Follow on Twitter
Subscribe by RSS
Legal expert Steven Spadijer has proven conclusively that the Queen is Australia’s head of state, yet the ACM ignores his full and exhaustive legal proof and continues to claim the Governor-General is Australia’s head of state. Lewis Holden comments on why this “reframing” is happening.
“REFRAMING” THE HEAD OF STATE DEBATE
Strangely, the ACM has returned to its old theme of claiming that the Governor-General is Australia’s Head of State. This comes just months after I wrote a series of posts here at Independent Australia, based on a book by Steven Spadijer, which conclusively pulled the claim apart. Spadijer’s work was so thorough I could not see any way through it. That, it seemed, was the reason why they didn’t want to debate Steven. They knew he’d done his homework.
It seems the ACM has found a way through: ignore the book and keep making the same old claims, and hope no-one notices. In their most recent post, they make their case again on just two flimsy points:
- A decision of the Australian High Court in 1907 declared the Governor-General to be the “constitutional Head of the State”; and
- The Governor-General’s powers come from the constitution, not from the Queen.
On the first point, Steven very clearly refuted the 1907 precedent, by doing exactly what the ACM didn’t: reading what the case law actually says to get the proper context. Basically, the ACM is quoting the case out of context (the term “state” in the above sentence was actually referring to a State of Australia, not the Australian state per se) and ignoring other precedents from the same court that show the Queen is Head of State. The relevance of the precedent is so transparently thin that it’s safe to assume the ACM does actually understand that it’s got little to go on.
On the second point, it’s hard to see what relevance of this statement has, apart from being a half-arsed attempt at responding to something republicans have said (strangely, they accuse us of being obsessed with the debate over who the head of state is, when it’s clear to us that it’s the Queen). The ACM had previously claimed the key power of a head of state was the ability to appoint the head of government (a nonsense argument anyway). They’ve now abandoned that position.
The real question here is why is it these easily researched facts apparently bounce off the ACM? Why are they apparently ignorant of what the 1907 precedent they cite actually says? Why does the debate over who the Head of State is matter so much to the ACM that they keep bringing it up?
I think I’ve figured it out. It’s all about what’s called “reframing” the debate. As we know, supporters of an Australian republic frame the debate in terms of who Australia’s head of state is. They argue that an Australian citizen should be head of state of Australia.
This is based on the assumption that it’s well understood that the Queen is Australia’s head of state. The public at large seem to understand this — it’s very hard to find anyone outside of the monarchist groups prepared to claim, with a straight face, that the Queen is a fair dinkum Aussie.
There are three reactions to the republican head of state frame. The more traditionalist monarchists – such as the Australian Monarchist League and other groups – argue it doesn’t matter that the Queen isn’t an Australian. This is a principled position for which they deserve credit.
Otherwise, they say that the Queen is an Australian and therefore Australia has its own head of state. They base this largely on the fact that, legally, the Queen has the title “Queen of Australia”. This argument in itself is flawed — no-one thinks the Duke of Edinburgh is Scottish because of his title, and given his patronising comments towards Scots, I doubt they would either! Again, this is a principled position based on some (albeit shaky) reasoning.
Then there’s the ACM’s rather strange line that the Governor-General is head of state, therefore Australia has its own head of state. Well, it looks strange to republicans; in actual fact, it’s not. Most of us think it’s crazy to leave the Queen in an awkward position where she’s neither head of state of Australia or occupying another position of constitutional relevance. If she’s not head of state, what is the Queen? (The ACM says the Queen is just the “Sovereign”. Exactly why they’d relegate someone they admire so much to a secondary position of no constitutional importance is, again, baffling).
The ACM’s line isn’t that strange when you think about it in terms of the way the debate is framed by republicans. They know that to defeat an Australian republic, they’ve got to reframe the issue as a non-event, to do that they need to show the Governor-General is head of state. It would be a genius strategy if it weren’t so transparently dishonest. The bad news is that the argument appears to get traction among younger monarchists.
The good news is that by attempting to reframe the debate, the ACM is actually accepting the argument that Australia ought to have an Australian citizen as its head of state. That’s exactly why the other monarchists groups hate the claim. What does this mean for Aussie republicans? Well, you could just point to the threadbare claims made by the ACM, the flagrant disregard for the facts. But that will just bounce off. Instead, it’s wiser to call out this sophistry for what it is.
Claiming that the Governor-General is head of state is a clear attempt to try and screw the scrum. We’ve got to keep reminding the public that that’s the ACM’s goal — not to illuminate or educate. Our best weapon is to speak truth to power.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
16 Comments
I wanted to add my comments on the ‘Queens’ position.
First within the Constitution Act 1901 Covering Clauses the reference is to the Queen in the sovereignty of the United Kingdom. As such in 1900 our first Governor General was issued with Letters Patent and Instructions issued by Queen Victoria of the UK. So there is the delegation to the GG by the Queen and they are part of the foundation documents that created the Commonwealth of Australia.
In 1973 Gough Whitlam enacted the Royal Styles and Titles Act and created the ‘Queen of Australia.’ His second reading speech indicates clearly that it applied to the States as well. This created a major problem for the Executive and Whitlam was informed that since the enactment the Governor General’s Letters Patent 1900 ‘required refreshing’ under the new Title and Her position now being under the Commonwealth Parliament. There is some conjecture as to what head of constitutional power the Royal Styles and Titles was enacted under, however there can be little doubt that it was intended to give the Executive more power without putting this major alteration of the Constitution to the people.( Justice Gaudron suggested it was enacted pursuant to sec 51(xxxix) of the Con yet a proper reading down of that section finds no support for the High Court’s position. Sue v Hill HCA 1999)
Despite the fact that no formal Executive authority in Australia existed after 1973, it took the Parliament until 1984 to enact new Letters Patent for the Governor General. Only one State, SA enacted its own Styles and Titles Act “reflecting the Queen’s new position’. We then come to the Australia Acts of 1986 and the State Governor Letters Patent that were issued concurrently with the Australia Acts. Now despite Whitlam assertion that the Queen of Australia also applied to the States all the Governors Letters Patent were issued by the Queen of England. Even South Australia over-rode its own legislation recognising the Queen of Australia.
Now the problem in all the previous mentioned Acts by the Parliaments which definitely altered the power and authority of the Executive, Parliament and the Judicial functions under the Constitution, none of these alteration were put to the people. Nor would most Australians have any idea of these changes and the effects they had. Justice Kirby however in Sue v Hill and WA Attorney General v Marquet quite clearly points to the Australia Acts as being ultra vires of the Parliaments authority without the sanction of the Australian people.
Further to that Callinan J in Sue v Hill raises serious questions regarding the High Court’s application of the doctrine of the “evolutionary theory of nationhood.” Much like in the Mabo decision the High Court did rewrite and reinterpret the common law in Australia, by way of a narrative that is poorly constructed in that it cannot identify the date in which Australia became an independent nation under International Law. This is despite the fact that Australia had attained international personality by at least 1926 as the Imperial Conference Papers of that year confirm. Sherwood Dunn: The New International Status of the British Dominions (1927)
Carrall Quigley: Tragedy and Hope (1965)?
It would appear that when the Commonwealth adopted the Statute of Westminster (IMP)1931 in 1942 and attained ‘independence’ the States remained under the UK Crown. This is ultra vires of the Preamble, Covering Clauses and the Constitution. But all that is neatly bundled into this “evolutionary theory of nationhood” adopted by our High Court. Much like the lie that terra nullius was applicable to Australia in the 18th and 19th century, the Court’s narrative does not stand the scrutiny of historic facts.
Thanks Eagleman – sounds like there’s a post in this. In a nutshell, your argument is that without the declaration of a republic, “sovereignty” – in the context of popular election and accountability – does not exist?
Hi LewisHolden,
I actually think the reframing was done in the Terms of Reference for the 1993 Republic Advisory Committee. The ARM has since taken the position that the head of state in a republic should have the powers of the Governor-General, while the Queen and Crown are to be erased out of the Constitution. The implied framework of the republican movement IS that the Governor-General can be seen as the head of state – if only we get rid of the monarch. The ACM is mirroring the implied framework of the ARM.
Why would the ACM mirror their ARM and affirm the ARM’s framework for a republic? I don’t know from the people in the ACM but I guess that they judge the ARM framework to be a no-win situation. We had a referendum with an appointed head of state that failed and if the ARM were to try another referendum with an elected head of state with their framework it will almost certainly fail as well. In 1999 the direct election republicans were against the model. In a direct election head of state referendum you will find many conservatives running against a Yes vote.
The ARM framework that tries to combine the Queen and the Governor-General into the one head of state in a republic is a no-win framework. I think that the cheering from the ACM for the ARM framework should really wake some people in the republican movement up. The reframing was done in 1993 by the republicans.
There is an alternative, of course. We could periodically elect an Australian to serve as our head of state while we KEEP the Governor-General and State Governors. The Governor-General and state Governors would represent the Australian President and the Governor-General would keep the reserve powers. The elected head of state would be a ceremonial President without the reserve powers. These Copernican framework models could also be implemented with a minimal change to the Constitution – unlike the changes proposed for the ARM framework as in 1999 which required an extensive rewrite of the Constitution. The 1999 referendum model was not a minimalist model at all – even if that was the spin that was pushed repeatedly…
@Robert – I disagree conservative voters would be against a directly elected head of state. In fact John Pyke’s analysis appears to show the opposite is true.
I thought the Queen came from German stock?
The monarchy gave us Limited by Guarantee, Corporations based on the philosophies of slave traders and pirates like Walter Raleigh and Henry Morgan. Corporations like the British East India Company that raised it own army in 1600 to rape and pillage from India the the north American colonies.
Ultimately this Mafia mentality in the royal family is the reason why we have to become a republic and rewrite our corporations laws to root out the Ceo’s and board members who fail in their duty of care for the companies they lead , in order to feather their own nests to the detriment of our nation.
@Lewis – Greg Craven has said repeatedly that he is completely against an elected head of state. I think the current “Process” with a couple of plebiscites is actually pussyfooting around the issue of having the next model being a direct-election referendum with the ARM framework. They want to take solid some numbers endorsing direct election to conservatives. I doubt very much that the ARM will be successful with their current process strategy.
Greg Craven! Well that settles it then.
I disagree on your views re the process as well it seems.
Lewis
I would say in a nutshell that because of the alterations to the Constitution and the construction of the High Courts doctrine of the “ëvolutionary theory of nationhood” culminating in the Australia Acts 1986 that there is no parliament in Australia today that has legal sovereignty or authority under the Constitution Act.
In regard to our Governor General/President I would suggest that instead of 1 person it may better be dealt with by a Council of 24 elected Elders, indigenous and non-indigenous, men and women would be best placed in upholding and protecting any Constitution as the High Court has shown it is there to protect the Crown and not the people.
“Our best weapon is to speak truth to power.”
Perhaps before you get to that stage, you should try speaking truth to yourselves.
Acknowledgement to Shakespeare.
“This above all: to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man.”
Why are you fussing about a position called head of state that doesn’t get a mention in the constitution? Then you proceed to say the Queen, because ACM claims she’s not head of state, must have some lower position as if head of state is the title you deem to be at the top of the tree. She’s the Queen FFS. Everybody except you understand that.
Why do we NEED a head of state just to satisfy your argument? We have a perfectly working system. In your dream world the president (presumably HoS) would perform the same duties now performed by the GG – NOT the Queen.
As for tripe about Letters Patent, I understand it is now agreed that they were always issued in error and they were never required as the GG’s powers have always been sourced in the constitution, not delegated from the sovereign. It took a while to sort that out, but you too can catch up.
Ow, sweary shouty Colin… relax. The Queen’s the head of state.
The idea that a nation state has a “head” is implicit. Whether or not the position is constitutionally established is irrelevant. Even those that don’t (e.g. Switzerland) give anyone a specific title acknowledge their head(s) of state. I’m sure no-one is going to buy the monarchist newspeak that a head of state is not actually “top of the tree”. Moreover you ignore the fact that other Commonwealth realms, such as PNG and New Zealand, declare the Queen has Head of State.
So no, we don’t “need” a head of state to satisfy the argument for an Australian republic. To suggest though you can have a position higher than head of state is illogical and laughable.
The Letters Patent issue is irrelevant. It only matters to monarchists where the powers are propagated because you’re trying to show that the Australian situation is unique, in that unlike other Commonwealth jurisdictions the GG is head of state. Since you’ve admitted the claims made by monarchists on the Letters Patent are tripe, let’s put that one to be.
I commend your quoting of the Bard. Perhaps you could do the same for the ACM?
Colin and Lewis,
Your comment regarding the Letters Patent of the GG and State Governors being irrelevant is quite incorrect. I suggest you go to http://www.foundingdocs.gov.au “Documenting Democracy”
The original Letters and Instructions 1900 are part of the Commonwealths Foundation Documents. The Solicitor Generals opinion to Whitlam in 1973 was a well worded script as it was to cover-up the legal gap in creating the Queen of Australia. The fact that the State Governors Letters in 1985 was issued by the Queen of the UK should tell you that the Governors original Letters from Q Victoria were still valid.
If Letters Patent in 1984 were irrelevant why did PM Bob Hawke fly to Balmoral Castle in the middle of a Parliamentary session and return in just 3 days. His mission was new Letters authorised by the ‘Queen of Australia’.(Not sure under what constitutional convention the Commonwealth used to write the Letters as the Chancery in Westminster has always been in charge of issuing the Legal Orders in Council.
What is interesting is that Hawke tabled the new Letters Patent, along with a written statement and no debate took place or explanation for his absence.
Considering these Letter Pat were supposedly the new legal basis of the Executive authority something does not add up.
The events between 1973 and 1986 in an attempt to ‘repatriate’ the Constitution are full of legal problems which will require addressing before any move to a Republic. I would be happy to go head to head with some of the legal ‘experts’ who suggest “if it ain’t broke don’t fix it”. Our current arrangements give no legal validity to any form of a Republic until these questions are addressed.
If the Australia Acts are so relevant to Australia’s constitutional doctrine and history and are supposed to make us fully independent of the UK and a sovereign nation, how is that we don’t celebrate this day as our national day?
Why doesn’t the average Australian have any idea of the High Court’s narrative “the evolutionary theory” and the Australia Acts 1986?
As Deborah Gare has commented “we are left with the unsatisfactory position that our national day is the day the UK Crown asserted sovereignty over the continent.”
Please remember this debate is not just about the position of the ARM or ACM, we the people are quite aware of the law, history and chicanery the doctrine of ‘divide and conquer’(Sun Su the art of war, I think it is, Macheavelli,? etc
For Lewis, I’m not trying to prove anything about your head of state. Your titles are irrelevant. We have a Queen and a GG and we all know what each does, so we don’t need a further descriptor of eother position. It just seems to me that you won’t admit to yourselves that the GG is the onw with the actual power, the same powers you want the president to hold.
And for Eagleman, (you’re not new here are you?) just answer me; are letters patent still issued? If not, why not.
Well Colin,
I think you will find that our current Governor General has received a Commission of Appointment which relies on the ‘Letters Patent 1984′ as ‘purportedly amended’. I think Howard had a play with them during the Hollingsworth crisis.
However the problem is where under the Constitution can the Commonwealth issue Letters Patent ín the first place. As according to Parliamentary convention Letters Patent, Commissions, Orders in Council are written by the Chancery in the UK and are sealed using the Great Seal of the Realm or lesser Seal. But always in the sovereignty of the United Kingdom.
Actually I am new to these pages I think although don’t keep track of where I have posted comments previously.
Thanks, Eagleman. I have searched around a bit and found (on the excellent ACM site) that the GG has been appointed and is guided by Letters Patent dated 2008. These have obviously been drafted on the instructions of Australian Labor ministers.
Elsewhere on their site I had remembered an essay by Sir David Smith but had confused Letters Patent with Royal Instructions. He said (about the RIs) “At long last, the Royal Instructions that should never have been issued in the first place were revoked. No new Instructions were issued and none are now in existence.” I thought this to mean the Letters Patent no longer existed. The modified LPs do not purport to create the office of the GG as the original versions did.
It would seem that the system has recognised the change from LPs being issued by the UK offices tp now being issued by the Queen on the advice of her Australian ministers. I’m no lawyer so others will have to debate your point.
In any event I still contend that the GG receives no powers delegated or reviewable by the Queen. The Queen herself has declared this after she wrote in reply to a letter from the Speaker requesting the reinstatement of Whitlam. She said, “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.”
My apologies also for mistaking you for a former regular by another psedonym. You have a similar lawyerly style. And I enjoyed debating (rather than slinging mud).
Thanks Colin,
I too enjoy sharing information in a bid for us all to understand the truth,
Sir David Smith’s opinion is quite strange given that the Original Instructions issued in 1900 are part of our Founding Docs and Under the Great Seal of the Realm and under the British Parliaments sovereignty over Australia and the Constitution Act.
I don’t think you would find any historical support or documents to support his view. His view only applies because of the defacto issuing of the 1984 Letters Patent by Bob Hawke.
Smith is propping up his own validity in the Óffice’ he was serving. He knew what it was really all about. ALL VERY DODGY