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Original research

This article appears to be original research. While the Queen is head of state and her functions are normally carried out by the governor-general, some persons have sometimes referred to the governor-general as head of state. That does not constitute a dispute. Could someone please provide a source that any such dispute exists. We need a source that someone claims the Queen is not head of state. TFD (talk) 09:58, 25 December 2012 (UTC)

Why not simply read the article? What is your source for believing the Queen is the Australian head of state? And what functions of the Queen are carried out by the Governor-General? Genuinely interested in your answers here. Thanks. --Pete (talk) 10:17, 25 December 2012 (UTC)

In agreement with TFD. GoodDay (talk) 17:31, 25 December 2012 (UTC)

The article is presented as a collection of statements by people claiming the Queen or the governor-general is head of state, rather than explain the conflict between them. I can find examples where people haved called the prime minister the head of state. That is more properly called confusion than dispute. However, The Queen's other Realms devotes a paragraph to the dispute on pp. 28-29. It would make the article more interesting if the competing arguments were explained. TFD (talk) 18:50, 25 December 2012 (UTC)

Thanks. That is the essence of the matter. The existence of a dispute. We are not trying to prove the question one way or another, merely document it. It is not yet within Misplaced Pages's ability to determine who a nation's head of state is. That is up to Australians, and as you can see, opinion is divided. --Pete (talk) 19:24, 25 December 2012 (UTC)

Australians will make that decision at a referendum. Misplaced Pages reflects facts & the fact is the Australian monarch is Head of State. GoodDay (talk) 22:33, 25 December 2012 (UTC)

I happen to agree with you, but many would dispute your so-called fact. Something is not a fact merely because you assert it to be so, which is what you've just done. It has to have very widespread agreement, of the same order as "The moon is not made of green cheese", or "2 + 2 = 4", and that's lacking when it comes to the Oz head of state. Sir David Smith has gone to the trouble of writing a 400-page book stating his case for why he believes the governor-general is the head of state. That he went into print proves that there was something at issue, something he wanted to convince doubters about. If the matter were simply one of confusion, he need hardly have bothered with his book, but could instead have pointed to the authoritative document that proves his point without further ado. Trouble is, there is no such animal and never has been. This has nothing to do with any future referendum on a republic; it has to do with who is the Head of State right now, today. That's what the dispute is about. There is most certainly a dispute. -- Jack of Oz 03:17, 26 December 2012 (UTC)

I'm nailing jello to a wall, again. I'm outta here. GoodDay (talk) 16:20, 26 December 2012 (UTC)

I dont see much in the article about a dispute, just a random comparison of sources for and against. If a reliable source for an actual dispute is around cant this just be a paragraph in another article like Monarchy of Australia. MilborneOne (talk) 14:07, 26 December 2012 (UTC)

Now there's a dubious article! People have strong views on the question of the Australian head of state, and they dispute and debate and snipe at each other in Parliament, in letters to the editor, in public lectures and so on. It's been a slow-moving sideshow in Australia for a couple of decades. However, it does engage wide public attention from time to time, especially during the republic referendum campaign around 2000. Prime Ministers, High Court judges and so on make statements every now and then whenever the thing threatens to drop off the radar, and a royal visit brings out the usual suspects. The "random sources" reflect the history and visibility. As mentioned above, there will come another referendum time when Australians make a choice, and it is handy to have the subject documented and described, because it will be front page news for a year or so and people will come here looking for information. --Pete (talk) 17:08, 26 December 2012 (UTC)

I can understand the strong views but as somebody not from Australia the article doesnt give me that view. I get a a says b and x says y bunch of statements with no connection to a "dispute" that I can see. You seem to indicate it is polarised by the republican/monarchy debate would it not be better as part of articles on that debate which is clearly an ongoing argument even from a foreign perspective. Also note that Australian head of state redirects to here which is clearly misleading although it would be a better article name. MilborneOne (talk) 17:22, 26 December 2012 (UTC)

As I recall, this article has changed name once or twice. I preferred a different one but got rolled on that. We can revisit the topic, for sure. --Pete (talk) 17:37, 26 December 2012 (UTC)

IMHO, the article is merely a platform for its creator's agenda to make the monarch's HoS status unclear. The article's creator is opposed to the Australian monarch being recognized as the country's Head of state, but has (in the past) shown a preferance towards the Governor-General being recognized as such. GoodDay (talk) 23:52, 27 December 2012 (UTC)

My opinions aren't important. The fact that there is a dispute and it extends across all levels of Australian society, including government and political entities, is what matters. This is an encyclopaedia, full of information. Why on earth would anyone want to suppress information about a significant subject? The article is even-handed and well-sourced. People can read the sources and make up their own minds. --Pete (talk) 00:01, 28 December 2012 (UTC)

GoodDay: If there were no dispute, why would it be necessary for you (or anyone) to keep on insisting the monarch is the head of state? Or for anyone to insist the governor-general is? If everyone agreed about this, what would there be to talk about at all? That there are two opposing camps, who both refuse to give way, means there is a dispute. That's the definition of a dispute. -- Jack of Oz 00:24, 28 December 2012 (UTC)

The Governor-General's reserve powers

Thanks for the reference, Mies, but it quite clearly clarifies the reserve powers as those of the Governor-General. Though they may be exercised by the Queen in her United Kingdom, they are in Australia specifically given to the Governor-General alone and may not be exercised by the monarch. Calling them "the reserve powers of the Crown" merely muddies the waters - they belong to the Governor-General alone, not any other office. If you have a source that explicitly states otherwise, I would be interested in seeing it. --Pete (talk) 20:45, 1 January 2013 (UTC)

You contested the words "the Crown" in the phrase "the reserve powers of the Crown", deeming them inadmissable because they were "unsourced". You now have four sources supporting the phrase "reserve powers of the Crown". Your worry has been more than adequately assauged. Cheers. --Ħ MIESIANIACAL 21:01, 1 January 2013 (UTC)

I do beg your pardon. When counting up the sources, I reach a total of zero. Would you be so good as to point out precisely where you see the phrase "reserve powers of the Crown" employed? --Pete (talk) 21:34, 1 January 2013 (UTC)

On checking, I find that you have added some extra cites. Let us examine them. Here we read, "There has been talk lately about reserve powers of the Crown. It seems to have been thought that Sir John Kerr's dismissal of the ministry in 1975 may have been an exercise of these reserve powers, but in fact he exercised an express power given him by the Constitution to appoint and to dismiss the ministry. The notion of reserve powers being available to the Crown was developed in Imperial days when it was thought that in the long process of converting an absolute monarchy into a constitutional monarchy there remained some powers of the Crown which were exercisable without the concurrence of the ministry. Whether or not this was a correct view, the Commonwealth Constitution leaves no room for any such notion." Is it seriously your intention to use this source which specifically rejects the notion of "reserve powers of the Crown"? The only other instance of the phrase occurs here, in what is a very lightweight source, apparently intended as an overview for schoolchildren, summing up the totality of "Parliamentary Democracy" in a few paragraphs. --Pete (talk) 21:49, 1 January 2013 (UTC)

The source supports the phrase "reserve powers of the Crown". There are other sources doing the same. Cheers. --Ħ MIESIANIACAL 22:48, 1 January 2013 (UTC)

You have one very weak source. Even that has the phrase "reserve powers" in inverted commas. The reserve powers of the Australian Governor-General are his alone, as multiple sources note. If you can point to a specific instance supporting the phrase, I will be happy to discuss it with you. Or anybody. You have refrained from commenting on the quote above which directly refutes your view, and if you can offer no more than vague assertions that your opinion is well supported, without the actual cites, then please stop wasting my time and yours. --Pete (talk) 22:57, 1 January 2013 (UTC)

The sources meet WP:RS; they support the phrase "reserve powers of the Crown". The governor-general's use of the reserve powers are another matter. Cheers. --Ħ MIESIANIACAL 23:12, 1 January 2013 (UTC)

Your sources do not support the phrase. I have asked you several times to point out the precise location and you have failed to do so. As we are required to use reliable sources, your unsupported opinion cannot remain. Thanks. --Pete (talk) 23:30, 1 January 2013 (UTC)

They do. The precise location is either indicated in the footnote or can be found by reading the article linked. Cheers. --Ħ MIESIANIACAL 23:32, 1 January 2013 (UTC)

Last chance. Quote the words you say supports your wording. --Pete (talk) 23:38, 1 January 2013 (UTC)

I don't oblige ultimatums. Cheers! --Ħ MIESIANIACAL 23:41, 1 January 2013 (UTC)

Cap I s. 2 of the Constitution says, "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." Note that the Queen may act on the advice of the her Australian PM, for example in awarding honors or appointing a new governor-general. TFD (talk) 00:19, 2 January 2013 (UTC)

Those are the Queen's powers that she may assign to the governor-general. Then, completely separately, are the powers the governor-general has in his/her own right, which may never be exercised by the queen. I suppose the Administrator of the Commonwealth would be able to exercise them in the absence of a deceased or resigned governor-general, so in that light the administrator has more power than the queen. I refer to the powers conferred on the governor-general alone by ss. 5, 7, 16, 64 et many al. The idea of the queen appointing Australian ministers under s.64 is absurd. That's a power that has only ever been held and exercised by the governor-general, -- Jack of Oz 00:31, 2 January 2013 (UTC)

The Queen's powers under the Constitution are extremely limited. The Governor-General's powers are defined in the Constitution and the Queen is unable to assign, reassign or withdraw them, as the only mechanism available for constitutional amendment is provided by the referendum process outlined by s128. The only powers of the Queen that might be covered by s2 are those listed in the Letters-Patent, such as the power to appoint deputies in s126. The power used by Sir John Kerr to dismiss Gough Whitlam as Prime Minister is not a "reserve power of the Crown". It is in fact specifically given to the Governor-General in s64.. It is certainly a reserve power of the British monarch in the United Kingdom, but the Queen is unable to exercise it or any similar power in Australia. --Pete (talk) 00:35, 2 January 2013 (UTC)

I thank Mies for the provision of another two sources, neither of which contain the phrase "reserve powers of the Crown". I wonder how long this obfuscation will be dragged out. I think it is very wrong to imply that the Queen possesses any reserve power such as the one used by Sir John Kerr in 1975. it is ridiculous to suggest that the Queen could or would dismiss an Australian government ( or dissolve Parliament, call an election etc.), let alone do it without advice. --Pete (talk) 03:34, 2 January 2013 (UTC)

No such suggestion has been made.

The sources each contain a synonymous variation of the prhase: "the Crown's reserve powers". Cheers. --Ħ MIESIANIACAL 04:26, 2 January 2013 (UTC)

Sir John Kerr certainly used a reserve power in 1975 when he dismissed Gough Whitlam and appointed Malcolm Fraser. The power to appoint ministers, without ministerial advice is certainly a reserve power of the Queen. In her role as monarch of the United Kingdom, that is. Not in Australia, because the power Kerr used is explicitly and irrevocably given to the Governor-General in Section 64 of the Australian Constitution. It is not stated that it is the Queen's power, to be exercised under her direction - it is given to the Governor-General alone. No serious student of Australian constitutional practice, from Quick and Garran in 1900, through the various High Courts in their decisions, to the academics such as Crisp or Zines or Winterton have ever found that the Queen can act alone and without advice in this or any other power under the Constitution. And the limits, the extent, the exercise of power has been the main study of the High Court since its inception. There is no corner of common, legislative or constitutional law left unexamined in the quest to specify what powers exist and who may exercise them.

The constitutional powers of the Governor-General - to appoint ministers, to prorogue Parliament and so on - are the traditional prerogative powers of the monarch listed and assigned, insofar as they apply to government. The minor prerogative powers, things like salvage and honours and so on, are left unstated by the Constitution. We are not talking about these minor aspects here, nor do they bother the High Court much. As stated by Barwick above, the Constitution leaves no room for such a notion as "reserve powers of the Crown". When Kerr sacked Whitlam, he did so using his own power, and the Queen concurred, stating that the power was placed firmly in the hands of the Governor-General.

Now, we may call the Governor-General's powers the "reserve powers of the Crown" in two fashions. In a historical sense, meaning that the Governor-General's powers are the old monarchical powers, as possessed by the Queen in her United Kingdom dominion. Or in a general sense, where we use the word "Crown" to mean "polity", such as "The Commonwealth" or "the State of "Queensland". But to use such a phrase without qualification misleads the reader and leaves a crucial point needlessly vague. Furthermore, it raises the notion, contrary to Barwick, contrary to every serious constitutional scholar, that the Governor-General's powers might actually belong to the person wearing "the Crown".

Miesaniacal, you have stated in the past that you believe this nonsense, and I think that you are trying to perpetuate it here. I would like to make it quite clear to our readers that this is not the case. When we talk of reserve powers, we need to clarify that they are the reserve powers of the Governor-General and not the monarch. --Pete (talk) 15:19, 2 January 2013 (UTC)

They are the reserve powers of the Crown, as indicated by the numerous sources. --Ħ MIESIANIACAL 16:40, 2 January 2013 (UTC)

One of your sources directly contradicts this. That's the longest-serving Chief Justice of the High Court stating that there is no room for the notion. That tells us right there, that even if the rest of your sources are correct - and the best of the rest seems to be a third-level source aimed at schoolkids - then there is a divided view. Consequently, at the very least, we need to change the wording you support which is now shown to be misleading and contentious. --Pete (talk) 20:19, 2 January 2013 (UTC)

No source contradicts the statement; no source contradicts itself.

The phrase "the reserve powers of the Crown" is contentious to noone but yourself. --Ħ MIESIANIACAL 20:23, 2 January 2013 (UTC)

Paragraphs 2 & 3 of this source, says the Australian monarch has the reseverd powers. GoodDay (talk) 04:53, 2 January 2013 (UTC)

What do we mean by 'the Crown'? "The Crown is a term used to mean, in effect, the state....It is a symbol of the power of the state, which was formerly vested in the monarch. Thus, for example, the prosecution of crime is said to be on behalf of the Crown." (White and Willock, http://www.duhaime.org/LegalDictionary/C/Crown.aspx) The person of the Sovereign, is of course, an essential part of the state , but the term is much broader. The Governor-general represents the Sovereign in a constitutional sense, though she is not, in accordance with the interpretation of the Constitution, her deputy. She excercises the powers of the Crown in her own right. Therefore it is perfectly correct to say that the reserve powers of the Crown belong to the Governor-general.Gazzster (talk) 20:36, 2 January 2013 (UTC)

That is pretty much my understanding. However, the wording needs to make this clear, rather than obfuscate it. --Pete (talk) 20:47, 2 January 2013 (UTC)

How is "the reserve powers" any more clear than "the reserve powers of the Crown"? --Ħ MIESIANIACAL 21:22, 2 January 2013 (UTC)

Strictly speaking the Queen is the state, not its head. TFD (talk) 20:59, 2 January 2013 (UTC)

Is Section 64 a reserve power?

Looking at that Sir Garfield Barwick quote:

There has been talk lately about reserve powers of the Crown. It seems to have been thought that Sir John Kerr's dismissal of the ministry in 1975 may have been an exercise of these reserve powers, but in fact he exercised an express power given him by the Constitution to appoint and to dismiss the ministry. The notion of reserve powers being available to the Crown was developed in Imperial days when it was thought that in the long process of converting an absolute monarchy into a constitutional monarchy there remained some powers of the Crown which were exercisable without the concurrence of the ministry. Whether or not this was a correct view, the Commonwealth Constitution leaves no room for any such notion.

Seventeen years as Chief Justice of the High Court of Australia. His views on the "reserve powers of the Crown" must carry more weight than any editor here. Here is the wording in the article:

The governor-general may use the reserve powers of the Crown as prescribed by the constitution, though these are rarely exercised. One notable example of their use was by Governor-General Sir John Kerr during the Australian constitutional crisis of 1975.

Where are "the reserve powers of the Crown" (or their usage) prescribed by the Constitution? The term does not appear in the document and we must therefore turn to other sources. Barwick says that they do not exist. There is no room for any such notion, as he puts it. The "notable example of their use" was the exercise by Sir John Kerr of the power in s64 to appoint ministers. Was that the use of a "reserve power of the Crown"? Clearly, our text is incorrect and misleading however it is read. We need to clarify the matter of reserve powers, because the use by Sir John Kerr in 1975 is so crucial to understanding the relationship between the Queen, the Governor-General and the government. --Pete (talk) 00:48, 4 January 2013 (UTC)

Why did Prime Minister Whitlam ask Kerr if he (Kerr) had contacted the Australian monarch concerning the Whitlam's dismisal? GoodDay (talk) 00:51, 4 January 2013 (UTC)

• I concur with User:Skyring's interpretation of Barwick's essay. Barwick is clearly (for a lawyer) stating that there are no uncodified reserve powers exercisable by the Monarch in the Australian Commonwealth, and furthermore that many powers of the GG are granted to him by the constitution directly (not inherited from the Monarch). However, this ref from parlinfo: directly contradicts this:

  there are powers that the Governor-General may, in some situations, exercise without Ministerial advice or even contrary to Ministerial advice. These 'discretionary powers' are known as the reserve powers. The scope of the reserve powers is uncertain and their use has proven contentious. This is in part because the Australian model of government relies on unwritten rules or 'conventions' to flesh out the 'bare bones' of the Constitution. It is thus (by convention) accepted that there must be an office of Prime Minister and a Cabinet even though their existence is not constitutionally mandated.2 Likewise, not all the powers of the Governor-General are codified in the written Constitution and many of them are similarly constrained by such unwritten rules.

  Barwick's essay was written in 1995. The Parlinfo article is dated 1998. On balance, given the the Parlinfo article is more recent, and also that it is also the one more likely to be referred to by parliamentarians, I think we can give it more credence, and use it to support the extant text. --Surturz (talk) 06:28, 4 January 2013 (UTC) P.S. Of course, if there is significant debate on the point, we should cover both sides of that debate. --Surturz (talk) 06:33, 4 January 2013 (UTC)

An interesting and useful point to discuss. Against Barwick, the Governor-general's website list the 'reserve powers' thus:'However, there are some powers which the Governor-General may, in certain circumstances, exercise without – or contrary to – ministerial advice. These are known as the reserve powers. While the reserve powers are not codified as such, they are generally agreed to at least include: 1.The power to appoint a Prime Minister if an election has resulted in a ‘hung parliament’; 2.The power to dismiss a Prime Minister where he or she has lost the confidence of the Parliament;

3.The power to dismiss a Prime Minister or Minister when he or she is acting unlawfully; and 4.The power to refuse to dissolve the House of Representatives despite a request from the Prime Minister.' http://www.gg.gov.au/governor-generals-role It is then, clearly the view of the Governor-general's Office that the reserve powers exist.

It should be borne in mind that Barwick's advice to Kerr in 1975 was made as a prtivate individual, since the High Court had not been asked for its advice, but only the Chief Justice. Probably for this reason Whitlam had warned Kerr against consulting Barwick. Another question however is whether Kerr actually exercised the reserve power,assuming Barwick to be wrong, for the GG's office lists as one of the powers 'to dismiss a Prime Minister when he or she has lost the confidence of the Parliament'. Whitlam had not lost the confidence of the House of Reps, and the Senate has constitutionally no direct power in regards to money bills.Gazzster (talk) 08:38, 4 January 2013 (UTC) And remember that the law officers of the Government had given informal advice to Kerr, to the effect that the power to dismiss a prime minister was not exercizable in the circumstances. Of course, we can't reference that opinion precisely because it was informal.Gazzster (talk) 08:42, 4 January 2013 (UTC)

In common parlance, Kerr's action was called an exercise of a reserve power because it was made without advice, as happens from time to time. I see most of the newspaper reports at the time and in the books since, describing it as a reserve power in that sense. We could revisit some of the existing literature. I don't see anybody saying it was the Queen's reserve power that Kerr was exercising on her behalf, in a s2 or s61 sense. I think Mies is trying to use the common phrase to generate a notion that everybody else rejects. The Queen did not and could not intervene. Kerr did, and whether his actions were conventional or not, he certainly had the power given directly to him in the words of s64. Significantly, there was no move to change or clarify that wording afterwards, as there was to change the Senate casual vacancy mechanism, so we might assume that the exercise was legal and supported by the governments since. Not that any future (or existing) PM is going to be ambushed like Kerr did Whitlam. --Pete (talk) 18:08, 4 January 2013 (UTC)

Nowhere in this article does it say "the Queen's reserve powers". --Ħ MIESIANIACAL 18:55, 4 January 2013 (UTC)

I believe the phrase being used is 'reserved powers of the Crown'. Neither Mies nor yourself seems to be disputing that. Section 64 gives a constitutional power. What makes that power reserved in a hypothetical circumstance is the fact that it is exercised without ministerial advice. The presumption, of course, is that the viceroy attempts to resolve the situation conventionally, that is, by seeking the advice of the prime minister. It is of course, an academic question as to whether Sir John followed that convention or not. Even so, I think its a stretch to say that governments have supported the dismissal ever since. Aquiesced in it, is perhaps a better phrase. Gazzster (talk) 21:34, 4 January 2013 (UTC)

"Reserve powers of the Crown" is indeed what the article says, and Pete/Skyring contests the use of the two words "the Crown". It's unclear why he brings up the Queen and her non-role in certain historical events. --Ħ MIESIANIACAL 00:17, 6 January 2013 (UTC)

Without a lengthy explanation, many readers would erroneously conflate "the Crown" with "the Sovereign". Best to remove confusion, rather than encourage it. Section 64 is the power used by Sir John Kerr in 1975, which is the event most often raised as an instance of "the reserve powers" being used. S64 is not any general power of Crown officers, nor is it a power capable of being used by the sovereign. It is given to one officer alone, and that is the Governor-General. --Pete (talk) 18:24, 13 January 2013 (UTC)

Nowhere in the article does it say otherwise. 'The Crown' is the proper term to use. THe independence of the Governor-general is quite clearly explained.Gazzster (talk) 20:43, 13 January 2013 (UTC)

But the Governor-General's constitutional powers are not the powers of the state in general, which is what "the Crown" means here. Saying that they are "the reserve powers of the Crown" implies that some other officer of the Crown could use them. Worse, for those readers who don't know any better, it implies that they belong to the Queen - i.e. the wearer of the crown - and not the Governor-General. Nobody else but the Governor-General may prorogue Parliament, appoint ministers and so on. If we look at the Constitution itself, we find only three mentions of the word "Crown": "office of profit under the Crown" in s44 Disqualification, "Crown lands" in s 125 Seat of Government, and "one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland" in Notes. So if we want to use the word "Crown" when talking about the powers of the Governor-General, we must use another source, because the Constitution does not provide one. --Pete (talk) 22:24, 13 January 2013 (UTC)

The Constitution does not need to provide one. It presumes the traditional legal understanding of the term, according to the definition I cited above. The Governor-general represents the Crown though exercises those powers in her own right. That is clear. That is the stated position of the Governor-general's Office and of the Government. Therefore, it is perfectly correct to say that the powers of the GG are the powers of the Crown. No Queen, no Governor-general. This is obvious. Three references (if you are right about only three are three references nevertheless. If you want to avoid the use of 'the Crown' because of a potential misunderstanding, then they should be ommitted from the articles that deal with the constitutions of the all the Commonwealth realms, including the United Kingdom. Ommitting references to 'the Crown' when it is part of the legal discourse of constitutional law for the sake of clarity is clearly unwarranted, especially when the position of the Governor-General vis a vis thew Sovereign is made perfectly clear. And it is.Gazzster (talk) 11:18, 14 January 2013 (UTC)

I knew this was all about Pete/Skyring's unique and personal interpretation of the governor-general's position. --Ħ MIESIANIACAL 15:11, 14 January 2013 (UTC)

In this case, my "unique and personal interpretation" is also shared by Sir Garfield Barwick, Australia's longest-serving High Court chief justice. Mies, if you could just scroll back to the beginning of this section, you would see this for yourself. Surely you are not declaring that such an eminent authority is dead wrong on what he states explicitly? That's rather a bold position for you to hold, if I may say so. --Pete (talk) 18:22, 14 January 2013 (UTC)

You've misinterpreted Barwick. This was explained to you already. Yet, you adhere to your personal opinions and continue to prop them up on false information. --Ħ MIESIANIACAL 20:52, 14 January 2013 (UTC)

I have not misinterpreted Barwick. He says the Constitution leaves no room for the notion of "reserve powers of the Crown." That's pretty straightforward and i concur with him. --Pete (talk) 21:07, 14 January 2013 (UTC)

If so, it is still, like yours, a personal opinion that can't be used to edit.Gazzster (talk) 21:28, 14 January 2013 (UTC)

Mies thinks otherwise - he supplied the quote as a source. --Pete (talk) 21:39, 14 January 2013 (UTC)

I will repeat myself just this once: Barwick theorises that there are no reserve powers, period; none belonging to the Crown, the governor-general, or anyone else. He explains that what people mistake for reserve powers are actually not, since they are powers prescribed in the constitution as belonging to the govenror-general, and any powers beyond those can only be exercised by the Queen "in conformity with the advice of the Australian ministry" and cannot be exercised by the govenror general "without the concurrence of the ministry". In fact, altogether, his wording only disproves your belief that the Queen and Crown and the governor-general are somehow mutually exclusive.

As I said the last time I explained all that for you, it is an entirely separate matter and, if you want to start rewriting a dozen or more Misplaced Pages articles to suit Barwick's opinion, you should raise the matter in a more prominent, central location so as to get the input of as many concerned editors as possible. --Ħ MIESIANIACAL 23:16, 14 January 2013 (UTC)

Looking at the article, it is clear that Barwick rejects absolutely the notion of "reserve powers of the Crown" in the Australian context. He says "These powers of the Governor-General are explicit and are the result of the direct enactment of the Westminster Parliament, and not in any sense derivative from the fact that the Governor-General is representative of the Queen in Australia. The powers which are given to him are given to him personally and directly by the Constitution." They are not the Queen's powers. They are not the nebulous "powers of the Crown". They are the powers of the Governor-General. Barwick is explicit. In other realms, such as the United Kingdom, the monarch possesses reserve powers. Not in Australia. --Pete (talk) 00:25, 15 January 2013 (UTC)

Further to this, while Barwick rules out the notion of "reserve powers of the Crown", it is clear that the Governor-General possesses reserve powers, as laid out in the Parliamentary Research Note previously quoted. This is the generally accepted sense here. The reserve powers are held by the Governor-General, and extend to certain very limited situations where ministerial advice cannot be relied upon, such as when a government has lost the confidence of Parliament. No serious authority contends that the Queen possesses any discretionary powers under the Australian Constitution. --Pete (talk) 00:46, 15 January 2013 (UTC)

I'm sorry, Gazzster, but I'm not following you here. You say "the Governor-General represents the Crown", a phrase not found in the Constitution. Are you equating "the Crown" with "the Queen"? --Pete (talk) 18:15, 14 January 2013 (UTC)

The Constitution does not have to be so pedantic as to use the exact phrases you might like it to. Why should it? It rests on understood constitutional principles established by the Westminster tradition (on a similar matter, there is no need for it to use the exact phrase 'Queen/King of Australia'). You are of course aware of these exerts from the Constitution:

'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.'

'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.'

The Queen by herself is not the Crown. But she is obviously an integral and essential part of it. If the GG represents the Queen, then she represents the Crown. From the Sir Maurice Byers, Solicitor-general in 1975: 'The Constitution binds the Crown. The Constitutional prescription is that executive power is exercisable by the Governor-General although vested in The Queen. What is exercisable is original executive power: that is, the very thing vested in The Queen by Section 61. And it is exercisable by The Queen’s representative, not her delegate or agent. The language of Sections 2 and 61 had in this respect no contemporary parallel...' Note that he says, 'binds the Crown'. http://www.gg.gov.au/governor-generals-role

Gazzster, could you tidy this up and sign it, please? When done, you may delete this line and I'll respond. --Pete (talk) 21:10, 14 January 2013 (UTC)

Gazzster (talk) 21:13, 14 January 2013 (UTC)

With due regard, Gazzster, but I can't properly respond to such a muddled and contradictory posting. I think if you untangle it, you will clarify your thinking. Thanks. --Pete (talk) 22:10, 14 January 2013 (UTC)

Perhapsa you could explain what is confusing you.Gazzster (talk) 22:33, 14 January 2013 (UTC)

Perhapsa you could tidy up your text? --00:46, 15 January 2013 (UTC)

In agreement with you (Gazzster) and Mies. Afterall (for comparison) shall we say that the British monarchy doesn't exist, on the basis that there's no written UK Constitution? These EXACT WORDING arguments aren't persuasive. GoodDay (talk) 00:47, 15 January 2013 (UTC)

Yes, GoodDay (G'day!). I'm not quite sure what Pete wants to argue. That the Governor-general doesn't represent the Crown? It's getting confusding.Gazzster (talk) 01:45, 15 January 2013 (UTC)

Move the discussion

As suggested earlier - thank you Mies! - it may be time to move this discussion elsewhere. I suggest Governor-General of Australia.

Mies, you are going to have to find a way of dealing with authoritative views that contradict your deeply-held beliefs. Regardless of how firmly and truly you believe something within yourself, when someone like Sir Garfield Barwick directly states the exact opposite, we really need a better response than "he doesn't say that - you misinterpreted him!". He says, "These powers of the Governor-General are explicit and are the result of the direct enactment of the Westminster Parliament, and not in any sense derivative from the fact that the Governor-General is representative of the Queen in Australia. The powers which are given to him are given to him personally and directly by the Constitution." If you, with your excellent research skills, cannot find any source as good or better than Barwick to contradict this, then I can only conclude that there is none, and you are putting your own personal views ahead of any reliable source. I have given you a day and more to come up with a response and there has been none.

Gazzster, this is heavy stuff we're talking about. The topic of executive power within the Australian Constitution has been comprehensively examined in the century since Federation by the finest legal minds in the nation. As near as I can conclude in your scrambled post above, you are attempting to argue an opinion from first principles, using the Constitution as a primary source. That will not do. Find a reliable source. Please. --Pete (talk) 22:10, 16 January 2013 (UTC)

Already addressed above. --Ħ MIESIANIACAL 22:39, 16 January 2013 (UTC)

With respect, Mies, but no. Find a source that contradicts Barwick. Your own hand-waving, protestations and so on are merely expressions of your opinion, and I can respect that, but they do not move the discussion forward. --Pete (talk) 22:45, 16 January 2013 (UTC)

But yes.

There are plenty of sources that oppose your misinterpretation of Barwick. I know you won't listen to me; but, you'll find out in time, anyway. Best get that new discussion started, Pete. --Ħ MIESIANIACAL 22:49, 16 January 2013 (UTC)

There are "plenty of sources" but you cannot present them. I'm listening carefully, Mies, but I'm not hearing anything but the waving of hands.. --Pete (talk) 23:13, 16 January 2013 (UTC)

Gazzster gave you two above. There are six in the article. Many more have been given to you over this long campaign of yours to rewrite Misplaced Pages so it aligns with your personal opinion that the governor-general and the monarch are mutually exclusive entities.

If you want to pursue this further, I suggest you take the next step in the dispute resolution process; you are trying to make a change to the status quo in the article, so the onus is on you to get the consensus to do so. I have had quite enough of your deliberate obliviousness and resulting cyclical tendentiousness. --Ħ MIESIANIACAL 23:42, 16 January 2013 (UTC)

You say I have misinterpreted Barwick. Very well. Here is what Barwick says:

"These powers of the Governor-General are explicit and are the result of the direct enactment of the Westminster Parliament, and not in any sense derivative from the fact that the Governor-General is representative of the Queen in Australia. The powers which are given to him are given to him personally and directly by the Constitution."

Here is my interpretation of Barwick's words:

"These powers of the Governor-General are explicit and are the result of the direct enactment of the Westminster Parliament, and not in any sense derivative from the fact that the Governor-General is representative of the Queen in Australia. The powers which are given to him are given to him personally and directly by the Constitution."

I have left no room for misinterpretation. Not a skerrick. I am in complete agreement with him.

What sources are there to contradict Barwick, precisely? There are none. You cannot present them. You are full of hints and bluffs and evasions and obfuscation and personal attacks, but you cannot find a reliable source to contradict the longest-serving Chief Justice of the High Court of Australia. Enough hand-waving, Mies. Take a sober appreciation of the facts. We are reasonable people here. We have policies to exclude personal opinion and included reliably-sourced statements. Show me what someone else has said. That's all I ask. --Pete (talk) 23:53, 16 January 2013 (UTC)

WP:DR. --Ħ MIESIANIACAL 00:13, 17 January 2013 (UTC)

Anybody care to help Mies out or clarify the issue? I accept that there is only so far he is able to go in discussing this before he is put in the position of choosing between what he adamantly believes or what our best sources say, and that is not a button I wish to press too firmly, for the sake of his well-being and good humour. --Pete (talk) 01:05, 17 January 2013 (UTC)

Mies, is not the editor, who needs help. GoodDay (talk) 02:33, 17 January 2013 (UTC)

Pete, I don't want to go into an interpretation of Barwick's opinion. It's because I can't. I don't know what he meant. I don't know the context in which his statements are made. However, we can be sure that Barwick's opinions are exactly that. They are not authorative. He was the Chief Justice, but he was not making a ruling on the matter as Chief Justice and certainly not without consulting the other Justices of the High Court in an official capacity. So I don't know why you are pinning your arguments so much to this one man. Misplaced Pages can however edit according to the understanding of the Australian Government, which understands, according to the Constitution, that the Governor-general is the Queen's representative, and that the royal power is 'vested' in her. However, this power is not delegated. That means that the royal power belongs, by right, to the Governor-general and is exercizable only by her.Now these powers are of two kinds: first, there is the power that is specifically given to the office by the Constitution - this is the power to which Barwick refers. Second, there are certain 'reserve' powers. Some come from the Constitution. Others do not. They are not precisely defined.

'Reserve powers

As well as the above duties and powers, the Governor-General has some powers that may be exercised in certain situations without ministerial advice, or even in contradiction to ministerial advice. These powers are called 'the reserve powers'. Because of the reliance of the Australian Constitution on convention, not all of the reserve powers are explicitly stated in the Constitution. This means that the exact nature and scope of the reserve powers is open to interpretation, and there is some dispute about their use.

The reserve powers of the Governor-General have been used on four occasions in the history of Australia.

1.In 1904, Governor-General Lord Northcote refused to dissolve the House of Representatives to allow for a federal election.2.In 1905, Governor-General Lord Northcote allowed Alfred Deakin to replace George Reid as Prime Minister without facing an election.3.In 1909, Governor-General William Humble Ward allowed an unelected coalition of parties to form government.4.In 1975, Governor-General Sir John Kerr sacked Prime Minister Gough Whitlam11 and forced a federal election. Whitlam's party, the Australian Labor Party, subsequently lost.This last exercise of the reserve powers is the most famous and controversial in Australia's history. The legalities of the Kerr dismissal have been the subject of debate ever since its occurrence.'

http://australia.gov.au/about-australia/australian-story/governors-general

But all this is something of a red herring. The real question is whether 'reserve powers of the Crown' may be used to describe the reserve powers of the Governor-general. Of course it may. The Governor-general represents the Crown. The Governor-general possesses reserve powers. Therefore the reserve powers of the GG are the powers of the Crown (not the Queen of Australia or of the UNited Kingdom). The term is used. Therefore Misplaced Pages may use it.Gazzster (talk) 04:19, 17 January 2013 (UTC)

You can, however, use Barwick's opinion, in a balanced manner, to represent an argument in favour of the GG being head of state, as long as you can support your interpretation of Barwick's views and ensure that they are presented as Barwick's opinion.Gazzster (talk) 04:26, 17 January 2013 (UTC)

You astonish me. Did Barwick have an opinion on the matter? --Pete (talk) 04:52, 17 January 2013 (UTC)

It would be best to say "The reserve powers of the Governor-General". They are given to him alone, as per the list here. These are entirely covered by Section 5 (sessions of parliament), Section 57 (double dissolutions)Section 58 (assent to bills) and Section 64 (appointment of ministers), They are not part of the minor powers noted under Section 2 and the Letters-Patent, nor the executive power under Section 61, "vested" in the Queen and exercisable by the Governor-General. The Queen's specific (but notional) power to disallow legislation is clearly not part of the executive power, because it cannot be exercised by the Governor-General. Likewise the Queen's power under Section 2 to appoint the Governor-General. It is a nonsense to say that these specific powers are exercisable by anyone else but the Queen. Likewise it is a nonsense to say that the power specifically given to the Governor-General in Section 64 to appoint ministers somehow belongs to the Queen. There is no credible authority to support such a view.

My opposition to the use of the phrase "reserve powers of the Crown" is that it is imprecise. It is undefined. The Parliamentary Library reference lists the reserve powers of the Governor-General, and that is what we should call them. --Pete (talk) 04:52, 17 January 2013 (UTC)

You have indeed touched on the crux of this issue in your last paragraph, Gazzster. Barwick says this: "The notion of reserve powers being available to the Crown was developed in Imperial days when it was thought that in the long process of converting an absolute monarchy into a constitutional monarchy there remained some powers of the Crown which were exercisable without the concurrence of the ministry... he Commonwealth Constitution leaves no room for any such notion." Of course, Barwick uses "the Crown" and "governor-general" interchanably; in fact, in the rest of the paragraph from which the above quote is drawn, Barwick clearly differentiates between reserve powers and powers granted by constitutional statute and he specifically cites the fact that it was a statutory constitutional power (and thus, to Barwick, not a reserve one) that the Governor-General used when dismissing the government in 1975 as support for his claim that any notion of the Crown having reserve powers is an invalid one. But, as Pete/Skyring has this personal belief that the Crown in the modern Australian constitution is that of the United Kingdom (despite Barwick's own words "the Australian monarchy emerged, separate and distinct from the British Crown") and the governor-general is entirely separated from it, he has taken the aforementoned Barwick quote to mean the Crown has no reserve powers but the governor-general does. This kind of thing has been not at all uncommmon with Pete/Skyring.

Of course, "reserve powers of the Crown" is, as you say, an entirely valid statement in the context and it is thus used by a number of sources. The only ambiguity there is here is in Pete/Skyring's mind. --Ħ MIESIANIACAL 05:27, 17 January 2013 (UTC)

Barwick uses the word "Crown" precisely four times in his speech:

1. "...our Australian monarchy emerged, separate and distinct from the British Crown, as it is from the monarchies of New Zealand and Canada."
2. "There has been talk lately about reserve powers of the Crown."
3. "The notion of reserve powers being available to the Crown was developed in Imperial days when it was thought that in the long process of converting an absolute monarchy into a constitutional monarchy...
4. "...an absolute monarchy into a constitutional monarchy there remained some powers of the Crown which were exercisable without the concurrence of the ministry. Whether or not this was a correct view, the Commonwealth Constitution leaves no room for any such notion."

Mies, could you point out which of these four instances you consider to be used interchangeably with "the Governor-General"? And how? --Pete (talk) 06:46, 17 January 2013 (UTC)

2. I explained how in my comments immediately preceeding your last. --Ħ MIESIANIACAL 07:22, 17 January 2013 (UTC)

Bibliography

I've added this in - Sir David Smith's book which deals with the Head of State question across several chapters, and Steven Spadijer's response, published last year. --LJ Holden 12:26, 2 January 2013 (UTC)

You may remove it as soon as you please. It is self-published and has the same status of a private blog. It is irrelevant as a source. Quite apart from it being tripe. --Pete (talk) 20:51, 3 January 2013 (UTC)

I disagree about the tripe bit. And about the removal, actually. I'm not saying I support Smith's thesis that the governor-general is the head of state. But he was the Official Secretary to five governors-general, he had an insight into the machinery of government that is basically unequalled, and his views on such matters surely carry as much weight as those of Barwick or anyone else. Sure, his book is self-published, but he has often espoused exactly the same views in opinion pieces in newspapers and in speeches and the like, so I don't think we're doing ourselves any favours by dismissing his writings out of hand. As this is an article primarily on a dispute, and less on the content of the opposing arguments, the principle of balance demands that the views of one of the main advocates, if not the main advocate, of one side of the issue not be hidden from view. -- Jack of Oz 01:42, 4 January 2013 (UTC)

Sorry, I was talking about Spadijer's book, portions of which have been published here and there. It is a poor response to Smith's book which is admirably sourced. I don't go along with everything Smith says, but he certainly knows his subject and acknowledges criticism and opposing views graciously. His hardback book is well-produced, comprehensively indexed and an extremely useful reference in this rather thin field. Spadijer, fulsomely praised by Lewis Holden, picks and chooses amongst trivia and complains he is not taken seriously in his opinions. Maybe the bits that have been published on a blog are the absolute worst sections and it is worth paying the $21+ to read the best bits, but I doubt it. It's rather like those reviews you see on Amazon where somebody has written and self-published what they think is the killer novel, but there are only two reviews, both rating it five stars and the second reviewer is the mother of the first, who is also the author. Using Misplaced Pages to aid in this sort of self-promotion is not what we are here to encourage. --Pete (talk) 02:14, 4 January 2013 (UTC)

Fair enuf. -- Jack of Oz 02:31, 4 January 2013 (UTC)

Very well. I'm not surprised Spadijer's book is rejected simply on the grounds that it is self-published and that it allegedly deals with trivia (not sure about the High Courts decisions on the issue being trivia, but I'll guess we'll cross that bridge when we come to it). I would add that is probably because Sir David Smith's arguments are largely trivial and all seem to turn on a misinterpretation of single case. --LJ Holden 08:36, 4 January 2013 (UTC)

It would help if you read Smith's book. His arguments are very broadly sourced, and the sources are generally very highly placed. The discussion between King George V and James Scullin over the appointment of Sir Isaac Isaacs is a case in point. Describing such a significant event in the history of the British Commonwealth as "trivial" demonstrates a lack of knowledge on the subject, rather than any useful commentary. Smith is certainly promoting a particular point of view, but his scholarship is very well founded indeed. --Pete (talk) 18:16, 13 January 2013 (UTC)

I have read Sir David Smith's book, actually. I don't own a copy of it however - since you appear to, please add his sources to this article. That would certainly be more useful than removing other sources which disagree with your stance. --LJ Holden 22:52, 16 January 2013 (UTC)

Thorpe v The Commonwealth

I've restored this case, as the transcript of proceedings is an actual verifiable source. --LJ Holden 08:46, 4 January 2013 (UTC)

Found the transcript online, I've added this to the citation. --LJ Holden 09:05, 4 January 2013 (UTC)

I think your recent edits are currently violating WP:OR, since you are using primary sources. Are there any reliable secondary sources noting the importance of those court cases? Broadsheet newspaper articles, text books, etc? --Surturz (talk) 15:03, 4 January 2013 (UTC)

Where's the OR? The content in the article reflects what the souce says pretty directly. --Ħ MIESIANIACAL 17:38, 4 January 2013 (UTC)

For one thing, it's trivia simply because no secondary source can be found. No reliable source, anyway. Besides, it was a comment, an interjection, one line in a lengthy and very diverse and confused proceedings. If Kirby had handed down a decision revolving around the statement, or better, the Full Bench had ruled on the specific question, that would be decisive. Kirby, much as I love him, often gave the minority ruling in cases. --Pete (talk) 17:54, 4 January 2013 (UTC)

You're not using the proper definition of "trivia". The sources used to support the material meet WP:RS. Your personal opinions on authors don't matter. --Ħ MIESIANIACAL 18:58, 4 January 2013 (UTC)

I can't see how this is violates WP:OR. Obviously in all the cases cited the issue isn't at the forefront, that is true in every precedent, including the main one relied upon by Sir David Smith, R v Governor. As for secondary sources, I would look to the reason why this is in the OR policy: to "avoid novel interpretations of primary sources". In the case of Thorpe v Commonwealth it's clear the issue is being directly discussed. It's hardly a novel interpretation of the transcript.--LJ Holden 21:29, 4 January 2013 (UTC)--LJ Holden 21:29, 4 January 2013 (UTC)

Kirby was one of the founders of Australians for a Constitutional Monarchy apparently. I'm sure additional references can be found. Directly quoting one line of conversation from a court transcript might be okay I suppose if nothing else can be found, but I'd much rather see Kirby's considered opinion - an essay or the like. This is an article quality issue for me, not a WP:V issue. We should be presenting the best arguments of both sides of the debate using the best sources. --Surturz (talk) 17:55, 5 January 2013 (UTC)

A comment by a judge that is irrelevant to the case before him, is not included in the judgment and has not been reported in secondary sources is insignificant and WP:WEIGHT requires its deletion. TFD (talk) 19:38, 5 January 2013 (UTC)

A judge commenting on the subject of the head of state of Australia is directly relevant to this article and the source meets WP:RS. The opinion is balanced out by contrary ones; so, the material warrants inclusion. --Ħ MIESIANIACAL 00:15, 6 January 2013 (UTC)

No it is not. Judges talk about lots of things during trials - the Beatles, cricket, omnibuses, the weather. What they say is only significant if it is part of a judgment and resolves a legal issue and other courts cite it as a precedent. A judge repeating received opinion in an off the cuff comment during a trial is of no significance at all. It was not even significant to the case before him. It may be interesting that a monarchist judge disagrees with the monarchist line, but first we would have to establish that a reliable source has found it interesting. TFD (talk) 00:48, 6 January 2013 (UTC)

We're not discussing the significance of the comment to the case but to this article. There's no policy or guideline that says we need a source to tell us whether or not a source is relevant to an article, let alone whether or not it's "interesting". --Ħ MIESIANIACAL 00:51, 6 January 2013 (UTC)

(outdent) we do actually, it is WP:WEIGHT, part of policy and pillar WP:NPOV. I honestly think you'd reach consensus sooner by finding better refs rather than arguing for this one. For example, I found this: essay by Kirby, if you look on the bottom of page eight it is pretty clear that he believes the Queen is the Head of State. --Surturz (talk) 01:27, 6 January 2013 (UTC)

Also, there is no reference in the transcript to a dispute. Counsel for Thorpe said they were unaware of who was the head of state, they did not dispute it. TFD (talk) 01:53, 6 January 2013 (UTC)

Ok, perhaps a re-write is in order: referencing Kirby's essay, the fact that he is a prominent monarchist and then his comment in Thorpe v the Commonwealth. --LJ Holden 20:12, 7 January 2013 (UTC)

I removed anything in the "official sources" section that relies on a primary source, such as the discussion and off-hand remarks in Thorpe. Miesianiacal has seen fit to revert, and I must now ask for his reasons in going against WP:RS. As noted above, remarks by judges, while discussing other matters, hold very little legal weight. If the matter of the head of state had ever been the subject of a High Court ruling, then it would surely have been referenced elsewhere, and we would have a secondary source - most likely several very good secondary sources. --Pete (talk) 22:50, 16 January 2013 (UTC)

The sources meet WP:RS

A blanket deletion is not the only resolution. LJ suggested a rewrite. --Ħ MIESIANIACAL 22:52, 16 January 2013 (UTC)

The sources are primary sources, unreferenced anywhere else. The comments are not rulings, they are off the cuff observations out of context. For example, the comment by Kirby in Thorpe came during a long discussion on the finances of the plaintiff and was totally unrelated. These are insignificant and certainly do not warrant the WP:WEIGHT the article lends them in its current form. Their inclusion is misleading, as the High Court has never ruled on the issue of head of state. --Pete (talk) 23:11, 16 January 2013 (UTC)

Structure

Would this article be better served with a "Queen vs. GG" structure, rather than headings based on reference type? --Surturz (talk) 15:14, 4 January 2013 (UTC)

I'm confused about this article. It was suppose to house sources that prove there's a dispute. Yet, it seems to have developed into the dispute itself with fights over which sources can & can't be used. GoodDay (talk) 20:55, 4 January 2013 (UTC)

I'm not welded to any particular structure. However, the article is aimed more at demonstrating the existence and history of the subject, rather than attempting to find an answer to the question. Grouping the views of commentators by source highlights the variety of views within the community, ranging from prominent and highly-regarded public figures to anonymous journalists (such as in an editorial). --Pete (talk) 18:06, 13 January 2013 (UTC)

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