July 13

Australia’s Head of State: The Definitive Judgment: By Sir David Smith

Australia’s Head of State: The Definitive Judgment

Sir David Smith

Australia’s system of government is that of a parliamentary democracy under the Crown and is based on the British Westminster system of representative parliamentary government. Our sovereign is Queen Elizabeth II, Queen of Australia.[1] The Queen plays an important part in our system of government—in fact she is an integral part of the carefully calibrated system of checks and balances prescribed in the Australian Constitution. She is part of our Parliament, along with the Senate and the House of Representatives.[2] She appoints the governor-general, on the advice of the Prime Minster, to be her representative.[3] Bills passed by Parliament are given the royal assent by the governor-general in order for them to become law.[4] The defence force and the public service serve the Crown.

[Opening , First Commonwealth Parliament in 1901 in Melbourne by Governor-General Lord Hopetoun ]

As well as being the Queen’s representative under section 2 of the Constitution, the governor-general has significant powers under section 61 of the Constitution—powers which he or she exercises in his or her own right, and not as the sovereign’s representative.

Thus the Constitution gives us a well-ordered system of checks and balances, with the Queen of Australia at its apex, and a governor-general as the Queen’s representative, with separate roles under sections 2 and 61 of the Constitution. And all of this gives us our system of government as a constitutional monarchy.

[ First Governor-General sworn in during Federation celebrations 1 January 1901]

In preparing for the 1954 royal visit to Australia—the first ever by a reigning sovereign—the Menzies government wanted to involve the Queen in some of the formal processes of government, such as presiding at a meeting of the Federal Executive Council, or giving the royal assent to bills that had been passed by the Parliament. However, the Solicitor-General discovered something that had been largely ignored since Federation.[5] He pointed out that the Constitution placed all constitutional powers, apart from the power to appoint the governor-general, in the hands of the governor-general. The governor-general exercised these constitutional powers in his or her own right, and not as a representative or surrogate of the sovereign. Moreover, the governor-general’s other powers, conferred by legislation passed by the Commonwealth Parliament, such as the making of regulations, or the appointment of statutory office holders; and conferred by the standing orders of the houses of the Parliament, such as opening a session of the Parliament; were also conferred directly on the governor-general and could be exercised by no one else—not even the Queen. To understand this, it is necessary to distinguish between our sovereign and our head of state.

The governor-general, originally a British official, with duties and responsibilities to the British government, became an Australian office-holder, with duties and responsibilities to the Australian government and people. However, he was from the outset entitled to exercise his own discretion and judgment. The change in his relationship with the British government occurred without the text of the Constitution being altered.

No one described Queen Victoria as “head of state”: the term was not in use in the Australian colonies before Federation, nor was it in general use elsewhere in the British Empire. The term was not used during the Convention debates in Australia in the 1890s and it does not appear in the Australian Constitution.

Section 2 of the Constitution describes the governor-general as the Queen’s representative who can exercise the prerogative powers and functions she may assign to him or her, but section 61 provides for the executive power of the Commonwealth to be exercised by the governor-general.[6] Two of Australia’s distinguished constitutional scholars who had been involved in the drafting of the Constitution, A. Inglis Clark[7] and W. Harrison Moore,[8] pointed out at the time that the Constitution conferred powers on the governor-general that the British Parliament had not conferred on any other holder of vice-regal office in the empire. [9]

Since the Constitution does not in terms identify our head of state, he or she must be the person who exercises the functions of head of state. This can only be the governor-general. The sovereign’s only constitutional function is to appoint or remove the governor-general.

The claim that the governor-general is our head of state is not some bizarre theory dreamed up in recent years for the republic debate. Lord Dufferin, then Governor-General of Canada, described a governor-general as a constitutional head of state in a speech in 1873.[10] Constitutional scholars such as Professor D.A. Low, Dr David Butler, Professor Brian Galligan and Professor Stuart Macintyre have also referred to the governor-general as a head of state.[11] Prime Minister Gough Whitlam considered Sir John Kerr to be Australia’s head of state, and ensured that when the Governor-General travelled overseas in 1975 he did so as head of state and was acknowledged as such by host countries.[12]

The media refer to the governor-general as head of state. In 1977 the opening sentence of an editorial in the Canberra Times was: “We shall have today a new Governor-General, Sir Zelman Cowen, as our Head of State.”[13] The Australian published a speech by Mr Bill Hayden to the Royal Australasian College of Physicians in 1995 under the heading: “The Governor-General has made one of the most controversial speeches ever delivered by an Australian Head of State.”[14] Its next day’s editorial said, “it is perfectly appropriate at this stage of our constitutional development that the Head of State address important issues of social policy”.[15] In 1996 it referred to the Governor-General, Sir William Deane, as head of state,[16] and soon such references became commonplace, without adjectives such as “de facto” or “virtual” or “effective”.

By the time Dr Peter Hollingworth succeeded Sir William Deane in 2001, any media coyness about referring to the governor-general as head of state had disappeared,[17] and scholarly commentators such as Richard McGarvie,[18] formerly Governor of Victoria and a Judge of the Supreme Court of Victoria; and Professor George Winterton,[19] at the time Professor of Law at the University of New South Wales and later Professor of Constitutional Law at the University of Sydney, referred to the governor-general as head of state.

When Dr Hollingworth faced the crisis which led to his resignation in 2003, the fact that he was the head of state was used to justify the criticism of him over events in the Anglican diocese during his time as Archbishop of Brisbane, and became the basis for calls for him to resign. So much so that the Australian’s Editor-at-Large, Paul Kelly, was able to ask:

have Australians decided not by formal referendum but by informal debate that the Governor-General is our head of state? … Take the media eruption of calling the Governor-General head of state, pursued in the papers, the ABC and commercial media. Simon Crean [then Leader of the Opposition] now refers to the office as the head of state.[20]

Even Sir Zelman Cowen, a distinguished constitutional lawyer, described the governor-general as head of state in 1977 when Governor-General designate,[21] and again in 1995, thirteen years after leaving office.[22]  So too did Governor-General, General Sir Peter Cosgrove, in an interview given in 2015 while in office.[23]

[The Queen with her Governor-General Major-General Jeffery and former Governors-General (from right) Sir William Deane, Sir Ninian Stephen, Hon William ( Bill) Hayden and Rt Rev Dr Peter Hollingworth ]

A significant contribution to the debate appeared in the Commonwealth Government Directory in August 1992, which had this description of the governor-general: “He is the head of state in whom the executive power of the Commonwealth is vested.” The description was used in fifteen successive editions of the Directory over more than four years, but disappeared from the December 1996 edition. It reappeared in various issues in 1997, 1998 and 1999, making a total of twenty-one issues in all.

But all this is only anecdotal evidence. The legal position must be the final arbiter.

During 1900 Queen Victoria signed a number of constitutional documents relating to the future Commonwealth of Australia, including Letters Patent constituting the office of governor-general,[24] and Instructions to the Governor-General on the manner in which he was to perform certain of his constitutional duties.[25]

Inglis Clark[26] and W. Harrison Moore[27] said at the time that these were superfluous, or of doubtful legality, because the governor-general’s position and authority stemmed from the Constitution, and the sovereign could not re-create the office or direct the incumbent in the performance of his constitutional duties.[28]

Inglis Clark pointed out that sections 2 and 61 of the Constitution[29] were unique. The powers and functions of every other vice-regal officer in the empire were conferred by the Letters Patent which created the office, and by the commission which appointed him, whereas the office of Governor-General of Australia was created by, and the holder exercised powers and functions derived from, the Constitution. He rejected the view that section 2 conferred a power to control the governor-general in his exercise of the executive power of the Commonwealth pursuant to section 61. That view was shared by Harrison Moore[30], who pointed out that the governor-general’s powers were placed in his hands by the Constitution, and the sovereign could not diminish or enlarge them by a prerogative instrument.

The views expressed by Clark and Moore were later accepted by Dr H.V. Evatt[31] and in 1975 by the Solicitor-General Maurice Byers QC.[32]

British ministers advising Queen Victoria did not understand these features of our Constitution, and for a long time Australian ministers did not realise that the Letters Patent and the Instructions which Queen Victoria issued were inappropriate. Between 1902 and 1920, Edward VII and George V issued further Instructions on the advice of British ministers,[33] and in 1958 Queen Elizabeth II amended the Letters Patent and gave further instructions to the Governor-General on the advice of Australian ministers.[34]

In 1916, in a Canadian case before the Privy Council, Viscount Haldane said:

There is no provision in the British North America Act corresponding to s. 61 of the Australian Commonwealth Act which, subject to the declaration of the discretionary right of delegation by the Sovereign in … s. 2, provides that the executive power, though declared to be in the Sovereign, is yet exercisable by the Governor-General.[35]

The statement was made in the judgment, not during argument.

In 1922, during the hearing of an application by the state governments for special leave to appeal to the Privy Council from the High Court,[36] Viscount Haldane said:

Under s. 61 it is declared the Executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative … Does it not put the Sovereign in the position of having parted, so far as the affairs of the Commonwealth are concerned, with every shadow of active intervention in their affairs and handing them over, unlike the case of Canada, to the Governor-General?[37]

The 1926 and the 1930 Imperial Conferences changed the status of the vice-regal office and established a new relationship between governors-general and their governments.[38]

At the 1926 conference the empire’s prime ministers declared that the governor-general of a dominion was no longer to be the representative of His Majesty’s government in Britain, and should not remain the formal channel of communication between the two governments. The conference further resolved that, henceforth, a governor-general would stand in the same constitutional relationship with the dominion government, and hold the same position in relation to the administration of public affairs in the dominion, as did the King with the British government and in relation to public affairs in Great Britain. It was also decided that the dominion government should provide a governor-general with copies of all important documents and he should be kept as fully informed of cabinet business and public affairs in the dominion as was the King in Great Britain.[39]

At the 1930 Imperial Conference Australia’s Prime Minister James Scullin brought up the appointment of governors-general, and the conference resolved that the King should act on the advice of his ministers in the dominion concerned.[40] This led to the appointment of Sir Isaac Isaacs as the first Australian-born governor-general on January 22, 1931.

Australia accommodated these developments without any change to the text of the Constitution.

When Prime Minister Menzies wanted to involve the Queen in constitutional duties during her visit in 1954, it was proposed that she should preside at a meeting of the Federal Executive Council and open a session of the Commonwealth Parliament. As this was the first visit to Australia by a reigning sovereign, the Solicitor-General, Professor K.H. Bailey, was asked for a legal opinion.[41] He advised that it would be necessary to arrange the business of the Federal Executive Council with some care. In his view such a meeting could not exercise any statutory functions conferred on the Governor-General in Council unless Parliament passed enabling legislation. As a result of his advice the Royal Powers Act 1953 was passed, section 2.(1) of which provides:

At any time when the Queen is personally present in Australia, any power under an Act exercisable by the Governor-General may be exercised by the Queen.[42]

The Act further provides in section 2(3) that the governor-general may exercise any of his statutory powers while the Queen is in Australia, and this has been the case. Special provision was also made to enable the Queen to open the Commonwealth Parliament.

In 1901, 1927 and 1934, during visits by members of the royal family, the Australian government had taken the view that the sovereign could not authorise the visitor to perform functions in relation to the Parliament that the governor-general ordinarily performed. Professor Bailey agreed.

The standing orders of both houses of the Australian Parliament conferred functions on the governor-general for the opening of a new Parliament and of a new session of an existing Parliament. In 1953, as a result of Bailey’s advice, both houses amended their standing orders to enable the Queen to do this.[43] However, nothing could be done, without a constitutional amendment, to enable the Queen to exercise the governor-general’s constitutional powers. As Professor Bailey put it:

The Constitution expressly vests in the Governor-General the power or duty to perform a number of the Crown’s functions in the Legislature and the Executive Government of the Commonwealth. In this regard, the Australian Constitution is a great deal more specific and detailed than is the earlier Constitution of Canada.

After commenting on the changes since 1900 in the relationship between Australia and Great Britain, Professor Bailey said:

I do not think it follows that the Constitution must be read as permitting the Sovereign to perform each and every function the Governor-General may perform. In respect of the particular functions which the Constitution vests nominatim in the Governor-General, the Constitution must, as it seems to me, be regarded as having designated the mode or instrument in or by means of which the relevant Royal function is to be performed. In the light of the current conventions of Dominion status, it may very well be that some of the constitutional provision expressly vesting specific functions in the Governor-General would not now be necessary, as they were thought to be in 1900, in order to assure the full working of responsible government in Australia. As a matter of law, however, I do not think that the change in the constitutional conventions, important though it is, can deprive the express designation of the Governor-General, in respect of these matters, of its ordinary legal effect in the interpretation of the Constitution.

Professor Bailey went on to discuss the questions of the Queen opening parliament and presiding over a meeting of the Federal Executive Council. He then wrote:

The executive power of the Commonwealth, by section 61 of the Constitution, is declared to be vested in the Queen. It is also, in the same section, declared to be “exercisable” by the Governor-General as the Queen’s representative. In the face of this provision, I feel it is difficult to contend that the Queen, even though present in Australia, may exercise in person functions of executive government which are specifically assigned by the constitution to the Governor-General. The appointment of a Minister of State (section 64) is an example.

This confirmed earlier views that the governor-general is not the Queen’s delegate in the exercise of constitutional, that is, head-of-state, powers and functions; and explains why the Queen has never exercised them, even when in Australia. Professor Bailey’s final sentence above explains why the Queen could not intervene in 1975, when asked to by the former Speaker, to restore Mr Whitlam to office as Prime Minister after he had been dismissed by Sir John Kerr

Earlier in 1975 the Commonwealth Solicitor-General, Maurice Byers QC, advised Mr Whitlam that the Royal Instructions to the Governor-General were inconsistent with the Constitution and that the executive power of the Commonwealth exercisable by the Governor-General could not be affected by Royal Instructions; and that this had been the case since 1901.[44]

The Constitution binds the Crown. The constitutional prescription is that executive power is exercisable by the governor-general although vested in the Queen. What is exercisable is original executive power: that is, the very thing vested in the Queen by section 61. And it is exercisable by the Queen’s representative, not her delegate or agent. The language of sections 2 and 61 had in this respect no contemporary parallel and suggests (as section 61 makes clear) a vice-regal status. So much was suggested by Professor Harrison Moore in 1900. The same view has also been expressed by the present Chief Justice of Australia more than once.[45] Byers referred to the views expressed by Viscount Haldane in the Privy Council in 1916 and 1922 and concluded: “I think no place remains for Instructions to the Governor-General.”

The dismissal of the Whitlam government on November 11, 1975, provided further support for the legal opinions given over the previous seventy-five years. Writing after the event, Sir John Kerr stated:

I did not tell the Queen in advance that I intended to exercise these powers on 11 November. I did not ask her approval. The decisions I took were without the Queen’s advance knowledge. The reason for this was that I believed, if dismissal action were to be taken, that it could be taken only by me and that it must be done on my sole responsibility. My view was that to inform Her Majesty in advance of what I intended to do, and when, would be to risk involving her in an Australian political and constitutional crisis in relation to which she had no legal powers; and I must not take such a risk.[46]

After the Governor-General had withdrawn Mr Whitlam’s commission, the former Speaker wrote to the Queen asking her to restore Whitlam to office. In reply her Privete Secretary told the Speaker:

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.[47]

The defining power of a head of state is to appoint and remove the prime minister, and the events of November 1975 confirmed that the governor-general is our head of state.

As a result of Byers’s opinion, work began under the Whitlam government on a revision of the Letters Patent, continued under the Fraser government, and was completed under the Hawke government. On August 21, 1984, on the advice of Prime Minister Hawke, the Queen revoked Queen Victoria’s Letters Patent, all amending Letters Patent, and all Royal Instructions. New Letters Patent were granted which, in the words of the Prime Minister, would:

achieve the objective of modernising the administrative arrangements of the Office of Governor-General and, at the same time, clarify His Excellency’s position under the Constitution. I would emphasise that the new Letters Patent do not in any way affect the position of Her Majesty as Queen of Australia or diminish in any way the constitutional powers of the Governor-General.[48]

There were no further Royal Instructions. The views of Inglis Clarke and Harrison Moore were finally vindicated, and the governor-general was acknowledged as the holder of an independent office created by the Constitution and not subject to Royal Instructions.[49]

In 1985 the Hawke government set up a Constitutional Commission to carry out a fundamental review of the Constitution. Three of its members were constitutional lawyers—Sir Maurice Byers, the chairman; Professor Campbell, Professor of Law at Monash University; and Professor Zines, formerly Dean of the Faculty of Law at the Australian National University. The other members were former heads of government—Sir Rupert Hamer, Liberal Premier of Victoria from 1972 to 1981, and Gough Whitlam, Labor Prime Minister from 1972 to 1975. The commission was assisted by an Advisory Committee on Executive Government chaired by Sir Zelman Cowen. In 1988 the commission concluded:

Although the Governor-General is the Queen’s representative in Australia, the Governor-General is in no sense a delegate of the Queen. The independence of the office is highlighted by changes which have been made in recent years to the Royal instruments …[50]

One of its terms of reference asked it to report on the revision of the Constitution to “adequately reflect Australia’s status as an independent nation”. The Commission concluded:

It is clear from these events, and recognition by the world community, that at some time between 1926 and the end of World War II Australia had achieved full independence as a sovereign state  … The British Government ceased to have any responsibility in relation to matters coming within the area of responsibility of the Federal Government and Parliament.[51]

On June 7, 1995, Prime Minister Keating said in a statement to the House proposing a move to a repuplic: “The President will perform essentially the same functions as the Governor-General.” He continued:

the Government believes that, on balance, whatever the immediate attraction … it would not be desirable to attempt to codify the reserve powers: and that the … conventions at present governing their exercise by the Governor-General should be transferred to the Australian Head of State without alteration.[52]

On coming into office the Howard government set in train arrangements that led to the Constitutional Convention in 1998. The republican model which emerged was based on that proposed by Prime Minister Keating. Significantly, “The powers of the President shall be the same as those currently exercised by the Governor-General.”[53] The Convention also resolved that the reserve powers of the Crown exercisable by the governor-general would continue under a republic and be exercisable by the president.[54]  A major argument of those wishing for an Australian republic is that our governor-general is not our head of state. No one has ever explained how a president carrying out the functions of the governor-general would be a head of state, but a governor-general carrying out the same functions is not.

It is not surprising that most Australians do not understand the role of the governor-general. Sir Anthony Mason did not. He took a prominent role in the referendum campaign, and in a television interview in 1997, when asked about the constitutional monarchist view that we already had an Australian head of state, he said: “They should re-read section 2 of the Constitution.”[55] However, Professor Zines had said ten years earlier that section 2 now has “little or no operation”,[56] and in 2001 Sir Gerard Brennan doubted whether the section “has any present relevance”.[57] Sir Anthony did not refer to section 61 under which the governor-general exercises the executive power of the Commonwealth, or to the views of Inglis Clark, Harrison Moore, Viscount Haldane, Dr Evatt, Sir Kenneth Bailey, Sir Maurice Byers, Sir John Kerr, Sir Harry Gibbs[58] and Sir Garfield Barwick.[59]

Sir Anthony intervened again in May 1998 after the Constitutional Convention when he delivered a paper titled “The Republic and Australian Constitutional Development” at the Australian National University.[60] He said that “the Constitution makes the Queen our constitutional head of state” but in terms it says no such thing. To support his argument he referred to the evolution of the role from being the representative of the British government to being part of the Australian government and said that it occurred over a period of years, but as noted above it actually occurred at the 1926 Imperial Conference. He said that the Royal Style and Titles Acts 1953 and 1973 were passed to enable the Queen to open the Parliament, but this was achieved by amendments to the Standing Orders of the Houses—the Royal Style and Titles Acts do not refer to the opening of Parliament. He said that when the Queen was in Australia she took over head-of-state functions from the governor-general, but this has never happened, and could not happen.

Sir Anthony supported his argument by asserting that the governor-general could not attend official functions when the Queen was present and described this as a constitutional convention that was “robust and full of life”. This is not correct. There is no such constitutional convention. They have both been present on many occasions at official functions. He referred to the opening of the High Court by the Queen in 1980 when Sir Zelman Cowen was not present, but this had nothing to do with the supposed convention. Draft arrangements had been prepared, which I had cleared with the Palace, that provided for the Governor-General to be in the official party on the dais, but his presence was vetoed by Malcolm Fraser so that Fraser could take a more prominent place in the official procession and on the dais. Sir Ninian Stephen was more fortunate. The Queen came here in 1982, 1986 and 1988 during his term of office and they were both present at official functions. The most important was the opening of the new Parliament House on May 9, 1988. A painting of the occasion hangs in Parliament House showing the Queen addressing the gathering in the Great Hall. It shows the Governor-General seated on the dais behind her. Sir Anthony as Chief Justice was seated in the front row.

Although the foregoing may be persuasive, the decision of the High Court in The King v The Governor of the State of South Australia (1907) 4 CLR 1497 settles the question. The case involved an application for an order directing the Governor to issue a writ for an election to fill a Senate vacancy. In its unanimous judgment the court[61], in which all five of the Justices sat, held that it had no jurisdiction to order the Governor to perform any of his functions as the constitutional head of the state. In so doing they also held that the governor-general was the constitutional head of the Commonwealth. Sir Edmund Barton, delivering the court’s judgment, said:[62]

The Governor, as the officiating Constitutional Head of the State, is accordingly named as the person to whom the notification [of the Senate vacancy] is to be given … So, in certifying to the Governor-General the names of the Senators elected, chosen, or appointed the Governor must be regarded as acting the capacity of the Constitutional Head of the State, being in that capacity the proper channel of communication with the officiating Constitutional Head of the Commonwealth, the Governor-General.

The court continued:

A somewhat analogous duty is cast upon the State Governors under the Constitutions of the States, all of which provide that upon a dissolution of the House of Assembly the writs for a general election are to be issued by the Governor. It has never been suggested that if the Governor failed to issue the writs a mandamus would lie to compel him to do so. There is of course a remedy in such a case but it is to be sought from the direct intervention of the Sovereign … The duty, therefore, is one of the duties which the Constitutional Head of the State owes to the State (and .. .to the Sovereign).[63]

The court concluded:

it is a duty cast upon … [the Governor] as Head of the State. And the same reasons which prevent a Court of Law from ordering the Sovereign to perform a constitutional duty are applicable to a case where it is alleged that the Constitutional Head of a State has … failed in the performance of a duty imposed on him as such Head of State.[64]

This decision has not been by-passed in recent years and left in a legal backwater. It was treated as good law by the High Court, including twice by the Mason court, in 1981, 1987, 1988 and 1998.[65] The passage of time and the later developments in constitutional law and practice, summarised in this paper, in fact have reinforced the conclusions reached by the court in 1907.

Moreover in 1976 the Parliament declared the governor-general to be our head of state in the Crimes (Internationally Protected Persons) Act, which was passed to give effect to the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents. Article 1 of the Convention provides that the term “internationally protected person means (a) a Head of State …” Section 3A(1) of the Act provides:

For the purposes of this Act, the definition of “internationally protected person” in paragraph 1 of article 1 of the Convention has effect as if the reference in that definition to a Head of State included, in relation to Australia, the Governor-General”.

Thus the Constitution, the High Court, the Parliament, and current constitutional practice speak with one voice. The governor-general is our head of state, and the High Court and Viscount Haldane confirm the status of the Queen as our sovereign.

This article was originally published in the Australian Law Journal, December 2015, 89 ALJ 857 ( and subsequently on Quadrant Online in 2017). By December 2016 there had been no response by any constitutional lawyer or republican. That is, twelve months after publication it remained unchallenged and uncontradicted.

Sir David Smith was Official Secretary to five governors-general from 1973 to 1990. His book Head of State: The Governor-General, the Monarchy, the Republic and the Dismissal (Macleay Press, 2005) was launched by former Governor-General Bill Hayden.


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