Lewis Holden continues the series arguing the Queen is Australia’s Head of State, based on a new book by Steven Spadijer.
Now that the Queen has been and gone, it’s timely to reflect on the fact that Her Majesty was referred to as the “Head of State of 16 Commonwealth realms”. As Peter Fitzsimons points out, not a peep was heard from the ACM, the only proponents of the wacky proposition that the Queen is not Australia’s head of state.
I say wacky because after reading Steven Spadijer‘s book on the issue, it’s difficult to see how the ACM missed the weight of case law evidence pointing to the Queen as Australia’s head of state. Perhaps they should spend less money buying push-polling from Roy Morgan or buying Facebook friends and instead buy Steven’s book!
So let’s look at the case law which shows that the Queen is in fact Australia’s Head of State. It should come as no surprise that Australian courts, like their foreign counterparts in Britain and Canada, have identified the Queen as Head of State. They have done so because all powers of the state flow from the Crown to the government officials, not vice versa.
But never has any court ever suggested that the appointment of the Prime Minister is a ‘defining’ power of a monarchical Head of State, as Sir David Smith has claimed. In fact, one Canadian Supreme Court case – Re Canada Assistance Plan (B.C.)  2 S.C.R. 525, 576 (quoted below) – explicitly referred to the Queen as the Head of State, despite in the very next sentence noted the power to appoint the Prime Minister resides exclusively with the Governor-General. So much for the power to appoint the PM being the ‘defining’ function of the Head of State. Equally, so much for the claim by Professor Flint that the term has no constitutional usage or meaning (as noted in Part II over 19 monarchical constitutions use the phrase “Head of State” to denote the Crown as being the symbol of national unity and the case law below is largely in the area of constitutional/citizenship law, not international law).
The Australian judicial system has stressed similar functions. In 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. Similarly, this symbolic role of the Queen was not lost on Chief Justice Brennan at his swearing-in ceremony, who referred to the Queen as Head of State due to the simple fact she is a symbol of national unity, while in Justice Moller Beach also 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”.
Steven’s book contains plenty more research – more on that in the next part of this series.
Here’s all the case law supporting the proposition that the Queen is Head of State:
Re Burgundy Royale Investments Pty Limited (Receivers and Managers Appointed)  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  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  ACTSC 12 (Higgins J). (‘Each sovereign nation recognising the Queen as its Head of State creates a new division or separate office of the Crown’ noting the Sovereign is the Head of State of Australia by being the personification of the body politic);
Hawke v Lenin Limbo  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’). But see also Pasla and Secretary, Department of Family and Community Services  AATA 593 (‘The above sections [i.e. §1 and 61] indicate that the Queen is Head of State of Australia’). Canaway v Chief Executive, Department of Water Resources  QLC 120. See, eg, R v Eldorado Nuclear Ltd.  2 S.C.R. 551, 562. (‘In Canada, the Head of State is Her Majesty the Queen, the reigning monarch of the United Kingdom’); N.I.P. v Blencoe (2000) 193 D.L.R. (4th) 752, 798. (‘The Queen is the formal Head of State in the provinces and the federal government. They are called the Crown in the right of Canada or the Crown in the right of each individual province, as the case may be’); Roach v Canada (Minister of State for Multiculturalism and Citizenship)  113 DLR(4th) 67, 70-87 (‘Although there is an immemorial common law tradition behind the role of the monarch Head of State, that is now subsumed by §9 and by §17 [of the Canadian Constitution]’); Roach v Canada (Attorney-General) (2009) 185 C.R.R. (2d) 215, 219. (‘The fact that the Queen is Head of State [is] constitutionally prescribed by §9 and §17 of the Constitution Act, 1867’); Roach v Canada (2007) 155 C.R.R. (2d) 357, 365 (‘The fact that the Queen is Head of State [is] constitutionally prescribed by §9 and §17 of the Constitution Act. Canada is a constitutional monarchy’); R v Secretary of State for Foreign and Commonwealth Affairs (Appellant); ex parte Quark Fishing  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’). But see also Attorney-General For Canada v Ritchie Contracting and Supply Co  52 S.C.R. 78, 100. (describing ‘The Sovereign’ as ‘the Supreme Head of the State…’). Citizens’ and Insurance Cos. v Parsons (1880) 4 S.C.R. 215, 347. (‘Within this Dominion the right of exercise of National Sovereignty is vested solely in Her Majesty, the Supreme Sovereign Head of the State, and in the Parliament of which Her Majesty is an integral part’). But see generally Thomas and Haniff Hilaire v Cipriani Baptiste (Trinidad and Tobago)  UKPC 13; Roodal v The State (Trinidad and Tobago)  UKPC 78, 100-20; Kevin Jack Ngan v R  NZSC 105, 106-130 (‘The natural capacity of the Crown, in the person of the Head of State, to act in any manner not precluded by law’); Re Canada Assistance Plan (B.C.)  2 S.C.R. 525, 576. (‘The Queen of Canada is our Head of State, and under our Constitution she is represented in most capacities within the federal sphere by the Governor General. The executive powers of the Governor General are of course exercised in accordance with constitutional conventions. For example, after an election only he asks the appropriate party leader to form a government’). Alberta v Byatt (1998) 158 DLR (4th) 644 (Alberta Court of Appeal). Roach v Canada (Minister of State for Multiculturalism and Citizenship)  113 DLR(4th) 67, 70-98. Giolla Chainnigh v Canada (Attorney-General) 78 Admin. LR (4th) 201, 204-20. 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  TASADT 2 (13 May 2004); Lindisfarne R & S L A Sub-Branch and Citizen’s Club Inc v Buchanan  TASSC 73 (all referring to the Queen as Head of State).