Head of State

Who is Australia’s head of State?

It is difficult to find another nation where such a fundamental question is in dispute, yet in Australia even the experts cannot agree. There are disagreements between constitutional lawyers, past judges of the High Court of Australia and among government ministers. About the only firm agreement is on the range of possible answers to the question:

  • the Queen alone is Australia’s head of State;
  • Australia has two heads of State: a ceremonial head of State in the Queen, and an effective head of State in the Governor-General; and
  • the Governor-General alone is Australia’s head of State.

In this section we will examine the various arguments for each of these answers. First, however, we will consider what is meant by the term, “head of State”.

What is a head of State?

In the lead up to the 1999 republic referendum, the Australian Republic Movement used the following quote on its website from the 1980 Oxford Companion to Law to answer to the question: What is a head of State?

“As a state is an abstract idea, a legal and political concept, it must have a living person as head of State to represent it and for some purposes to embody it. How the head of State is chosen depends on the constitution of each individual state.

“There are three main categories of heads of state: monarchs, who hold office by hereditary right; presidents, who are elected for stated periods; and dictators, who obtain and hold power by force, though they may nominally be entitled presidents and nominally be elected or otherwise chosen.

“Sometimes a dictator may be the real controlling force but may have a monarch, president, or other nominal head of State above him. Whether a head of State is a figurehead, or a person also having executive powers, depends upon the constitution and practise of each state. By custom each state accords various ceremonial honours to the head of each other state when visiting.”

According to the National Convenor of Australians for Constitutional Monarchy, David Flint (1999), the term “head of State” is a diplomatic term. In feudal times, monarchs of one type or another ruled almost all states. In those times, the monarch was the realm. The king embodied the state. And those monarchs or their ambassadors conducted business between states. The term “head of State” only came into use with the emergence of republican nation-states who were not headed by a monarch.

Today, there are many different types of nation-states. They include monarchies, constitutional monarchies, republics, dictatorships, single party states, and so on. Some nation-states are federations of smaller states. Whatever the internal structure, the nation-state is the fundamental unit of international law. International law requires that a nation-state must have territory, population and government, and be recognised as a nation-state by other nation-states.

By convention all nation-states have a head of State. However, internationally, there is no consistent rule for determining who is the head of State. Essentially, the government of each nation decides which office in its system is designated as the head of State. Each nation also decides the role and function of its head of State. These roles and functions vary from nation to nation. As a general principle, the head of State usually sits (at least symbolically) at the pinnacle of a nation’s constitutional arrangements. The head of State will rank first in the order of precedence within the state. The head of State is the person who represents the nation as a whole.

In some countries, the same person is both the head of State and the leader of the executive government. In others, including Australia, the leader of the government is not the head of State. Some heads of State also have religious functions, including the Queen who in the United Kingdom is also the head of the Church of England. Some nations have more than one head of State, and in others the title rests with a collective or committee. A head of State can be the head of more than one nation. And immediately following a revolution or a military coup, it may not be possible to determine who is the actual head of State.

This brings us back to the question: who is Australia’s head of State?

Australia’s head of State: the three views

The first thing that should be noted is that none of Australia’s constitutional documents (see section 3.01) formally designate a particular office of government as the head of State. The term, “head of State”, does not appear in any of the federal or state constitutions. The term does not appear in the legislation that established Australia’s independence from Britain: the Statute of Westminster Adoption Act 1942 and the Australia Act 1986.

The term “head of State” does not appear in the legislation that gave the Queen her Australian titles: the Royal Style and Titles Acts of 1953 and 1973. While one of the Queen’s titles is “Head of the Commonwealth”, this is not a reference to the Commonwealth of Australia but rather the Commonwealth of Nations, formally known as the British Commonwealth of Nations. Although the term, “head of State”, appears in a number of our extradition treaties with other nations, it is undefined in those treaties.

The only legislative reference to Australia’s head of State that suggests an answer to the question is an amendment in 1995 to the Crimes (Internationally Protected Persons) Act 1976. This amendment inserted a new section 3A that says, in effect, the Australian Governor-General should be treated as if he is the head of State:

“3A(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.”

It can be argued that this interesting choice of words makes it clear that the Governor-General is not Australia’s head of State. The amendment would not have been necessary if the Governor-General was the head of State because he would receive automatic coverage under the International Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons.

However, it would also be churlish to argue that such an interpretation of an obscure amendment to an obscure piece of legislation provides conclusive proof that the Governor-General is not Australia’s head of State; and, by default, that the Queen is. It could be argued that the amendment simply confirms the Governor-General’s position as our de facto head of State in the Queen’s absence. If this argument is accepted, this amendment it is not inconsistent with the views of those who argue Australia has two heads of State.

Because there is not an unambiguous constitutional or legislative designation of Australia’s head of State, one must look to practice and convention to answer the question. We will do this by considering the each of the three claims about Australia’s head of State.

The Queen is Australia’s head of State

In the years following federation in 1901, the only answer to the question was that the British monarch, currently Queen Elizabeth II, is also Australia’s head of State.

Under Australian legislation, the Queen was first styled as the Queen of Australia in 1953. However, at that time pre-eminence was given to the United Kingdom in her Australian titles. Although the phrase “by the Grace of God” was retained, the references to the “United Kingdom” and “defender of the faith” were removed in the Royal Style And Titles Act 1973. Since 1973, the Queen’s formal Australian title is “Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth”.

According to the constitutional lawyers Hanks and Cass (1999), and the findings of the 1988 Constitutional Commission, it is proper to consider the Queen as Australia’s Head of State because of the role in government that the Constitution assigns to her:

  • The Constitution of Australia defines the Parliament as “the Queen, a Senate, and a House of Representatives” and vests the Federal legislative (law-making) power in the Parliament (section 1). While the Queen is a part of Parliament, the Governor General is not.
  • The executive power (the governing and administrative power) of the Commonwealth of Australia is vested in the Queen (section 61).
  • The Queen has the power to disallow any law within one year of it being made even after the Governor-General as given his assent (section 59).
  • The Governor-General is the appointed by the Queen as “Her Majesty’s representative in the Commonwealth”. The Governor-General only holds office “during the Queen’s pleasure” which means that the he can be dismissed by the Queen at any time (section 2).
  • The Governor-General’s salary is payable to the Queen on his behalf, not directly to him (sections 3 and 66)
  • The Governor-General’s power given by section 68 as the Commander in Chief is vested in him as “the Queen’s representative”.
  • Australians are described in the Constitution as subjects of the Queen and not as subjects of the Governor-General, nor as citizens (sections 34(ii) and 117).
  • Lastly, but probably most importantly in a symbolic sense, is the Schedule to the Constitution which requires all Federal Parliamentarians to swear an oath or declare an affirmation of allegiance to the Queen. This oath of allegiance can only be changed by a national referendum.

In all formal and ceremonial occasions, both in Australia and the United Kingdom, the Queen ranks first in order of precedence. The Governor-General ranks second. At no time is the Governor-General given equal status with the Queen when the two of them are together. The Governor-General essentially retires from official functions when the Queen is in Australia.

Australia is a constitutional monarchy and in accordance with these principles the monarch is our head of State. Both the provisions of the Australian Constitution and custom make it clear that the Queen is intended to be the embodiment of the Commonwealth of Australia.

A recent example of the symbolism and custom in this regard was the visit by US President Clinton to Australia in November 1996. During the visit reciprocal loyal toasts were given to the head of State of each nation. To honour the United States of America, a toast was given to the President. President Clinton honoured Australia by giving a toast, not to the Governor-General, but to the Queen of Australia.

Members of Australia’s armed forces all take an oath along the following lines:

I, (insert full name of person), swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, as a soldier in the (Army / Navy / Air Force) until my services are lawfully terminated, and I will resist her enemies, and in all matters relating to my service I will faithfully discharge my duties according to law.

The current Governor-General, Major General Michael Jeffery, considers the Queen to be Australia’s head of State. He who wrote in the Canebrra Times on 6 November 2004:

Her Majesty is Australia’s head of state … My own view is that we are extremely fortunate in having a head of state with the tremendous knowledge and wisdom that the Queen has accumulated, having been on the throne for over 50 years.

In Canada and New Zealand, only the Queen is seen as the head of State, even though the office of Governor-General in both nations was created and empowered under similar historical and legal instruments as the Australian Governor-General. Like the Australian Governor-General, these Governors-General exercise executive and legislative powers without direction from the Queen. Furthermore, while both the New Zealand and Canadian Governors-General are usually received in foreign countries with the full status and protocol afforded a visiting head of State, this does not lead either of them to believe they are the head of State

Perhaps the most compelling support for the Queen as Australia’s head of State comes from the judiciary.

  • In 2000, the New South Wales Supreme Court considered whether the High Court decision in Sue v Hill that the United Kingdom is a foreign power meant that “Crown immunity” had disappeared. In Kingsman v Health Administration Corporation the court said:

    “The plaintiff argued, as I understand his argument, that the effect of Sue v Hill was that there was no longer any “Crown” in Australia and that with the disappearance of any Crown in Australia “Crown immunity” had also disappeared as part of the law in Australia.

    “I do not consider that this argument should be accepted. I have a number of reasons for forming this conclusion. One is that, while it is true that the High Court held in Sue v Hill that Australia is an independent country and that the United Kingdom is to be regarded as “a foreign power” within the meaning of that expression in s44(i) of the Constitution, that does not mean that Australia has ceased to be a monarchy with a crowned head of state”.

  • In 1999, the Victorian Supreme Court considered the case of Mr Moller who wanted to become a solicitor but did not want to take the required oath of allegiance to the Queen. In Moller v The Board of Examiners the court held:

    “In my opinion it is clear from the form of the oath that the applicant is required to swear allegiance to Her Majesty not as Queen of England or any other of Her realms but as Queen of Australia and Head of the Commonwealth.

    “In doing so he would be doing no more than swearing allegiance to the Head of State of the country of which he is now a citizen.

    “When he chose to come to Australia the applicant must have known full well that Australia is a constitutional monarchy with Her Majesty The Queen as its Head of State. He would also know that Australia is a member of the Commonwealth.

    “Once the applicant became a citizen of this country he assumed a duty of allegiance to Australia and to its Head of State. The requirement that he take an oath of allegiance as a condition of being admitted to practise is nothing more than a recognition of that duty. The taking of an oath of allegiance to Her Majesty as Queen of Australia amounts to no more, in my opinion, than taking an oath of allegiance to Australia.

    “The fact that the applicant is a dedicated republican is not to the point. The swearing of the oath will not change that fact nor will it prejudice the applicant in that regard.

    “By s.8(1) of the Legal Practice Act 1996 a person admitted to legal practice is an officer of the Supreme Court. Generally speaking that was not previously the case. See s.8 of the Legal Profession Practice Act 1958.

    “If the applicant is to become an officer of the Court I consider it is appropriate that he swear an oath of allegiance to the Head of State of this country in the same fashion as any other officer of the Court.”

  • Mr Moller’s appeal to the full bench of the Victorian Supreme Court was dismissed.
  • In 1993 the Supreme Court of the Australian Capital Territory considered one of a number of cases that touched on the validity of self-government for the new polity. In this case, a critical question was the meaning of the terms “the Queen” and “the Crown”. In the Queen v Sam Scott, the court noted:

    “At common law, the “state” had no separate juristic entity apart from that of the Sovereign. The office held by that Sovereign is referred to as “the Crown”. The term also embraces the executive government headed by the Sovereign. It may be taken, therefore, that a reference to “the Queen” in the context of the office of Queen and the exercise of the official powers and duties of that office, is co-extensive with the “State” or “the Crown”Â…

    “As at Federation, the Crown of the United Kingdom would have been considered to have been “the Crown”, one and indivisible and the same entity in respect of the Commonwealth as for each of the States. That is no longer so. Each sovereign nation recognising the Queen as its Head of State creates a new division or separate office of “the Crown”. It is a separate office capable of separate disposition or abolition subject to internal legislature processesÂ…

    “The Head of State of Australia is the person holding the office of Sovereign referred to in the phrase “the Crown in right of the Commonwealth”. It is under that same Crown that the Australian Capital Territory is created as a body politic.”

  • In 1987, in the Burgundy Royale Investments case, the full bench of the Federal Court considered the meaning of “the Crown” as it applies to the Northern Territory. The judges agreed:

    “… the expression “the Crown in right of the Commonwealth” refers to the Commonwealth in the same sense as the expression “the Crown in right of a State” refers to that body politic under the monarch as head of StateÂ…”

  • The position of the Queen as the head of State has not been a critical factor in deciding a case before the High Court of Australia. However, the position of the Queen as Australia’s head of State has been noted by the High Court on a number of occasions, including Nolan v Minister for Immigration and Ethnic Affairs [1988] and State Authorities Superannuation Board v Commissioner of State Taxation for the State of Western Australia [1994].

Note: while Australia and the United Kingdom share the same person as their monarch, since 1926 the Australian Crown has been a separate office from the Crown in respect of the United Kingdom and Northern Ireland and the Queen’s other realms (Canada, New Zealand, and so on). In her capacity as the Queen of Australia, the Queen only acts on the advice of her Australian governments.

The Governor-General is also Australia’s head of State

Whereas the argument for the Queen’s claim to be the head of State is largely based on legal and titular sovereignty, functionalism is the primary argument for claiming that the Governor-General is the head of State. The Governor-General exercises the same legislative and executive powers in respect of Australia as the Queen does in respect of the United Kingdom.

The Australian Constitution gives enormous power to the Governor-General. He (to date all have been male) convenes and dissolves Parliament. He sets elections dates. Theoretically at least, if he does not like a proposed law he can return it to Parliament with suggested amendments. He decides who will be Prime Minister and minsters of State. Under the Constitution, he is the Commander-in-Chief of the Armed Forces.

While on some decisions he is obliged to consult with the Federal Executive Council, he is not legally required to follow the Council’s advice. The only significant constraint is that he cannot raise or spend money without Parliamentary approval. Legally, the Governor-General is a significant source of power and authority in the Australian polity. However, consistent with the principle of responsible government, Governors-General only exercise these powers on the advice of the Prime Minister and the other ministers of State.

While the Queen is the legal source of executive and legislative power in the Australian polity, in many cases she cannot exercise these powers. The Governor-General’s sole right to exercise the powers under the Australian Constitution was argued in 1975 when, following his dismissal of the then Prime Minister, the Queen’s Private Secretary replied to a request for the Queen’s intervention as follows.

“As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General, as the representative of the Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.”

In addition to the Australian Constitution, this functionalist argument has its roots in the decision of the 1926 Imperial Conference, which established that the Governor-General holds “in all essential respects the same position in relation to the administration of public affairs in the Dominion [of Australia] as is held by His Majesty the King in Great Britain, and that he is not the representative or agent of His Majesty’s Government in Great Britain or of any Department of that Government.”

A second argument in favour of the Governor-General being our head of State is that when the Governor-General travels overseas, the Australian Government expects other nations to treat him as our head of State. In essence, he is the head of State because that is what the Australian government tells other nations he is.

Richard McGarvie (1999) captures the spirit of the argument for two heads of State in the following words: “The Governor-General and Governors are now the de facto or operative heads of state of their systems, although in a formal sense the Queen remains the head of state of each system.”

If you accept the argument that the Governor-General is either one of Australia’s heads of State or the sole head of State, you must also address the question: When did the office of Governor-General become the Australian head of State? This is another arena of disagreement. Some argue that the Governor-General has been Australia’s head of State since federation in 1901, while others argue a range of later dates, usually associated with their view as to when Australia became an independent and sovereign nation or when the office of Governor-General was Australianised. However, this debate is outside of the scope of this section.

The Governor-General alone is Australia’s head of State

The argument that the Governor-General alone is Australia’s head of State is a relatively new argument. It has only gained a measure of support in the twelve months leading up to the Australian Republican referendum in November 1999.

Malcolm Mackerras, is someone who supports the argument that the Governor-General alone is Australia’s head of State. He asks, “If the Governor-General is the head of State, what then is the Queen?” Mackerras answers this question with the observation that in any official document that mentions the Queen, she is always described as “the Sovereign”. Consequently, he argues, the Queen is the Sovereign and the Governor-General is the sole Australian head of State. (The Australian, 7 July 1999, p13).

Although its not clear whether the Queen still believes she is Australia’s head of State or not, it is worth noting that up until October 1999, the Queen’s web site described her as Australia’s head of State. However, in the lead up to the Australian republic referendum her web site was changed so that the Queen is now described as Australia’s Sovereign. (As an aside, it is also unclear from her web site whether the Queen considers the Governor-General to be Australia’s head of State).

So who is Australia’s head of State?

In my view, the argument that the Queen is not Australia’s head of State, just the nation’s Sovereign, is not persuasive. Australian Courts have noted that the Sovereign is the head of State by definition. Furthermore, it is simply not plausible to argue that while the Queen is ranked ahead of the Governor-General, she is not the head of State.

The argument that the Governor-General is Australia’s only head of State was adopted by monarchist supporters in the lead up to the November 1999 republic referendum to defuse the republican call for an unambiguously Australian head of State. With the adoption of this new nomenclature, the monarchists contend we already have an Australian head of State; therefore, there is no need to change our constitutional arrangements.

Many of those who now argue that the Governor-General alone is Australia’s head of State, previously argued that Australia has two heads of State: the Queen and the Governor-General. Sir David Smith, for one, has stated publicly that his change of argument (from two heads of State to the Governor-General as Australia’s sole head of State) was for tactical reasons in the context of the republic debate (Canberra Times, letters, 31 August 1999). Consequently, I believe this argument should be dismissed as a cynical attempt to manipulate the Australian republic debate.

Both of the remaining theories agree on the status of the Queen as Australia’s head of State. But, they differ in their assessment of the status of the Governor-General. This is a more difficult question to resolve. Our constitutional arrangements are evolving, and I believe it is reasonable to conclude that the trajectory of this evolution would see the Governor-General recognised as head of State. However, it is difficult to assess whether sufficient evolution has occurred to date to justify this claim at present.

On the positive side, the executive arm of government asserts consistently that the Governor-general is also our head of State. On the negative side, the judiciary appears to only recognise the Queen as the head of State. The legislature has taken a more neutral position on these matters. Even with the obscure amendment to Crimes (Internationally Protected Persons) Act 1976, noted above, the legislative arm of government does not appear to have expressed a clear view on the status of the Governor-General.

However, Tony Abbott (1997) has suggested a simple legislative solution, which would declare the Governor-General to be Australia’s head of State. Abbott’s proposal would also make it lawful to refer to the Governor-General as the “Head of state of Australia” and as the “President of the Commonwealth”.

Conclusion

The claim that the Governor-General alone is Australia’s head of State should be dismissed. The status of the British monarch as Australia’s head of State is at the heart of our constitutional arrangements. It is nonsensical to argue that the Queen has a higher rank, authority and importance than the Governor-General, and then to argue that the second most important office in Australia is the sole head of State.

The claim that, in addition to the Queen, the Governor-General is also Australia’s head of State is more difficult to assess. Australia’s head of State arrangements are in transition. The Governor-General is recognised as Australia’s effective head of State by the executive arm of government. The Australian government tells other nations that the Governor-General is our head of State. The Governor-General exercises almost all the powers of a head of State in his own right, and the Queen’s role in Australia’s constitutional arrangements is negligible.

However, neither the legislative nor the judicial arms of government have extended the same level of recognition to the office of the Governor-General. Ultimately, the Governor-General’s position is qualified. While the Governor-General performs many of the tasks expected of the head of State in the Queen’s absence, he is not at the pinnacle of our constitutional arrangements.

On balance, I argue that the Queen alone is Australia’s head of State. I agree that calling the Governor-General the operative head of State is a useful colloquial description of practice. Even so, without stronger recognition for the Governor-General from either the judiciary or the legislature, the claim that the Governor-General is Australia’s second head of State is not strong enough to be compelling. Nevertheless, as our constitutional arrangements are in transition, it may not be long before one or other of these remaining branches of government affirms the Governor-General’s role as one of Australia’s heads of State.

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