October 28

The ABC breaches its Charter and “overrules” High Court

The ABC has publicly thrown in its weight behind those who wish to remove the Crown from the Constitution. The public broadcaster has issued a directive to staff that the Governor -General must not be referred to as the Head of State. This was a principal matter in contention in the 1999 referendum, in which the people nationally, in all states and 72% of electorates rejected the republican proposal.

The taxpayer funded ABC has thus accepted submissions made by the republican movement, thrown its weight behind the republican push and openly declared itself a player in what is a political  debate. It is difficult to conceive of a more flagrant breach of its Charter. 

In mitigation, the ABC seems to advise its broadcasters to avoid the term Head of State. This will be difficult when the government holds out the Governor-General as Head of State, and she is received as such by foreign governments, the united Nations and other international organisations. 

The directive, revealed in correspondence with an ACM supporter who complained of ABC bias, has now been confirmed in a column, "The last word" published in the October 2008  issue of the ABC magazine, Limelight. 

Sir David Smith, whose book Head of State is the most authorative work on this question, comments:-

In her article “The last word” in the ABC magazine Limelight for November 2008, Irene Poinkin has revealed her abysmal ignorance of Australia’s system of government and constitutional arrangements. 

She relies on the fact that the 2003 edition of the booklet Australia’s Constitution stated that “Australia’s Head of State is Queen Elizabeth II”.

She obviously is not aware that the sentence was dropped from the 2006 and 2008 editions of the same publication because the federal Attorney-General could not find a single piece of evidence to support the claim.

In company with other organs of the ABC, Ms Poinkin has a twisted view of our Constitution.  They refuse to describe the Governor-General as head of state because the Constitution does not describe him as head of state, but they insist on describing the Queen as head of state despite the fact that the Constitution does not describe her as head of state.

The Constitution contains no mention of the office of head of state.  Nor does it mention the office of Prime Minister either, but we have one, and we know who it is because we know which person carries out the duties of that office. 

In similar fashion we know who is head of state because we know who carries out the duties of that office, and it is the Governor-General and not the Queen.  The Queen has certain duties as Australia’s Monarch or Sovereign, but she has never carried out any  duties as our head of state, not even when she has been in Australia, because our Constitution confers all head of state duties, not on the Queen but on the Governor-General, and in his own right and not as the Queen’s representative.

Like all good Constitutions, the Australian Constitution provides a general framework for our system of government, and leaves many of the details to be provided by constitutional convention and by constitutional interpretation.

 The evidence for describing the Governor-General as Australia’s head of state has been set out in some detail in Chapter 3 of my book Head of State: the Governor-General, the Monarchy, the Republic and the Dismissal. 

My view of the Governor-General as Australia's head of state is based on the published legal opinions and judicial pronouncements of others distinguished in the law and much more knowledgeable than I could ever be about Australia's Constitution. 

They are:

•           Andrew Inglis Clark, one of our Founding Fathers and Senior Judge of the Supreme Court of Tasmania (1901)

•           William Harrison Moore, another Founding Father and Professor of Law, the University of      Melbourne (1901)

•           Lord Haldane, the Lord Chancellor, in two cases before the Privy Council (1916 and 1922)

•           Sir Kenneth Bailey, Commonwealth Solicitor-General, in a legal opinion to Prime Minister Menzies (1953)

•           Sir Maurice Byers, Commonwealth Solicitor-General, in a legal opinion to Prime Minister Whitlam (1975)

•           The Hawke Government’s Constitutional Commission (1988)

As a consequence of the above legal opinions, Prime Minister Bob Hawke advised the Queen in 1984 to revoke certain documents relating to the office of Governor-General, which had been issued by Queen Victoria in 1900 on the basis of erroneous advice from her British Ministers. 

This action by Prime Minister Hawke was in accordance with, and completely vindicated, the views expressed by Inglis Clark and Harrison Moore in 1901, and which were in turn supported by the views of the other eminent legal authorities quoted above.

Since the release of my book in November 2005, Professor David Flint, National Convenor of Australians for Constitutional Monarchy, discovered earlier this year a unanimous 1907 judgement of the High Court in The King v The Governor of the State of South Australia (1907) 4 CLR 1497. 

That judgement confirms everything I wrote in 2005. 

The court consisted of Chief Justice Griffith and Justices Barton, O’Connor, Isaacs and Higgins, all of them Founding Fathers, and they found that The Queen is our Sovereign, and the Governor-General is the Constitutional Head of the Commonwealth (of Australia). 

As all five judges who comprised the court were involved in the drafting of the Constitution, we can assume that they knew what that document was meant to tell us.

None of this precludes republicans from continuing to advocate changes to our Constitution and to our system of government, but next time they will have to tell the truth and not rely on the false claim that Australia has to become a republic in order to have an Australian head of state.  We already have one in the Governor-General.


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