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Legal expert Steven Spadijer has proven conclusively that the Queen is Australia’s head of state, and in a new book he has presented the full and exhaustive legal proof. And now that he’s busted their favourite myth, monarchists refuse to debate him. Lewis Holden comments.
MR LINDON: Mr Thorpe has been active in seeking the assistance of the Head of State of Australia. I am not sure if that is the Queen of England or the Queen of Australia or the Governor-General, but we have written to both.
KIRBY J: You should not be in any doubt. The Head of State is the Queen by the Constitution. There should not be any doubt about that, the Queen of Australia.
~ Transcript of Proceedings, Thorpe v The Commonwealth (High Court of Australia, Kirby J, 21 May 1997).
Constitutional scholar Steven Spadijer has published a book on Lulu explaining the full legal argument as to why the Queen is, unquestionably, Australia’s head of state.
As you know, the Queen is currently visiting Australia before the Commonwealth Heads of Government (CHOGM) meeting in Perth. Whether she is doing so in the capacity of head of state of Australia is a point of debate between monarchists, a strange adjunct to the cause of an Australian republic. Some argue that the Queen is the head of state, while others – notably Australians for Constitutional Monarchy (ACM) – argue that the Governor-General is Australia’s head of state. In particular, Professor David Flint and Sir David Smith have made the argument, with Smith dedicating a whole book, Head of State to the issue.
Not all monarchists take this view. Phillip Benwell of the Australian Monarchist League, an organisation that appears to despise the ACM, for example takes issue with the stance. David Byers, an author for the Canadian monarchist blog The Monarchist also despises the ACM and its stance. For republicans, the debate is a sideshow, a clearly strategic move by the ACM to try and snooker the republic debate by claiming Australia already has a head of state in the Governor-General.
The debate has been brushed off as nothing more than a distraction — until now. Steven’s book – available at the very reasonable price of $19.95 online – clearly sets out why Flint and Smith have got it wrong. This series of blog posts will summarise the key arguments back and forth.
I can predict the reaction of the ACM to this series. First, they will attack me personally as author of this series, probably bringing up (yet again) mistakes I’ve made in the past and atoned for, or some other irrelevant claims as to my motivations as a republican. They will ask why I take an interest in the Australian republic debate. Like many New Zealanders, I do have close family ties to Australia, and I’ve calculated that I’ve spent more time holidaying in Australia than the Queen of Australia has actually spent being Australia’s head of state. It’s that last point I will focus on now — it motivates me to refute the nonsense claim.
Secondly, they will attack Steven. But both Flint and Smith were given, and refused, the chance to debate Steven (and Phillip Benwell) on the issue in a public forum. I’m told that this is allegedly because the ACM didn’t want to cause offense to the Queen! Surely simply arguing what you see is true (that the Queen is Sovereign) cannot be offensive.
Thirdly, the may try to attack the legal precedents presented. It is only on these points that I will respond. I am presenting Steven’s arguments because I believe he has presented a meticulous case for the Queen being Australia’s head of state.
22 Comments
Lewis, surely we have argued this topic enough and effectively it is irrelevant as the term Head of State is not mentioned nor needed in our constitution. The fact remains that we have both a Queen and a GG whose duties are understood.
I was, however interested to read the link to Phillip Benwell of the Australian Monarchist League’s words on this. ARM likes to play this disparity up as you have again in this piece, but the words in the link are clear enough for me. They say,
“Following Sir Walter’s advice, we thereafter accepted the stratagem that the Queen was the formal, or prime, head of state, and that, upon appointment, the Governor-General became our effective head of state. In Sir Walter’s words: “I do consider that the Queen is the Head of State and the Governor-General in fact has the operative powers of Head of State”[36].”
So they see us as having a prime HoS (Queen) and an effective HoS (GG).
The clincher for me is that the decisions made by the GG cannot be revoked or reviewed in any way by the Queen. So the Aussie GG holds the real power … in the Queen’s name as is proper.
Dear Colin,
Having read every piece of case law of the matter, every constitution in the world, everything the framers said on the matter,
the words “operative” or “formal” are totally without any legal meaning, but seem nice words to explain ideas to people without any legal training. Sir Walter’s opinion stands at odds with 39 other precedents cited in my book; his opinion itself cite no other authority, theyare obiter dicta (meaning they are speculative and non-binding), and I’m sure Lewis will discuss throughout the series.
Furthermore, aS I argue in my book (looking at everything the framers said on the matter), the Queen CAN revoke and can review any power by the Governor-General. During the Convention Debates, it was noted the GG is an agent of the Crown – in other words, the prinicipal can review and command the excerise of the powers of their agent. Whether they choose to do so – due to convention – is separate from law. Just read the remarks by the Founding Fathers in R v Governor of South Australia:
It is not easy to see how, in such a case, he could perform this duty without dismissing his Ministers and finding others, and that power is manifestly one the exercise of which could not be ***reviewed*** by any authority but the Sovereign.
The framers regarded the two offices as being broadly analogous and the Imperial Law Office made is clear that declaring the GG has statutory power is merely “declaratory” of the common law (something lost on modern interpretation of the clause). Nevertheless, as the High Court points out, it is precisely because the powers – in section 64 – are non-justicable that the powers could only be “reviewed” by no other authority but the Sovereign. Who is to tell us whether the Governor-General or Governor has acted “constitutionally” i.e. within the parameters of responsible government? No court can do so; only the priniciple, i.e. the Sovereign can, unless you are to argue the Governor-General is not bound by the priniciples (plus or minus) of responsible government.
You also fail to address the situation where there is an act of omission (failure to give assent; issue writs, for example) rather than commission.
But there is more to come… the series has just started.
Ps: There are other problems with the term ‘effective’ Head of State:
*what are the functions of an effective Head of State that are different to a prime Head of State? You must determine what a function of a monarchical Head of State is; but why should it matter whether one can appoint the PM to be labelled Head of State? That is, which foreign constitution or piece of domestic case law do you cite to back up your claim? Which legal authority? (the power to appoint the PM is not a ‘defining’ function of a monarchical function to be Head of State, which raises the issue how can it be required to be the “effective” Head of State)
* When, if at all, does the GG cease to be the effective Head of State? When he or she is no longer dignified? Does the failure to perform an act under Ministerial advice – to for example – sign an act in law; or appoint someone; one appointing someone outside of Parliament as a Minister of State unilaterally – part of an apolitical, constitutional “effective” Head of State?
The theoretical framework to describe one as “effective” has too many limitations, too many questions.
We only have one Head of State. It is the Queen. We have no “effective” Head of State – whatever that means. Only the Queen is the personification and embodiment of our federal state (a requirement to be a monarchial Head of State). That is a function the Governor-General cannot assume, even in an effective or de facto sense.
As such, your views are dismissed.
All very technical Steven, but I still disagree. I’m not trying to fit one of the two offices into some technical/legal definition of HoS which then magically eliminates the other from that role.
My point is that for all practical purposes the Australian who fills the office of GG exercises the powers of a HoS of Australia, and in fact the powers generally proposed for a president. I’m happy to leave it at that.
One last point though. If the Queen ever took it upon herself to review the decision/non-decision of the GG, you would have your republic in no time at all and I would support you.
Colin/Nigel,
You have not answered my question: what is your definition of Head of State? Which practical purposes are you referring to? Symbolism might be a “practical” purpose, i.e. to be seen as as an aloof, apolitical figure personifying the state; oaths of alliegance in citizenship law might be another “practical” role; reviewing or dismissing a GG (or State Governor) for not acting “constitutionally” i.e. in accordance with Ministerial advice is another. These are all “practical” roles performed by the Queen, not the GG, and correspond with the role of the Sovereign as being a symbol of stability, unity and the like, the defining Head of State function. Unlike the Queen, no President fulfills ANY of these “practical” functions. I am not happy to leave it at that.
Again, you seem to have missed the issue – perhaps because you haven’t purchased a copy of my new book! The defining functions of a Crowned Head of State are metaphysical, not political. Powers to appoint the PM is NOT required to be declared a Head of State under a monarhical constitution – which foreign constitution (or statutory method of construction), or case allows you to conclude the powers in s64 render one as being Head of State powers? I found none. On the contrary, the Canadian Supreme Court in obiter noted that the power to appoint the PM is NOT necessary to be judicially declared Head of State (again see my book for details).
As for the review issue, you seem to implicitly acknowledge as a matter of law she could, but she does not do so as a matter of convention. In any event, there would be situations where it would be appropriate for the Queen to intervene (albeit she would probably be advised by someone to do so) – appointing say a Minister of State outside of Parliament for longer than 3 months (unless some sort of judicial remedy is available, which I doubt for the same reasons given in R v Governor of South Australia: as the Queen cannot do any wrong she cannot appoint an agent to do wrong). Of course, the GG 99.999% of the time acts like the Queen – they rubber stamp appointments based on convention. The Soveriegn “injects” order into the system where the GG fails to act “constitutionally”. A person accountable to another for any omission cannot properly be described as being at the apex, i.e. Head, of that system.
Like Sir David Smith, you deploy a false premise and therefore reach a false conclusion. All you have done is assert the GG is Head of State – again without any case law, without comparative constitutional priniciples, and without understanding the unique (and ‘defining’) role of the Crown under our system of government.
PS The fact that you did not have the patience and indeed etiquette to wait and hear the argument(s). Instead, you simply came out with vague, undefined assertions “the GG is de facto Head of State” – without any evidence. This seems to suggest you will either play dumb till the end, or simply aren’t interested in hearing the argument as they conflict your own prejudices (I will give you the benefit of the doubt i.e. that you do have a basic grasp of constitutional literacy so its not ignorance that is making you come to these conclusions).
So my advice to you is: by the book. Send me an email. Hell, I’m even happy to discuss it over the phone with you.
*buy
PPS: Did you not read what Justice Kirby, founder of ACM, said in oral argument? In case you missed it:
MR LINDON: Mr Thorpe has been active in seeking the assistance of the Head of State of Australia. I am not sure if that is the Queen of England or the Queen of Australia or the Governor-General, but we have written to both.
KIRBY J: You should not be in any doubt. The Head of State is the Queen by the Constitution. There should not be any doubt about that, the Queen of Australia.
~ Transcript of Proceedings, Thorpe v The Commonwealth (High Court of Australia, Kirby J, 21 May 1997).
So there we go Colin: “You should not be in any doubt. The Head of State is the Queen by the Constitution. There should not be any doubt about that”.
Or perhaps this is to Colins’ liking:
GAUDRON J: Born in Australia, here in Canberra, of parents who we can assume were at some stage subjects of the Queen by reason of their history. But what makes that child a subject of the Queen now?
MR BRERETON: She is a subject of the Queen in right of Australia by birth.
GAUDRON J: Is that stated in the Citizenship Act?
MR BRERETON: No, she is an Australian citizen by birth by the Citizenship Act.
GAUDRON J: And is it stated in the Constitution?
MR BRERETON: It is not expressly so stated.
KIRBY J: Well, it is implied in section 117: The Queen is the Head of State – - –
MR BRERETON: It is implicit.
MR BRERETON: His Honour beat me to it, but it is implicit.
GUMMOW AND GAUDRON JJ: It is implicit.
Steven, don’t go overboard with your responses. I’m not a constitutional lawyer, but I read the writings of others who are.
Please note I said above (my first sentence in this series of comments) I don’t see any need for a HoS definition because we don’t mention it in our constitution. I see a need for either the present Queen and the present GG or for a president. Nobody has to be defined as HoS.
I have not conceded that the Queen can review a decision of the GG. I have said in the improbable event she tried to she would be gone as our Queen.
And who is Nigel?
Which other “constitutional lawyers” – as in my study I wasn’t able to find any! Flint is not a constitutional lawyer (in fact, I cannot find many peer-reviewed journal articles of his at all); he specialises in international law and occasionally comments on constitutional issues. David Smith is not a lawyer. So I am interested in these “constitutional lawyers” which you have read the works of. Name names.
Now to the issue that it is not mentioned in our constitution. Firstly, just because we don’t mention it in our constitution, does not mean it is not used in other constitutions analogous to our own in every other respect: comparative constitutional law is a basic approach in determining these questions. Secondly, this does not deny legally the term has a common meaning and usage which are therefore applied: Rule, Issue, Application, Conclusion. Thirdly, as I point out in my book, that usage was the way the framers of our constitution referred to the Sovereign: “Head of the State”. When they used the description it was often echoing the way the term “Head of State” is used today – but you would not know that as you haven’t bought a copy of the book! The Federal President would naturally be our Head of State.
You mooted the possibility that she might, which by logical implication, suggests she could – but yes, then you caveated it the issue. Of course, what is more probable is an act of omission than commission by the GG requiring, in the words of R v Governor of South Australia, “direct intervention from the Sovereign”.
He’s a really fascinating individual.
Overboard again, Steven. I think you are trying to browbeat me with legalese.
Yet you simply evade my main point. The GG has the power that I (and you) see as belonging to any HoS. I see it because the Queen plays no part in the business of our parliament as those powers are assigned to the GG within the constitution and NOT delegated via Letters Patent. You see it because the GG has the same powers republicans want for a president.
Game, set and match as far as I can see and I’m disinclined to buy your book (I only heard about it today fer goodness sake) or argue legal points. Find some other lawyers to argue the legalities. I’m not interested.
And if your aim is to blunt ACM’s defence of the system, I can’t see a definition of HoS as being of much importance for a constitution that doesn’t mention it.
If the Queen is not our head of state, why is she visiting us? RT @AusRepublic New study shows Queen, not GG, is HOS. http://t.co/aymLan3g
I am going overboard because it is important to be detaile – but I suppose the facts are too much to handle for Colin.
And Colin, mate, I do NOT see “theses statutory powers” given to the GG belonging to any Head of State. That is the precise point: I kept telling you the power to appoint the PM or dissolve Parliament are not at all necessary to render a monarch the Head of State in case law or comparative constitutional law. One would have thought I’d made that clear: “Only the Queen is the personification and embodiment of our federal state (a requirement to be a monarchial Head of State). That is a function the Governor-General cannot assume, even in an effective or de facto sense”. Or “the defining functions of a Crowned Head of State are metaphysical, not political. Powers to appoint the PM is NOT required to be declared a Head of State under a monarhical constitution – which foreign constitution (or statutory method of construction), or case allows you to conclude the powers in s64 render one as being Head of State powers?”. So it is irrelevant that they are not delegated via Letter Patents (worth noting I discuss in detail why the GG can be bound by Royal Instructions and in any event, I argue the Queen can excerise these powers if so adviced).
Of course, you are not interested – you haven’t shown me any case law.
The framers used similar descriptions and again “much importance” does not deny it has some importance – it does not deny that the term has a general meaning (the rule and requirement to constitute ) which can be applied to the facts (i.e. to our constitution). The fact it is not mentioned in the Constitution did not stop Sir David Smith from telling us “as the term is not used in our Constitution we must then look at what the defining function is in our Head of State”. So you are right – unless you are going to write a reply and send it back to me, then I’m not bothering arguing with you (I’m merely repeating myself).
So not game set and match: sit back, chill, and get the data.
Or I should say: so not game set and match: sit back, chill, and get the data [before you speak].
Hello Steven—Would you be kind enough to answer this question for me on an unrelated Constitutional matter.
Under Chapter 111 Section 76 (ii) of our Constitution, or any other section, could our Parliament pass a law extending the original jurisdiction of the High Court to include a provision that in the event our GG exercising Reserve Powers, our PM could appeal to the High Court as to the validity of that excision.
Hi Len,
Th question is not one of whether Parliament can “tell” the High Court to do so (indeed, the High Court already has original jurisdiction relating to officiers of the Commonwealth: s75(v) – in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth). The PM would seek certiorari to overturn the GG’s decision (there is a debate whether the latter remedy is covered in this section).
Rather, it is a question of judicial proprietary and discretion: will the court bother taking the case on? Theoretically, the court could review any action even now, but as a matter of being sensible courts will refuse to review political decisions or decisions which would make the court appear overtly political (or there is a history of them refusing to do so). So the reserve powers are “non-justiciable” i.e. given their political consquences, courts will refuse to examine HOW they were excerised (unless it breaches an express provision of the constitution e.g. that you must sit in Parliament to be an MP, which raises to the question WHETHER you had the power / juridiction to excerise the discretion – which is a separate issue from how that power was excerised). It is unclear what the remedy and scope of the remedy would be – “at the Governor-Generals’ pleasure”: what sort of remedy are we to give to a discretionary power? If it is the mere whim of the GG, formally complimented by non-binding convention, how can you issue a remedy even if you could review the powers? (Probably none – because it is discretionary).
Some have argued that the courts can review the excerise of a GG’s power as repsonsible government is an implied priniciple in the constitution (so you cannot dimiss a PM who retains confidence in the House); but they concede justiciability would need to be addressed. So if the Parliament told the court the PM could review his dismissal) the court will probably find it violates the separation of powers (the power of the court to excerise its discretion and look after the court as a public institution); they might read down the act or regard it as vague (what are the matters or issues; what remedies are being sought after; even if you had a remedy could they be applied against the Crown? How are they are the “Governor-General’s pleasure?”), or that it needlessly infringes on a limitless discretionary power (subject to the condition Ministers sit in Parliament) i.e. the GG’s powers cannot constitutionally attract a judicial remedy, as the remedies are remedies from the King himself (unless you start using implications). These powers are constitutionally “immune” from judicial review even at the request of Parliament.
Perhaps you meant something more specific: what if Parliament passed an act saying the PM cannot be dismissed from office unless there is a constructive motion of no confidence on the floor of the House of Representatives, with the High Court reviewing that power. This would be ok. The court would not be commenting on the nature of HOW a decision was excerised, merely WHETHER the GG had jurisdiction to excerise his power which is regulated by the Parliament (the conditions must be reasonable, though). So Whitlam could have passed a piece of legislation ensuring he is PM so long as he retained the confidence of the House (with a constructive motion of no confidence needing to remove him); if Kerr purported to dismiss him he could have rushed off the courts and argued Kerr had no jurisdiction to dismiss him. So there is no jurisdictional fact – a constructive motion of no confidence must first occur before the GG’s powers can be excerised.
There are plenty examples where statute already regulates the GG’s powers – e.g. there are certain days when elections cannot be held (often a month before Christmas which was why Kerr wanted to dismiss the government as he feared that if the crisis went on when he could not dissolve Parliament, the country would go bankrupt) – so the GG could not unilaterially dissolve Parliament on these days without a judicial remedy invalidating that decision (certiorari) for a lack of jurisdiction / basis to excerise that power.
Steven, many thanks for your reply.
Taking a more direct approach, could a section be added to our Constitution (via a referendum of course and with a majority consent) to make Reserve Powers justiciable under the Constitution.
Beware what you wish for, Len. If you want to hobble bad GGs, the same might be used against good GGs.
Essentially, whenever the reserve powers are discussed and people try to bring more openness to them and their use, they give up because they can’t define a comprehensive rule to replace them.
Leave them alone.
As far as I can see they have only ever been used for good purposes. And yes, I include Kerr.
Colin—if a bad GG questionably uses reserve powers, I believe there should be some form of appeal.
A good GG should never unjustifiably use reserve powers.
I do agree with you, I could never imagine any GG unjustifiably using reserve powers, including Kerr, but mistakes or bad advice could give rise to this situation and I am only trying to cover all situations.
As noted, I am in fan of giving the reserve powers over to the people and Parliament itself, as they have done in Finland, Bavaria, Austria and Switzerland. So it’s a non-issue in my mind.
*a fan
Len,
Yes you could do so; but my question to you is what are you trying to achieve by making the power justiciable (where it takes months, indeed, sometimes as much as a year to review its excerise rather than simply having an election)? What is a “bad” use of a reserve power? These issues are not judicial; what Monopoly on Wisdom do courts have to tell us whether dismissing a government is possible (what remedy are you after?)
Both Colin and your approach are far too extreme: you will make Australia look like Pakistan and Fiji (where the powers are justiciable) while Colin’s approach – let them be untamed – lacks accountability and issues relating to asymmetrical information (for example, in 1916 Nov 11 Holman almost dismissed a government which actually could carry on governing with a majority). The best approach is, as noted, the Swiss, Bavarian, Finnish, Austrian: let Parliament appoint the PM (GG might not be privy to all discussions / information individual PMs might collectively have); let supply of the previous year be automatically re-approved if the Senate fails to pass it by a certain date; let quarter of Parliament summon itself; let an absolute majority of Parliament dissolve itself; let the people summon Parliament and dissolve it. Make clear none of this is reviewable by the courts.
All stable, efficient, prosperous Republics do it that way.
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