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Who is the Australian head of state?

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John Pyke, Lecturer at law
A slogan that conveniently sums up the republican cause is ‘An Australian for Head of State’. Some monarchists, like Sir David Smith and Prof. David Flint, have glibly claimed that our cause is  based on a silly misunderstanding because, they say, we already have an Australian head of state: the Governor-General. The Queen, they say, is the Sovereign, not head of state; she may appoint the Governor-General but this doesn’t detract from Australia’s status as an independent nation with its own head of state.

THERE ARE a few things to say in response to this. The first is that it is a strangely weak line for ‘monarchists’ to take – to argue that the institution they defend so passionately has very little significance anyway. It’s like someone insisting that Rugby Union is a far better game than Soccer and in the next breath saying “they’re really pretty much the same game anyway”. If that was true, you might as well change the rules so that rugby clubs played soccer!

Second thing: there is a grain of truth in what the two Davids say, but only a grain. The Governor-General performs much the same function a head of state performs in a republic with a parliamentary system of government, and that the Queen performs in the UK. That is, he appoints a Ministry which has the support of the majority of the lower house and, except in times of crisis, lets them get on with being the real government of the country despite official documents claiming that Ministers are doing things in his, or Her Majesty’s, name. If you only looked at how things work, you might say that the Governor-General is a ‘de facto’ head of state.

But looking at the Constitution and the law as stated by the High Court of Australia, you find even ‘de facto’ is too strong a term. Section 2 of the Constitution provides that the Governor-General “shall be her Majesty’s representative in the Commonwealth”. Section 1 says  Parliament consists of ‘the Queen, a Senate and a House of Representatives’. Section 61 says that the executive power of the Commonwealth is ‘vested in the Queen and is exercisable by the Governor-General as’ – can you see it coming? – ‘the Queen’s representative’. So the text makes it quite clear: the legal head of state powers vest in the Queen; in law the Governor-General is merely a delegate head of state. When the Queen comes to Australia, the Royal Powers Act 1953 provides that any power exercisable under an Act by the Governor-General may be exercised by the Queen. Some have suggested that this is inconsistent with s.2 of the Constitution, but it is quite consistent with the presupposition underlying that section: that the Queen is the head of state and that the reason that she appoints a Governor-General as her representative is simply that she is so far away.

The fact that we share our head of state with the UK and some other Commonwealth countries has been recognised by the High Court. In one case it said that the law of  immunity of foreign states “should be approached no differently as regards those foreign states which share [with Australia] the same head of state than it is for those foreign states which do not”. Another judgment referred to “the several and distinct capacities of the Queen as head of state of several and distinct sovereign nations”, and from the context those nations clearly included us. The court has recognised that the world has changed in many ways since 1901 – UK migrants are ‘aliens’ and citizens of a ‘foreign power’, but they still recognise that we share our head of state – the Queen – with the UK and other nations.

So we have no need to be embarrassed by the slogan – let us continue to argue that we want to remove the hereditary monarch from our Constitution and replace her (and her son) with an Australian head of state.

(John Pyke is Lecturer in Law at QUT; this article was first published in 'Armlet', Spring 2006 edition)

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State Authorities Superannuation Board v Commissioner of State Taxation for the State of Western Australia http://www.austlii.edu.au/au/cases/cth/HCA/1996/32.html

Nolan v Minister For Immigration And Ethnic Affairs  http://www.austlii.edu.au/au/cases/cth/high_ct/165clr178.html

Nolan, above, and Shaw v Minister for Immigration and Multicultural Affairs http://www.austlii.edu.au/au/cases/cth/HCA/2003/72.html

Sue v Hill http://www.austlii.edu.au/au/cases/cth/HCA/2003/72.html  
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