While our Constitution does not say who the Head of State is, there is no doubt that under international law that the Governor-General is Head of State. And in 1907, the High Court, consisting of our founding fathers, described the Governor-General as the ” Constitutional Head of the Commonwealth.”
That is why ACM has consistently argued that the Governor-General is the Head of State, while describing our monarch as such or as the 1907 High Court bench of Founding Fathers did, as the Sovereign.
In any event, Parliament has declared the Governor-General to be Head of State, as our government does when advising other governments and the United Nations.
This arose in the context of an important international treaty, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents.
The Convention, or treaty, was incorporated into Australian law in 1976 under the Crimes (International Protected Persons) Act.
Article 1 of the Convention provides that “the term ‘internationally protected person’ means (a) a Head of State, including any member of a collegial body performing the functions of a Head of State under the constitution of the State concerned…”
The article then goes on to refer to other officials including a “Head of Government”. Readers may wonder at the extended definition of “Head of State” to include members of a collegial body. This is to encompass those countries which do have a collegial body as a Head of State, for example the Federal Council in Switzerland or the Presidium of the Supreme Soviet of the former Union of Soviet Socialist Republics.
The term “Head of State” would no doubt include the Heads of State of countries which have more than one. One example is Andorra where the co-Princes are the King of France, or his successor – the President of the Republic of France along with the Bishop of Urgell, and England under King William III and Queen Mary II.
The declaration of the Governor-General as Head of State may be found in subsection 3A(1) of the Crimes (International Protected Persons) Act which provides that “… (1) 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…”
So there we are. The Governor General is the Head of State. Our governments and Parliament say so.