July 12

Head of State debate resolved in 1907


In an endeavour to bring this "arid and irrelevant debate", as one prominent republican puts it, I sent this letter to The Australian:“Trevor Corbell (letters 12/7) accuses me of invention.  Not so. In The Cane Toad Republic (1999), I pointed out that the first recorded use of the diplomatic term Head of State in a constitution appears to have been by Spanish and French fascist regimes.  And although the term has never been formally used in any Australian constitutional document, when I wrote [in this column on 9 January, 2007] that its first descriptive use was by the authorities as long ago as 1907, I did not invent this. In that year the High Court unanimously described the Governor-General as “the Constitutional Head of State.”. And as those judges [including Chief Justice Sir Samuel Griffith, pictured] had also been prominent participants in the Constitutional Conventions, we must assume they knew more about the intentions of the Conventions than Mr. Corbell, who I assume was not there.”  (Mr Corbell’s letter was published in The Australian on 12 July, 2007 under the heading “Smith’s tortured logic.”
“ONCE again, the last Australian knight of the Queen of Australia, Sir David Smith (Letters, 10/7), goes into bat for his erstwhile boss, the office of governor-general. Once again, in his criticism of Alison Broinowski, Smith wants it both ways: the governor-general is both the Queen’s representative and head of state. He implies that, while Section 2 of the Constitution clearly confers on the G-G the role of Her Majesty’s representative, Section 61 (which, amongst other things, addresses the G-G’s role as the president or head of the Executive Council) somehow renders the G-G Australia’s head of state.
“Sorry? Now, it is the wont of people like David Smith, fellow monarchist David Flint and, indeed, many constitutional lawyers to read into words and phrases things that just aren’t there. Certainly, records of the Constitutional Conventions of the 1890s give no indication of Australia’s federal founders envisaging the governor-general replacing the monarch as Australia’s head of state _ that would have, in effect, created a republic! So it’s very difficult to see how the text of Section 61 can in any way be reasonably interpreted as describing the G-G as head of state.
“Of course, it might suit Smith’s purpose and tortured logic to believe that the G-G is Australia’s head of state. How else, like the knights of yore, could he continue to raise up, once again, the sullied banner of his erstwhile patron John Kerr, who acted as though, indeed, he was Australia’s constituted head of state in 1975 when he summarily dismissed the then democratically and constitutionally elected head of government?”
Trevor Corbell
Nairne, SA” )


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