More evidence is constantly emerging which confirms that the Governor-General of Australia is Head of State, the latest being the government’s confirmation that the vice regal tour of Africa is as Australian Head of State.  This issue is crucial: the principal argument from the republican movement up to the referendum in 1999 was that Australia needed an Australian as Head of State.

The other arguments advanced were too often unworthy, embarrassing and foolish, such as those by former minister and mafia associate Al Grassby, who blamed the constitutional monarchy for several ills on the nation, including unemployment.

Sometimes they were about the heavy consequences of a No vote. If Australia voted No, we would become the laughing stock of Asia and the world, according to the then Vice Chancellor of the University of Melbourne, Professor Gilbert.  Only stupid people would vote no, claimed Robert Hughes who has quite wrongly claimed the first settlement was a gulag. (Whoever heard of a gulag under the rule of law?)  Immigrants would not come, or if they did, they would refuse to become citizens, claimed former Deputy Lord Mayor of Sydney and subsequently NSW politician, Mr. Henry Tsiang. Curiously, he seemed to have done both.

In the mid nineties, when former PM Paul Keating threatened a plebiscite on whether Australians wanted an Australian as head of state, ACM National Convener Lloyd Waddy QC said he would advise supporters to vote Yes as they already had one. Ironically the Keating government had already declared this to be the case. There was no plebiscite.

From the application of the principles of international and constitutional law which I had studied at the Universities of Sydney, London and Paris, I have never doubted that the Governor-General is Head of State, and without any qualification. I argued that in a chapter for The Cane Toad Republic, which was launched by Sir Harry Gibbs in 1999 for the referendum campaign.  In that I also referred to and relied on the invaluable work of Sir David Smith.

The first Australian born Head of State was Sir Isaac Isaacs, who was also the first Governor-General appointed after the Balfour declaration which confirmed the  role of the Governor-General as head of state, and also that in his appointment, The King would be advised by his Australian ministers.  

The ACM position in the referendum campaign was clear and unequivocal: the Governor-General is the Head of State. Unlike the republican movement in 1999, the constitutional monarchist campaign on fundamental points presented a single message.

Subsequently Sir David expanded on his research in his major 2005 work, the authoritative book ‘Head of State.’  Neither his book, nor any part of the ACM position has ever been challenged in any scholarly publication of which we are aware. Indeed one of the leading republican authorities on constitutional law, the late Professor George Winterton, indicated in recent years that as far as he was concerned, republicans should withdraw from what he now saw as an ‘arid debate’. 

Professor Winterton did tell me that he thought some in ACM were obsessive about this issue. I explained that it was the ARM, and not the ACM, who had decided the head of state question would be the pivotal issue in the referendum.    

And as one leading republican and former prime minister admitted, the constitutional monarchists won the intellectual argument

….'effective' Head of State…

Now it is true some constitutional monarchists have from time to time qualified the role of the Governor-General as an ‘effective’ Head of State, but no substantial evidence has ever been advanced to support that proposition. There is no such usage known in international law, from which the term comes.

To some extent the term ‘effective’ head of state is probably resorted to out of a fear that The Queen would otherwise be seen as superfluous. This is not so, and to demonstrate this, ACM undertook major research to demonstrate this. This was presented to a national conference of the Samuel Griffith Society, published in Quadrant, and in a book published by ACM with a foreword by Tony Abbott.  Again none of this has been challenged in any serious response.

So constitutional monarchists who are concerned about the place of The Queen in a system which makes the Governor-General head of state would be well advised to refer to this work.

The fact is that the Governor-General is our Head of State in no way compromises the indispensability of The Queen, the Sovereign, in the constitutional system.  And to those who challenge the usage of the word Sovereign in this context, ACM usage merely reflects that of the leading Founding Fathers Sir Samuel Griffith, Sir Edmund Barton, Sir Isaac Isaacs, Justice Henry Bournes Higgins (who handed down the nation’s seminal judgement in industrial relations to the great rejoicing of the trade union movement) and Justice Richard O’Connor.  Incidentally the latter two were no conservatives; both refused knighthoods, one vigorously so.

The latest confirmation of this argument about the Governor-General was on the eve of her African tour when the Rudd government made the unqualified declaration through the Prime Minister’s office of her status as Australian Head of State.

Our case in 1999 was strong; it has now been shown to be beyond reasonable doubt.   ACM will in no way resile from this position; the republicans must mount a new argument. That is, once they have deigned to tell the nation what they want.