The Queen is Head of State Part IV

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Lewis Holden continues the series arguing the Queen is Australia's Head of State, based on a new book by Steven Spadijer. 

The Queen is Head of State series: parts I II and III

It seems the ACM, who are obsessed with arguing the Queen is not Head of State, have taken aim at Peter Fitzsimons, who called them out for not responding to the Prime Minister of Britain's statement that the Queen is Head of State of the 16 Commonwealth realms, including Australia. Rather than telling us why they didn't respond to this clear slap in the face from David Cameron, they instead try to slap Peter. This is typical ACM-style: play the man, not the ball. Don't debate the issues or apologise for your obvious mistakes.

Just look at their lame attempt at justifying a totally inaccurate post on the President of Ireland. Once again they attack me for an mistake made some time ago, then point out that my views are different from Malcolm Turnbull's. That is hardly relevant, and anyway, the ARM's policy is to allow the people of Australia to choose if they want an Irish-style directly elected head of state. No apology for the horrendous mistakes made (which is why I took "umbrage" at the post); I of course apologised for the aforementioned mistake I made. Clearly, the ACM has no commitment to publishing facts or focusing on the issues; they vilify and deride anyone who doesn't see things their way, even their fellow monarchists such as Phillip Benwell. They refused to debate Steven and Phillip on the Head of State issue, and only have themselves to blame for this series.

One good thing did come from the ACM's latest attempt to show that the Queen isn't Australia's Head of State. They mention the 1907 case in the High Court of Australia upon which their entire argument is founded: R v Governor of South Australia (‘the State Writs Case’) (1907) 4 CLR 1497, 1500-11. In this case, the High Court allegedly ruled that the Governor-General was Australia's Head of State.

Well, it seems Steven Spadijer has pulled this claim apart in his excellent book. Steven points out that it is unclear how the 1907 precedent cited by the ACM resolves the debate over who Australia's Head of State is. If anything, it raises more questions. Firstly, how come they have claimed elsewhere the title is “only a diplomatic term” that did not enter the English language until the 1980s? How is the term "Head of State" "completely unknown in Australian constitutional law...even [in] 1909” when the High Court allegedly, in a 1907 constitutional case, used the phrase in the same sense as we use it today? It appears to come down to the simple phrasing of part of the judgment, as if the ACM did a quick search for the term "Head of State" in a case law database and the State Writs case was the first to pop up.

The case itself contradicts the ACM's previous position – that the defining power of the Head of State is the ability to appoint the Prime Minister – and if not, then clearly the term means something completely different. If it does mean something different, surely more recent High Court pronouncements (which all declare the Queen to be Head of State) would seem more appropriate to this purpose?

Secondly, another question arises as to why the ACM has continually and dishonestly misquoted the precedent. In their publication on the Head of State issue in Quadrant, the word ‘the’- "constitutional Head of the State [government]" is omitted and magically becomes "Head of State". In fact, it should have been made clearer that the judgment refers to a Governor of a “State” like South Australia (i.e. a mere regional polity or locality), not to the “State” of Australia itself (i.e. in the sense of an entire nation). Not that the ACM has issues sticking to the facts or quoting people verbatim.

Any innocent reader glancing over the Quadrant paper would receive the false impression that the term is used in the latter sense i.e. the sense we use it today. Thirdly, it also remains unclear how being the "officiating...[H]ead of the Commonwealth" makes the Governor-General the "Head of a Federal State" as they claim it does.
That phrase comes from the 1897 paper by the first Chief Justice of the High Court, Samuel Griffith. In his book Notes on Australia Federation: Its Nature and Probable Effects, Griffith stated in no uncertain terms in Chapter II, a chapter explicitly entitled "Head of the Federal State", that “The Head of an Australian Federation under the Crown would be”—not the Governor-General— but “the Sovereign of the United Kingdom”. Likewise, throughout the Convention Debates Griffith,  referred to “the Sovereign”, not the Governor-General, as “Head of the State” and “Head of the Commonwealth”.

The description the ACM rely on in the State Writs case appears somewhat of an anomaly. When compared to other early High Court precedents, overlooked by the ACM, it seems the State Writs case is an outlier. In Foley v Ryder (1906), Griffith, again as Chief Justice referred to the Crown, not the Governor-General, as “the Head of the Executive Government” while in Baxter (1907), Griffith (along with Justices O’Connor and Barton) identified the King, not the Governor-General, “as the common head of...all the self-governing dominions”. In South Australia v Victoria (1911), Griffith referred to “the Sovereign”, not the Governor-General, “as head of the body politic of the State of South Australia, and as head of the body politic of Victoria”. In the Registrars’ Case (1915), he spoke off “...the political entity called the Commonwealth, of which the Sovereign is the head” and described “the Sovereign”, not the Governor-General, “as Head of the Commonwealth”.

Similarly, in Kidman (1915), Griffith once again referred to “the Sovereign”, not the Governor-General, as “Head of the Commonwealth”, “Head of the States” and “Head of the Realm” — a realm consisting, of course, of a Commonwealth and six states coalesced under one “indissoluble” Crown. The ACM fails to cite any of these precedents either because they are simply unaware of their existence, or because they inconveniently fail to make the arbitrary distinction between the Sovereign on one hand and the office of “Head of the State” on the other.

The ACM may respond that the State Writs precedent he cites is unanimous, it therefore deserves greater respect as an authority. But that raises the precise point: it tells us nothing about what the framers individually thought about the issue. Just because the decision was unanimous does not mean they agreed with every sentence, description or qualifier in that precedent (which, after all, was non-binding obiter). Why not write a concurring opinion? The answer: because you could clarify in later cases whether or not the Sovereign was  the Head of the State. Subsequently, in Sutton’s Case four judgments, they did just that. Chief Justice Griffith, as usual, referred to “the Crown as Head of the Commonwealth Government”, Governor-General, as “Head of that Government [i.e. the Commonwealth] and State Governments”.

Justice O’Connor simply highlighted:

“…the position of the King as executive Head of each of the States and of the Commonwealth respectively", noting “a Federal Constitution…presupposes the King in a representative capacity as Head of the Executive…can assert and maintain the rights of the political entity he represents”.

Justice Issacs also regarded the King, not the Governor-General, "as the Head of every part of his Dominions alike" while Justice Barton described the Sovereign as “the executive Head of the State”. Thus, the reference to the Governor-General as being “the Head of the Commonwealth” is not only a drop in the ocean compared to the cases just cited, but the distinction between the phrase “the Sovereign” and the term “Head of the State” is simply non-existent.

Now without even assuming that R v Sutton implicitly overruled that description used in the 1907, we can see the precedent cited by the ACM – the State Writs case – doesn’t refer to the Governor-General as “Head of State”. It uses an entirely different term, which does not carry the same meaning as the term. There are numerous other precedents where the King or Queen are referred to as Head of State. There goes the cornerstone of the ACM's argument.

Now without even assuming that R v Sutton implicitly overruled that description used in the 1907, we can see the precedent cited by the ACM – the State Writs case – doesn’t refer to the Governor-General as “Head of State”.  
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