Queen & Country: Elizabeth II’s place in post-colonial Australia

by on 27 January, 2016

Jack Wilkie-Jans writes on the legacy of Queen Elizabeth II

In Australia there is much social political discussion (or a resurgence of) around the topics of Australia becoming a republic and of changing its national flag, as well as the growing movements of Aboriginal sovereignty versus the proposed changes to the Australian constitution to officially include First Peoples of Australia. Such topics seem mostly- if not only- prevalent on or near January 26th.  While such discussions continue to take place and precedence in the mainstream, populist press there also remains a great deal of war and famine around the globe and we are seeing a continuing and growing humanitarian crisis stemming from the Middle East.

Over decades we’ve seen historic paradigm changes in regards to numerous social conventions, such as race relations and most recently positive challenges around the issue of sexuality and marriage equality, taboos which have otherwise stood for centuries. We’ve also been witness to the resistance- some of it savage- such change often meets. The world has also seen in recent years the passing of so many great international leaders and great personalities who have helped shape the 20th and 21st Centuries. Through all of this and through all of the upheavals and positive changes over the past 89 years, 63 years and 11 months, there is one person representing an institution who and which remains a steadfast icon of stability, trust, diplomacy as well as tradition & progressiveness alike: Her Majesty Queen Elizabeth II.


While several Commonwealth nations no longer have the Queen as their Head of State, she still remains the Head of the Commonwealth. The Commonwealth, of course, is perhaps one of the Queen’s most magnificent jewels in her long career. A diplomatic feat unheard of in a world where monarchies are overthrown and republicanism has swept into the populist nationalistic discourse; transitioning the British Crown’s kingdom (upon which the sun never set- a remarkable feat of the Queen’s Great-Great-Grandmother, Queen Victoria) peacefully and sustainably into the Commonwealth would have seemed impossible under any other reigning monarch.


Her Majesty’s altruism, insight and unmatched experience in world affairs has ensured the successful maintenance, albeit morphed, of not only the “empire” but more significantly her own House. Like in Australia, calls for a republic and independence have been heard loudly from the United Kingdom. The Queen weathered the storm of both Scottish and Irish secession, made it through the other side in one piece while also being able to not simply survive as the Head of State but also thrive due to her ability to heal and ‘make better’ as opposed to merely ‘making do’, ensuring her subjects gained more out of having her maintain. Arguably the two main benefits of maintaining the Queen as the Head of State ensures a nation’s stability and strategic ally in Great Britain amidst a world of turbulence; the other main benefit is the income generated by tourism to estates and also the general interest level there is in such a withstanding institution. Removing the Queen as the Head of State doesn’t so much gain something as it loses something never attainable again and the fact that places like Australia are reluctant to try out a new structure of governance/rule adds to the confidence in the understandable and manageable role of the Queen. Unlike a President of a republic, Vice Regals or the Queen, while assenting to legislative changes, do not sign executive orders. Unlike presidents, Monarchs and their Vice Regals are bound by conventions and preside above politics. The comfort in this security and unknowing of potential abuses of executive power by possibly elected figure heads is what keeps a minimally drafted republic at bay here in Australia.


In recent history a Governor-General in Australia has only once wielded their executive power. The memory of The Rt. Hon. Sir John  Kerr AK, GCMG, GCVO, QC’s dismissal of former Prime Minister The Hon. Gough Whitlam AC QC is still strong and Whitlam’s death brought about a new stirring of the republican debate at a time when his career and legacy was reflected upon at a national scale. Involvement of the Governor-General has been “on call” since, most recently and notably the kerfuffle around the Prime Ministership of former Labor Prime Ministers The Hon. Kevin Rudd, The Hon. Julia Gillard and then Mr Rudd again. Luckily the then Governor-General The Hon. Dame Quentin Bryce AD CVO didn’t need to intervene as leadership was eventually decided upon by the Labor caucus.


In spite of the dismissal and Australian Vice Regals’ related powers, the role of the Queen in Australia and its States and Territories remains symbolic and atops constitutions, therefore it is an integral role, with Vice Regals undertaking their largely ceremonial duties in order to ensure  legislative progress and to keep the functions of parliament running smoothly. Yet the Queen’s place in Australian society is still something that remains a topic of great interest with much discussion taking place around the notion.


Yes it’s true that in a modern era with a more united, global, barrier-less and classless world the idea of a Monarchy, while fabulous to look at when the royal cavalcade drives down main street or the Vice Regals come to visit and declare a local and temporary public holiday (although that’s a practice now outdated), doesn’t feature heavily in the realm of most people’s everyday life as it once did. The Monarchy is there but not necessarily important to most people. The push for Australia to become a republic is supported by many in public life from celebrities to former politicians. The possibility was even floated by former Governor-General The Hon. Dame Quentin Bryce AD CVO in her Boyer Lecture address in 2013 where she was quoted to say, “And where perhaps, my friends, one day, one young girl or boy may even grow up to be our nation’s first head of state.”


Republicans jumped at this statement and launched another campaign to force the Australian peoples’ hand into a referendum however parliament resisted. Most recently earlier this year the leader of the Australian Labor Party and Her Majesty’s Opposition, The Hon. Bill Shorten MP, and The Hon. Joe Hockey MP (a former member of cabinet for the conservative Liberal Nationals Party coalition government) both called for a renewed push for a republic referendum. The current conservative Prime Minister The Hon. Malcolm Turnbull MP is a renowned republican. Although  with eight extremely successful, and well received by the Australian press and public, Royal visits to Australia since 2010 (Prince William, 2010, The Queen, 2011, Prince Charles & Duchess of Cornwall, 2012, Duke of Kent, 2012, Duke of Gloucester, 2012, Prince Harry 2013, Prince William & Duchess of Cambridge, 2014, Princess Anne, 2014) the push for a republic has been strategically interrupted numerous times.


Also recently the popular language regarding Aboriginal tribes, family or language groups and clans had changed from such to being called ‘Nations’ in a revived push lead by grass-roots activists of Indigenism in Australia. While certainly Australia, similarly to other Commonwealth nations  Canada and New Zealand, has a unique social and sovereign context in that the continent was colonised under the rule of King George III (who reigned during the American Independence War and Napoleonic invasion) and done so [while not initially] under the now outdated concept of terra nullius. With the introduction of Native Title in the early 1990s after the Mabo v Queensland case, the First Peoples (Aboriginal & Torres Strait Islanders) were acknowledged to have ownership over their traditional lands. The definition between ownership and sovereignty remains the root of much political and social activism in Australia and understandably so given how milestones to grant First Peoples rights and recognition have been fairly recent in comparison to other formerly colonised countries.


There is some difference of views among First Peoples regarding the proposed referendum to formally recognise Aboriginal & Torres Strait Islander peoples in the Australian constitution. Some see this amendment to the nation’s most esteemed document to be well overdue and necessary for healing and for moving forward as one. Others see such an amendment as surrendering sovereign rights. While the Queen herself does not feature in much of the discussion, naturally the topic of British rule and of a republic features in some of the debate.


This goes to show that regardless of one’s views on either of those topics, including also the idea of New Zealand and Australia changing their respective national flags, there is much to be discussed and a future full of undoubtedly more debate. So currently it is hard to determine what role or place the Queen or indeed the British Monarchy will or won’t play in Australia.


In fact a third stance on the republic debate which moves from either yay or nay has emerged and is solely down to the Queen’s natural ability to command respect and adoration. “Queenists” are people who are in favour of a Constitutional Monarchy for the duration of the Queen’s rule. Essentially what they mean to say is “no” to a republic so long as the Queen is alive. This is yet another example of the Queen’s ability to transcend the normal fray of political debate and influence indirectly, and only by reputation, major political issues. That republicans honour the Queen and prefer to debate a republic after the Queen’s reign is nothing short of a compliment the kind which only a uniquely great leader can garner.


The one persevering lesson the Queen teaches us isn’t that of royalty and the significance of the Crown but is in fact the value of leadership but more importantly leadership with grace, confidence, flexibility and patience. Whether you’re a monarchist or if you are in favour of seceding from British rule and the Monarchy, or if you may just be an understandably conceded “Queenist”, we must honour the Queen’s dedication to her duties and the respect she shows to people everywhere, we must acknowledge her leadership and her place not only as the head of the British Monarchy but as a world leader. We should be encouraged to learn from her and ambition to carry out our duties in our personal, professional and even political lives (no matter who you may believe should be your Head of State) in a manner emulative of the Queen’s own work ethic and humility.


While the future is uncertain, the Queen remains a certainty.


Amidst the ever changing face of the world and in particular the advancements in technology in the latter part of the 20th century, while the Queen herself has remained a constant she has successfully adjusted the presence of the Monarchy. During her reign a website, Facebook page and Instagram account have been set up. Official portraits reflect not only the Queen but also the new avant garde  arts practices of the modern era. In fact the Queen as the longest reigning Sovereign has, unlike any of her predecessors, shifted the Monarchy from being purely traditional to being traditional in new ways and via new mediums, creating for her successors a modern Monarchy in a truly modern era.


Congratulations to Her Majesty The Queen on last year’s momentous and historic occasion of her becoming the longest serving British Monarch

Jack Wilkie-Jans is a contemporary Australian artist and Aboriginal Affairs advocate from Cape York Peninsula, Queensland.

11 thoughts on “Queen & Country: Elizabeth II’s place in post-colonial Australia

  1. Jack, whilst I agree with much of what you have to say, you should get a few facts straight. The queen is the British monarch and also, separately, the Queen of Australia. Australia has no legal connection to the “British monarch” and she does not “rule”. So the British monarch has absolutely no role to play in Australia’s system of government or anything else.
    Our connection is solely to the Australian monarch who is solely advised by her Australian ministers.
    Finally she is not and has never been our head of state, an office not mentioned and not required by our constitution. She has never exercised any HoS function for Australia. Those powers are given in the constitution solely to the governor general, an office created by the constitution and not a delegated function from the queen. The queen cannot override any of the GG’s decisions. They are final and unappealable.

  2. I’d suggest that DFAT should reword that piece to read”… where HM the Queen is the sovereign” because ‘head of state’ is not a well defined concept (and ‘sovereign’ is better understood) noting the debate in Australia (which differs from other realms) that the GG is the HoS because he does the job, is not answerable to higher authority, has all HoS functions conferred on the office by the constitution and not by delegation from the queen, and finally the clincher, that the full bench of the High Court of Australia has so ruled in 1907.

  3. The full bench of the High Court said no such thing. They never even considered the position of Head of State and the case often cited never mentions the term. On the contrary, there have been numerous cases which explicitly do and they are unanimous in stating the very opposite you claim.

    The explicit statement by the trial judge of the High Court of Australia in Thorpe vs The Commonwealth makes it perfectly clear from the following exchange:

    MR LINDON – “Mr Thorpe has been active in seeking the assistance of the Head of State of Australia. I am not sure if that is the Queen of England or the Queen of Australia or the Governor-General, but we have written to both.”
    KIRBY J – “You should not be in any doubt. The Head of State is the Queen by the Constitution. There should not be any doubt about that, the Queen of Australia.”
    Transcript of Proceedings, Thorpe v The Commonwealth (High Court of Australia, Justice Kirby, 21 May 1997).

    Since the HC of Australia is the highest court in the land, in order to prove that the GG is HoS and not the Queen, you must show a subsequent decision by the HC after 1997 overturning the statement of Mr Justice Kirby. Given the concurrence of justices Gaudron and Gummow in Taylor, Ex parte Patterson [2002] HCA Trans 737, 6 December 2006, I think you will be hard pressed to show anything of the sort. A publication in a journal, however learned, changes naught.

    It doesn’t stop there:

    Re Burgundy Royale Investments Pty Limited (Receivers and Managers Appointed) [1987] FCA 454 (Bowen CJ, Morling and Beaumount JJ). (‘The expression the Crown in right of the Commonwealth refers to the Commonwealth in the same sense as the expression the Crown in right of a State refers to that body politic under the monarch as Head of State’);

    Kingsman v Health Administration Corporation [2000] NSWSC 136 (James J). (‘Just because Australia is independent…it does not mean Crown immunity has been abolished…it does not mean that Australia has ceased to be a monarchy with a crowned Head of State’);

    R v Sam Scott [1993] ACTSC 12 (Higgins J). (‘the Sovereign is the Head of State of Australia by being the personification of the body politic);

    Hawke v Lenin Limbo [1990] NTSC 23 (Kearney J). (‘I sent to Her Majesty the Queen who I believe is the Head of State via the Governor-General, a copy also went to the Attorney-General and also to the Secretary-General of the United Nations of a special plea, asking Her Majesty three questions’).

    Pasla and Secretary, Department of Family and Community Services [2004] AATA 593 (‘The above sections [i.e. §1 and 61] indicate that the Queen is Head of State of Australia’).

    ex parte Quark Fishing [2006] 1 AC 529, 545 (‘The Queen is as much the Queen of New South Wales and other territories acknowledging her as Head of State. Thus the …the Crown exercises executive power…[and this] makes plain that the Queen is the Head of State and the source of authority in the state’).

    Te and Dang (2002) 193 ALR 37, 74 (Kirby J). Nolan (1988) 165 CLR 178, 191 (Gaudron J). Buchanan v Lindisfarne R & SLA Sub-Branch and Citizens Club and RSL [2004] TASADT 2 (13 May 2004); Lindisfarne R & S L A Sub-Branch and Citizen’s Club Inc v Buchanan [2004] TASSC 73 (all referring to the Queen as Head of State).

    Ex parte Te, Justice Kirby observed that:
    “…in some countries (and throughout our history), school children have pledged their allegiance to the Head of State. Allegiance to the…Head of State of a country is the traditional way, in a constitutional monarchy, by which alienage is excluded and membership of the community or body politic of that country is signified”.

    In Nolan, Justice Gaudron also referred to the Queen as Head of State in the context of citizenship law. In fact, during oral argument in Ex parte Justices Patterson, Kirby and Gaudron, all recognised that it was “implicit” that the fact the Queen has “subjects” meant that she, not the Governor-General, was the Head of State.

    Chief Justice Brennan at his swearing-in ceremony, referred to the Queen as Head of State due to the simple fact she is a symbol of national unity.

    Justice Moller Beach observed that the taking of an
    “oath of allegiance to Her Majesty as Queen of Australia, as Head of State, amounts to no more, in my opinion, than taking an oath of allegiance to Australia itself”.
    So I would suggest that if there is any rewording to be head, it isn’t DFAT who needs the doing of it.

  4. That all sounds very legal and I bow to your research which never seems to appear at any debates on this subject, but I’d still contend that the word “sovereign” would be preferable as that is an office that is defined in our constitution. It has not been beyond DFAT and other government departments to sneak in their republican tendencies into websites and PR material. If indeed there has been no definite decision as to whether we have a HoS departments of government should avoid the term. In the 1907 case, when I understand the term HoS was not in any common use, the High Court declared the King is the sovereign and that the governor-general is the constitutional head of the Commonwealth of Australia. But I’m no lawyer. I’m sure you’ve read Sir David Smith’s interpretations. And I also still contend that commentators are wrong (as was Jack here) to refer to the “British crown” when talking about the Queen of Australia. Perhaps the High Court needs to consider the specific case and what exactly the nebulous definition of HoS is.

  5. The term sovereign doesn’t appear in the Australian Constitution anywhere. The closest it comes is to the “soverignty of the United Kingdom”. The 1907 case spoke of the “constitutional head of the Commonwealth of Australia” in obiter terms, merely to distinguish him from the “constitutional head of the state (of South Australia)”. Neither phrase used by the judge had anything to do with the position of “Head of State”. Who is Head of State isn’t a a republican/monarchist issue, it is a matter of fact. I quoted Mr Justice Kirby. He was a founder member of ACM. The constitutions of NZ, Tuvalu, and Papua New Guinea explicitly state that the Queen is Head of State. None of them, as far as I know, are the product of DFAT or other Australian republican tendencies. As for Sir David Smith, I am unaware of a single GG under whom he served, who shares his view. As far as I understand, he isn’t a lawyer either.

  6. I think my point simply is that the term HoS is not well defined and debate ensues over it in the quest for a republic. I understand Kirby has a different view to others and I’m well out of my depth debating him or, it seems, you, but other constitutional lawyers disagree and you would concede there is some dispute. Who is the head of state? The one exercising the power (the GG) derived directly from the constitution, not delegated by the queen, or the queen who effectively exercises no power apart from appointing the GG etc and does not perform any specific HoS function eg as CinC of the defence forces. Also I understand Australia’s constitution is unique in granting the GG powers directly and not as bestowed as the case may be by the sovereign, and so the cases of the other nations you mention are probably not relevant to our constitution. Your criticism of Smith sounds dismissive. Does he have to be a lawyer? Does he have to have the support of GGs? No doubt you are aware of his writing on the subject. His view is simply that the GG has the powers of a HoS and exercises them, or he may well have put it more eloquently in his writings. Why is the GG on Australia’s business overseas sent and received with ceremonial due a HoS? I read about this not being offered once and the visit to Indonesia was cancelled until due HoS ceremony was apologetically assured. Perhaps we need the High Court to sort it out properly? I don’t know, but I’ll bow to more expert judgement, and when have all the experts ever agreed?

  7. It seems somewhat at odds to argue that the position of HoS is undefined, then to claim that the GG has all the powers of a HoS. I am afraid that one such argument cancels out the other. There are plenty of constitutions around the world which confer various powers on all sorts of people, far in excess of those enjoyed by the Australian GG. That has no bearing whatsoever of whether they are Heads of State or not. The Swedish King does not even commission a government. The Swiss HoS is whichever federal minister happens to be chairing cabinet for the time being. In the constitution of PNG and the Solomon Islands, the Queen is undoubtedly declared to be HoS, but the GG is elected by parliament. The Queen does not perform the functions of C-in-C anywhere. In the Westminster system, the office of C-in-C has always been an office under the crown, whether that appointment comes in the form of a fresh commission from the Queen directly every appointment, delegated via Letters Patent or via a Constitution signed by her predecessor. It matters not one jot. You are confusing the importance of the office in American practice with our own. If the GG exercises all his power from the Constitution and not delegated from the Queen, what are the Letters Patent all about? Scotch mist? Please read them before regurgitating such nonsense. The GG is not received as HoS as of right anywhere. By agreement with some (not all) foreign governments, the GG is received with some (not all) of the courtesies normally accorded to a HoS. Don’t rely on Smith, read the text of the Indonesian confirmation. After the spat, they agreed to receive the then GG Sir Ninian Stephen, not as HoS as of right but “as if he were” HoS. Not at all the same thing. Clearly, if the High Commissioners of those states of which HM is HoS do not present credentials to the GG but simply introduce themselves to the Australian PM, “all” most assuredly do not regard the GG as HoS. As to your questions; Does he have to be a lawyer?; Does he have to have the support of GGs? The answer is no, but all of those GG’s in question performed the functions of GG and who better to know if they performed the functions of a HoS than those who held the office themselves? Besides, at least two of those GGs were constitutional law experts, one of them among the most pre-eminent constitutional lawyers this country has ever produced.

  8. Thanks for that. In the end, does it matter? Republicans want an Australian HoS. It seems to me that the job description for a minimalist republican president would be to do pretty much exactly the same as the GG does now with the unnecessary title of HoS thrown in.

  9. I’m not sure what they want and I am not sure they know themselves. 17 years and they not been able to come up with a single proposal for a Constitutional amendment or proposal. 17 years and they cannot agree on what kind of republic. 17 years and they have not been able to agree what sort of president and what sort of powers. All I do know is the minute someone within their ranks proposes something, every man and his dog wants something else. The only reason they keep using the term Head of State is that if they use the word they all actually mean, President, the public rightly walk away in droves. So they avoid it like the plague. Instead of reminding the public at every term that a President IS exactly what rebs want, some monarchists foolishly give them a free ‘get out of jail card’ by going on and on about the GG being HoS.

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