A Mate for Head of State ? Why Australia Needs One
It is almost 218 years since the First Fleet came ashore at Sydney Cove and soon made this piece of ground the site of Government House. This place was the office and home of the first nine governors of what became the Colony of New South Wales - Arthur Phillip, John Hunter, Philip Gidney King, William Bligh, Lachlan Macquarie, Thomas Brisbane, Ralph Darling, Richard Bourke and George Gipps. It was here that Australia's only uprising against legitimate authority occurred - the Rum Rebellion of 26 January 1808. The only extant visual representation of the interior of Government House depicts three members of the Rum Corps securing the (illegal) arrest of Governor Bligh from the bed under which he was (allegedly) hiding. The scene is reproduced in colour in the edited collection Australia's First Government House (Allen & Unwin, 1991). And it was on this First Government House site that initial negotiations took place concerning the one substantial stain on what became Australia's proud history - namely, the interaction between the modern Western settlers and the traditional indigenous population.
It has become accepted for the events of 26 January 1788 to be described as the creation of a British society in what came to be called Australia. And certainly this site became the centre of British authority in New South Wales - with governors from Arthur Phillip on reporting to the Colonial Office in London. Yet Australia was never just a British society, since those who sailed on the First Fleet were a mixed and multicultural lot. A governor, the military and convicts - who were essentially British and Protestant but also Irish and Catholic, and more besides.
In an article which was published in for The Bulletin on 26 January 1993, to co-incide with Australia Day that year, I condemned what I termed the left-wing interpretation of Australian history. This article was published some months before Geoffrey Blainey's critique of what he termed the black armband view of Australian history. It is a matter of public record that Professor Blainey and I disagree with some issues. However, what we share in common is an irritation that so much commentary on Australia - by intellectuals and journalists alike - has an alienated tinge. In my January 1993 Bulletin article I focused on the published work of Robert Hughes, Manning Clark and John Pilger. I could have added many more names then - and I could add fresh names to the list now.
Like all individuals, all nations make mistakes. After all, this is an inevitable consequence of The Fall. However, there is ample evidence to indicate that - in just over two centuries - Australia has become one of the freest, fairest and most successful nations in the world. That's why I believe it's time that Australia has an Australian head of state. Australia's very success is cause enough to dismiss the notion that, for some reason or other, Australia is not ready to have an Australian head of state and - in order to ensure the continuation of Australia's democracy - Australians must continue to rely on a British citizen and British resident to fulfill this role.
I have considerable respect for Queen Elizabeth II who, on any analysis, has been a hard working and dutiful monarch for over half a century. Moreover, I understand why - in line with British historical traditions - a clear majority of British citizens want the monarch to remain their nation's head of state. Britain is a valued ally of Australia - as is the United States. But Australia is different to both Britain and the US. That's why it makes sense for Australia to have one of us as head of state. In the traditional Australian parlance, a mate for head of state.
The constitutional monarchists understand that the weakest link in their belief that the Queen of Great Britain and Northern Ireland (who also happens to be Queen of Australia) should remain Australia's head of state turns on the implied assertion, in their case, that it is not proper for an Australian to be Australia's head of state. That's why, in recent years, the constitutional monarchists have run the line that the Queen is not really Australia's head of state after all - and that, rather, this position is held by the Governor-General.
I can understand, although I do not agree with, the case for constitutional monarchy in Australia. The most credible position was put by John Howard in the newsletter which he forwarded to the constituents of Bennelong on 27 October 1999, in the lead-up to the referendum on the republic which was held on 6 November 1999. The Prime Minister said that "we should not lightly put aside something which has worked so well and helped give us such stability". John Howard argued unashamedly for the maintenance of the system in which "the Queen is Queen of Australia". In short, the Prime Minister is an unapologetic constitutional monarchist.
During the referendum campaign, however, quite a few monarchists went into "Don't-Talk-About-The-Queen" mode. The Australians for a Constitutional Monarchy temporarily junked its name and called itself "No Republic-ACM". What's more, the official "No" case - which was prepared by a majority of those members of Parliament who were against the proposed changes to the Constitution and which, in accordance with constitutional requirements, was distributed by the Australian Electoral Commission - did not contain even one reference to the Queen.
Many constitutional monarchists are arguing that the Governor-General, not the Queen, is Australia's head of state. This case is spelt out at some length by Sir David Smith in Chapter 3 of his recently released book Head of State (Macleay Press). Now, I like much of Sir David's work and he has addressed The Sydney Institute. Yet I profoundly disagree with his current position that the Queen is not Australia's head of state. Rather, I support the view which Sir David expressed in Quadrant in May 1991, where he wrote:
?we have a monarchical system of government, in which the powers and functions of the Head of State reside in an hereditary Monarch who rules only by the consent of those who are ruled over, and who acts on the advice of their elected representatives. In our particular case, as with the sixteen other monarchical countries within the Commonwealth, the absent monarch is represented by a Governor-General who performs all the duties of the Head of State.
Since then, however, Sir David has changed his position - and now runs the line proclaimed by Australians for Constitutional Monarchy's chairman David Flint and many other monarchists that the Governor-General is really and truly Australia's head of state.
There are three good reasons to dismiss the current claim of the constitutional monarchists that the Governor-General is Australia's head of state. It is not what the Constitution officially decrees. It is not what Buckingham Palace really believes. And it is not what the Howard Government actually says.
Section 2 of the Australian Constitution reads as follows:
A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.
In other words, Section 2 of the Constitution makes it emphatically clear that the Governor-General is the Monarch's "representative in the Commonwealth". There are similar references to the Governor-General as the Monarch's "representative" in Section 61 and Section 68. As Professor George Winterton has argued (Quadrant, September 2004):
A person who is another's "representative" cannot properly be described as occupying an office at the apex of the state. If the representative fulfils head-of-state functions, the representative can be described as de facto or effective head of state, while the officer represented is de jure or formal head of state.
As a young man I admired Sir Zelman Cowen, who was Dean of the Law Faculty when I commenced my Ll.B. degree at Melbourne University in the mid 1960s. In middle age I came to know Sir Paul Hasluck, when I interviewed him for my book Menzies Child: The Liberal Party of Australia. Sir Zelman and the late Sir Paul were among the best Australian governors-general. It is a matter of record that both believed that the Queen is Australia's head of state. In his article titled "The Office of Governor-General", which was published in the Winter 1985 issue of Daedalus, Sir Zelman commented that "the Queen is unquestionably head of state and the governor-general her representative". In his 1972 William Queale Memorial Lecture, also titled "The Office of Governor-General", Sir Paul wrote that "we in Australia have a hereditary monarch as head of state". In summing up the section of his Lecture titled "The Head of State", Paul Hasluck commented:
The Australian nation has to have a head of state. Because of our history and tradition we have a constitutional monarch as head of state. The Queen of Australia as head of state fits in with both the principles and practices of our form of government and any change in our method of having a Queen as head of state would also require us to make basic changes in our form of government, as well as major amendments of the Commonwealth Constitution.
Sir Zelman's article was republished in Stephen R. Graubard (ed): Australia: The Daedalus Symposium (Angus & Robertson, 1985) and Sir Paul's lecture was republished in book form as The Office of the Governor-General (Melbourne University Press, 1979).
Vernon Bogdanor's study The Monarchy and the Constitution (Clarendon Press, 1995) is the most authoritative work of its kind. The author was given access by the Queen to the Royal Archives at Windsor Castle. In 1995 Vernon Bogdanor was in no doubt whatsoever that the Queen is Australia's head of state. He listed Australia among 16 members of the Commonwealth (including Britain) which "recognize the sovereign as their head of state" - maintaining that:
The sovereign is head of state in all of these countries, but in all of them except Britain executive authority lies in the hands of a governor-general who is the sovereign's representative.
With respect to Australia, Vernon Bogdanor wrote:
In Australia?the governor-general performs nearly all the functions of a head of state but is not himself or herself a head of state.
As recently as 1997 the Buckingham Palace website contained the following comment - under the heading "The Queen and the Commonwealth":
A Commonwealth realm is a country where The Queen is the Head of State. The Queen is Queen not only of Britain and its dependent territories, but also of the following realms: Antigua and Barbuda, Australia, Bahamas, Barbados, Belize, Canada, Granada, Jamaica, New Zealand, Papua New Guinea, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines, Solomon Islands and Tuvalu?
When The Queen visits one of her Commonwealth realms, she speaks and acts as Queen of the country, and not as Queen of the United Kingdom. As a constitutional monarch, The Queen acts on the advice of the ministers of the realm concerned. In each of the realms, The Queen is represented by a Governor-General. He or she is appointed by The Queen on the advice of the ministers of the country concerned and is completely independent of the British Government, The Queen maintains direct contact with the Governors-General although she delegates executive powers to them in virtually every respect.
As is proper, the Palace scrupulously avoids involvement in the domestic politics of Britain and the other members of the Commonwealth. Once the republic debate got under way in Australia, the constitutional monarchists put pressure on Buckingham Palace to alter its website. I was told by Philip Benwell, the head of the Australian Monarchist League, that he (among other monarchists) approached the Palace and requested that the website be changed. Not wanting to involve itself in the Australian political debate, the Buckingham Palace website was altered and the reference to the Queen as Australia's head of state was dropped.
In the lead-up to the 1999 constitutional referendum in Australia, the Palace's website now focused only on the Queen's role in the Commonwealth and made no reference to the Queen's role as head of state in Britain or the other Commonwealth nations. But the alteration to the Palace website did not change the fact that the Queen, not the Governor-General, is Australia's head of state. This, after all, is the position of the Howard Government itself.
In his statement to the Bennelong electorate in October 1999 John Howard wrote:
The Queen is Queen of Australia. However, under our present constitution, the Governor-General is effectively Australia's head of state. The only constitutional duty performed by the Queen relates to the appointment of the Governor-General which must be done on the recommendation of the Prime Minister of the day.
At the launch of Conservatives for an Australian Head of State in Melbourne on 27 October 1999, Peter Costello initially praised the Prime Minister's formal intervention in the referendum debate referring to his "well-reasoned piece". It is worth recalling that around this time some monarchists were denying the Queen's role in the Australian Constitution. Still other monarchists were engaging in similar exaggerations against their opponents as that used today by some critics of the Howard Government's national security agenda - i.e. they were alleging that decision to replace the Queen with an Australian head of state would result in Australia going down the road of Nazism/fascism or Stalinist communism. I criticised this hyperbole in my Sydney Morning Herald column on 19 October 1999. Just as John Howard did not deny the Queen in the referendum campaign nor did he allege that the success of the "Yes" campaign would lead to some kind of fascist or communist dictatorship Down Under. But not all monarchists were as intellectually honest as the Prime Minister.
At the Conservatives for an Australian Head of State function, Peter Costello distanced himself from Mr Howard's claim that the Monarchy is able to unite society - pointing to the obvious fact that, in Australia at least, the "monarchy doesn't unite". When asked to "comment on the statement that the Governor-General is effectively the head of state", the Deputy Liberal Party leader replied:
Well I think the key word there is "effectively", isn't it? Once you see a word like "effectively" interposed, what it tells you he is not the Head of State?Now, the truth of the matter is that the Head of State is the Queen and we shouldn't shy away from that. And a "No" vote means keeping it that way.
So it did. The Queen is Australia's head of state. Not even the Prime Minister argues that the Governor-General is the head of state - but only that he is effectively the head of state. It's not the same thing.
In my capacity as a columnist and a commentator, I maintain a lively correspondence with people whom I respect - even if I do not happen to agree with them on one or more issues. I have had such an exchange of letters with Sir David Smith concerning who is Australia's head of state.
On 16 February 2005 Sir David wrote to me criticising my view that the Queen was Australia's head of state. In subsequent correspondence, I replied that Sir David was criticising me for holding the view which he once held. Later on, Sir David referred to letters written by two Howard Government Attorneys-General who maintain that the Queen is Australia's head of state but he indicated that he disagreed with this position. I asked Sir David for a copy of this correspondence.
In a letter dated 27 April 2005, Sir David was kind enough to forward me a copy of a letter written by the then Attorney General Daryl Williams on 21 May 2002 - along with a copy of a letter written by the current Attorney-General Philip Ruddock on 13 April 2005. This was the correspondence which contained the advice with which Sir David disagreed. Well, what did the Howard Government's Attorneys-General say?
According to Daryl Williams QC:
?the expression "head of state" does not appear in the Australian Constitution - in relation to either the Queen or the Governor-General. Nevertheless, the Queen is Australia's monarch, a constituent part of the Commonwealth Parliament and the formal repository of Commonwealth executive power. The Constitution assigns a role to the Queen that makes its proper to regard her as head of state. Under the Constitution, the Governor-General is the Queen's representative in the Commonwealth.
In his letter dated 13 April 2005, Mr Ruddock wrote that "the Constitution itself assigns a role to the Queen that makes it appropriate to regard the Queen as the head of state". The Howard Government's current Attorney-General reminded his correspondent that this is the "position taken on this matter over many years by the Attorney-General's Department and successive Attorneys-General".
The Attorney-General is the first law officer of the Commonwealth of Australia. As I advised Sir David, my position is straight forward. I am prepared to accept the advice of the ministers appointed by the Prime Minister to be the first law offer - and who state that it is proper and appropriate to regard the Queen as Australia's head of state. Those monarchists who maintain that the Governor-General is Australia's head of state simply reject the opinion of the Howard Government's Attorney-General in preference for a proposition for which there is no legal authority. It's called denial.
In conclusion, it is understandable why the British are committed to the continuation of a hereditary monarchy. But it is not clear why democratic, mature, successful Australia has to have, as its head of state, a hereditary monarch who is British citizen who resides in Britain.
Australia has no say whatsoever as to who may, or may not, become its head of state. Australia has to accept British law and custom in this regard. This entails that males take precedence over females in determining who can become Australia's head of state and that, due to the Act of Settlement 1701, the Queen or King of Great Britain cannot be - or marry - a Catholic.
Ironically, this means that Prince William - who is in line to become Australia's head of state - could marry the daughter of the non-Catholic republican Peter Costello but could not marry the daughter of the Catholic monarchist Tony Abbott. It's as bizarre as that.
As Peter Costello commented on 27 October 1999, he does not believe that "positions should be settled on bloodlines" or that "people should hold public office because of hereditary". Writing in the September 1999 issue of Options, the Deputy Leader of the Liberal Party argued that Australians "are not comfortable with monarchy as the symbol of our nation". This explains why so many monarchists like to pretend that the Queen is not Australia's head of state.
Then there is the matter of Prince Charles himself, the next in line to become Australia's head of state. No doubt Elizabeth II has views on many issues. However, conscious of her position of head of state, she has not engaged in the political debate in public. Not so Prince Charles. Take just one issue, for example. As recently as July 2005, Australia's future head of state praised what he termed "inefficient" French farmers and "the inefficiencies of so-called peasant farming life" (Weekly Telegraph, 27 July 2005). Prince Charles' much favoured inefficient French farmers remain as farmers per courtesy of massive taxpayer subsidies funnelled through the European Union's Commonwealth Agriculture Policy (CAP). The CAP is opposed not only by the British government but by all the mainstream political parties in Australia - the Liberals, the Nationals and Labor.
Yet the next in line to become Australia's head of state publicly supports inefficient French farmers to the disadvantage of Australian farmers and to the disadvantaged to the world's less developed nations. As Deputy Prime Minister Mark Vaile pointed out at The Sydney Institute on 24 October 2005, "a typical cow in the European Union receives a government subsidy of US $2.20 per day" and that such a cow earns more each day "than 1.2 billion of the world's poorest people". It would be of little moment if Australia's next head of state supported such mammoth cow subsidies in private - but, in fact, he proclaims his support in public.
Prince Charles is known to have told some Australian diplomats that he both understands, and is sympathetic to, the view in Australia that Australia should have an Australian head of state. No doubt this is a genuinely held position. But it is also likely that Prince Charles wants to avoid controversy when he becomes a monarch. For Charles, to be King of Britain may be a sufficient enough job. He does not need the controversy which would arise from being King of Australia as well - especially since 45 per cent of Australians voted "Yes" for an Australian head of state in November 1999 (in spite of the fact that the model on offer was opposed by some republicans) and current opinion polls indicate that support for an Australian head of state is running at around or just over 50 per cent with support for the constitutional status quo running at around or just over 33 per cent. Support for an Australian head of states rises if those polled are asked about Prince Charles becoming Australia's next head of state.
The case for an Australian head of state simply reflects the fact that democratic, successful Australia is mature enough to have one of us as head of state.