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Monday, 31 August 2020
The Queen’s Club
Her Excellency the Honourable Margaret Beazley AC QC

I am delighted to join you here this evening, on Gadigal land, celebrating the commencement of The Queen’s Club’s annual ‘Country Week’. I pay respect to the Gadigal of the Eora Nation and their Elders past, present and emerging.

Walter Bagehot’s book: The English Constitution was published in 1867. By that time, the original colony of New South Wales, as established by Governor Phillip, had become the colonial entities which, today, are the Australian states. In the interests of accuracy, Western Australia was never part of New South Wales which, under Captain Arthur Phillip’s commission, only extended to the 135th meridian, which runs through the centre of Australia.[1] Western Australia was separately proclaimed as a British Colony in 1829.  

None of this is to intrude into the erroneous Australian history which treated Australia as ‘terra nullius’ until the decision in Mabo[2] in 1992.  That is a legacy with which Australia as a whole nation is still dealing and must deal with. My point is simply to place the year -1867 -and Walter Bagehot in context so as to explain, albeit briefly, the role of the Monarchy and therefore that of a Vice Regal representative in a Westminster constitutional monarchy as we have here in Australia.

It is usual, and I am sure you have heard it, to describe the Vice Regal role as having three features: constitutional, ceremonial and community. 

The constitutional role is not always well understood.  The constitutional role is carried out at the meetings of the Executive Council, which in New South Wales occur on a weekly basis, when, on the advice of Ministers attending Executive Council, Proclamations and Orders necessary for the continuous and orderly good governance of the community are approved by the Governor and signed into law.  In the early days of COVID-19, we were having 2-3 Executive Council meetings in some weeks, including on weekends, to ensure that the Legislation and Orders the Government needed to have implemented urgently were brought into law as quickly as possible.    

The constitutional role, in the manner I have just described, essentially depicts how that aspect of the Governor’s function is carried out, but does not necessarily capture the essence of the Governor’s constitutional position. This brings me back to Bagehot, who described the monarch’s role and therefore the constitutional role of the Vice Regal representative as ‘the right to be consulted, the right to encourage and the right to warn’.  

Sir David Martin, the 34th Governor of New South Wales, in his short time as Governor before his untimely death from that cruel disease, mesothelioma, spoke of these rights as ‘responsibilities’.  I would surmise that they have been so treated by every Governor in post-colonial days.

In broad and general terms, within Australia’s federal system, the New South Wales Government is an independent polity and governs under and in accordance with the Constitution Act 1902 (NSW), in respect of all matters other than those in respect of which the Commonwealth is invested with constitutional power under s 51 of the Constitution Act 1900 (Cth). The position pertains in each of the Australian States. The Governors of the States are each separately commissioned by Her Majesty the Queen, as is the Governor-General, on the recommendation of the relevant State or Federal Government of the day. Thus, there is no chain of command from the Governor-General to the State Governors. 

It would be fair to say that traditionally Australia, and the States in particular, have not placed a great deal of public emphasis on our Constitutions, unlike for example, the United States of America.  That may be because none of our Constitutions contains a Bill of Rights (although Victoria, Queensland and the ACT now each have Charters of Rights).  At Law School, our State constitutional learning mainly centred around s 5 of the NSW Constitution which provides that the Legislature has ‘power to make laws for the peace, welfare and good government’ of the State. This provision, in its simplicity, encapsulates the essence of parliamentary democracy and, in brief, it is what we elect our parliamentary representatives to do.

There are a number of other provisions of the NSW Constitution which also may not be well known to you.

First, and necessarily, as our current border closures would indicate, State boundaries are significant.  A State can only govern in respect of matters within its borders.  But State boundaries have not always been sure things.  Indeed, part of the NSW/Victorian boundary was only finally fixed in 2006[3] and that part along the Murray was only firmly established in a High Court challenge in the 1980s.   

To explain this, I will give you a little history and briefly mention two cases.

The Port Phillip District, which was created in 1840, included the area north of the Murray to the Murrumbidgee.  The 1855 NSW Constitution identified the boundary as: ‘… the whole Watercourse of the said River Murray, from its Source . . . to the Eastern Boundary of the Colony of South Australia, is and shall be within the Territory of New South Wales’. There was an attempt in 1911 by some disconsolate inhabitants of the Riverina who wished to be part of Victoria, to argue that the Murrumbidgee was in fact the boundary between the two states.  According to the argument, ‘the source’ of the Murray was the Murrumbidgee. The argument faded away as did the agitation which had raised the issue and, on my brief research, has not re-emerged.

However there have been two occasions in more recent history where the question of the location of the border was critical.

In the first case,[4] Mr Ward was charged, in Victoria, under Victorian law with murder in circumstances where he was standing on the top of the southern bank of the Murray River, when he shot and killed the deceased, who was standing down below on the southern bank itself. 

It was never in dispute that Mr Ward had shot and killed his victim. The question was whether his victim was in Victoria or New South Wales. If he was in Victoria, Ward would have been rightfully convicted of murder. If in New South Wales, it would have been open to Ward to raise a defence of diminished responsibility which, if accepted, would have reduced the crime from murder to manslaughter, with a significant difference in the sentence likely to have been imposed.  The defence of diminished responsibility was not available in Victoria.

The exact location of the boundary depended upon the words of the provision in the 1855 New South Wales Constitution reproduced above.  New South Wales argued that the ‘watercourse’ referred to in the 1855 Constitution meant the area between the top of the bank on each side of the river.  Victoria claimed, ‘watercourse’ could, and should, be taken to mean the space between the two sides of the water, pointing to the inconvenience it would be if there was a strip of New South Wales territory on the southern side of the river.  

The argument advanced by New South Wales prevailed. The boundary was determined to be ‘along the top of the southern bank of the river’.[5] As the place where the deceased was killed was below the top bank of the southern side, he was in New South Wales when he was killed.   It followed that Mr Ward was not guilty of any offence in Victoria.

The second case, two years later, Hazlett v Presnell[6] involved irrigation rights. Beveridge Island is located in the Murray River approximately 20 kms from the city of Swan.  Mr Hazlett, who held a lease of the land from the Crown in right of the State of Victoria, was charged under a Victorian statute with taking water from the southern stream of the Murray without an irrigation licence.  In defending the charge, Mr Hazlett claimed that Beveridge Island was part of New South Wales.   

The ownership of Beveridge Island had been agreed between the Colonial Secretary of New South Wales and the Chief Secretary of Victoria by letter dated 20 June 1876, the Colonial Secretary advising the Chief Secretary that there was no question that the Island ‘belong[ed] to Victoria and that New South Wales laid no claim to it’. 

This position had been reached following an agreed approach of New South Wales and Victoria, that the ownership of the Island was to be resolved by determining which of the northern or southern streams of the River constituted the main channel, this approach being in accord with earlier Privy Council authority[7] in relation to another island in the Murray, Pental Island.[8]   

A survey undertaken by the two colonies established that the northern stream was the main channel, being considerably deeper and broader than the southern channel. The two colonies had, thus, from the time of the Colonial Secretary’s letter, acted on the basis that Beveridge Island was part of Victoria, being on the southern side of the northern channel.

In its judgment, the High Court observed that the exact location of boundaries of colonies (and, after Federation, the states) could have a significant effect on such matters as legislative competence and the rights and duties of individuals, including in relation to land ownership.   The Court held that whilst the Constitution Act 1855(NSW) defined the boundary between NSW and Victoria by reference to the Murray River, the identification of the physical location of the boundary was a question of fact and could be the subject of agreement between the colonies as had been recorded in the letter dated 20 June 1876 from the NSW Colonial Secretary to the Chief Secretary of Victoria.  As the High Court stated, the 1855 constitutional provision:

‘contained an implied grant of power and authority to the local administrations of the two Colonies to delineate and determine the actual boundary line on the surface of the earth and to resolve, by accord or agreement reached in good faith for that purpose any questions of the identification of the River Murray, its course and its whole watercourse which might arise in that delineation and determination’.

However, the Constitution Act of 1855 only dealt with the boundary in so far as it related to the Murray River.  The Murray doesn’t begin at the coast and it wasn’t until 2006 that that final section of the boundary was finally determined when the respective Governments of New South Wales and Victoria  proclaimed that the 176.49 kilometres between the source of the Murray River at Indi Springs and the east coast was to be demarcated by the Black-Allan line[9], so called because it had been marked out with a series of cairns by surveyors Black and Allan during their expedition in 1870 and 1871.[10] 

Dame Marie Bashir, then Governor of New South Wales, and the then Victorian Governor John Landy met at Delegate River and formally proclaimed the last section of the NSW/Victorian border.[11]

There are two other sections of the Constitution to which I wish to refer tonight.  The first, I mention as a matter of interest. Section 8A, inserted in 1987, provides that Her Majesty may Assent to a Bill if personally present in the State.  Unfortunately, Her Majesty hasn’t been here since 1987 and no longer travels abroad, so that provision has not been utilised.

The other provision is Section 2, which was inserted in 2010 with bilateral support during Kristina Keneally’s term as Premier.  It recognises Aboriginal people as the traditional custodians and occupants, with a spiritual, social, cultural and economic relationship with their traditional lands and waters, and who continue to make a unique and lasting contribution to the identity of the State.[12] The section does not give rise to any legal right or liability.[13] A similar provision appears in all other State Constitutions around Australia.[14]  

But enough of the history lesson and, hopefully, COVID-19 will fade out and borders will no longer be a point of contention.

What does a Governor do day by day?  The answer is simple enough – it is very much as it has been with every Governor, especially in the last half century, namely to commit time to the community.  Indeed, community work takes up at least 90% of the time.

Various Governors and Governors-General have had different ways of describing its importance.  

Sir Ninian Stephen, in his foreword to the biography of Sir David Martin, wrote: ‘Life in Australia’s Government House(s) seldom offers scope for heroism.  The Vice Regal role is a very demanding one in terms of community service and much else as well, but rarely is more called for than a sensitive understanding of the demands of the office, coupled with a sense of duty and a determination to do that duty to the full’.   Sir Ninian spoke about ‘heroism’ because of the manner in which Sir David bore the increasingly debilitating disease of mesothelioma of which he died only some 18 months after being appointed Governor.

Sir Ninian also said, in another context, that the Vice Regal role was to hold a mirror up to society – to be a reflection or depiction of our best selves.

Dame Marie Bashir said to me that ‘there is no greater honour than to serve your country’ which, in the context of a State Governor, is service to the community of the State. 

My immediate predecessor, now His Excellency the Governor-General, put it this way: ‘The standard you walk past is the standard you accept’.

I have put my own touch on this, to say that the Governor should have an honest understanding of the community we are, whilst supporting and promoting the community we desire to be.  Overarching that, is giving to those you meet a sense that they are valued. My experience over the last 15 months as Governor reinforces the importance of being remembered and valued, particularly in the regional and rural communities. 

We decided very early on that the emphasis of our regional visits would be on places hard hit by the drought.  The experience of being on the ground and seeing things as they are and hearing about the problems, the trials and the tribulations is irreplaceable.  In Cobar, one farmer said to us that conditions were so bad that ‘it was as though the sheep are too depressed to stand up’. Then the bushfires took over and we visited the firefighters and the recovery centres. During one visit to a recovery centre, one woman said: ‘I’m 70 and I’m homeless’ as she was, after she and her husband had worked all their lives. Then she told me she deserved a hug - which she did – and we had a hug.  That of course was pre-COVID-19.

With COVID-19, the importance of messaging has taken on new meaning.  Since April, I have done 55 video messages. I have sent out 40 written messages. I have written to every school in NSW and to every hospital.  This week I am sending out a letter to all the HSC students, via their school principals. Since April, I have visited 86 organisations throughout regional NSW, virtually, and at last count, have completed 207 other virtual engagements.  

Putting together the videos, the messages, the 'zoom' meetings is a whole-of-Government House effort. Do these messages and 'zoom' meetings make people feel valued?  I can only hope so and I think so. As the CEO of the Isolated Children’s Parents’ Association wrote recently:

‘Thank you for your continued support and encouragement – it is valued greatly by all of us.’[15]

I should add that I am very chuffed to say that I have been accepted as a contributor to ICPO’s quarterly magazine, Pedals, having been inspired by the stories of the members. Initially, when reading Pedals, I was struck by how much country people have to offer to us city folk. People in the city were feeling very stressed by fairly mild lock down restrictions, whereas for country people isolation is a part of life.  More recently, I was so taken by a story in Pedals written by a 7-year-old about the health benefits of mint – including mint chocolate biscuits(!) that I thought I had to respond. So, in the next edition of Pedals, you will find my small contribution, including a photocopy of the menu for the State Dinner held by Her Majesty Queen Elizabeth II at Government House in 1954.  

I will finish with one other very simple story.  In Batlow, we met a young HSC student and school captain, who has his sights set on competing in the 2024 Olympics as a short distance runner.  He has to train by himself, with a program set monthly by his trainer.  I am also Patron of Wheelchair Sports NSW.  There is a young country wheelchair athlete who also has his sights on the Olympics and also has to train by himself.  As a result of a meeting I had with Wheelchair Sports, these two boys were put in touch with each other and they are now great ‘zoom’ buddies.   I am hoping to be barracking for them both in 2024 and beyond.  But regardless, what great young people!   That is the joy I get out of being the 39th Governor of NSW. Supporting people, and seeing people feel valued.



[1] Historical Records of Australia, Governor Phillip’s Instructions (25 April 1787).

[2]Mabo v Queensland (No 2) (1992) 175 CLR 1.

[3]Constitution Act 1902 (NSW) s 4; Commemorative Proclamation No 22, 15 February 2006, NSW Government Gazette.

[4]Ward v The Queen (1980) 142 CLR 308 at 340 (Murphy J).

[5]Ward v The Queen (1980) 142 CLR 308 at 340 (Murphy J).

[6] (1982) 149 CLR 58.

[7]Pental Island Case (1872) Judicial Committee of the Privy Council; see W. Harrison Moore ‘The Case of Pental Island’ Law Quarterly Review 20 (1904) 236.

[8] The approach was also consistent with US law: Doddridge v Thompson [1824] USSC 28 (referred to in Pental).

[9] Victorian Government Gazette, No S 39, 16 February 2006; NSW Government Gazette, Commemorative Proclamation No 22, 15 February 2006.

[10] Taylor (2006), in R.E. Deakin, S.W. Sheppard and R. Ross ‘The Black-Allan Line Revisited’ presented at the 24th Victorian Regional Survey Conference, Shepparton (April 2011).

[11] Taylor (2006) 120-121.

[12]Constitution Act 1902 (NSW) s 2.

[13]Constitution Act 1902 (NSW) s 2(3).

[14] Constitution of Queensland Act 2001 (QLD) Preamble (c); Constitution Act 1934 (SA) s 2; Constitution Act 1934 (Tas) Preamble; Constitution Act 1975 (Vic) s 1A; Constitution Act 1889 (WA) Preamble.

[15] Letter from Claire Butler, President of the Isolated Children’s Parents’ Association to the Governor of NSW (2020).  

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