CHAPTER EIGHTEEN - TO THINE OWN SELF BE TRUE

CHAPTER EIGHTEEN -
TO THINE OWN SELF BE TRUE
A DEFINITIVE EXPOSITION OF THE POSITION OF
HEAD OF STATE IN AUSTRALIA
(Written in May 2009)

Amidst the intrigue and infighting in Shakespeare’s¹⁶ Hamlet, the phrase to thine own self be true is one of the greatest ever examples of wise and astute advice given by a father to a son:

This above all: to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man.
Farewell, my blessing season this in thee!

In many ways these words have been the maxim by which the Australian Monarchist League has existed. When the League was re-organised in 1993, to be better able to fight the battle against a republic, some members were insistent that we should change our name to ‘constitutionalists’ or some other phrase which did not include the words ‘monarchy’ or ‘monarchist’, so as not to offend.

However, these people did not appreciate that the only people offended by the word ‘monarchy’ or ‘monarchist’ were the very people we were fighting against – those who supported a republic.

These perceptive words of Shakespeare were in use a lot during those days. The prime purpose of the League was to defend our Constitutional Monarchy and, as such, I never allowed us to forget that we are what we are, and that is a monarchist organisation committed to retaining the Crown in our Constitution. To thine own self be true indeed.

OVER 100 YEARS OF CONSTITUTIONAL DEMOCRACY

To thine own self be true also applies to every facet of our Constitution, warts and all, of which, due to those brilliant Australians who wrote it, there are surprisingly few.

The third line of the wisdom imparted by Shakespeare’s Polonius: Thou canst not then be false to any man , or, as Bacon⁷¹³ in his Essays 1625 ‘Of wisdom for a Man's Self’ wrote: Be true to thyself as thou not be false to others, would have perhaps been better followed by all those engaged in the debate on Australia’s constitutional future, than the ploys to purposefully confuse the issues which were widely adopted. Monarchists continue to accuse republicans of twisting the facts as do republicans similarly accuse monarchists.

The Australian Monarchist League, I am proud to say, has never engaged in deception of any sort, nor have we ever sought to obscure the issues with such stratagems as calling ourselves a ‘crowned republic’. Rather, we have always stood up to defend the Constitution as it is, because we believe implicitly that ‘as it is’ is brilliant and what is more important, ‘as it is’ works and has worked well for over a hundred years.

It was sometime around the 1970s or perhaps a little earlier, that the term ‘head of state’ began to be used as a description of the Queen’s and latterly, the Governor-General’s position. At the time no one really cared about who was or who was not called ‘head of state’. The term was to be found neither in Australian terminology nor in Australian dictionaries, however, it gradually came to be more accepted as international diplomatic parlance. Australians, however, continued to be comfortable with the nomenclature of the Queen and the Queen’s representative, the Governor-General.

However, when republicans hit upon the phrase ‘An Australian for head of state’ some monarchists were thrown into a complete panic and came up with all sorts of absurd suggestions, such as changing the name of the Governor-General to President and even the contention that ‘the Governor-General and not the Queen was head of state’. Some (supposedly) on the monarchist side even went so far as to deny publicly that they were monarchists, but merely opposing a republic! There is a background to all this and that background is essentially based on not having a proper understanding of our constitutional and monarchical system of government and perhaps even lacking the courage to openly admit that we are a nation established ‘under the Crown’

Conservative republicans opt for what they call a minimalist republic, which is merely removing the Queen and the Governor-General and replacing them with the office of president. One former Labor Premier had even suggested keeping the title ‘Governor-General’ as ‘an easy way to get a republic⁷¹⁴’. In reality, these people want to retain our Constitutional Monarchy, but without the Queen at its head; a ‘crowned republic’ without the Crown. As former Governor-General Bill Hayden wrote in his autobiography:

The predominant objective of the republican movement is to eliminate reference to the Crown in the Constitution and with that to change the title of head of state from Governor-General to President.⁷¹⁵

In the early 1990s, at the commencement of the republican campaign, it was felt by some that the difficulties experienced by members of the Royal Family (in the words of the Queen, an ‘Annus Horribilis³⁴⁰’) would prove to be a hindrance. They felt that having to acknowledge that we are a Constitutional Monarchy and using the terms, ‘Queen’, ‘Crown’ and ‘Monarchy’ would disadvantage their campaign.

Whilst our system of governance is far more important than the actual individuals involved, it is nevertheless true to say that people are undoubtedly influenced by personalities and our campaign must take account of this, but instead of running away from this and other similar issues, we should rather be true unto ourselves and not only face these criticisms full on, but more importantly, turn them to our advantage.

The rationale to downplay the role of the Crown and the Queen was the underlying reason for the polling booth material which made no mention of either but: This Republic: Don’t risk it’ ‘if you want to vote for the President Vote No to the Politician's Republic⁷¹⁶, which we believed opened wide the doorway for republicans to counter that the 1999 vote was not for the status quo but merely against ‘this republic'. This thinking has ever since played an underlying part in the contention that it is ‘NOT the Queen but the Governor-General who is head of state.’

However, it became clear from the voting patterns of the 1999 referendum that the bulk of the ‘no’ vote came from monarchists (mainly National and traditional Liberal and Labor voters) with only a smaller number of direct electionists and others not happy with the model.

THE CROWN PROTECTS THE CONSTITUTION FOR THE PEOPLE

Traditional monarchists, whether Labor or Liberal, were never concerned about ‘which model’, but voted for the Queen, as it is in Her Majesty that they place the trust of maintaining the Constitution. These voters would not be influenced by the catchphrase ‘An Australian for head of state’.

After all, most consider the fuss about a ‘head of state’ to be a giant public-relations furphy. Heads of state within the Westminster system are not so particularly important. They do not execute treaties or other similar agreements as designated plenipotentiaries, who are usually the relevant Ministers of State, do. Furthermore, we, in Australia, have an unobtrusive monarchy which means that the Queen does not interfere in the governance of the country.

Under our system, it is the prime minister, as head of government, who makes the day-to-day decisions. Temporary power is vested in him as leader of the political party which has the confidence of the House of Representatives, but he is always subject to constitutional checks by the Governor-General, himself subject to the check of appointment and dismissal by the Queen, herself subject to the will of the people. These checks and balances are the whole basis upon which our system of Constitutional Monarchy rests, always ensuring that it is the people who ultimately make the final decision.

Republican governments, both State and Federal, have stripped away all semblance of our monarchical system of government, resulting in allegiance to the Monarch being replaced by a pledge to the State, pictures of the Queen and crown insignia have been removed, the title ‘Royal’ surreptitiously erased whenever possible and even our colonial history re­written. However, even though these nihilists may obliterate everything that is a reminder of our British heritage; they can never remove the essence of our constitutional stability, which is the Crown, without having to go to the people.

Republicans can do little but accept that there is no real interest amongst the people in constitutional change. The problem that they face is that our Constitutional Monarchy has been so successful that all attempts to bring on a republic, including the 1999 referendum, have not simply failed, but have failed miserably. Former High Court Justice Michael Kirby,⁷⁸⁶ had expanded on the defeat of the 1999 referendum in a speech in March 2000:

On Saturday 6 November 1999, 12.3 million electors of the Commonwealth of Australia participated in a constitutional referendum. Two questions were asked. One of them concerned the introduction into the Constitution of an additional Preamble, although one which would have no binding legal force. More important was the question which asked whether the electors approved a proposed amendment

To alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and the Governor-General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament.

Both proposals were defeated. The national vote of the electors in favour of Australia's becoming a republic was 45.13% with 54.87% against. The proposed Preamble was lost even more decisively. It could muster only 39.34% in favour with 60.66% against. The proposed republic was rejected in every State. It secured a majority only in the Australian Capital Territory. However, whilst the votes of the electors in that Territory counted towards the national aggregate, they were not relevant to the other requirement of the Constitution concerning amendment. Under s 128, to secure the passage of a proposal to alter the Australian Constitution it is necessary to obtain not only a majority of the electors nationally but also an affirmative vote in a majority of the States. Far from obtaining a majority of the States, every State rejected the proposed republic. The margins varied. The only other self-governing mainland Territory of the Commonwealth, the Northern Territory of Australia, also voted against the republic.⁷¹⁷

The Clerk to the Senate, Mr Harry Evans, who supports a republic, had written in his 1996 article ‘Putting Republicanism into the Republic’:

The problem is that official republicanism is only a nationalist and anti-hereditary movement to remove the British monarchy from Australia. It does not seek to foster or to build upon a republican culture. Historically there have been two essential ingredients of republican theory and practice: institutions so structured as to provide a balanced system of government capable of avoiding the growth of monarchical power, and a reliance on the people as a whole as the only repository of sovereignty.

A republican culture is one which recognises these central tenets of republicanism, and seeks to build upon them. Australian official republicanism, however, is characterised by a neglect of questions of institutional structure and constitutional balance, and by a positive aversion to involving the people in government to a greater extent than they are now involved. It is in relation to the head of state issue that these characteristics are most clearly exposed. ⁷¹⁸

BEWARE CLOSET REPUBLICANS

We have ‘democracy of the people’ in Australia, but unfortunately, this has led to some of those opposing a republic, possibly because they may have been misguidedly influenced by republican propaganda, to claim that we are a ‘crowned republic’.

This sort of thinking has led to these people elevating the Governor-General to the absolute position of sole head of state, even though he is appointed as the representative of the Queen.

Some even go so far as to claim that we are not a monarchy, but a ‘res publica’! They and, similarly, republicans fail to appreciate that ‘res publica’ means not ‘a republic’, although it is held to be an origin of that word, but, as Cicero⁴³⁷ meant in his De re publica: ‘public affairs’. Tacitus²⁰ in his Annals refers to it as: ‘constitution’.

Section 128⁷¹⁹ of the Australian Constitution vests power for change into the hands of the people. However, just because we in this country have government by the public within a Commonwealth (meaning ‘the public good – the whole body of people in a state’) this in no way means that we have a republic. Even though a ‘republic’ is used to mean ‘government of the people’ it also means a system in which ‘supreme power is vested in elected representatives’. In a republic, the ‘head of state’ is not hereditary. Because we, in Australia, enjoy all the ingredients that may be considered to be most desirable in a republic does not mean that we are, in any way, a republic. We are not. We are a Constitutional Monarchy, with the sort of checks and balances which only an hereditary ‘Head’ can provide.

The seeds of our modern Constitutional Monarchy were sown with the ‘Presentation of the Declaration of Rights’ to William⁴⁰ and Mary⁴¹ on the 13^th of February 1689, to which they were jointly required to consent before accepting the throne. In the words of the 17th century jurist, Sir Edward Coke⁴², the legislative supremacy of the Parliament at this time became: transcendent and absolute. The provisions of the Declaration were later enshrined into the Bill of Rights¹⁵¹ which was enacted by the English Parliament in December of that year.

Modern republics, even that of France and the USA, were more a product of the principle of the age-old rights and liberties of the English peoples, than of any other influence.  In fact, our own modern system of Constitutional Monarchy preceded the American and French republics by over one hundred years! Many republicans are, actually, closet constitutional monarchists, in that they accept that our system of a ‘crowned democracy’ is more effective than the politicised republican systems found in other countries. This is why they endeavour to retain the principles of our system but fail because they want to remove the soul of the system, which is, of course the Crown.

DEMOCRACY THROWN OUT WITH THE CROWN

Most of Britain’s former colonies, upon their independence, likewise sought to retain the Westminster system, but removed the Crown. The result is that there is no former colony of the British Empire which removed the Crown and which was able to maintain the democracy of the people intact in a similar manner to that which we have achieved in Australia as an independent and sovereign nation under the Crown.

When some monarchists came up with the proposition that: ‘NOT the Queen but the Governor-General is head of state’, our leadership recoiled in horror, as did a majority of our membership. However, at the time, we did not want to create an open conflict amongst monarchists which could be used by the republican media to their advantage. The fact that republicans had hitherto complimented us on being ‘honest’ on this issue was no comfort.

I therefore took the step of consulting with Sir Walter Campbell⁷⁹² and Sir Harry Gibbs²⁵⁸, both now sadly departed. Sir Walter was former Chief Justice of the Supreme Court of Queensland and former Governor of Queensland and Sir Harry was the former Chief Justice of the High Court of Australia. Following Sir Walter’s advice, we thereafter accepted the stratagem that the Queen was the formal, or sovereign, head of state, and that, upon appointment, the Governor-General became our effective head of state. In Sir Walter’s words:

I do consider that the Queen is the head of state and the Governor-General in fact has the operative powers of head of state.⁷⁹³

This was a position essentially held by the Government of the then Prime Minister, John Howard MP³⁸⁵, as later intimated in correspondence dated 1^st December, 2006, the salient paragraph of which is reproduced below:

The Australian Government's view is that the Queen is Australia's constitutional head of state. In practice, however, the Governor-General performs functions and powers traditionally associated with the head of state. The Governor-General can therefore be regarded as the effective head of state.²⁷⁰

The passage of time has meant that the term ‘An Australian for head of state’ now has little impact and is widely seen as an excuse by republicans not to detail what model they propose to subject us to. The real argument for an ‘Australian as head of state’ relates mainly to the fact that the Queen does not reside in Australia, that she is a ‘foreigner’, that no one else can become the Monarch and that the Queen is not solely Queen of Australia but also of the United Kingdom and fourteen other Realms.

We, in Australia, have what we term an ‘absent monarchy’, which means that the Monarch is not resident in the country but is represented by a Governor-General who, upon appointment, becomes tantamount to being the Monarch in Australia. Whilst the Queen as a person does not live in Australia, as Queen of Australia, she is an Australian institution, just as in Canada, as Queen of Canada, she is a Canadian institution.

In this Orwellian world - where political correctness pervades the intelligentsia and the wealthy in particular - to inherit a position, whether the throne or a title or even entailed property, is anathema. It is against this background that  some monarchists, unable to present a logical case (due mainly to a lack of understanding of our constitutional arrangements) made, from time to time, various proposals to ‘republicanise’ our system of Constitutional Monarchy by down-playing the role of the Queen and the Crown in our Constitution.

THE QUEEN KEEPS ABSOLUTE POWER OUT OF REACH OF POLITICIANS

What people generally fail to appreciate is that it is the hereditary factor which ensures that absolute power is kept from the hands of politicians for they, the politicians, have no say or influence whatsoever in who is the Monarch. The Monarch cannot be corrupted, whether for material gain or for the offer of a continuation of power. Furthermore, our system of governance, in so far as the Queen and the Governor-General are concerned, is exceedingly cost-effective.

We do not pay the Queen an allowance, nor do we cover her day-to-day expenses in dealing with Australian matters. The cost of our Governors-General is absurdly small, especially when compared with that of presidents of other nations with a similar GDP and particularly in comparison with the budget of our own prime minister.

Whilst the Queen is Queen of fifteen other Realms, these positions are now all totally separate. The Royal Style and Titles Act of 1973²⁷⁶ changed the title set by the 1953²⁷⁸ Act describing Queen Elizabeth as: ‘Queen of Australia’.

The Schedule on page 1 states the new form in full as:

Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.

The Queen is described as head of state of ALL Realms, including Australia, in the Commonwealth section on the Royal website (www.royal.gov.uk). To quote:

The Commonwealth celebrates its 60th anniversary in 2009: from Australia to Antigua, Canada to Cameroon, it is a remarkable international organisation, spanning every geographical region, religion and culture. It exists to foster international co-operation and trade links between people all over the world.

The Queen is head of state of 15 Commonwealth realms in addition to the UK. (My bold) She is also Head of the Commonwealth itself, a voluntary association of 53 independent countries.

However, in the separate section on Australia the Queen is described as Sovereign: Australia is a Constitutional Monarchy with the Queen as Sovereign. Similar descriptions appear in the sections on Canada and New Zealand .

The Queen is accepted, indeed welcomed, as head of state in all of her Realms, except by some people in Australia. Granted, our Constitution is unique in the powers it devolves upon the Governor-General, but we should never be ashamed to acknowledge the Queen, just because Her Majesty’s family may, from time to time, be the subject of sometimes actual, but generally media invented, scandal, or because some polls may show a perceived decline in support for the Monarchy.

In 2004, Major-General Michael Jeffery⁷²¹, then Governor-General, made the following comment:

Her Majesty is Australia's head of state but I am her representative and to all intents and purposes I carry out the full role. (Bruce Stannard: Canberra Times 6/11/04)

In an interview by Greg Turnbull on the Ten Network’s ‘Meet The Press’ dated the 29th May, 2005 Mr Turnbull asked:

Governor-General, we’re just about out of time. I thank you for your time. But help me out with this one just before you go. Are you in fact our head of state or in fact a representative of our head of state? General Jeffery responded: Well, the Queen is the Monarch and I represent her, and I carry out all the functions of head of state.

The December 1999 fact sheet of the Constitutional Centenary Foundation Series 2: head of state pronounces that:

The formal head of state of Australia is Queen Elizabeth II, in her role as Queen of Australia. But the effective head of state in terms of power is the Governor-General, who performs his or her tasks on the advice, or instruction, of the Australian Prime Minister.

The reason for the success of our democracy in this country is not that constitutional power is ultimately vested directly in the Governor-General, but because we are a Constitutional Monarchy which is vested in the people and not in politicians.

    

In Australia, the people’s democracy is absolute for they have the power to remove a government at election and they can remove the Monarchy at a referendum.

Our written Constitution is exceptionally logical and makes it very clear that the Governor-General is the representative of the Queen. When we talk about ‘the Queen’ we are actually talking about the Queen as the institution or ‘body politic’ of the Crown. Whilst the Constitution does empower the Governor-General with specific powers not available to the person of the Queen, he is so empowered as the Queen’s representative and not as though he were an appointed President. It is in this capacity, not as an ultimate head of state nominated by, and responsible to, the Prime Minister, that the Governor-General ensures that responsible government works and intercedes when it does not, as Sir John Kerr did in 1975.

The Constitution sets out quite clearly in its Preamble that we are established ‘under the Crown’ and under para 2, that the Constitution is vested in ‘the sovereignty of the United Kingdom’¹⁹.

Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.

The Crown was something of which Sir Robert Menzies had a perfect understanding. In his book Afternoon Light he wrote, The Crown remains the centre of our democracy⁷²². I do not believe that, at any time during the entirety of his political career, Sir Robert ever made any reference to the Governor-General being our head of state, whether effective or absolute. He did, however, on several occasions make reference to the Monarch as head of state⁵⁶⁹

As can be seen from the following extracts from the Australian Constitution, it is a monarchical constitution establishing the Monarch as the embodiment of the nation as a whole:

Section 3 empowers the Queen to proclaim that the people of the colonies shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia and further empowers her to appoint a Governor-General for the Commonwealth.

Part I 1. specifies that the Federal Parliament shall consist of the Queen, a Senate, and a House of Representatives, and Part 1 2 states that the Governor-General 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.

Part 1 3. stipulates that the salary for the Governor-General shall be paid to the Queen and not to the Governor-General himself.

Part 4 42. requires Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.

The schedule reads: OATH. I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD!  (There is provision for an affirmation of this Oath).

Part 4 44v talks about the Queen's Ministers of State: and the Queen's navy or army and Part 4 58 states that the Governor-General assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure.

Above all, Chapter II 61. specifies that: 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.

Part 4 58, empowering the Governor-General to reserve a bill for the Queen’s assent was inserted as a precautionary measure and is only used now in the event the Government wishes the Queen to give assent personally when in Australia. The last Australian bill to be so reserved was the Royal Style and Titles Act 1973.

DUTIES OF THE GOVERNOR-GENERAL AS THE QUEEN’S REPRESENTATIVE

The website of the new Governor-General has been updated and describes the duties of Governor-General in exhaustive detail which, in view of their relevance to this Paper, can be found in full in the endnotes to this book at E723.

The schedule of duties makes particular reference to the fact that::

In addition to being the Queen’s representative in Australia, the Governor-General also has specific constitutional and statutory powers. In fact, since the passage of the Australia Act in 1986, the only action performed by the Queen under the Constitution is the appointment of the Governor-General, on the advice of the Australian Prime Minister.

In 1975 the then Commonwealth Solicitor-General, Mr Maurice Byers (later Sir Maurice Byers QC) gave the following legal opinion in relation to the powers of the Governor-General:

‘The Constitution binds the Crown. The Constitutional prescription is that executive power is exercisable by the Governor-General although vested in the Queen. What is exercisable is original executive power: that is, the very thing vested in the Queen by Section 61. And it is exercisable by the Queen’s representative, not her delegate or agent. The language of Sections 2 and 61 had in this respect no contemporary parallel ...’

The schedule concludes that: ...the Governor-General’s role is to protect the Constitution and to facilitate the work of the Commonwealth Parliament and Government.

THE QUEEN IS THE PEOPLE’S GUARDIAN.

THE GOVERNOR-GENERAL ADMINISTERS THE CONSTITUTION.

What is explained above are the two separate and distinct roles of the Governor-General, namely that of the Queen's representative and that of the occupier of what actually becomes, following appointment, an office independent of the person of the Queen, but always at the Queen’s pleasure.

At ‘the Queen’s pleasure’ means that the term of office of the Governor-General is not fixed and can be terminated at any time, although only at the request of the Prime Minister. Although an Australian Governor-General has never previously been dismissed, the power to do so is, nevertheless, a vital check within our constitutional arrangements.

‘The Queen’s pleasure’ does not mean the person of the Queen, but the Queen as the body politic or institution of the Crown. As an individual, the Queen obviously has likes and dislikes, but the Queen, as body politic, can have no personal opinion.

To the non-legal mind, this may appear to be somewhat complicated, but do not forget that, even after nearly twenty years of debate, republicans have still not been able to duplicate the checks and balances which are an integral (and non-negotiable) part of the current Australian Constitution.

That our Constitution is continually evolving can be seen in the manner in which the British Government came to accept that it had lost political control over the ‘Dominions’.

In 1901, right up until around 1930, the Governor-General was nominated by the British Government and acted as its chief liaison with the Australian Government. As a result of the matters raised by the ‘Dominion’ Prime Ministers at the Imperial Conferences, it was formally recognised that the ‘Dominion’ Governments were constitutionally and politically independent from the British Government.

This change led to the appointment by the British Government of High Commissioners, who thereafter, instead of the Governors-General as was previously the case, represented the diplomatic interests of Britain. The first British Commission was established in Canada in 1928 and in Australia, eight years later, in 1936.

The proceedings and memoranda of the 1926 Imperial Conference^293&724  is a report of the Conference at which it was recognised that:

...it is an essential consequence of the equality of status existing among the members of the British Commonwealth of Nations that the Governor-General of a Dominion 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, and that he is not the representative or agent of His Majesty's Government in Great Britain or of any Department of that Government.

The King at the time being, of course, King George V who, with Queen Mary as Duke and Duchess of Cornwall had opened the Federation Parliament in Melbourne twenty five years earlier. These principles were enshrined in the Statute of Westminster^{23 & 108} of 1931, adopted by Australia in 1942.

That the Governor-General has specific constitutional powers which only he can exercise is unquestioned, as is the fact that, in terms of protocol, the position of Governor-General is higher than any Australian Office, other than the Queen herself.

For instance, when, in preparation for the 1954 visit of the Queen which was the first by a reigning monarch, it was found that the powers of giving Assent, and even the formal Opening of the Parliament, fell within the province of the Governor-General and it became necessary to enact special legislation empowering the Queen personally to perform constitutional duties in Australia. The consequential Royal Powers Act 1953³⁰¹, stipulated that:

When the Queen is personally present in Australia, any power under an Act exercisable by the Governor-General may be exercised by the Queen.

When Sir John Kerr²⁹² dismissed the Whitlam Ministry in 1975, he did so without consulting the Queen and using, not reserve powers of the Crown, but the specific powers vested in him, as Governor-General, under Section 64⁷²⁶ of the Constitution. On the 12^th November, 1975, the day following the dismissal, Mr Gordon Scholes wrote to the Queen to ask:

that you act in order to restore Mr Whitlam to office as Prime Minister in accordance with the expressed resolution of the House of Representatives

On the 17^th November 1975 the Queen’s Private Secretary, at the command of Her Majesty, replied that:

. . . 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.⁷²⁷

However, these powers, which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act, do not, in any way, add up to the Governor-General being the sole and ultimate head of state. All powers emanate from appointment as the Queen’s representative in an office which he holds at ‘the Queen’s pleasure’

Whilst he conducts his duties without any reference to, or interference from, the Queen, the powers he exercises are nevertheless the powers of the (body politic) of the Queen. The fact is, we could have no Governor-General without the Queen. His (the legal references are always masculine) appointment does not somehow catapult him, after his nomination, into the role of ultimate head of state but he assumes the position of effective head of state as the Queen’s representative.

GOVERNOR-GENERAL NEVER STYLED HEAD OF STATE

In June 2008, Mr Malcolm Hazell CVO, then still Official Secretary to the Governor-General, gave an address at Wagga Wagga in New South Wales in which he outlined the duties and role of the Governor-General. No mention whatsoever was made that the Governor-General is any sort of head of state. In fact, there is no legislative definition or even any mention in any official description of the role and duties of the Governor-General, that he is even effective, let alone the supreme, sole and legal head of state that some would have us believe. On the other hand, the Constitution itself supports totally the status of the Queen as head of state and the Governor-General as her representative and, by assumption – and only by assumption, effective head of state.

Those who tend to play politics and promote some sort of downplayed role of the Monarch continually fail to appreciate that Australia IS a kingdom and that the Queen IS the head of that kingdom.

It has been argued that a High Court judgment delivered in 1907⁷²⁸ is proof that the Governor-General is head of state. It is not. What the judgment⁷²⁹ of Griffith¹⁷⁰, Barton¹⁷¹, O'Connor, Isaacs²⁹⁷ and Higgins²³¹, who, incidentally, were all involved in the formulation of the Constitution, actually says is: ...the officiating Constitutional Head of the Commonwealth, the Governor-General. ‘Officiating’ means performing the duties of an office or acting as an officer and reliance on this term to assert that the Governor-General is sole and absolute head of state is totally erroneous.

What the judgment means is that the Governor-General is the ‘officiating’ (i.e. in the name of the King - as it then was) ‘Constitutional Head of the (Australian) Commonwealth’ and, whilst it is interesting that they used this term within the Westminster system long before it came into popular usage, it is a long bow to use this as the basis of what I believe is a flawed argument that the Governor-General is the supreme, ultimate and legal head of state.

Furthermore, in 1907 the convention was that Governors-General were appointed by the King on the advice of the British Colonial Secretary and, as such, reported to the British Government in much the same manner as the Colonial Governors had earlier done. This convention continued for three decades following Federation until 1926 as confirmed in the Statute of Westminster of 1931, when the position of the Governors-General of what were then termed the ‘Dominions’, but which are now called ‘Realms’, was changed.

The High Court, at the time, was not the final court of jurisdiction, for appeals were allowed to the Privy Council, a situation which continued right up until 1975. Appeals from State courts ended with the Australia Acts of 1986, and Australian appointments to the Privy Council ceased in practice in 1983 and in law (with the Australia Acts) in 1986. The last appeal heard by the Privy Council was in 1980⁷³⁰.

A GOVERNOR-GENERAL MUST BE NON-POLITICAL

It is indeed a very dangerous ploy to contend that the Constitution rests in the hands of a Governor-General as sole, ultimate head of state.

We have had many viceroys, most excellent but some who have been somewhat injudicious, a recent example of which is the comment by our current Governor-General, Ms Quentin Bryce, which was reported by the Herald-Sun and by AAP on the 2nd April 2009 as follows:

‘The republican movement has seized on comments from Governor-General Quentin Bryce that Australia will become a republic.’

‘Ms Bryce, who is flying home after a three-week tour of Africa, says she agrees with Prime Minister Kevin Rudd that Australia will become a republic.’

I think that that will happen in the future, yes, she said. I think that it is part of the development of our democracy in future decades.

I immediately wrote to Her Excellency to say:

May I remind Your Excellency that even the Parliament does not have the authority to change our Constitution. Only the people at referendum can do this.

As Governor-General, appointed by and representing the Queen, you MUST have no opinion on political issues. Would it not be wiser to follow the example set by Her Majesty by always stating, when questioned, that 'it is a matter for the Australian people to decide?'

The full text of the letter can be found in endnote 782.

When giving evidence before the Senate Inquiry into the Plebiscite Bill before the Senate on 29 April 2009, Professor John Power had stated:

My own view is that it might be time to have a select parliamentary joint committee to liaise closely with Government House. I think that the new Governor-General might well be interested in getting involved in the process. But I might be wrong. ⁷⁸⁷

I wrote again to the Governor-General to advise:

that were Your Excellency to become personally involved in the debate on constitutional change, you would bring the very office of Governor-General into further disrepute and we would earnestly caution that, in future, you remain at all times strictly impartial on this and any other matter of politics.

These unwise and improper comments by the Governor-General only serve to highlight the imprudence of putting all the eggs of the ‘head of state’ basket into the sole person of the Governor-General.

The Queen never puts a foot wrong. She never comments on matters of a political nature. She takes care never to offend any section of her people. Governors-General, on the other hand, lack the experience, the wisdom and the prestige of the Queen. We have experienced, on several occasions, Governors and now the Governor-General imprudently talking about a republic or on other matters of a political or sensitive nature. Some are openly republican and have, I believe, been purposefully appointed in an attempt to politically demean the office and thereby help bring down the Monarchy.

When James Scullin²⁹⁶ rejected the British Government’s nomination of Lord Birdwood, who had commanded the Australian Imperial Force during World War I, and insisted that his own candidate, the Chief Justice and former politician, Isaac Isaacs²⁹⁷, be appointed, he set the precedent that the Prime Minister nominates and the King consents. The main objection of King George V to this arrangement was not that a Jewish person was being appointed as is wrongly claimed, but that, as representatives of the Crown, Governors-General should thereafter be independent of Parliament and that the process of nomination by the Prime Minister could weaken that independence.

From 1902, a time when Governors-General were nominated by and reported to the British Government, legislation was enacted for the Government to appoint, and pay the salary of, the Official Secretary. Although a necessary link between the office of Prime Minister and that of the Governor-General, Official Secretaries conducted their duties in an exemplary and unbiased fashion and their advice was particularly necessary on those occasions when former politicians had been appointed Governors-General. However, in 2008, concern was raised when the employ of the then Official Secretary, Malcolm Hazell CVO (described in the Herald Sun of 01/08/08 as ‘resolutely non-partisan’) was irregularly terminated without cause and without any reasons given, for the purpose of facilitating the employ, in his place, of the former diplomat and long-time friend of Kevin Rudd, Stephen Brady, whose partner, Peter Stephens, is an adviser to the Prime Minister. 

THE GOVERNOR-GENERAL MUST BE THE PEOPLE’S FRIEND, NOT THE PRIME MINISTER’S

This is the first time ever that an Official Secretary has been arbitrarily replaced at the request of an incoming Governor-General. Furthermore, it is highly unusual for Government House to have such a close and even incestuous relationship with the Prime Minister. As it is now the convention for the Governor-Generalship to be within the gift of the Prime Minister, it is unsafe to vest the position of head of state solely in the person of the Governor-General, as this situation can lead to the potential of a Presidential Prime Ministership or at least an unhealthy alliance or duocracy of the Prime Minister and Governor-General.

To refer to the Governor-General as the absolute, the only one, THE head of state is somewhat akin to opening the illusory end of a magic box, which tells only a part of the story. Under our current system, the Governor-General is chosen by the Government of the day, is advised by the Government of the day, and his removal can be requested by the Government of the day, but the role that the Queen as sovereign head of state plays in the appointment and removal processes, ensures that the Governor-General's allegiance must be to the entire nation and not to the Prime Minister who nominated him. It is a necessary check implicit within our Constitutional arrangements.

My opinion is that we defeat our entire argument in defence of the Crown by elevating these sorts of people, particularly those who betray their Oath to well and truly serve the Queen⁷³¹, to the glorified heights of sole and ultimate head of state.

A bit like making the Governor-General a member of the ‘politician’s gang’ whereas, the whole benefit of our Constitutional Monarchy is that the Queen is the people’s Sovereign and the people’s head of state and that, upon appointment by the Queen, the Governor-General becomes effective head of state, conducting his duties by right of his position and without further involvement by the Queen, but always subject to the right of dismissal remaining with the Sovereign. Such dismissal, by convention, is only exercised upon the advice of the Prime Minister. These are a part of the unobtrusive checks and balances within our system of governance. These are ingredients which have made our Constitution one of the most workable and most successful in the world.

The eminent British constitutional lawyer, Leolin Price CBE QC, has written that:

... the argument that the Governor-General and not the Queen is head of state is not important as a matter of law. The law is that the Governor-General is appointed by the Queen, as her representative and exercises such of the Queen’s powers and functions as she assigns. Laws which pass both Commonwealth Houses of Parliament require the Queen’s assent and are presented to the Governor-General for the Queen’s assent; and if the Governor-General assents, that assent is given in the Queen’s name.

The Ministers of State who exercise the executive power of the Commonwealth are exercising powers vested in the Queen in their capacity as the Queen’s Ministers of State for the Commonwealth.

Mr Price concludes:

The important reality is that the position of the Queen as Queen of Australia is part of the history and identity of Australia. Those who would reject this and would like Australia to be a republic, with a President replacing the Queen, may pretend that the change would be logical and perhaps modernising; but the present constitutional arrangement works admirably well. It is a tribute to the wisdom and foresight and practical sense of those Australians who were the promoters and founders of the Constitution, which ranks easily with (for example) the Constitution of the United States as proudly and resonantly part of the worldwide cleverness and idiosyncrasy of our Common Law.

As an outside observer, albeit barrister and Queen’s Counsel in Australia, I think it would be tragic and silly to make the constitutional change which they would like and to discard the essence of their very Australian constitution, with the Queen distinctively part of it. She is also a unifying concept for many Australians making them very specially and uniquely ‘Australian’.

Our constitution can be likened to a marble statue surviving intact from early times. Created with smooth curves with some sharp edges and all coming together to produce a simple, elegant magnificent creation that works.

Should we ever become a republic, the greatest epitaph that could ever be placed on the tombstone of our Constitutional Monarchy is ‘that it worked so very well, ensuring peace and stability within our nation for over a hundred years’.

That is the message that must be sent out to all the people, not one camouflaging the role of the Monarchy and not one seeking to create a ‘republicanised crown’, but one which is truly true unto ourselves.

This above all: to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man