'Why The Governor-General is Australia's Head of State'

By Sir David Smith

Sir David Smith was Official Secretary to five Governors-General from 1973 to 1990. He was an appointed delegate to the 1998 Constitutional Convention; and a member of the No Case Committee for the 1999 Constitutional Referendum. Since his retirement he has held appointments as a Visiting Fellow in the Political Science Programme of the Research School of Social Sciences at The Australian National University, and a Visiting Fellow in the Faculty of Law at The Australian National University. He is currently a Visiting Scholar in the Faculty of Law at The Australian National University.

The Queen plays an important role under our system of government as Queen of Australia, as does the Governor-General as the Queen's representative and as the embodiment of the Crown in Australia. These separate and distinct roles are carried out without detriment to our sovereignty as a nation, and without detriment to our independence. Republicans argue that the Queen is our Head of State and that the republic would give us an Australian as Head of State. Constitutional monarchists argue that the Queen is the Sovereign and that the Governor-General is the Head of State.

The Australian Constitution does not contain the words "Head of State", nor was the term discussed during the constitutional debates which resulted in the drafting of the Constitution and its subsequent approval by the Australian people. In the absence of a specific provision in the Constitution, we need to see who actually performs the duties of Head of State in order to determine who is the Head of State.

As discussed in this paper, these duties are performed by the Governor-General, and the Sovereign's only constitutional duty is to approve the Prime Minister's recommendation of the person to be appointed Governor-General, or, if the need should ever arise, to approve the Prime Minister's recommendation to terminate the appointment of a Governor-General. Although the Governor-General is the Queen's representative for the purposes of exercising the prerogatives of the Crown in Australia, when he exercises his constitutional duties as head of the executive Government of Australia he does so in his own right and not as a delegate of the Queen.

A Canadian Governor-General, Lord Dufferin, described a Governor-General as a constitutional Head of State in a speech given in 1873.^{^[1]} Prime Minister Paul Keating referred to the Governor-General as our Head of State in the very speech in which he announced in Parliament, on 7 June 1995, his Government's proposals for the republic.^[2] Scholars such as Brian Galligan,^[3] Professor of Political Science at the University of Melbourne, and Stuart Macintyre,^[4] the Ernest Scott Professor of History at the University of Melbourne and Chairman of the Keating-appointed Civics Expert Group, also use the description.

The media have long described the Governor-General as Head of State. In 1977 the opening sentence of an editorial in The Canberra Times was "We shall have today a new Governor-General, Sir Zelman Cowen, as our Head of State."^[5] After Mr. Bill Hayden's speech to the Royal Australasian College of Physicians in 1995, The Australian published an edited version under the heading "The Governor-General has made one of the most controversial speeches ever delivered by an Australian Head of State."^[6] The next day's editorial in the same newspaper said that "it is perfectly appropriate at this stage of our constitutional development that the head of State address important issues of social policy."^[7] In 1996 the same newspaper referred to Governor-General Sir William Deane as Head of State.^[8] The present Governor-General, Dr. Peter Hollingworth, is nowadays described or referred to by parliamentarians and in the media as Head of State, as a matter of course.^[9]

Even Sir Zelman Cowen, himself a distinguished and learned lawyer, has described the Governor-General as Head of State, though this was before he began to espouse the republican cause.^[10]

A not insignificant contribution to this particular debate about who is the Head of State was the sudden appearance in the Commonwealth Government Directory, in 1992, as part of a list of the Governor-General's functions, of the following: "He is the head of state in whom the executive power of the Commonwealth is vested." The description was used in fifteen successive editions of the Directory: it first appeared in the August 1992 edition and disappeared just as suddenly from the December 1996 edition.^[11]

But all this is only anecdotal evidence, and of no legal effect. There is, however, a great deal of compelling constitutional and legal evidence, and it is on that evidence that this paper is based.

During 1900 Queen Victoria signed a number of constitutional documents relating to the future Commonwealth of Australia, including Letters Patent constituting the Office of Governor-General,^[12] and Instructions to the Governor-General on the manner in which he was to perform certain of his constitutional duties.^[13]

Two distinguished Australian constitutional scholars, A. Inglis Clark,^[14] who had worked with Sir Samuel Griffith on his drafts of the Constitution, and who later became Senior Judge of the Supreme Court of Tasmania, and W. Harrison (later Sir Harrison) Moore,^[15] who had worked on the first draft of the Constitution that went to the 1897 Adelaide Convention, and who later became Professor of Law at the University of Melbourne, expressed the view that the Letters Patent and the Instructions were superfluous, or even of doubtful legality, on the grounds that the Governor-General's authority stemmed from the Australian Constitution and that not even the Sovereign could direct him in the performance of his constitutional duties.^[16]

As Inglis Clark pointed out, The British North America Act 1867 did not contain any provisions relating to the appointment of the Governor-General of Canada, or to the exercise of executive authority in that Dominion, that were in any way similar to the provisions contained in sections 2 and 61 of the Australian Constitution relating to the powers and functions of our Governor-General;^[17] nor did the Constitutions of any of the Australian States contain any similar provisions relating to the State Governors. These provisions were peculiar to the Australian Constitution and they conferred upon our Governor-General a statutory position which the Imperial Parliament had not conferred upon any other Governor or Governor-General in any other part of the British Empire.^[18] Our Founding Fathers had indeed drafted exceedingly well.

Unfortunately, British Ministers advising Queen Victoria failed to appreciate the unique features of the Australian Constitution, and Australian Ministers failed to appreciate the significance of the Royal Instructions which Queen Victoria had issued to the Governor-General. No notice was taken of the views of Clark and Moore, in Britain or in Australia, and between 1902 and 1920, King Edward VII and King George V were to issue further Instructions on the advice of British Ministers,^[19] and in 1958 Queen Elizabeth II issued further Instructions on the advice of Australian Ministers.^[20]

In 1916, in a Canadian case before the Judicial Committee of the Privy Council, and again in 1922, during the hearing of an application by the Australian State Governments for special leave to appeal to the Privy Council from the High Court's decision in the Engineers' Case, Viscount Haldane, the Lord Chancellor, made special reference to the provisions of section 61. His point was that section 61 "put the Sovereign in the position of having parted, so far as the affairs of the Commonwealth are concerned, with every shadow of active intervention in their affairs and handing them over, unlike the case of Canada, to the Governor-General."^[21]

At the 1926 Imperial Conference, the Empire's Prime Ministers declared that the Governor-General of a Dominion was no longer to be the representative of His Majesty's Government in Britain, and that it was no longer in accordance with a Governor-General's constitutional position for him to continue as the formal channel of communication between the two Governments. The Conference further resolved that, henceforth, a Governor-General would stand in the same constitutional relationship with his Dominion Government, and hold the same position in relation to the administration of public affairs in the Dominion, as did the King with the British Government and in relation to public affairs in 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.^[22]

The 1930 Imperial Conference decided that, henceforth, recommendations to the King for the appointment of a Governor-General would be made by the Prime Minister of the Dominion concerned, and not by British Ministers as had been the case until then. This decision further strengthened the constitutional role of Governors-General and their relationships with their Dominion Government.^[23] The Conference decision was taken at the height of, and in support of, action which had been initiated earlier that year by Australia's Prime Minister, J.H. Scullin, in insisting on advising the King on the appointment of Australia's next Governor-General. Scullin's insistence on the right to recommend the appointment of Sir Isaac Isaacs as Australia's first Australian-born Governor-General became the genesis of the new rule for the appointment of Governors-General throughout the Empire.

Our early Governors-General were British. They were appointed by the Sovereign on the advice of British Ministers and were in reality British civil servants. Their role was to represent British interests in Australia. Their principal duties and responsibilities were to the British Government. The 1926 and the 1930 Imperial Conference decisions changed the status of the Vice-Regal office and established a new relationship between the Governor-General and the Australian Government. We were able to alter our constitutional arrangements to meet evolving constitutional needs, but without having to alter one word of the Constitution itself. These changes are further examples of the far-sightedness of our Founding Fathers, and evidence of the adaptability and flexibility of our allegedly outmoded Constitution.

In 1953, in the course of preparing for the 1954 Royal visit to Australia, Prime Minister (later Sir Robert) Menzies had wanted to involve the Queen in some of the formal processes of government, in addition to the inevitable public appearances and social occasions. But the Government's legal advisers suddenly discovered what had been apparent to Clark and Moore at the time of federation. The Commonwealth Solicitor-General, Sir Kenneth Bailey, gave the Prime Minister a legal opinion that the Constitution placed all constitutional powers, other than the power to appoint the Governor-General, in the hands of the Governor-General; that the Governor-General exercised these constitutional powers in his own right, and not as a representative of the Sovereign; and that the Governor-General's powers could not be exercised by the Sovereign, not even when she was in Australia.^[24]

Nothing could be done, except by way of a constitutional amendment under section 128 of the Constitution, to enable the Sovereign to exercise any of the Governor-General's constitutional powers while she was in Australia, but by means of the Royal Powers Act 1953, Parliament legislated to enable the Queen, whenever she was personally present in Australia, to exercise any statutory power of the Governor-General under an Act of Parliament, when advised to do so by her Australian Ministers. The Act further stated that the Governor-General would continue to exercise any of his statutory powers even while the Queen was in Australia, and in practice Governors-General have continued to do so.^[25]

In 1975 the Commonwealth Solicitor-General, Mr. (later Sir) Maurice Byers, gave Prime Minister Gough Whitlam a legal opinion that the Governor-General's constitutional powers could not properly be the subject of Instructions, thus again echoing the views expressed at the time of federation by Clark and Moore, and confirming that all constitutional powers and functions, except the power to appoint or remove the Governor-General, had been given to the Governor-General by the Constitution on 1 January 1901.^[26]

The dismissal of the Whitlam Government by the Governor-General later that year was to provide confirmation of the correctness of all the legal opinions which had been given over the previous seventy-four years. Writing after the event, 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 without the Queen's advance knowledge. The reason for this was that 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 risk."^[27]

After the Governor-General had withdrawn the Prime Minister's Commission, the Speaker of the House of Representatives wrote to the Queen to ask her to restore Whitlam to office as Prime Minister. In the reply from Buckingham Palace, Mr. Speaker was told: "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."^[28]

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 indeed Australia's constitutional Head of State. Even so, it took another nine years before the matter was finally resolved.

On 21 August 1984 Prime Minister Bob Hawke advised the Queen to revoke Queen Victoria's Letters Patent and all Royal Instructions to the Governor-General, and to issue new Letters Patent. In the words of the Prime Minister, this would "achieve the objective of modernising the administrative arrangements of the Office of Governor-General and, at the same time, clarify His Excellency's position under the Constitution."^[29] At last the Royal Instruction that should never have been issued in the first place were revoked. The 1901 views of Clarke and Moore were finally vindicated, and the Governor-General was acknowledged to be what he had in fact always been, namely, the holder of an independent office as Australia's Head of State, and not subject to any Royal Instructions

This was confirmed yet again in 1988 by the Hawke Government's Constitutional Commission. The Commission consisted of three distinguished constitutional lawyers - Sir Maurice Byers, former Commonwealth Solicitor-General; Professor Enid Campbell, Professor of Law at Monash University; and Professor Leslie Zines, former Professor of Law at the Australian National University, - and two former heads of government - the Hon. Sir Rupert Hamer, a former Liberal Premier of Victoria; and the Hon. E.G. Whitlam, a former Labor Prime Minister. The Commission had been advised by an Advisory Committee on Executive Government under the chairmanship of former Governor-General, Sir Zelman Cowen. In its final report the Commission said: "Although the Governor-General is the Queen's representative in Australia, the Governor-General is in no sense a delegate of the Queen. The independence of the office is highlighted by changes which have been made in recent years to the Royal instruments relating to it."^[30]

In order to avoid creating too powerful a president, republicans had said that the reserve powers of the Crown, and the conventions associated with their use by the Governor-General, should be codified, but in 1995 Prime Minister Keating had to tell Parliament that it was not possible to foresee all the possibilities that might give rise to the exercise of the reserve powers. His Government had therefore concluded that "it would not be desirable to attempt to codify the reserve powers; and that the design, processes and conventions at present governing their exercise by the Governor-General should be transferred to the ^[president] without alteration."^[31]

At the 1998 Constitutional Convention the Governor-General's reserve powers were examined yet again. Argument and debate about their codification was the cause of major division between the various republican groups, but they, too, found the problem too difficult. In the end they decided that the powers of the president should be the same as those currently exercised by the Governor-General,^[32] and that is what the 1999 Referendum Bill was intended to do. The president would have exactly the same powers and exactly the same duties as the Governor-General - nothing would be added and nothing would be subtracted. One Australian would replace another Australian and go on doing exactly the same job. All that would be changed would be the title on the letter-head. If a president performing the Governor-General's duties would be a Head of State, then a Governor-General performing exactly the same duties must also be a Head of State. The designation as Head of State must surely belong to the person who does the job of Head of State, and who does it in his own right and not as a representative.

It is not surprising that most Australians do not understand the provisions of the Constitution relating to the Governor-General. We now have evidence that this aspect of our Constitution is not understood by a person as distinguished in the law as the former Chief Justice of the High Court, Sir Anthony Mason.^[33]

When asked in 1997 about the monarchists' view that we already had an Australian constitutional Head of State in the Governor-General, he replied: "They should re-read section 2 of the Constitution."^[34] He seemed not to know that section 2 now has little or no operation anyway,^[35] and he made no reference at all to section 61 under which the Governor-General exercises the executive power of the Commonwealth. He seemed not to understand that section 2, which refers to the Sovereign's personal prerogatives, and section 61, which refers to the Governor-General's constitutional powers, refer to two entirely different sets of powers.

Sir Anthony made the same mistake in the following year at a seminar held in the Law School of the Australian National University.^[36] Once again he quoted section 2 of the Constitution and stopped there. Once again he made no mention of section 61 nor of the following nine section which together comprise Chapter II which is headed "The Executive Government". Instead he told his audience that he had discovered hidden in the Constitution what he was pleased to call a "robust constitutional convention" relating to the Governor-General. This, he claimed, debunked the notion of the Governor-General as Head of State.

But there is no such constitutional convention, robust or otherwise. Sir Anthony's claim is quite untrue. He used a false premise, drew a wrong conclusion, and found a non-existent constitutional convention.

Sir Anthony described the Governor-General as nothing more than the Queen's representative. This is not true. We have almost 100 years of legal advice and judicial opinions, the actions of Prime Ministers on both sides of politics in accepting that advice, and the advice of The Constitutional Commission, showing that the Governor-General is the holder of an independent office and that he performs the duties of Head of State in his own right and not as a delegate of the Queen.

In support of his claim to the contrary, Sir Anthony said that whenever the Queen was in Australia she took over the Head of State duties and the Governor-General ceased to function. This is not true. It has never happened, it cannot happen under our Constitution, and I have already quoted the 1953 legal opinion of the Commonwealth Solicitor-General on this point. The Constitution confers the executive power of the Commonwealth on the Governor-General and on no-one else: he cannot and does not surrender it when the Queen is present.

Nor can the Queen instruct the Governor-General in the performance of his constitutional duties, as she would be able to do if he were acting as her delegate in his exercise of those duties. That was why the Queen was not able to intervene and over-rule the Governor-General's decisions in 1975 to dismiss a Prime Minister and order a general election, and that was why Prime Minister Hawke advised the Queen to revoke Queen Victoria's Royal Instructions to the Governor-General in 1984.

Sir Anthony further claimed that, as her representative and nothing more, the Governor-General is prevented from attending public functions when the Queen herself is present. This is not true. The Governor-General frequently and regularly attends public functions when the Queen is present. The former Chief Justice's so-called "robust constitutional convention" is nothing more than a figment of his imagination.

Sir Anthony based his claim on the absence of the Governor-General, Sir Zelman Cowen, when the Queen opened the High Court building in Canberra in 1980. But Sir Anthony got this wrong too. Before the event, both Government House, Canberra, and Buckingham Palace had confirmed that there was no practice or convention that would prevent the Governor-General from being present, and indeed the Queen herself had made it known that she would be pleased if the Governor-General were present. Draft orders were prepared in the Department of the Prime Minister and Cabinet that included the Governor-General. It was Prime Minister Malcolm Fraser who decided that the Governor-General would not be invited. Without the Governor-General in the official party, the Prime Minister would move up in precedence. No "robust constitutional convention" here, just self-serving prime ministerial whim and fiat. Sir Zelman decided not to pursue the matter, but he was disappointed and very hurt, and later was to describe Fraser's action as "wanting in principle and demeaning to the Office of Governor-General."^[37]

When the Queen opened the Commonwealth Games in Brisbane in 1982 the Governor-General, Sir Ninian Stephen, was present and seated next to her, as had been the Governor-General of Canada when the Queen had opened the Commonwealth Games in Edmonton in 1978 - two years before our High Court opening. When the Queen unveiled the Naval Memorial in Canberra in 1986 the Governor-General was present. And when the Queen opened the new Parliament House in Canberra in 1988 the Governor-General was once again present.

Sir Anthony should have known that there was and is no constitutional convention, robust or otherwise, that prevents the Queen and the Governor-General from appearing together in public. After all, when the Queen opened the new Parliament House on 9 May 1988, not only was the Governor-General on the dais with her, but the then Chief Justice, Sir Anthony Mason, was present in the audience as an honoured guest and was seated in the very front row!

To summarise, the Australian Constitution does not refer to the Head of State; the Head of State is the person who performs all of the duties of the Head of State; the Queen has never performed any duties as Australia's Head of State; such constitutional duties as the Queen does perform are as Sovereign and Queen of Australia and not as Head of State; the Governor-General performs all of the duties of the Head of State; the Constitution confers the duties of the Head of State on the Governor-General in his own right and not as a surrogate or delegate of the Queen. As this paper shows, there is a long list of legal advice and judicial opinion in support of the case that the Governor-General is the Head of State, and not a skerrick of constitutional or legal evidence to the contrary.

[1] Lord Dufferin, then Governor-General of Canada, in a speech delivered at Halifax, Nova Scotia, in August 1873, described the Governor-General as "the head of a constitutional State, engaged in the administration of Parliamentary government." Quoted by John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth, (Angus and Robertson, Sydney, 1901), p. 700, and by L.F. Crisp, Australian National Government, (Longman Cheshire Pty. Limited, Melbourne, 1978), p. 400.

[2] Parliamentary Debates, Vol. H. of R. 201, 7 June 1995, pp. 1434-41.

[3] Brian Galligan, A Federal Republic: Australia's Constitutional System of Government, (Cambridge University Press, Cambridge, 1995), pp. 21-2 and 245-7.

[4] Stuart Macintyre, "A Federal Commonwealth, An Australian Citizenship", a lecture in The Australian Senate Occasional Lecture Series, 14 February 1997, p. 3.

[5] The Canberra Times, 8 December 1977.

[6] The Australian, 23 June 1995.

[7] The Weekend Australian, 24-25 June 1995.

[8] The Australian, 6 September 1996.

[9] See for example The Australian, 31 October 2002, and The Canberra Sunday Times, 26 January 2003. Nowadays, references to the Governor-General as Head of State are not only commonplace, but are no longer preceded by such words as "de facto" or "virtual" or "effective", to name some of the qualifying adjectives that have been used in the past.

[10] Claude Forell, "The Fragile Consensus", The Age. Melbourne, 13 August 1977 - a report of an interview with Sir Zelman Cowen as Governor-General Designate; and Sir Zelman Cowen, "Williamson Community Leadership Lecture", Melbourne, 31 May 1995, p. 14 - a lecture give almost thirteen years after leaving office as Governor-General.

[11] Requests under the Freedom of Information Act 1982 have failed to elicit information about who authorised the inclusion in the Commonwealth Government Directory of the reference to the Governor-General as the Head of State and who authorised its subsequent removal. Its inclusion coincided with Paul Keating's term of office as Prime Minister and his push for Australia to become a republic. Keating intended that the president, as Head of State, would simply take over the Governor-General's existing powers and functions. During this period, some constitutional monarchists argued that we already have an Australia Head of State in the Governor-General, and pointed to the statement in fifteen successive issues of the Commonwealth Government Directory in support of their case, while some republicans continued to argue that only the republic would give us an Australian Head of State. The Commonwealth Government Directory's description of the Governor-General as Head of State was no help to the republican cause, and its removal coincided with the appointment of Daryl Williams as Attorney-General and his push for Australia to become a republic. Williams argued that the president would replace the Queen as Head of State. In January 1998, just before the February 1998 Constitutional Convention, the Attorney-General's Department published a revised edition of Australia's Constitution, which is a pocket edition of the Australian Constitution. In a section headed "Overview" it stated that "Australia's Head of State is Queen Elizabeth II." Despite repeated written requests for information about the authority for this assertion, neither the Attorney-General nor his Department has been able to provide any supporting documentary evidence, nor any constitutional or legal justification for the inclusion of this description of the Sovereign. More to the point, they have resorted to such non-legal expressions as "appropriate" or "proper" to justify their use of the description.

[12] Commonwealth Statutory Rules 1901-1956, Vol. V, pp. 5301-3.

[13] Ibid., pp. 5310-12.

[14] A. Inglis Clark, Studies in Australian Constitutional Law, (Charles F. Maxwell (G. Partridge & Co.), Melbourne, 1901), pp. 54-7.

[15] W. Harrison Moore, The Constitution of the Commonwealth of Australia, (Charles F. Maxwell (G. Partridge & Co.), Melbourne, 1910), 2nd. Edition, p. 162.

[16] See also H.V. Evatt, The Royal Prerogative, (The Law Book Company Limited, Sydney, 1987), p. 172. (First published in 1924 as H.V. Evatt, Certain Aspects of the Royal Prerogative: A Study in Constitutional Law.)

[17] "2. 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." "61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth."

[18] A. Inglis Clark, op. cit., pp. 52-3.

[19] Commonwealth Statutory Rules 1901-1965, pp. 5312-4.

[20] Commonwealth Statutory Rules 1958, pp. 494-5.

[21] Quoted in H.V. Evatt, The King and his Dominion Governors, (Frank Cass and Company Limited, London, 1967), pp. 310-312.

[22] Christopher Cunneen, Kings' Men: Australia's Governors-General from Hopetoun to Isaacs, (George Allen & Unwin, Sydney, 1983), p. 168; and (Sir) Zelman Cowen, Isaac Isaacs, (Oxford University Press, Melbourne, 1967), p. 191.

[23] Cunneen, op. cit., p. 179; and Cowen, op. cit., pp. 197-8.

[24] Opinion of the Commonwealth Solicitor-General (Sir Kenneth Bailey), 25 November 1953.

[25] The Royal Powers Act has been invoked on rare occasions, and then only for symbolic reasons. The last occasion was 2 March 1986 when, in a public ceremony at Government House, Canberra, the Queen proclaimed the Australia Act 1986 to come into operation on the following day. This would otherwise have been done by the Governor-General at a meeting of the Federal Executive Council. The Act had been given the Royal assent by the Governor-General on 4 December 1985.

[26] "Governor-General's Instructions", Opinion of the Solicitor-General of Australia (Sir Maurice Byers), 5 September 1975.

[27] Sir John Kerr, Matters for Judgement, (The Macmillan Company of Australia Pty. Ltd., South Melbourne and Artarmon, 1978), p. 330.

[28] Ibid., pp. 374-5.

[29] Statement by the Prime Minister to the House of Representatives, Parliamentary Debates, Vol. H. of R. 138, 24 August 1984, p. 380. The Prime Minister tabled a copy of the new Letters Patent relating to the office of Governor-General, together with the text of a statement relating to the document, but for some unknown reason he did not read the statement to the House, nor did he seek leave to have it incorporated in Hansard. The statement was later issued by the Prime Minister's Press Office.

[30] Final Report of the Constitutional Commission, p. 313, para. 5.17.

[31] Parliamentary Debates, Vol. H. of R. 201, 7 June 1995, p.1438.

[32] Report of the Constitutional Convention, Volume 1, p. 45.

[33] Sir Anthony Mason was Commonwealth Solicitor-General, 1964-69; a Judge of the Court of Appeal, Supreme Court of New South Wales, 1969-72; a Justice of the High Court of Australia, 1972-87; and Chief Justice, 1987-95.

[34] ABC Television, 27 October 1997; and ABC Radio, 28 October 1997.

[35] In his Commentary to Evatt's The Royal Prerogative, Emeritus Professor Leslie Zines wrote of section 2 that it now had "little or no operation", its purpose having disappeared with the disappearance of the Empire - see op. cit., pp. C6-7.

[36] Sir Anthony Mason, "The Republic and Australian Constitutional Development", unpublished seminar paper, 11 May 1998.

[37] Sir Zelman Cowen, Williamson Community Leadership Lecture, Melbourne, 31 May 1995, p. 14.