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

By: Colin

Colin — Sun, 31 Jan 2016 13:49:00 +0000

OK. I can agree with that.

By: regiment1

regiment1 — Sun, 31 Jan 2016 11:55:00 +0000

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.

By: Colin

Colin — Sun, 31 Jan 2016 03:42:00 +0000

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.

By: regiment1

regiment1 — Sat, 30 Jan 2016 22:21:00 +0000

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.

By: Colin

Colin — Sat, 30 Jan 2016 12:34:00 +0000

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?

By: regiment1

regiment1 — Sat, 30 Jan 2016 11:07:00 +0000

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.

By: Colin

Colin — Sat, 30 Jan 2016 01:22:00 +0000

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.

By: regiment1

regiment1 — Fri, 29 Jan 2016 21:00:00 +0000

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.

By: Colin

Colin — Fri, 29 Jan 2016 13:26:00 +0000

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.

By: regiment1

regiment1 — Fri, 29 Jan 2016 05:03:00 +0000

“Those High Commissioners who represent countries where HM the Queen is the Head of State present letters of introduction to the Prime Minister rather than letters of credence to the Governor-General. ” http://dfat.gov.au/about-us/publications/corporate/protocol-guidelines/Pages/2-heads-of-mission.aspx#261