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User:Rotary Engine/Australian Governor-General head of state theory

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The Australian Governor-General head of state theory says that the governor-general of Australia should be considered the country's head of state. Although the Australian constitution does not mention the term "head of state", current official sources use the description of the Queen, as monarch. Nevertheless, a number of writers, most notably David Smith, have argued that the term is better used to describe the governor-general. A number of other people and publications have also referred to the governor-general as the head of state, either informally or erroneously.

The issue has mainly been discussed in the context of Australia becoming a republic, and was prominently debated in the lead-up to the republic referendum in 1999.

Background

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Main article: Monarchy of Australia

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] The monarch, 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.

Section 2 provides that a governor-general shall represent the Queen in Australia. The governor-general is appointed by the monarch on the advice of the prime minister of Australia.[3][4][5][6]

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."

In practice, as the Queen's representative, the governor-general carries out all the functions usually performed by a head of state, without reference to the Queen.[7][citation needed] 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,[7][8][9][10][11][12][13][14] 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.[1] Among arguments advanced in that campaign some were for retaining the office of governor-general as the monarch's (nominal) representative, and others were for a popularly elected head of state. Republicans included 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".[15] 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."[16] The governor-general normally represents Australia internationally, making and receiving state visits, but the Queen also carries out some official duties representing Australia outside Australia, such as in the United Kingdom.

Various opinions

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Within Australia, newspapers, ministers, constitutional scholars and the general public have not always been consistent in references to either the monarch or the governor-general as the head of state.[2][17] 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."[18]

Official sources

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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,[19][20][21][22][23] while others say it is the governor-general.[24] Yet another calls the governor-general the "constitutional Head of State" and the Queen the "Head of State".[25] Presently, the government website states: "Under the Constitution, the reigning British monarch is also the Australian monarch, and therefore Australia's Head of State".[26] 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."[27][28][29] 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,[30] 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").[31][32][33][34][35][36][36][37][38]

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, "His Excellency Sir Peter Cosgrove"; this is the same as is done for other Commonwealth realms with a governor-general.[39] 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".[40][41] 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.[42] 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".[43] In 2010, the "head of state" description was restored,[44] but, by 2014, this had again been changed, with the Queen described as "Sovereign" in the Commonwealth realms, of which Australia is one.[45]

Scholarly sources

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Former governor-general and Liberal politician Paul Hasluck stated in 1979 that Australia's monarch is the country's head of state and the Governor-General is her or his representative.[46] The same view has been expressed by former governor-general and legal scholar Zelman Cowen.[47][48] This position has been supported by many constitutional scholars, including Harrison Moore, George Winterton, and George Williams.[49][50][51][52][53] Furthermore, George Winterton argued that, because the Governor-General only functions on a federal level, with Governors playing corresponding parts in the States, the Governor-General could not be the head of state for the nation as a whole.[54]

A founding member of the monarchist lobby group Australians for Constitutional Monarchy[55] and former Justice of the High Court of Australia, Michael Kirby has long supported the view that the Queen is Australia's head of state.[56][57] The same view was expressed by the former Chief Justice of the High Court, Anthony Mason.[58]

However, Professor Colin Howard argued that, "It seems therefore that practice and law now coincide to support the proposition that, certain matters of ceremony and courtesy apart, the head of state in Australia is not the Queen but the Governor-General".[59] Professor Owen E. Hughes commented that there was "ambiguity" on the issue, and described both the monarch and the governor-general as the head of state at different times in the same book.[60]

Political sources

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Michael Kirby's opinion aside, Australians for Constitutional Monarchy has often argued that the governor-general is head of state. 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;[61][62] 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 notes 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.[63] However, in 1995, the one-time Director of Australians for Constitutional Monarchy, and later Liberal prime minister, Tony Abbott, described the Queen as the "titular Head of State" of Australia.[64]

The smaller Australian Monarchist League (AML) states 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."[65]

The view of the Australian Republican Movement differs from 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. Leading republican, and later prime minister, Malcolm Turnbull argued in 1993: "As long as we have the British Queen as our Head of State, other nations everywhere, not just in Asia, will regard us as somewhat less than independent."[66]

Comparison with other Commonwealth realms

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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."[67] Likewise, in Part V of the Constitution of Papua New Guinea, the Queen is labelled Head of State of Papua New Guinea.

In Canada, similar opinions exist 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.[68][69][70] Canadian monarchists assert the Queen is head of state.[68] The Canadian constitution makes no mention of a head of state.

The phrase "head of state" appears in the constitutions of only 4 of the 15 Commonwealth realms - New Zealand, Papua New Guinea, Solomon Islands & Tuvalu. In each of those constitutions, it refers to the Queen.

See also

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References

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Bibliography

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  • 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.{{cite book}}: CS1 maint: ref duplicates default (link)

Citations

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  1. ^ a b c d Ireland, Ian (28 August 1995). "Who is the Australian Head of State?" (PDF). Research Note (1). Canberra: Australian Government Publishing Service: 1. ISSN 1323-5664. Archived (PDF) from the original on 17 January 2011. Retrieved 22 January 2011.
  2. ^ a b Parliament of Australia. "Powers of the Head of State of Australia and South Africa". Australian Government Publishing Service. Retrieved 10 March 2011.
  3. ^ Australian Government. "Governors-General". Australian Government Publishing Service. Retrieved 21 October 2015.
  4. ^ Jupp, James (2001). The Australian People: An Encyclopedia of the Nation, Its People and Their Origins. Cambridge University Press. p. 331. ISBN 9780521807890. Retrieved 21 October 2015.
  5. ^ Introducing the Law. CCH Australia Limited. 2011. p. 53. ISBN 9781921873478. Retrieved 21 October 2015.
  6. ^ "The Queen's role in Australia". Royal Household. Retrieved 21 October 2015.
  7. ^ a b Office of the Governor-General of Australia. "About the Governor-General > Governor-General's role". Australian Government Publishing Service. Retrieved 16 March 2011.
  8. ^ "The reserve powers of the Governor-General". Parliament of Australia. 23 January 1998. Retrieved 2 January 2013.
  9. ^ Victoria 1900, II.61
  10. ^ 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, p. 213, ISBN 9781862877610
  11. ^ Zines, Leslie (2008). The High Court and the Constitution. Sydney: Federation Press. p. 345. ISBN 9781862876910.
  12. ^ Barwick, Garfield, A View of the External Affairs Power, The Samuel Griffith Society, retrieved 1 January 2013
  13. ^ "Pillar 2- Parliamentary Democracy". Constitution Education Fund Australia. Retrieved 1 January 2013.
  14. ^ "Solicitor-General explains opinion: did not deny Crown's power", Sydney Morning Herald, p. 10, 19 November 1975, retrieved 1 January 2013
  15. ^ Squires, Nick (19 January 2006), "Republicans want 'a mate' to become Australia's head of state", The Telegraph, retrieved 9 March 2011
  16. ^ 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
  17. ^ Dusevic, Tom (12 February 2010), "Queen takes on Bryce in right royal title fight", The Australian, retrieved 22 January 2011
  18. ^ Governors-General of Australia (PDF), Museum of Australian Democracy, retrieved 27 February 2011
  19. ^ House of Representatives, The Australian System of Government (PDF), Australian Government Publishing Service, p. 3, retrieved 10 March 2011
  20. ^ 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.
  21. ^ Department of Foreign Affairs and Trade. "Protocol > Protocol guidelines > The Australian Government". Australian Government Publishing Service. Retrieved 14 March 2011.
  22. ^ 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.
  23. ^ "Australian Citizenship – Our Common Bond" (PDF). Department of Immigration and Citizenship. August 2012.
  24. ^ Electoral Council of Australia. "Electoral Systems of Australia's Parliaments and Local Government" (PDF). Australian Government Publishing Service. Retrieved 10 March 2011.
  25. ^ Parliament of Australia. "The role of the Governor-General". Australian Government Publishing Service. Retrieved 10 March 2011.
  26. ^ Government of Australia. "About Australia > Our Government > Australia's Federation". Queen's Printer for Australia. Retrieved 10 March 2011.
  27. ^ Commonwealth Government Directory. Australian Government Publishing Service. December 1995 – February 1996.
  28. ^ "Commonwealth Government Directory". Australian Government Publishing Service. March 1997. Retrieved 22 January 2011.
  29. ^ Smith, David (2005). Head of State. Sydney: Macleay. pp. 91–92.
  30. ^ Smith 2005, p. 15. sfn error: multiple targets (3×): CITEREFSmith2005 (help)
  31. ^ Rex v Governor of South Australia, Griffith, Samuel; Barton, Edmund; O'Connor, Richard; Isaacs, Isaac; Higgins, Henry, Paragraph 13 (High Court of Australia 1907).
  32. ^ Baxter v Commissioners of Taxation (NSW) 4 CLR 1087, 1093.
  33. ^ South Australia v Victoria (1911) 12 CLR 667
  34. ^ R v Titles Registrar (Vic) (1915) 20 CLR 379, 380 (Griffith CJ).
  35. ^ R v Kidman (1915) 20 CLR 425, 418–25 (Griffith CJ)
  36. ^ a b R v Sutton (1908) 5 CLR 789, 809–11
  37. ^ R v Sutton (1908) 5 CLR 789, 797 (Griffith CJ).
  38. ^ Thorpe v The Commonwealth of Australia, Justice Michael Kirby (High Court of Australia 21 May 1997).
  39. ^ United Nations Protocol and Liaison Service (22 September 2015). "Heads of State, Heads of Government, Ministers for Foreign Affairs" (PDF). United Nations. Retrieved 19 October 2015.
  40. ^ 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.
  41. ^ "Central Intelligence Agency World Factbook". Central Intelligence Agency. Archived from the original on 29 December 2010. Retrieved 22 January 2011.
  42. ^ Department of Foreign Affairs and International Trade, Australia (PDF), Queen's Printer for Canada, retrieved 11 March 2011
  43. ^ Marr, David (19 October 1999), "Queen's Hand a Royal Flush for Monarchists", Sydney Morning Herald, retrieved 10 March 2011
  44. ^ Steketee, Mike (23 January 2010), "Prince charming won't stall the march to republicanism", The Australian, retrieved 25 January 2011
  45. ^ Royal Household. "The Monarchy Today > Queen and Commonwealth > Commonwealth Members". Queen's Printer. Retrieved 24 January 2011.
  46. ^ Hasluck, Paul (1979), The Office of Governor-General (PDF), Burwood: Brown Prior Anderson Pty Ltd, p. 8, retrieved 24 October 2015
  47. ^ Markwell, Donald (2015). "The office of Governor-General". Melbourne University Law Review. 38 (3): 1107–08.
  48. ^ Smith, David, Why The Governor-General is Australia's Head of State, Australians for Constitutional Monarchy
  49. ^ Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6 ed.). Leichhardt, NSW: Federation Press. p. 2. ISBN 978-1-86287-918-8.
  50. ^ Winterton, George (2004). "Who is our head of state?". Quadrant (September 2004): 60.
  51. ^ Moens, Gabriel; Trone, John; Lumb, R D (2007). Lumb & Moens' The Constitution of the Commonwealth of Australia Annotated (7 ed.). Chatswood, NSW: LexisNexis Butterworths. p. 47. ISBN 9780409323658.
  52. ^ Omar, Imtiaz (2015). Constitutional Law (4 ed.). Chatswood, NSW: LexisNexis Butterworths. p. 11. ISBN 9780409339185.
  53. ^ Hanks, Peter; Keyzer, Patrick; Clarke, Jennifer (2004). Australian Constitutional Law: Materials and Commentary (7 ed.). Sydney: LexisNexis Butterworths. p. 465. ISBN 0409319465.
  54. ^ Winterton, George (2004). "Who is our head of state?". Quadrant (September 2004): 60.
  55. ^ "10 questions – Michael Kirby". The Australian. 26 March 2011. Retrieved 8 January 2013.
  56. ^ Michael Kirby (16 April 1994). "A Republic by Stealth (The Robert Harris Oration" (PDF). Michael Kirby.
  57. ^ Williams 2014, p. 1351
  58. ^ Smith, David, Why The Governor-General is Australia's Head of State, Australians for Constitutional Monarchy
  59. ^ Howard, Colin (1985). Australian Federal Constitutional Law. Sydney: The Law Book Company. p. 112.
  60. ^ Hughes, Owen (1998). Australian Politics. Melbourne: Macmillan Education. pp. 170–171, 205, 249–250. ISBN 0-7329-2796-X.
  61. ^ Smith, David (19 March 2001), Our Australian Head of State, Sydney: Australians for Constitutional Monarchy, retrieved 24 January 2011
  62. ^ Smith, David (January 2005). Head of State. Paddington: Macleay Press. ISBN 1-876492-15-5.
  63. ^ Flint, David. "The Head of State debate resolved" (PDF). Australians for Constitutional Monarchy. Retrieved 24 January 2011.
  64. ^ Abbott, Tony (1995). The Minimal Monarchy. Adelaide: Wakefield Press. p. 57.
  65. ^ Benwell, Philip (2010). "Crowned Republic – No. Crowned Democracy – Yes". Australian Monarchist League. Retrieved 13 February 2011.
  66. ^ Turnbull, Malcolm (1993). The Reluctant Republic. Port Melbourne: William Heinemann Ltd. p. 224. ISBN 978-0-85561-372-3.
  67. ^ Elizabeth II (1 January 1987). "Constitution Act 1986". 2.1. Wellington: Queen's Printer for New Zealand. Retrieved 13 March 2011. {{cite journal}}: Cite journal requires |journal= (help)
  68. ^ a b Boswell, Randy (7 October 2009), "Governor General calling herself 'head of state' riles monarchists", Ottawa Citizen, retrieved 21 February 2011
  69. ^ Boswell, Randy (9 October 2009), "Queen is our head of state, Harper reminds Jean", National Post, retrieved 13 March 2011
  70. ^ Boswell, Randy (9 October 2009), "Michaelle Jean retreats from 'head of state' debate", National Post, retrieved 13 March 2011
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Category:Australian constitutional law Category:Heads of state Category:Positions of authority Category:Republicanism in Australia Head of state dispute

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