Australian head of state dispute

The dispute over who is Australia's head of state centres on the question of whether the Australian monarch or the Governor-General of Australia is the country's head of state; the term Australian head of state, or any variation thereof, does not appear in either Australian or international law. The disagreement has continued for decades, usually, though not always, within the debate over an Australian republic, and involved viceroys, politicians, legal scholars, and the media.

Background

The Australian constitution dates from 1901, when the Dominions of the British Empire were not sovereign states, and does not use the term head of state,[1][2] which regularly denotes the person who holds the highest rank in government.[1] In practice, the role of head of state in Australia is divided between two people: the monarch of Australia and the Governor-General of Australia, who represents the sovereign and is appointed by him or her on the advice of the Prime Minister of Australia.[3]

The sovereign, currently Queen Elizabeth II, is also the sovereign of fifteen other countries, including the United Kingdom (UK), that are informally known, with Australia, as the Commonwealth realms. As with the other former Dominions, Australia gained legislative independence from the UK by virtue of the Statute of Westminster 1931, which was adopted in Australia in 1942 with retroactive effect from 3 September 1939. By the Royal Style and Titles Act 1953, the Australian parliament gave the Queen the title Queen of Australia and, in 1973, removed from the Queen's Australian style and titles any reference to her status as Queen of the United Kingdom and Defender of the Faith. Australia's full independence from the UK was achieved with the Australia Act 1986.

Section 61 of the Constitution states 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." Section 2 provides that a governor-general shall represent the Queen in Australia. In practice, the governor-general carries out all the functions usually performed by a head of state, without reference to the Queen; though the governor-general is the Queen's representative, he or she is not the monarch's delegate or agent.[4] Under the conventions of the Westminster system, the governor-general's powers are almost always exercised on the advice of the prime minister or other ministers of the Crown. The governor-general may use the reserve powers of the Crown as prescribed by the constitution,[4][5][6][7][8][9][10][11] though these are rarely exercised. One notable example of their use was by Governor-General Sir John Kerr during the Australian constitutional crisis of 1975.

The question of whether the Queen or the governor-general is Australia's head of state became a political one in the years prior to the Australian republic referendum in 1999 and remains one within the continuing debate around an Australian republic.[1] Republicans include in their campaign the idea that the Queen is head of state and not Australian and, as such, should be replaced with an Australian citizen; this was summed up in their slogan "a mate for head of state".[12] Opponents of the move to make Australia a republic claim in response that Australia already has an Australian as head of state in the governor-general, who, since 1965, has invariably been an Australian citizen. The governor-general in 2004, Major General Michael Jeffery, said at the time: "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." However, the following year, he declined to name the Queen as head of state, instead saying in response to a direct question, "the Queen is the monarch and I represent her and I carry out all the functions of head of state."[13] The governor-general normally represents Australia internationally, making and receiving state visits.

The divided community

Within Australia, opinion on the matter of who should be considered head of state is diverse;[2] Australian newspapers, ministers, constitutional scholars, and the general public are commonly inconsistent in references to either the monarch or the governor-general as the head of state.[14] The Museum of Australian Democracy summed up the situation: "Because the Queen lives in the United Kingdom, she is represented in Australia by the Governor-General, who is in effect Australia's Head of State. Some authorities argue that the Governor-General is Australia's Head of State in every respect: others disagree."[15]

Official sources

Sources published by the government of Australia have not been consistent in the usage of the term "head of state"; some say the monarch is head of state,[16][17][18][19][20] while others say it is the governor-general.[21] Yet another calls the governor-general the "constitutional Head of State" and the Queen the "Head of State".[22] Presently, the government website states: "Under the Constitution, the reigning British monarch is also the Australian monarch, and therefore Australia's Head of State".[23] However, between 1992 and 1999, the Commonwealth Government Directory listed the governor-general in these terms: "Function: Under the Constitution the Governor-General is the Head of State in whom the Executive Power of the Commonwealth is vested."[24][25][26] Prime ministers of Australia have also used the term erratically: in 2009, Prime Minister Kevin Rudd described the governor-general as the Australian head of state when announcing an overseas visit by Quentin Bryce;[14][27] yet, the following year, his spokesperson told the press the Queen "held that position".[28] In a press release issued that year by the Queen's private secretary to announce the Queen would make a speech to the United Nations, Elizabeth II was mentioned as head of state of Australia, amongst 15 other countries.[28] In the Department of the Parliamentary Library's publication Research Note, Peter Ireland concluded that "the Constitution can be used to argue either proposition."[1]

The issue has been occasionally raised in the High Court of Australia but never directly ruled on by the court. One ruling, cited first by Professor David Flint and later by Sir David Smith,[29] is the 1907 decision of R v. Governor of South Australia, wherein the court inter alia described the governor-general as the "Constitutional Head of the Commonwealth" (and the Governor of South Australia as the "Constitutional Head of the State").[30][31][32][33][34][35][35][36][37]

More recently, prominent jurist (and later a Justice of the High Court of Australia), Michael Kirby argued in an oration that the Queen is Australia's head of state.[38] Kirby was a founding member of Australians for Constitutional Monarchy.[39]

Internationally, for the purposes of protocol, the United Nations list of heads of state has for Australia "Her Majesty Queen Elizabeth II", in brackets, above the name and title of the governor-general; this is the same as is done for other Commonwealth realms with a governor-general.[40] The United States Department of State in 2010 listed the Queen as head of state and the CIA currently refers to the same person as "chief of state".[41][42] Canada's Department of Foreign Affairs and International Trade is less clear, listing the names of both the monarch and the governor-general as head of state.[43] Similarly, the Queen's Royal Household in the United Kingdom has vacillated in the way the term head of state is used in relation to Australia: in 1999, the British monarchy website was altered to replace the description of Elizabeth II as head of state of Australia with one that mentioned her only as "sovereign".[44] In 2010, the "head of state" description was restored,[45] but, by 2014, this had again been changed, with the Queen described as "Sovereign" in the Commonwealth realms, of which Australia is one.[46]

Scholarly sources

Former governor-general Paul Hasluck asserted in 1979 that Australia's monarch is the country's head of state.[47] Six years later, however, Professor Colin Howard stated that, as the constitution makes executive power exercisable only by the governor-general, and not the Queen, it is the governor-general who is, "as a matter of law", the head of state.[48] Howard went so far as to say that Australia is not even a monarchy, but a "governor-generalship".[49]

Others followed Howard's view: In 1998, Professor Owen E. Hughes of Monash University stated that the governor-general is the head of state as "the position is one of great formal power, both legal and political";[50] Sir David Smith, a former Official Secretary to five governors-general, holds that the governor-general is head of state, while the Queen is Australia's sovereign, since the constitution directs the governor-general, and not the monarch, to carry out the duties of head of state;[51][52] and Professor David Flint, convenor of Australians for Constitutional Monarchy, feels the same way, believing the High Court's 1907 decision R v Governor resolves the issue as a constitutional description. Professor Flint asserts that the term head of state is a diplomatic one and is governed by international law and insists that, as the governor-general is sent overseas and received as head of state, she is, under international law, a head of state. He says this has only become an issue because the republicans have been unable to raise other reasons to change the constitution, highlighting that it was argued nine times by the republicans in the official Yes/No booklet sent to voters in the referendum.[53]

Monarchist opinion is not united, however. The smaller Australian Monarchist League (AML) has changed its opinion and now takes the view that "if we are to have a head of state, then the Queen is Sovereign, or prime, head of state and the Governor-General, upon appointment, assumes the office of effective head of state."[54] The view of the Australian Republican Movement aligns with that of the AML, their argument being that the Queen alone is the Australian head of state, though not herself an Australian, and that Australia needs to move to a republican form of government to have a head of state that is truly Australian. For republicans, the issue has a symbolic element; Professor Larissa Behrendt of the University of Technology, Sydney, said in 2011 of Governor-General Quentin Bryce touring flood-devastated areas of Australia: "the symbolism would be more powerful if that position of head of state was not the Queen of England's [sic] representative but the president of Australia."[55]

Malcolm Turnbull, a republican, said in 1991 that, at the time of Federation 90 years earlier, the Queen was never intended to be Australia's head of state.[56] In his 1993 book The Reluctant Republic, Turnbull explained that, at Federation, the "Governor-General acted partly as head of state and partly as the local representative of the British Government", the latter being the Queen in her Privy Council of the United Kingdom.[57]

Media sources

Since at least the 1970s, the governor-general has been described in mainstream media as the head of state, in editorial, opinion, and general reporting.[58][59][60][61][62] In other media, both domestic and international, the Queen has been presented as Australia's head of state,[63][64][65][66][67] although the matter is sometimes further complicated by accompanying employment of the term "British monarch".[63][64][65][66]

Comparison with other Commonwealth realms

In some of the sixteen Commonwealth realms, the monarch is explicitly defined as the head of state. For example, Section 2 of New Zealand's Constitution Act 1986 states: "The Sovereign in right of New Zealand is the head of State of New Zealand, and shall be known by the royal style and titles proclaimed from time to time."[68] Likewise, in Part V of the Constitution of Papua New Guinea, the Queen is styled "Head of State of Papua New Guinea".

In Canada, a similar dispute exists over whether the Queen of Canada or Governor General of Canada should be considered the country's head of state; politicians, scholars, and the media are equally inconsistent in the application of the title to either individual.[69][70][71] Canadian monarchists assert the Queen is head of state.[69]

See also

References

Bibliography

  • Smith, Sir David (2005). Head of State – The Governor-General, the Monarchy, the Republic and the Dismissal. Macleay Press: V.D.M. Verlag Dr. Müller Aktiengesellschaft & Co. K.G. ISBN 1876492155.

Citations

  1. ↑ 1.0 1.1 1.2 1.3 Ireland, Ian (28 August 1995). "Who is the Australian Head of State?" (PDF). Research Note (Canberra: Australian Government Publishing Service) (1): 1. ISSN 1323-5664. Archived (PDF) from the original on 17 January 2011. Retrieved 22 January 2011.
  2. ↑ 2.0 2.1 Parliament of Australia. "Powers of the Head of State of Australia and South Africa". Australian Government Publishing Service. Retrieved 10 March 2011.
  3. ↑ Victoria (9 July 1900), Commonwealth of Australia Constitution Act, I.2, Queen's Printer for Australia, archived from the original on 16 January 2011, retrieved 21 January 2011
  4. ↑ 4.0 4.1 Office of the Governor-General of Australia. "About the Governor-General > Governor-General's role". Australian Government Publishing Service. Retrieved 16 March 2011.
  5. ↑ "The reserve powers of the Governor-General.". Parliament of Australia. 23 January 1998. Retrieved 2 January 2013.
  6. ↑ Victoria 1900, II.61
  7. ↑ Gerangelos, Peter A. (2009), Lee, H.P.; Gerangelos, Peter A., eds., "Constitutional Advancement in a Frozen Continent", Parliament, the Executive, the Governor-General and the Republic (Annandale: Federation Press): 213, ISBN 9781862877610
  8. ↑ Zines, Leslie (2008). The High Court and the Constitution. Sydney: Federation Press. p. 345. ISBN 9781862876910.
  9. ↑ Barwick, Garfield, A View of the External Affairs Power, The Samuel Griffith Society, retrieved 1 January 2013
  10. ↑ "Pillar 2- Parliamentary Democracy". Constitution Education Fund Australia. Retrieved 1 January 2013.
  11. ↑ "Solicitor-General explains opinion: did not deny Crown's power", Sydney Morning Herald, 19 November 1975: 10, retrieved 1 January 2013
  12. ↑ Squires, Nick (19 January 2006), "Republicans want 'a mate' to become Australia's head of state", The Telegraph, retrieved 9 March 2011
  13. ↑ Office of the Governor-General of Australia (29 May 2005), The Governor-General is Interviewed by Greg Turnbull on the Ten Network's Meet The Press, Queen's Printer for Australia, retrieved 18 January 2007
  14. ↑ 14.0 14.1 Dusevic, Tom (12 February 2010), "Queen takes on Bryce in right royal title fight", The Australian, retrieved 22 January 2011
  15. ↑ Governors-General of Australia (PDF), Museum of Australian Democracy, retrieved 27 February 2011
  16. ↑ House of Representatives, The Australian System of Government (PDF), Australian Government Publishing Service, p. 3, retrieved 10 March 2011
  17. ↑ Parliamentary Education Office. "FAQ > 3. Historical firsts > 3.25 Who was Australia's first head of state?". Australian Government Publishing Service. Retrieved 10 March 2011.
  18. ↑ Department of Foreign Affairs and Trade. "Protocol > Protocol guidelines > The Australian Government". Australian Government Publishing Service. Retrieved 14 March 2011.
  19. ↑ Australian Public Service Commission. "About the Commission > The Australian experience of public sector reform > The Constitutional and Government framework". Australian Government Publishing Service. Retrieved 14 March 2011.
  20. ↑ "Australian Citizenship – Our Common Bond" (PDF). Department of Immigration and Citizenship. August 2012.
  21. ↑ Electoral Council of Australia. "Electoral Systems of Australia's Parliaments and Local Government" (PDF). Australian Government Publishing Service. Retrieved 10 March 2011.
  22. ↑ Parliament of Australia. "The role of the Governor-General". Australian Government Publishing Service. Retrieved 10 March 2011.
  23. ↑ Government of Australia. "About Australia > Our Government > Australia's Federation". Queen's Printer for Australia. Retrieved 10 March 2011.
  24. ↑ Commonwealth Government Directory. Australian Government Publishing Service. December 1995 – February 1996.
  25. ↑ "Commonwealth Government Directory". Australian Government Publishing Service. March 1997. Retrieved 22 January 2011.
  26. ↑ Smith, David (2005). Head of State. Sydney: Macleay. pp. 91–92.
  27. ↑ Office of the Prime Minister of Australia (6 March 2009). "Governor-General's Visit to Africa" (Press release). Australian Government Publishing Service. Retrieved 27 December 2012.
  28. ↑ 28.0 28.1 Dusevic, Tom (12 February 2010), "Queen takes on Bryce in right royal title fight", The Australian, retrieved 10 March 2011
  29. ↑ Smith 2005, p. 15.
  30. ↑ Rex v Governor of South Australia, Griffith, Samuel; Barton, Edmund; O'Connor, Richard; Isaacs, Isaac; Higgins, Henry, Paragraph 13 (High Court of Australia 1907).
  31. ↑ Baxter v Commissioners of Taxation (NSW) 4 CLR 1087, 1093.
  32. ↑ South Australia v Victoria (1911) 12 CLR 667
  33. ↑ R v Titles Registrar (Vic) (1915) 20 CLR 379, 380 (Griffith CJ).
  34. ↑ R v Kidman (1915) 20 CLR 425, 418–25 (Griffith CJ)
  35. ↑ 35.0 35.1 R v Sutton (1908) 5 CLR 789, 809–11
  36. ↑ R v Sutton (1908) 5 CLR 789, 797 (Griffith CJ).
  37. ↑ Thorpe v The Commonwealth of Australia, Justice Michael Kirby (High Court of Australia 21 May 1997).
  38. ↑ Michael Kirby (16 April 1994). "A Republic by Stealth (The Robert Harris Oration" (PDF). Michael Kirby.
  39. ↑ "10 questions – Michael Kirby". The Australian. 26 March 2011. Retrieved 8 January 2013.
  40. ↑ United Nations Protocol and Liaison Service (18 January 2013). "Heads of State, Heads of Government, Ministers for Foreign Affairs" (PDF). United Nations. Retrieved 19 January 2013.
  41. ↑ United States Department of State. "Under Secretary for Public Diplomacy and Public Affairs > Bureau of Public Affairs > Bureau of Public Affairs: Electronic Information and Publications > Background Notes > Australia". United States Government Printing Office. Archived from the original on 17 March 2011. Retrieved 14 March 2011.
  42. ↑ "Central Intelligence Agency World Factbook". Central Intelligence Agency. Archived from the original on 29 December 2010. Retrieved 22 January 2011.
  43. ↑ Department of Foreign Affairs and International Trade, Australia (PDF), Queen's Printer for Canada, retrieved 11 March 2011
  44. ↑ Marr, David (19 October 1999), "Queen's Hand a Royal Flush for Monarchists", Sydney Morning Herald, retrieved 10 March 2011
  45. ↑ Steketee, Mike (23 January 2010), "Prince charming won't stall the march to republicanism", The Australian, retrieved 25 January 2011
  46. ↑ Royal Household. "The Monarchy Today > Queen and Commonwealth > Commonwealth Members". Queen's Printer. Retrieved 24 January 2011.
  47. ↑ Hasluck, Paul (1979), The Office of Governor-General (PDF), Burwood: Brown Prior Anderson Pty Ltd, p. 8, retrieved 10 March 2011
  48. ↑ Howard, Colin (1985). Australian Federal Constitutional Law. Sydney: The Law Book Company. p. 111.
  49. ↑ Howard, Colin (1980). The Constitution, Power and Politics. Melbourne: Fontana. p. 71. ISBN 0-00-636037-8.
  50. ↑ Hughes, Owen (1998). Australian Politics. Melbourne: Macmillan Education. pp. 170–171. ISBN 0-7329-2796-X.
  51. ↑ Smith, David (19 March 2001), Our Australian Head of State, Sydney: Australians for Constitutional Monarchy, retrieved 24 January 2011
  52. ↑ Smith, David (January 2005). Macleay Press. Paddington: Macleay Press. ISBN 1-876492-15-5.
  53. ↑ Flint, David. "The Head of State debate resolved" (PDF). Australians for Constitutional Monarchy. Retrieved 24 January 2011.
  54. ↑ Benwell, Philip (2010). "Crowned Republic – No. Crowned Democracy – Yes". Australian Monarchist League. Retrieved 13 February 2011.
  55. ↑ Behrendt, Larissa (26 January 2011), "Let's take the next step", Sydney Morning herald, retrieved 26 January 2011
  56. ↑ Turnbull, Malcolm (31 October 1991), The Queen and Colonialism: A Republic Address (PDF), Lionel Murphey Foundation, p. 4, retrieved 12 March 2011
  57. ↑ Turnbull, Malcolm (31 May 1994). The Reluctant Republic. London: William Heinemann Ltd. p. 33. ISBN 978-0-85561-372-3.
  58. ↑ The Canberra Times, Editorial, 5 December 1977
  59. ↑ Naomi Levin, Insight into Sir Zelman Cowen, Australian Jewish News, 14 October 2009, accessed 27 February 2011
  60. ↑ Simon Kearney, $3 million bill for Australia's former governors-general, Sunday Herald-Sun, 24 October 2010, accessed 27 February 2011
  61. ↑ Australia Network News, Australian head of state bound for Kuwait, 21 February 2011, accessed 27 February 2011
  62. ↑ Hartcher, Peter (5 June 2010), "You've got to deliver goals and targets", Sydney Morning Herald, retrieved 22 January 2011
  63. ↑ 63.0 63.1 Associated Press (17 August 2010), "Australia's PM says Elizabeth II should be country's last British monarch", The Guardian, retrieved 14 March 2011
  64. ↑ 64.0 64.1 "Australia's Gillard backs republic after Queen's death". BBC. 17 August 2010. Retrieved 14 March 2011.
  65. ↑ 65.0 65.1 Thieberger, Victoria. "Australia gets first female governor-general". Reuters. Retrieved 24 January 2011.
  66. ↑ 66.0 66.1 Associated Press (12 March 2006), "Queen Elizabeth II arrives in Australia on state visit", The Star, retrieved 14 March 2011
  67. ↑ Chua-Eoan, Howard (1 April 2009). "The Queen and Mrs. Obama: A Breach in Protocol". TIME (New York: Time Inc.). ISSN 0040-781X. Archived from the original on 12 February 2011. Retrieved 14 March 2011.
  68. ↑ Elizabeth II (1 January 1987). "Constitution Act 1986". 2.1. Wellington: Queen's Printer for New Zealand. Retrieved 13 March 2011.
  69. ↑ 69.0 69.1 Boswell, Randy (7 October 2009), "Governor General calling herself 'head of state' riles monarchists", Ottawa Citizen, retrieved 21 February 2011
  70. ↑ Boswell, Randy (9 October 2009), "Queen is our head of state, Harper reminds Jean", National Post, retrieved 13 March 2011
  71. ↑ Boswell, Randy (9 October 2009), "Michaelle Jean retreats from 'head of state' debate", National Post, retrieved 13 March 2011

External links