The governor-general is our head of state.(The Constitution)

ON JUNE 26, 2003, the Australian Senate charged its Legal and Constitutional References Committee with conducting an inquiry into "the most appropriate process for moving towards the establishment of an Australian republic with an Australian head of state". In December the committee issued a discussion paper and invited public submissions; on April 13 the committee began a series of nationwide public hearings; and it proposes to report on August 3.

The case for Australia becoming a republic is almost invariably based on the argument that the Queen, as well as being our monarch or sovereign, is also our head of state, and that Australia needs to become a republic in order to have an Australian as its head of state. Yet there is a considerable body of constitutional and legal evidence that suggests that we already have an Australian head of state in the governor-general. It would therefore be appropriate for the committee to examine this evidence and to consider the question of just who 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, in order to determine who is the head of state we need to see who actually performs the duties of head of state.

These duties are performed by the governor-general, and by the governor-general only. The sovereign's only constitutional duty is to approve the prime minister's recommendation of the person to be appointed governor-general, or 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 royal prerogatives of the Crown in Australia, when he carries out his constitutional duties to exercise the executive power of the Commonwealth under Chapter II of the Constitution--"The Executive government"--he does so in his own right and not as a delegate or surrogate of the Queen.

In 1985 the Hawke government set up a Constitutional Commission charged with carrying out a review of Australia's Constitution. Three of its members were constitutional lawyers--Sir Maurice Bvers, a former Commonwealth Solicitor-General and Chairman of the Commission; Professor Enid Campbell, the Sir Isaac Isaacs Professor of Law at Monash University; and Professor Leslie Zines, formerly Dean of the Faculty of Law and the Sir Robert Garran Professor of Law at the Australian National University. The other two members of the commission were former heads of government--Sir Rupert Hamer, former Liberal Premier of Victoria; and E.G. Whitlam, former Labor Prime Minister. The commission was assisted by an Advisory Committee on Executive Government under the chairmanship of former Governor-General Sir Zelman Cowen.

In 1988, in its final report, the Constitutional 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.