Talk:Constitution of Australia/Archive 1

Miscellaneous

is the Governor General of Australia the Head of State? Is that one reasonable interpretation of the Constitution Act. Sir David Smith who was Official Secretary to five Governors-General of Australia from 1973 to 1990. His opinion is that the Governor-General is the Head of State, this would put Australia in a different position than other commonwealth countries. The full text of his article can be found here: http://www.norepublic.com.au/essays/Essay_GG_HoS.htm

Here is the beginning of his article:

The Queen plays an important role under our system of government as Queen of Australia, as does the Governor-General as the Queen?s representative and as the embodiment of the Crown in Australia. These separate and distinct roles are carried out without detriment to our sovereignty as a nation, and without detriment to our independence. Republicans argue that the Queen is our Head of State and that the republic would give us an Australian as Head of State. Constitutional monarchists argue that the Queen is the Sovereign and that the Governor-General is the Head of State.

The Australian Constitution does not contain the words ?Head of State?, nor was the term discussed during the constitutional debates which resulted in the drafting of the Constitution and its subsequent approval by the Australian people. In the absence of a specific provision in the Constitution, we need to see who actually performs the duties of Head of State in order to determine who is the Head of State.

As discussed in this paper, these duties are performed by the Governor-General, and the Sovereign?s only constitutional duty is to approve the Prime Minister?s recommendation of the person to be appointed Governor-General, or, if the need should ever arise, to approve the Prime Minister?s recommendation to terminate the appointment of a Governor-General. Although the Governor-General is the Queen?s representative for the purposes of exercising the prerogatives of the Crown in Australia, when he exercises his constitutional duties as head of the executive Government of Australia he does so in his own right and not as a delegate of the Queen.

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Sir David is an ultra-conservatiive, a supporter of the Samuel Griffith Society and a prominant monarchist so his views should be taken with a huge heaping bowl of salt when it comes to the Head of State issue.

PMelvilleAustin 05:39, Aug 25, 2003 (UTC)

But do you think from an NPOV perspective that he can be considered a crackpot or is it a relevant position on the topic? There has been a discussion about this on the Talk:Head of State page. Personally, as a Canadian and someone who has studied British and Commonwealth constitutional history, I never heard of this Governor-General is the head of state argument, in Canada they are obsessed with the sovereignity of provinces (a la Quebec separatism) so I find this approach to quelching republicianism interesting. Alex756 16:59, 25 Aug 2003 (UTC)

Theoretically the "Queen of Australia" is actually the head-of-state, and technically Australia is an independant Constitutional Monarchy, so Australia could unoffically be called the "Kingdom of Australia", that is of course not the real official name of the Australian state, but that basically is what status it has in the world.

The Governor-General, started off as a colonial administrator obviously because exercising power straight from the palace in england is hard, but in the last 50 years the Governor-General's position has become more and more like a permamant head-of-state.

I do not believe the Monarchy has any relevance personally, and I am in favour of just adopting formally the Governor-General as head-of-state, and making it so he is democratically elected.

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Sir David Smith makes a compelling case in one sense. Specific clauses of the Constitution Act give the Governor-General his powers, which in all but a few cases since federation have been exercised on ministerial advice. Although he represents the Queen of Australia who lives overseas, his power comes from the Constitution itself.

Smith points out that the two definitive head of state powers - appointing the Prime Minister and dissolving the parliament - can only be exercised by the Governor-General. (I think it is only an act of parliament that allows the Queen to use the Governor-General's powers in Australia.)

Certainly this was her response to the Speaker of the House of Representatives request that she reverse the Governor-General's decision to invite Malcolm Fraser to form a government on 11/11/75:

I am commanded by The Queen to acknowledge your letter of 12th November about the recent political events in Australia. You ask that The Queen should act to restore Mr. Whitlam to office as Prime Minister.

As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of the Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.

I understand that you have been good enough to send a copy of your letter to the Governor-General so I am writing to His Excellency to say that the text of your letter has been received her in London and has been laid before the The Queen.

I am sending a copy of this letter to the Governor-General.

17 November 1975

My own personal feeling is that there is a reason why the older Canadian Constitution calls the Queen the 'head of state' and Australia's dosen't. Australia has a unique Constitutional system of government.

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The Governor-General of Australia is not and cannot be a head of state. The Australian head of state is the Queen of Australia. The reason is simple. The Governor-General carries out no head of state functions. Smith is completely wrong in regarding the dissolution of parliament and the commissioning of a prime minister as 'head of state functions'. Indeed it is astonishing that someone who apparently worked for governors-general could make such an elementary mistake. Both those roles are standard functions fulfilled by (non-head of state) governors and governors-general the world over. Heads of state functions are completely different. Those that define whether someone is a head of state include whether they are used as the legal organ by which international relations is carried out, whether they in their own name can accredit ambassadors and diplomats, whether they in their own name can accept credentials, whether they in their own name can sign treaties and have them negotiated in their name, whether they can carry out state visits abroad, etc etc.

The answer in all of these cases, concerning the Australian governor-general, is the same. He doesn't do any of them in his own name. He pays (sub) state visits in the name of the queen. Treaties are negotiated in her name, not the GGs. Accreditations are issued and accepted in the Queen of Australia's name, etc. In many of these, the Governor-General is little more than the proverbial postman issuing and receiving someone else's credentials in someone else's name. It is frankly incredible that someone like Sir David Smith clearly does not know what a head of state is, and what functions are exclusively head of state functions. The Australian Governor-General is by no possible definition a head of state and could not be until exclusively head of state functions are vested in, and exercised by, him or her. As of now, all the key definitionary functions possessed by a head of state are exercised by or in the name of, the Queen of Australia, which means that she is 100% the Australian head of state, the Governor-General is 100% not. FearÉIREANN 11:02, 20 Jan 2005 (UTC)

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I think the point Smith is trying to make is that the Queen is powerless. She is the soveriegn only. The only thing she does is issue a statement from Buckingham Palace which lets the world know who Australia's Governor-General is.

The Constitution says all the executive powers of the Commonwealth are vested in the Queen but exerciable by the Governor-General. The Queen is nothing but a few warm memories and a picture hanging on the wall.

The Governor-General is the most powerful person in Australia. This point was forcefully made in 1975. The Governor-General is Australia's head of state.

incorrect. the Queen is the only person with the power to appoint or recall the Governor General. She in theory is the most powerful person in the country (albeit she is not there most of the time). whether she has or will ever use her vast reserve powers is an entirely different argument. a analogous description could be that the queen is head of state and GG is "deputy" head of state. Xtra 05:41, 28 Jan 2005 (UTC)

The Queen has for many years demonstrated that she has no desire to ever interfere in Australian politics - see this letter for example. --bainer 02:04, 31 Jan 2005 (UTC)

i don't disagree. but if she wanted to she would be legally entitled. Xtra 03:07, 31 Jan 2005 (UTC)

Of course she's technically entitled to, but after so many years of non-interference (and statements to that effect) you could pretty much consider it a constitutional convention that the monarch stays out of colonial politics. --bainer 22:37, 31 Jan 2005 (UTC)

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By 1983 a report to the Australian Constitutional Convention held in Adelaide was able to recommend recognition of the convention that: 'The Queen does not intervene in the exercise by the Governor-General of powers vested in him by the Constitution and does not Herself exercise those powers.' The report was based on established practice.

After sitting back in 1975 and watching Her representative kick out a Labor government at a time when Australia was the most heavily unionised country in the world, I have to argee that the British monarch would never interfere in Australian affairs. Probably still owning Australia is a massive pain in the arse for the British royals. Australia is after all across the other side of the world from where they live.

All she does is issue a statement from Buckingham Palace letting the world know who will exercise her authority in Australia, and then only after the local authorities inform her who they want that person to be.

The Governor-General is actually the person with vast reserve powers - the Queen is ceremonial only. The Australian Constitution - the codified part as well as the conventions - gives the Governor-General the most powerful position in Australia's system of government.

The Governor-General is Australia's "head of state".

no. Xtra 12:38, 6 Feb 2005 (UTC)

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Well, yes actually. I think the above convention exists. The Governor-General is the Queen's servant, but he alone has all her Australian POWER. POWER. Australia is owned by a sickeningly wealthy english landlord yes, but her POWER is only for an Australian to use 'as he thinks fit'.

And didn't Sir John Kerr give a complete demonstration of exactly how untrammlelled this POWER is?

Heads of State are people with POWER. Sovereigns are ceremonial only.

no. when the queen is in australia she has the authority that would otherwise be exercised by the governor greneral. at least thats what my constitutional law lecturer told me. Xtra 07:53, 8 Feb 2005 (UTC)

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Yes. References to the Governor-General in Statue and the Constitution are only read as references to the Queen when she is present in Australia because of the Royal Powers Act. Labor are asking questions about its use to Australia in parliament at the moment which makes me think this legislation is living on borrowed time.

When it goes the Queen will only cut ribbons, issue a statement from Buckhingham Palace letting the world know who our head of state is, and maybe one day she might need to protect her Australian subjects by vetoing one of our parliament's laws.

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Our head of state the Governor-General is that POWERFUL that if he exercised his reserve powers in such a way as he knew it would send a ripple through the Australian community then he could order his military commanders to recall their soliders to barracks and have them issued with live ammmunition.

The military hierarcy would most certainly respond.

What POWER. What discretionary POWER. Especially now that the parliament has made it possible for the army to kill civilians in an emergency.

Republicans don't clearly understand that the Queen and her soverienty over Australia is a state of mind. Soverienty is only a state of mind.

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That's right actually. Get rid of the Royal Powers Act and what could the Queen usefully do under the Australian Constitution? If she was in Australia when a Whitlam style government needed to be thrown out then she has no power to do this. Only the Governor General can use his powers under the Constitution. He uses them in her name - under s.61 the power is her's - but they're totally his to utilise as he sees the need.

The executive powers of the Commonwealth belong to an English woman but only an Australian can use them. It's like giving something to a museum on permanent loan - you're giving it away to the museum basically. You would only ask for it back under extraordinary circumstances and it is the same with the Queen's theoretical power to end the term of her Australian representative - she'd only strip her Australian representative of her powers, and do this of her own accord, if it really needed to be done. She has the world's best advisers and thousands of years of knowledge to consult.

The only person who can administer the Commonwealth is an Australian. The Queen could be sitting there at Government House during a crisis and she would have to observe the above mentioned convention that: 'The Queen does not intervene in the exercise by the Governor-General of powers vested in him by the Constitution and does not Herself exercise those powers.'

We are not ruled by a Queen. Australia's chief public official is the Governor General.

Governor General = Huge discretionary powers.

Queen = Machinery status only. Ceremonial.

Australia Act section

The Australia Act section is wrong, the British Parliament can still legislate for Australia if requested under the provisions of the Statute of Westminster 1931. The Australia Act only ended the link between between the British government and the Australian States and Judiciary.Astrotrain 22:23, Feb 25, 2005 (UTC)