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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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Sadly, it took Australian Governments eighty-four years to realise that fact, and I shall come back to the action taken by Prime Minister Bob Hawke in 1 9 8 4 t o resolve this issue.

The 1926 I m p e r i a l Conference of the Empire’s P r i m e M i n i s t e r s declared that the Governor-General of a Dominion would no longer be the representative of His M ajesty’ s G overnment in B rit a in, and t h a t i t was no longer in accordance w i t h a Governor-General’s c o n s t i t u t i o n a l position for h i m to r e m a i n a s t h e formal channel of communication between the two Governments. The Conference further resolved that, henceforth, a Governor-General would s t a n d in t h e s a m e c o n s t i t u t i o n a l r e l a t i o n s h i p w i t h h i s D o m i n i o n Government, and h o l d t h e s a m e position in relation to the administration of public affairs in the Dominion, as d i d t h e K i n g w i t h t h e B r i t i s h Government and in relation to public a f f a i r s i n Great Britain. It was also decided that a Governor-General should be provided by his Dominion Government with copies of all important documents and should be kept as fully informed of Cabinet business and public affairs in the Dominion as was the King in Great Britain. 18 The 1926 Imperial Conference also made another decision which is of direct relevance to the contemporary debate in A u s t r a l i a. The P r i m e M i n i s t e r s recognised that the Sovereign would be unable to pay S t a t e v i s i t s on behalf of any Commonwealth country other than the United Kingdom, and it was agreed that Governors-General of the various realms would pay and receive State visits in respect of t h e i r own countries. Buckingham Palace made i t clear t h a t i t expected t h a t Governors-General would be t r e a t e d a s the heads of t h e i r respective countries, and would be received by host countries with all the marks of respect due to a visiting Head of State. Canada exercised this r i g h t a l m o s t i m m e d i a t e l y and i t s Governors-General began visiting other countries t h e following year, 1927, but Australia waited until 1971, 44 years after Canada, to follow suit. 19 The 1930 I m p e r i a l Conference resolved t h a t, in appointing a GovernorGeneral, the King should in f u t u r e a c t on the advice of his M i n i s t e r s in t h e Dominion concerned, and not on the advice of B r i t i s h M i n i s t e r s a s previously had been the case. It was also resolved that the making of a formal submission should be preceded by i n f o r m a l c o n s u l t a t i o n w i t h t h e K i n g, t o allow h i m t h e opportunity to express his views on the nomination. 20 In 1953, in the course of preparing f o r t h e 1 9 5 4 R o y a l v i s i t t o A u s t r a l i a, Prime Minister Robert Menzies wanted to involve the Queen in some duties of a c o n s t i t u t i o n a l nature, in a d d i t i o n to the inevitable public appearances a n d social occasions. It was proposed, in particular, that the Queen should preside a t a meeting of the Federal Executive Council and open a session of t h e Commonwealth Parliament. As this was the first visit to Australia by a reigning Monarch, i t was t h o u g h t necessary to ensure t h a t i t was constitutionally in order f o r h e r t o carry out these functions, and the Commonwealth SolicitorGeneral, Sir Kenneth Bailey, was asked for a legal opinion. 21 I n t h e m a t t e r o f p r e s i d i n g a t a m e e t i n g of the Federal Executive Council, the Solicitor-General advised that it would be necessary to arrange the business of the meeting with some care. His view was that such a meeting would not be able to exercise any of the s t a t u t o r y powers and functions conferred on t h e Governor-General in Council by Acts of P a r l i a m e n t, unless P a r l i a m e n t in t h e meantime were to pass an Act to empower the Queen in Council to exercise these functions.

By means of the Royal Powers Act 1953, Parliament did provide that:

“When the Queen is personally present in Australia, any power under an Act exercisable by the Governor-General may be exercised by the Queen”. 22 The A c t f u r t h e r provided that the Governor-General could continue to exercise any of his s t a t u t o r y powers even while the Queen was in A u s t r a l i a, and in practice Governors-General have continued to do so.

Special provision was also made to enable the Queen to open t h e Commonwealth P a r l i a m e n t. Section 5 of the C o n s t i t u t i o n provides for t h e Governor-General to appoint the t i m e s for the holding of sessions of t h e P a r l i a m e n t. In s i m i l a r fashion, the Standing Orders of both Houses of t h e Parliament provide for the Governor-General to do certain things in relation t o the P a r l i a m e n t. In 1953 both the Senate and the House of Representatives a m e n d e d t h e i r S t a n d i n g O r d e r s t o provide that, when the Queen is present in Australia, references to the Governor-General should be read as references to the Queen. 23 Thus, although the Constitution and the Standing Orders of the Parliament confer the necessary powers and functions to preside over meetings of the Federal Executive Council and over the opening of Parliament on the Governor-General in his own right, and on him alone, the Queen is able to perform these functions of the Governor-General when she is in A u s t r a l i a, but only because P a r l i a m e n t legislated on the one hand, and amended its own Standing Orders on the other, to enable references to the Governor-General to be read as references to the Queen.

However, nothing could be done, except by way of a c o n s t i t u t i o n a l amendment under s. 128 of the Constitution, to delegate the Governor-General’s c o n s t i t u t i o n a l p o w e r s t o the Sovereign, and they r e m a i n exclusively w i t h t h e

Governor-General. As Sir Kenneth Bailey put it:

“The Constitution expressly vests in the Governor-General the power or duty t o p e r f o r m a n u m b e r of the Crown’s functions in t h e L e g i s l a t u r e a n d t h e Executive Government of the Commonwealth. In this regard, the Australian Constitution is a great deal more specific and detailed than is the earlier C o n s t i t u t i o n o f C a n a d a ”. 24 The 1953 opinion by the Commonwealth Solicitor-General confirmed t h a t the Governor-General is not the Queen’s delegate in the exercise of h i s c o n s t i t u t i o n a l powers and functions, and explains why the Queen h a s never exercised any of these c o n s t i t u t i o n a l powers and functions, even when in Australia.

In 1975 the Commonwealth Solicitor-General, Mr (later Sir) Maurice Byers, gave Prime Minister Gough Whitlam a legal opinion in which he (the SolicitorGeneral) concluded t h a t the Royal Instructions to the Governor-General were opposed to the words of the C o n s t i t u t i o n ; t h a t the Executive power of t h e Commonwealth exercisable by the Governor-General under C h a p t e r II of t h e Constitution may not lawfully be the subject of Instructions; and that this had been the case since 1901.25 The Solicitor-General’s first conclusion was that, as the Office of GovernorGeneral was created by the Constitution, and as the Constitution also prescribed the n a t u r e and functions of the Office, Queen V i c t o r i a ’ s L e t t e r s P a t e n t, a s amended from time to time, “were in many, if not most, respects unnecessary”.

The Solicitor-General next referred to the Royal Instructions to t h e Governor-General that had been issued in 1900 and subsequently amended from t i m e to t i m e, and he concluded t h a t they were not only a n a c h r o n i s t i c a n d unnecessary, but that they were also opposed to the words of t h e C o n s t i t u t i o n

and therefore unlawful. Sir Maurice Byers went on to advise, in particular, that:

“The Executive power of the Commonwealth exercisable by the GovernorGeneral under C h a p t e r II of the C o n s t i t u t i o n may not lawfully be t h e subject of Instructions”.

The Solicitor-General’s Opinion also dealt specifically with the widely-held but incorrect view that the Governor-General, because of t h e d e s c r i p t i o n of t h e Office a s “the Queen’s representative”, could therefore a c t only a s her representative, and he went on to refer, with approval, to the views expressed in the Privy Council by Viscount Haldane in 1916 and 1922 in relation to s. 61 of the A u s t r a l i a n C o n s t i t u t i o n. He concluded his Opinion w i t h : “I think no place remains for Instructions to the Governor-General”.

As t h e 1 9 5 3 a n d 1975 Opinions of the Commonwealth’s Solicitors-General, and the 1988 Report of the Constitutional Commission, make clear, the reference in the A u s t r a l i a n C o n s t i t u t i o n to the Governor-General a s the Queen’s representative is descriptive only, and does not define or l i m i t h i s r o l e a s t h e holder of independent executive power in his own right as Governor-General.

The d i s m i s s a l of the W h i t l a m Government on 11 November, 1975, two months after the Prime Minister had received the Byers Opinion, was to provide further evidence in support of all the legal opinions which h a d been given over the previous seventy-five years. Writing after the event, Governor-General Sir John

Kerr, a former Chief Justice of New South Wales, said:

“I did not tell the Queen in advance that I intended to exercise these powers on 11 November. I did not ask her approval. The decisions I took were w i t h o u t the Queen’s advance knowledge. The reason for t h i s was t h a t I believed, if dismissal action were to be taken, that it could be taken only by me and that it must be done on my sole responsibility. My view was that to inform Her Majesty in advance of what I intended to do, and when, would be to risk involving her in an Australian political and constitutional crisis in relation to which she had no legal powers; and I must not take such a r i s k ”. 26 After the Governor-General h a d w i t h d r a w n the P r i m e Minister’s Commission, the Speaker of the House of Representatives wrote to the Queen to ask her to restore W h i t l a m to office a s P r i m e M i n i s t e r. In the reply f r o m

Buckingham Palace, Mr Speaker was told:

“As we understand t h e s i t u a t i o n h e r e, t h e A u s t r a l i a n C o n s t i t u t i o n f i r m l y places the prerogative powers of the Crown in t h e h a n d s of the GovernorGeneral a s the representative of the Queen of A u s t r a l i a. The only person competent to commission an A u s t r a l i a n P r i m e M i n i s t e r is the GovernorGeneral, and the Queen h a s no p a r t i n the decisions which the GovernorGeneral m u s t t a k e i n accordance with the C o n s t i t u t i o n. Her M a j e s t y, a s Queen of Australia, is watching events in Canberra with close interest and a t t e n t i o n, but i t would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the GovernorGeneral by the Constitution Act”. 27 As the defining Head of State power is the power to appoint and remove the Prime Minister, that reply confirmed, if confirmation were needed, that the Governor-General is i n d e e d A u s t r a l i a ’ s H e a d o f S t a t e. Even so, it took a n o t h e r nine years before the m a t t e r of Queen V i c t o r i a ’ s L e t t e r s P a t e n t and Royal Instructions, as amended, was finally resolved.

On 21 August, 1984, on the advice of Prime Minister Bob Hawke, the Queen revoked Queen V i c t o r i a ’ s L e t t e r s P a t e n t relating to the Office of GovernorGeneral, all amending Letters Patent, and all Royal Instructions to the GovernorGeneral, and issued new L e t t e r s P a t e n t which, in the words of the P r i m e

Minister, would:

“….. achieve the objective of modernising the administrative arrangements of the Office of Governor-General and, a t the same t i m e, clarify H i s Excellency’s position under the Constitution. The new Letters Patent do not in any way affect t h e p o s i t i o n o f Her M a j e s t y a s Queen of A u s t r a l i a or diminish in any way the constitutional powers of the Governor-General”. 28 On the contrary, the new L e t t e r s P a t e n t strengthened the c o n s t i t u t i o n a l position of the Governor-General by n o t p u r p o r t i n g t o create the Office, as t h e original L e t t e r s P a t e n t h a d done, and by acknowledging the creation of t h e Office by the Australian Constitution. At long last, the Royal Instructions t h a t should never have been issued in the f i r s t place were revoked. No new Instructions were issued and none is now in existence. The 1901 views of Clarke and Moore finally were vindicated, and the Governor-General was acknowledged to be w h a t i n f a c t he h a d always been, namely, the holder of an independent O f f i c e c r e a t e d b y t h e A u s t r a l i a n C o n s t i t u t i o n a n d n o t s u b j e c t t o Royal, or any o t h e r, i n s t r u c t i o n s. 29 The legal evidence for the view t h a t the Governor-General is A u s t r a l i a ’ s Head of State which I have just put before you is not new. I first put it on the public record in 1995 in a public lecture I gave in Parliament House, Canberra, in t h e A u s t r a l i a n S e n a t e ’ s Occasional Lecture Series. 30 I s a i d i t a g a i n in 1997 in a paper I gave a t a conference held a t the A u s t r a l i a n N a t i o n a l University, Canberra, by t h i s Society. 31 I t was t h e s u b j e c t of a number of my newspaper a r t i c l e s and letters to the editor during the 1998-1999 c a m p a i g n on t h e c o n s t i t u t i o n a l referendum. And l a s t year i t was the subject of one of my submissions to the Senate’s Legal and C o n s t i t u t i o n a l References C o m m i t t e e d u r i n g i t s Inquiry into an Australian republic, 32 a n d i s t h e s u b j e c t o f a booklet published late last year by Australians for Constitutional Monarchy. 33 As was to be expected, many republicans have expressed their disagreement with my views about the Governor-General. D u r i n g t h e c a m p a i g n for the 1999 constitutional referendum, two of my strongest c r i t i c s were former GovernorGeneral S i r Zelman Cowen, and former Chief Justice of the High Court of Australia, Sir Anthony Mason. Yet Sir Zelman described the Governor-General as the Head of State in an interview he gave in 1977, while he was Governor-General designate, 34 and he did so a g a i n in a m a j o r lecture he gave in 1995, a l m o s t thirteen years after leaving office as Governor-General. 35 As for Sir Anthony Mason, he tried to ridicule my claim that the GovernorGeneral is our Head of State in the course of a lecture he gave to the Law School a t t h e A u s t r a l i a n N a t i o n a l U n i v e r s i t y i n 1 9 9 8, 36 but the arguments he used were totally wrong. In seeking to demean and d i m i n i s h the Governor-General’s role under t h e C o n s t i t u t i o n, Sir Anthony claimed t h a t, w h e n t h e Queen arrived in Australia, the Governor-General ceased to function and the Queen took over h i s duties. This is not true, for it has never happened. In support of this fiction Sir Anthony claimed to have discovered a “robust” c o n s t i t u t i o n a l convention t h a t prevented the Governor-General from appearing in public w i t h t h e Q u e e n. T h i s a l s o i s n o t t r u e, f o r t h e y have appeared t o g e t h e r a t public functions on many occasions. This former Chief Justice of the High Court discovered a constitutional convention that does not exist, and based his so-called discovery on precedents that have never occurred. 37 S i r Anthony should have known t h a t there is no such c o n s t i t u t i o n a l convention, robust or otherwise. Not only is there a p a i n t i n g hanging in P a r l i a m e n t House, Canberra, showing the Queen and the Governor-General together at the opening of that building in 1988, but the then Chief Justice, Sir Anthony Mason, was present as an honoured guest and was seated in the very front row!

The fact is that, over the past ten years, not one republican constitutional lawyer or academic has sought to rebut the evidence which I have documented.

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