been appointed and not elected. I most strongly urge my fellow Australians not to surrender this very powerful restraint on what is potentially a very powerful position under our Constitution. The claim that the Governor-General is our constitutional head of state is not some bizarre theory dreamed up for the purposes of the current debate, for it has been so since the beginning of Federation. Our Constitution does not contain the term "head of state", nor have I been able to discover any evidence of the term being used during the pre-federation Conventions. But then our Constitution does not contain the term "Prime Minister" either. We have no difficulty in knowing who is the Prime Minister: we simply look to see who is actually doing the job. So too with the head of state, and we find that the job is being done, not by the Sovereign but by the Governor-General. A Canadian Governor-General, Lord Dufferin, described a Governor-General as a constitutional head of state in a speech given in 1873.8 Paul Keating referred to the Governor-General as our head of state in the very speech in which he announced in Parliament, on 7 June 1995, his Government's proposals for the republic. 9 Brian Galligan, 10 Professor of Political Science at the University of Melbourne, and Stuart Macintyre, 11 the Ernest Scott Professor of History at the University of Melbourne and Chairman of the Keating-appointed Civics Expert Group, refer to the Governor-General as head of state. The media, so intent on pushing for the republic, refer to the Governor-General as head of state. After Mr. Bill Hayden's speech to the Royal Australasian College of Physicians in 1995, the Australian published it under the heading "The Governor-General has made one of the most controversial speeches ever delivered by an Australian head of State". 12 The next day's editorial in the same newspaper said that "it is perfectly appropriate at this stage of our constitutional development that the head of State address important issues of social policy". 13 More recently, The Australian referred to the present Governor-General, Sir William Deane, as head of State. 14 And in 1977 the opening sentence of an editorial in The Canberra Times was "We shall have today a new Governor-General, Sir Zelman Cowen, as our Head of State". 15 Of much more significance than all this anecdotal evidence is the legal evidence for the view that the Governor-General is our constitutional head of state. During 1900 Queen Victoria signed a number of constitutional documents relating to the future Commonwealth of Australia, including Letters Patent constituting the Office of Governor-General, 16 and Instructions to the Governor-General on the manner in which he was to perform certain of his constitutional duties. 17 Two distinguished Australian constitutional scholars, A. Inglis Clark, 18 who had worked with Sir Samuel Griffith on his drafts of the Constitution, and who later became Senior Judge of the Supreme Court of Tasmania, and W. Harrison (later Sir Harrison) Moore, 19 who had worked on the first draft of the Constitution that went to the 1897 Adelaide Convention, and who was Professor of Law at the University of Melbourne, expressed the view that the Letters Patent and the Royal Instructions were superfluous, or even of doubtful legality, on the grounds that the Governor-General's authority stemmed from the Australian Constitution and that not even the Sovereign could direct him in the performance of his constitutional duties. Inglis Clark pointed out that sections 2 and 61 of the Australian Constitution 20 relating to the powers and functions of our Governor-General were unique within the British Empire. They conferred upon our Governor-General a statutory position which the Imperial Parliament had not conferred upon any other Governor or Governor-General in any other part of the Empire. 21 Clark specifically rejected any notion that section 2, which provides for the appointment of the Governor-General as the Queen's representative, and for the exercise, by the Governor-general, of certain prerogatives of the Crown, placed any limit or control over the Governor-General in the exercise of the executive power of the Commonwealth conferred on him by section 61.22 That view was shared at the time by Moore; 23 by Justice of the High Court of Australia, Dr. H. V. Evatt, 35 years later; 24 and by the Solicitor-General of Australia, Sir Maurice Byers, in 1975.25 Unfortunately, British Ministers advising Queen Victoria failed to appreciate the unique features of the Australian Constitution, and Australian Ministers failed to appreciate the significance of the Letters Patent and the Instructions which Queen Victoria had issued to the Governor-General. Between 1902 and 1920, King Edward VII and King George V were to issue further Instructions on the advice of British Ministers, 26 and in 1958 Queen Elizabeth 11 amended the Letters Patent and issued further Instructions on the advice of Australian Ministers. 27 In 1922, during the hearing of an application by the State Governments for special leave to appeal to the Privy Council from the High Court's decision in the Engineers' Case, 28 Lord Haldane, sometime Lord Chancellor of Great Britain and President of the Judicial Committee of the Privy Council, asked, with reference to section 61, "does it not put the Sovereign in the position of having parted, so far as the affairs of the Commonwealth are concerned, with every shadow of active intervention in their affairs and handing them over, unlike the case of Canada, to the Governor-General? " 29 Clearly Lord Haldane shared the view of our constitutional arrangements in respect of the Governor-General's powers which had been expressed at the time of federation by Clark and Moore, and which were to be expressed later by Evatt and Byers. At the 1926 Imperial Conference, the Empire's Prime Ministers declared that the Governor-General of a Dominion was no longer to be the representative of His Majesty's Government in Britain. The Conference further resolved that, henceforth, a Governor- General would stand in the same constitutional relationship with his Dominion Government, and hold the same position in relation to the administration of public affairs in the Dominion, as did the King with the British Government and in relation to public affairs in Great Britain. 30 The 1930 Imperial Conference decided that, henceforth, recommendations to the King for the appointment of a Governor-General would no longer be made by British Ministers but by the Prime Minister of the Dominion concerned. This decision further strengthened the constitutional role of Governors-General and their relationships with their Dominion Governments. 31 The Imperial Conference decision was taken at the height of, and in support of, action which had been initiated earlier that year by Australia's Prime Minister, J.H. Scullin, in insisting on advising the King on the appointment of Australia's next Governor-General. Scullin's insistence on the right to recommend the appointment of Sir Isaac Isaacs as Australia's first Australian-born Governor-General became the genesis of the new rule for the appointment of Governors-General throughout the Empire. Our early Governors-General were British. They were appointed by the Sovereign on the advice of British Ministers and were in reality British civil servants. Their role was to represent British interests in Australia. Their principal duties and responsibilities were to the British Government. But the 1926 and the 1930 Imperial Conferences changed the status of the Vice-Regal office and established a new relationship between the Governors-General and their Governments.32 In Australia we were able to alter our constitutional arrangements to meet evolving constitutional needs, but without having to alter one word of the Constitution itself. These changes are perfect examples of the far-sightedness of our Founding Fathers, and evidence of the adaptability and flexibility of our allegedly horse-and-buggy and inflexible Constitution. In 1953, in the course of preparing for the 1954 Royal visit to Australia, Prime Minister Menzies had wanted to involve the Queen in some of the formal processes of government, in addition to the inevitable public appearances and social occasions. But the Government's legal advisers pointed out, as Clark and Moore had done more than 50 years earlier, that the Constitution placed all constitutional powers, other than the power to appoint the Governor-General, in the hands of the Governor-General; that he exercised these constitutional powers in his own right, and not as a representative or surrogate of the Sovereign; and that the Sovereign could not exercise any of the Governor-General's constitutional powers, even when she was in Australia. In 1975 the Commonwealth Solicitor-General, Mr. (later Sir) Maurice Byers, gave Prime Minister Gough Whitlam a legal opinion in which he (the Solicitor-General) concluded that the 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 11 of the Constitution may not lawfully be the subject of Instructions; and that this had been the case since 1901.33 The dismissal of the Whitlam Government later that year was to provide concrete evidence of the correctness of all the legal opinions which had been given over the previous seventy-four years. Writing after the event, Governor-General Sir John Kerr, former Chief Justice of New South Wales, said:
After the Governor-General had withdrawn the Prime Minister's Commission, the Speaker of the House of Representatives wrote to the Queen to ask her to restore Whitlam to office as Prime Minister. In the reply from Buckingham Palace, Mr. Speaker was told: "As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of the Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. 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". 35 That reply confirmed, if confirmation were needed, that the Governor-General is indeed Australia's constitutional head of state. Even so, it took another nine years before the matter was resolved by giving effect to the Solicitor-General's Opinion of 5 September 1975. On 21 August 1984, on the advice of Prime Minister Bob Hawke, the Queen revoked Queen Victoria's Letters Patent and the Instructions to the Governor-General, and issued 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". 36 No new Instructions were issued. In 1985 Parliament passed a Bill, the purpose of which, as set out in its long title, was "to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation." This became the Australia Act 1986. In 1988, in its Final Report, the Constitutional Commission said: "Although the Governor-General is the Queen's representative in Australia, the Governor-General is in no sense a delegate of the Queen. The independence of the office is highlighted by changes which have been made in recent years to the Royal instruments relating to it". 37 If there should still be any doubt about the fact that the Governor-General is indeed our constitutional head of state, we have the ultimate confirmation in Prime Minister Keating's statement to Parliament on the republic. Some republicans had said, and some still do say, that the reserve powers of the Crown, and the conventions associated with their use by the Governor-General, should be codified, but finally Keating had to tell Parliament that it was not possible to foresee all the possibilities that might arise. His Government had therefore concluded that "it would not be desirable to attempt to codify the reserve powers; and that the design, processes and conventions at present governing their exercise by the Governor-General should be transferred to the [president] without alteration". 38 Here we have the nub of the push for a republic. We are told that we lack an Australian head of state - that we must get rid of the Governor-General and replace him with a president in order to achieve full independence and national sovereignty. But then we are told that the president would have exactly the same powers and exactly the same duties as the Governor-General has now - nothing would be added and nothing would be subtracted. One Australian would replace another Australian and do exactly the same job. All that would be changed would be the title on the letter-head. If such a president would be an Australian head of state, then that is precisely what the Governor-General is now. Republicans will have drawn comfort from statements late last year by former Governor-General Sir Zelman Cowen and former Chief Justice of Australia Sir Anthony Mason, so let us look carefully at what these two distinguished and learned gentlemen actually said. In his Washington lecture last September, Sir Zelman restated his earlier view "that the case for conversion to a republic had not been made out, since we had achieved the substance of independence within the existing framework of government, and I believed that it served no significant national interest to go further, to create community division without compensating benefit". 39 But he went on to add: "On further reflection, I have come to the conclusion that this symbolic change [to a republic] should be made, and that it is a matter of importance for an independent Australia to state simply and unambiguously our national status in constitutional terms". 40 He did not, however, reconcile this change of mind with his own use of the term "head of state" in previous interviews and speeches to describe the role of the Governor- General, and his oft-expressed view that, in carrying out his constitutional duties, the Governor-General acts in his own right and not as a representative or surrogate of the Sovereign. 41 Nor did he make reference to any of the legal opinions and other evidence quoted in this paper. I find this particularly odd as it was Sir Zelman who, in 1980, when I was his Official Secretary, set me off on my research into the constitutional position of the Governor-General by pointing out to me that, in the exercise of his constitutional role, the Governor-General was not the Sovereign's representative or surrogate. And in 1987 Sir Zelman was the Chairman of the Advisory Committee on Executive Government whose advice had helped the Constitutional Commission to conclude in 1988 that we were already a sovereign and independent nation and that our Constitution required no alteration on that score. 42 As a precondition for his support for the republic, Sir Zelman set out other constitutional matters which he now sees as central to proper constitutional change, including enumeration and definition of the powers of the president. 43 But this is the very matter which Mr. Keating told the Parliament and the nation that his Government had found impossible to do. 44 It should also be noted that Sir Zelman's views are not shared by former Governor-General Bill Hayden, nor would they have been shared by former Governors- General Sir John Kerr and Sir Paul Hasluck. The other recent entrant into the debate has been former Chief Justice of Australia Sir Anthony Mason. 45 In television and radio interviews Sir Anthony attributed his republicanism to an incident during the Test cricket bodyline series 65 years ago, when he was eight years old! When asked about the monarchists' view that we had two heads of state and that we already had an Australian constitutional head of state in the Governor-General, he replied that "They should re-read section 2 of the Constitution." Of course, he made no reference at all to section 61 under which the Governor-General exercises the executive power of the Commonwealth; he very conveniently ignored the fact that section 2 and section 61 refer to two different sets of powers; 46 and he overlooked the fact that the monarchists' view of section 61 and the Governor-General's executive powers is supported by such eminent lawyers and jurists as Inglis Clark, Harrison Moore, Lord Haldane, Dr. H.V. Evatt, Sir Maurice Byers, and former Chief Justices of Australia Sir Harry Gibbs 47 and Sir Garfield Barwick 48. When asked about the difficulty of codifying the Governor-General's reserve powers, Sir Anthony replied that Malcolm Turnbull could do it in half an hour. It was a great pity, though not at all surprising, that the A.B.C. interviewer failed to ask Sir Anthony why, if it really was so easy, had Prime Minister Keating said that it could not be done at all; and why had Malcolm Turnbull, if he could do it in half an hour, still not done it after seven years; and why had the Australian Labor Party still not done it after being warned about the general problem by Dr. H.V. Evatt sixty-two years ago? 49 Sir Anthony also credited Malcolm Turnbull with putting forward what Sir Anthony called a moderate proposal for constitutional change, yet Turnbull had to tell a National Press Club audience that the republicans had not been able to settle the details of their proposed constitutional changes. 50 Although this failure had now gone on for the past seven years, Turnbull claimed that they would be able to do this fairly quickly once the people had voted for a republic. Just how moderate the republican constitutional changes would be and how quickly they could be produced can be seen from the fact that the so-called "minimalist" changes would require alterations to at least 72 of the Constitution's 128 sections and the addition of at least 10 new sections. With Sir Zelman Cowen favouring a republican president elected by the Commonwealth Parliament and opposed to popular election of the president, and with Sir Anthony Mason preferring parliamentary election but not opposed to popular election, it is interesting to note the views of Mr. Richard McGarvie, former Judge of the Supreme Court of Victoria and former Governor of Victoria. Mr. McGarvie has rejected both methods of electing a president, saying that: "They may sound all right in theory. They sound innocuous but are really changes of drastic potential. In the living reality of the political culture and constitutional practice of this country they would immediately corrode and ultimately destroy our democracy." 51 Our great misfortune, as we consider the possibility of constitutional change, is that most Australians do not know enough about our present Constitution and our present system of government to be able to understand any proposals for change. To make matters worse, those who would alter our Constitution are prepared to ignore or misrepresent its current provisions. They want change but they cannot agree on what kind of change it should be. For the past seven years the mindless repetition of "it's inevitable" has replaced reasoned argument and debate. Those two great Australian commentators on the making of our Constitution - Quick and Garran - in their 1901 scholarly and definitive work The Annotated Constitution of the Australian Commonwealth, wrote that the double majority which our Founding Fathers had written into section 128 of the Constitution was an essential safeguard. It had been provided, not to prevent or resist constitutional change, but to protect the federal system and to prevent constitutional change being made in haste or by stealth. Its purpose, they wrote, was to encourage public discussion and to delay change until there was strong evidence that it was "desirable, irresistible, and inevitable". 52 The republican case must meet all three criteria and not just the last one. But above all, the republican case must be made out honestly and openly. The time for anti-British rhetoric has passed: the time for confusing and misleading the Australian people has also passed. The republicans tell us that their minimalist constitutional change would replace the Queen with a president, but they offer us a Constitution in which the Queen would be replaced by federal politicians. And if the Queen must be removed as our (symbolic) head of state, wouldn't the Keating/Turnbull proposal make the Parliament the new head of state? They tell us that the Governor-General is not our (constitutional) head of state, but that a president having exactly the same duties and exercising exactly the same powers would be our head of state. If such a president would be a head of state, then that is exactly what the Governor-General is now! But worst of all is the republican misrepresentation of the so-called reasons why we should tear up one of the best Constitutions in the world and become a republic. We are told that it would enable us to sever our ties with Britain and become an independent nation, but we did all that more than 50 years ago. We are told that it would give us an Australian head of state, but we did all that more than 32 years ago- Like many of my fellow delegates to the Convention, I stand ready to be convinced that a republican Constitution would give us a better system of government than the one we have had on this continent for the past 150 years. We have heard a great deal about the various types of republics we could have, but not a single credible reason why we should choose to have any one of them. In the light of the 1988 and 1994 reports of widespread community ignorance about our present Constitution and about our present system of government, the fact that we are prepared to contemplate seeking the ill-informed consent of the people to major constitutional change would have to be one of the greatest travesties of our democratic processes. We are an independent nation. We have an Australian as our constitutional head of state. There is no case for Australia to become a republic. SIR DAVID SMITH KCVO AO1 Sir David Smith was Private Secretary to the Minister for the Interior and the Minister for Works from 1958 to 1963; Secretary to the Federal Executive Council and head of the Government Branch, Department of the Prime Minister and Cabinet, from 1971 to 1973; and Official Secretary to five Governors-General from 1973 to 1990. He has been appointed a Visiting Fellow in the Faculty of Law, The Australian National University, for 1998 and 1999; and is an appointed member of the 1998 Constitutional Convention. 2 Final Report of the Constitutional Commission, (Australian Government Publishing Service, Canberra, 1988),p. 43. 3 Whereas the people ... Report of the Civics Expert Group, (Australian Government Publishing Service, Canberra, 1994), pp. I8-19. 4 "Executive Government: Report of the Advisory Committee to the Constitutional Commission", (Canberra Publishing and Printing Co., Canberra, 1987).5 Final Report, see note 2, p. 1. 6 Ibid., p. 75.7 Ibid. 8 Lord Dufferin, then Governor-General of Canada, in a speech delivered at Halifax, Nova Scotia, in August 1873, described the Governor-General as "the head of a constitutional State, engaged in the administration of Parliamentary Government." Quoted by John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth, (Angus and Robertson, Sydney, 1901), p. 700, and by L. F. Crisp, Australian National Government, (Longman Cheshire Pty. Limited, Melbourne, 1978), p. 400. 9 Parliamentary Debates, Vol. H. of R. 201, 7 June 1995, pp. 1434-41. 10 Brian Galligan, A Federal Republic: Australia's Constitutional System of Government, (Cambridge University Press, Cambridge, 1995), pp. 21-2 and 245-7. 11 Stuart Macintyre, "A Federal Commonwealth, An Australian Citizenship", a lecture in The Australian Senate Occasional Lecture Series, 14 February 1997, p. 3. 12 The Australian, 23 June 1995.13 The Weekend Australian, 24-25 June 1995. 14 The Australian, 6 September 1996.15 The Canberra Times, 8 December 1977. 16 Commonwealth Statutory Rules 1901-1956, Vol. V, pp 5301-3. 17 Ibid. pp. 5310-12. 18 A. Inglis Clark, Studies in Australian Constitutional Law, (Charles F. Maxwell (G. Partridge & Co.), Melbourne, 1901), pp. -54-7. 19 W. Harrison Moore, The Constitution of the Commonwealth of Australia, (Charles F. Maxwell (G. Partridge & Co.), Melbourne, 1910), 2nd. Edition, p. 162. 20 "2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.""61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth." 21 Clark, see note 18, pp. 52-3.22 Ibid, pp. 64-7. 23 Moore, see note 19, pp. 162-4. 24 H. V. Evatt, The King and his Dominion Governors, (Frank Cass and Company Limited, London, 1967), 2nd. Edition, p. 31 1. 25 Governor-General's Instructions, Opinion of the Solicitor-General of Australia, 5 September 1975. 26 Commonwealth Statutory Rules 1901-1956, Vol. V, pp. 5312-4. 27 Commonwealth Statutory) rules, 1958, pp. 494-5. 28 Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd., (1920), 28 CLR 129. 29 Transcript of argument, pp. 22-3. Quoted in Evatt, see note 24, p. 31 1. 30 Christopher Cunneen, Kings Men: Australia's Governors-General from Hopetoun to Isaacs, (George Allen & Unwin, Sydney, 1983), p. 168; and (Sir) Zelman Cowen, Isaac Isaacs, (Oxford University Press, Melbourne, 1967), p. 191.31 Cunneen, ibid., p. 179; and Cowen, ibid., pp. 197-8. 32 The resolutions passed by the 1926 and 1930 Imperial Conferences were given statutory effect by the (Imperial) Statute of Westminster, 1931. The Imperial Act became part of Australian statutory law by the Statute of Westminster Adoption Act 1942, with effect from 3 September 1939, the commencement of World War II.33 Byers, see note 25. 34 Sir John Kerr, Matters for Judgement, (The Macmillan Company of Australia Pty. Ltd., South Melbourne and Artannon, 1978), p. 330.35 Ibid., pp. 374-5. 36 Statement by the Prime Minister to the House of Representatives, Parliamentary Debates, Vol. H. of R. 138, 24 August 1984, p. 380. The Prime Minister tabled a copy of the amended Letters Patent relating to the office of Governor-General, together with the text of a statement relating to the document, but for some unknown reason he did not read the statement to the House, nor did he seek leave to have it incorporated in Hansard. The statement was later issued by the Prime Minister's Press Office. 37 Final Report, see note 2, p. 313. 38 Parliamentary Debates, see note 9, p. 1438. 39 Sir Zelman Cowen, "One Hundred Years a Nation: Australia Looks to 2001 ", inaugural Melbourne Lecture, Georgetown University, Washington D.C., 23 September 1997, p. 2.40 ibid. 41 See, for example, the report of an interview by Claude Forell, "The Fragile Consensus", The Age, Melbourne, 13 August 1977: and Sir Zelman Cowen, "Leadership in Australia: The Role of the Head of State", Williamson Community Leadership Lecture, Melbourne, 31 May 1995, p. 2. 42 Final Report, see note 2.43 Cowen, see note 39, p. 1 1.44 See note 9. 45 A.B.C. Television, 27 October 1997; A.B.C. Radio, 28 October 1997. 46 Evatt, see note 24, p. 311-12; and Byers, see note 25, p. 7 and pp. 12-13. 47 Sir Harry Gibbs, "A Republic: The Issues", Upholding the Australian Constitution, Vol. 8, (The Samuel Griffith Society, East Melbourne, 1997), pp. I- 16. 48 Sir Garfield Barwick, "Parliamentary Democracy in Australia", Upholding the Australian Constitution, Vol. 5, (The Samuel Griffith Society, East Melbourne, 1995), pp. 205-219. 49 Evatt, see note 24, pp. 1 - 1. (First edition published in 1936.) 50 National Press Club lunch, Canberra, 30 July 1997; a debate between Mrs. Kerry Jones, representing Australians for Constitutional Monarchy, and Mr. Malcolm Turnbull, representing the Australian Republican Movement. 51 Richard McGarvie, "Our Democracy in Peril: the safe way to a democratic republic", 1 May 1997, p. 2. 52 John Quick and Robert Randolph Garran, The Annotated Constitution of the Commonwealth of Australia, (Angus and Robertson, Sydney, 1901), p. 988.
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