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Home , Australia Act 1986, Royal assent, The Crown (season 4)

Last month when I was watching the Chris Smith TV show one evening there appeared a clip showing Prince Charles at the Davos meeting shaking hands with Greta Thunberg (no problem) and then going along a row of important attendees, including Mike Pence, the Vice-President of the USA and shaking their hands and making the occasional comment. When he arrived at Mike Pence, who held out his hand for a handshake, the Prince deliberately passed him by and shook the hand of the next person, with Vice-President Pence looking flabbergasted at this obvious snub. I could not believe it – here was the person who is to be the next of displaying contempt for a high ranking representative of an important ally not just of Australia but also Britain and other Commonwealth countries. Up to that point I had not taken much notice of Prince Charles’ views on plants, homoeopathy, etc, but this was something that could not be ignored.

In 2010, my wife and I were visiting some friends in Canada and while there I read the local newspapers. In one paper there was an article about how the Canadian Government should consider having in place a succession plan for when the Queen died and Prince Charles took over the . Like Australia, Canada is signatory to the Statute of Westminster 1931 which requires for Commonwealth countries sharing the Queen as Head of State “…that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of Parliaments of all the as of the Parliament of the ”. The Canadian article acknowledged that while the Queen had carried out her role in the traditional manner it was likely Prince Charles would be very different and that needed to be factored in with some sort of review of his relationship with the Canadian Parliament. The Canadians had insisted on implementing the above Statute of Westminster convention in 1936 when Edward VIII abdicated and Canadian laws needed to be changed to recognise the new line of succession. In 2015, in accord with same convention, Australia has agreed with other Commonwealth countries that the first born of the Royal Family, irrespective of whether male or female should be the and that being a Catholic is no barrier to being the Monarch (Succession to Act 2015).

According to Bagehot, the Crown’s role in Britain is described as follows: “To state the matter shortly, the sovereign has, under a such as ours, three rights – the right to be consulted, the right to encourage, the right to warn.” Those three rights were developed in the context of the power struggle over the centuries between the Parliament and the Monarchy and have been regarded in practical terms the rights of the Monarch to be consulted by Parliament, to encourage Parliament and to warn Parliament - not the general population. The Queen has adhered to this process scrupulously, not only in Britain where she regularly meets with her Prime Minister, but also in Australia where she consults in private with her representative the Governor- General who in turn consults with the Prime Minister. This tradition of neutrality in public affairs means the Monarch is well respected in the community, and hence the role of the Monarch per se. In contrast to her approach, Prince Charles seems to want to bypass Parliament and speak directly to his subjects via modern media. This not only goes beyond the three agreed rights outlined above, but also brings the Monarchy into disrepute by his taking partisan positions on controversial issues and this is divisive in the community and inimical to democracy, and to the Monarchy itself, which is hereditary and not elected. Given that the Queen’s reign is almost at an end does the have a position on endorsing the reign of Prince Charles when he becomes king?

I believe that Parliament should have a fall back position on the death of the Queen that severs formal constitutional ties with the UK Monarchy and replaces that Monarch as our head of state by an Australian Head of State, chosen by election. That does not mean Australia leaves the Commonwealth or adversely affect its cultural and economic ties with Britain. I have put a proposal previously to State and Federal Parliamentary leaders along the following lines:

1. Each State Parliament and the Federal Parliament choose a candidate using the existing methodologies for choosing a State governor and the Commonwealth Governor-General.

2. These candidates publish a simple CV in selected media and without further campaigning put themselves up for election by the public for the position of Governor-General/President

Discussion

In 1999 the Referendum question was as follows: “To alter the to establish the Commonwealth of Australia as a republic with the Queen and the Governor-General being replaced by a President appointed by a two-thirds of majority of the members of the Commonwealth Parliament”. After the referendum failed in 1999 it was obvious that it had failed mainly because the pro-republic supporters were split over the model that was on offer. There were other reasons which are set out and discussed in the attached paper by the Hon Justice in March 2000. I personally agreed with the 1999 Referendum model whereby Parliament was in control of electing the President. This reflected the status quo relationship between the Parliament and the Queen’s representative in Australia, the Governor-General and the Head of State (The Queen), while reflecting the result of hundreds of years of power struggle between Parliament and the Monarchy and which had resulted in a stable and democratic system of government. The alternative of having an elected President conjured up visions for most people the spectacle of a USA type election resulting in Australia in a President with as yet undefined powers that may usurp the powers of Parliament, and thus the preference was for the “minimalist model”.

The preparation for the referendum had been very thorough and cannot be faulted. A Constitutional Convention was held in Old Parliament House from 2 to 13 February 1998 following election of delegates in 1997. I attended public meetings here in where the process was outlined and obtained excellent official booklets on the issue that were made freely available to the public. In anticipation of a possible “Yes” vote the Attorney-General’s Department had prepared a draft “ for an Act to alter the Constitution and to establish the Commonwealth of Australia as a republic with a President chosen by a two-thirds majority of the members of the Commonwealth Parliament” accompanied by a comprehensive “Explanatory Memorandum – Constitution Alteration (Establishment of Republic) 1999”. (Appended below). These two documents (on the same website) spelt out the alterations to the relevant sections in the Constitution to change Australia into a republic. The Federal government of the day had obviously obtained the permission to go ahead by the State Governments as they also had a direct relationship with the Crown.

In 2011 I retired and again took an interest in the question of Australia having its own Head of State and came to the conclusion that it was necessary to reconcile the opposing views of the two factions of the pro-republic supporters, along the lines of the proposal outlined above. The rationale behind that proposal was that the Parliaments of our would still have control over the suitability of the candidature for Head of State and the public were able to exercise their democratic right to elect the President. After all, we elect our Australian Parliaments to govern on our behalf, and I could not see a problem in their choosing candidates on our behalf. Since then there have been moves firstly to have a plebiscite asking “Do you want a republic or a monarchy”? and if successful to have a further plebiscite on a range of models and once the model is decided then to have the referendum. That sounds good on paper but it won’t work. As part of my interest in this question in retirement I assisted for a couple of years at the ARM stall at Canberra’s annual Multicultural Festival where interested passers-bye were asked the same question – “Do you want a republic or a monarchy” and the bulk of respondents said while they favoured a republic they would not vote for a republic in such a plebiscite unless they knew what model was on offer. I don’t blame them – neither would I, after the disaster in 1999. As a result of this feedback I realised the only way around this dilemma was to put before the public a composite model of the two competing models and that proposal to be put to the public either as a plebiscite followed by a referendum (assuming “yes” in the plebiscite) or going directly to a referendum.

As the changeover of the Monarch approaches, I believe it should be Parliament who makes the running on this issue rather than activist groups like the Australian Republican Movement (ARM) and Australians for Constitutional Monarchy (ACM). These may have a role in advising Parliament on their respective views and promoting the two opposite sides of a plebiscite, but they are not bodies democratically elected by the whole community. Australia’s constitutional relationship with the Monarch is government business as can be seen from the following selection of legislation, both from UK and Australia:

1900 – Commonwealth of Australia Constitution Act, 1900 (UK)

1920 - The Nationality Act 1920 (Australia)

1931 – Statute of Westminster 1931 (UK)

1942 – Statute of Westminster Adoption Act 1942 (Australia)

1948 - The Nationality and Citizenship Act 1948 (Australia)

1953 – Royal Style and Titles Act 1953 (Australia)

1968 - Privy Council (Limitation of Appeals) Act 1968 (Australia)

1972 - Britain joins the EU and reduces ties with Australia

1973 – Royal Style and Titles Act 1973 (Australia)

1973 - Privy Council (Limitations of Appeals) Act 1968-1973 (Australia)

1975 - Privy Council (Appeals from the High Court) Act 1975 (Australia)

1984 - The Australian Citizenship (Amendment) Act 1984 (Australia)

1986 – (UK and Australia)

2007- The Australian Citizenship Act 2007 (Australia)

2015 – Succession to the Crown Act 2015 (Australia)

The above examples are only since Federation in 1901. Before that there was a constantly changing relationship between what started out as a penal colony and grew into States and then a Federation. Initially, Australia was administered by the Governor in NSW (In matters spiritual and temporal for instance, the early settlement in Melbourne was administered from Yass). Then as other States developed they were administered by Governors from Britain who promulgated laws for the colonies. Next step was to have an advisory body appointed by the Governor to assist him in drafting legislation (Legislative Councils). In 1850 the UK Parliament passed the Australian Act which enabled the 6 colonies to legislate in their own right and this led to “responsible-government” in the various colonies which in turn enfranchised a large proportion of the population who could not vote previously for members in Legislative Council advisory bodies. UK laws still applied in the new States when they had not developed parallel legislation. Parallel State laws had precedence over UK law. A lot of these changes in the period leading up to Federation came about because we had developed improved communication through new technology and had moved from horse and buggy transportation to railways and a growing sense of a localised identity. Australian States moved further ahead of Britain with things like the voting franchise for all adult males and then women long before it happened in Britain – UK women only got the vote after the First World War and the vote for UK men after the Great Reform Act of 1832 was initially limited by a qualified franchise which excluded many men from the vote.

Britain had learnt a lesson from the American war of Independence and in the 19th century was getting its colonies to be responsible for their own affairs through federation for financial reasons, one of which was because of the cost (in terms of lives and money spent) of sending troops to put down indigenous/nativist rebellions in Africa, Canada, , etc which was a drain on the British taxpayer. That is why colonial Governors were of a military background. Sir Garnet Wolseley, for example, had two stints in South Africa in an attempt to federate the British colonies with the Boer Republics and integrate local kingdoms (like Zululand), first in 1875 and then in 1879-80. These attempts resulted in the very expensive Zulu War and the subsequent more expensive Boer War. The Australasian colonies were the last to federate, with New Zealand opting out.

As can be seen from the above, the relationship between Australia and the Crown has been changing over time as Australians become more confident in their identity as a separate nation and the need to distance ourselves from control of the metropolitan in the light of contemporary political and economic reality. Indeed, Britain itself was encouraging its colonies to become more independent politically and economically. Limiting (or basically ceasing) appeals to the Privy Council is an example how the relationship can be altered without recourse to a referendum. Another example is the various versions of the Nationality Act from 1920 to 2007 which went from a citizen being a “British Subject” in 1920 up to November 1984 when Australian law no longer regarded Australians as "British Subjects” and “British Subjects” in Australia who were not Australian citizens became permanent residents. They were allowed to vote but were unable to get Australian passports until they were naturalised as Australians. In more recent times the High Court has determined that Britain is a “foreign power” in relation to s.44 of the Constitution and in 1994 new citizens at their citizenship ceremony took a pledge of commitment to Australia rather than an oath to the Queen of Australia.

Similarly, the Australia Act 1986 altered the relationship without a referendum by distancing ourselves further by terminating the residual power of the UK Parliament to legislate for Australia. This Act validates the status of the Commonwealth of Australia “as a sovereign, independent and federal nation” (as described in the preamble to the Australian Act). These words were missing in the preamble to the parallel UK Parliamentary Act presumably because the independence was from the UK Parliament only and not from the Crown itself whose incumbent, the Queen, was still the constitutional Head of State of Australia. Under s.59 of the Constitution, she would still have the power to “disallow any law within one year from the Governor-General’s assent , and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known”. Some time back, there was a debate about whether the Queen or the Governor- General was Australia’s Head of State. At an ANU public meeting on this Head of State question I raised the issue of the power of the Queen evident in s.59 with a well-known supporter of the Monarchy who was one of the panel debating the question. He told the meeting that s.59 was “redundant” which therefore made the Governor-General the Head of State. I did not pursue the question further because I felt that if a section of our Constitution was “redundant”, it should be removed by a referendum to keep the Constitution up to date. There are another two possibilities – one is that by convention the Queen chooses not exercise the power given to her in s.59 and the other is that she has exercised her and formally declared that she has withdrawn her right to exercise that power. If a section of the Constitution has become redundant for any reason (and not removed by a referendum) then the least that should be done to assist the reader of the Constitution is to annotate the specific section with a footnote stating that the section is redundant and with an explanation as to why it is redundant. While no laws have been disallowed pursuant to s.59 there was a case under s.60 where a proposed law – the CustomsTariff (British Preference) 1906 – after being reserved in accordance with s.60, failed to receive the , which to me indicates that the stated powers of the Monarch in our Constitution may be exercised as stated.

The other reason I am raising s.59 in relation to succession is that it is my understanding that if there is a legal dispute involving the power inherent in the written word of a constitution section and a related convention, then the written word has precedence over the convention. For that reason, I am concerned that if Prince Charles does not formally accept to follow his mother’s conventions vis-à-vis sections like s.59 in our Constitution then he is legally free to exercise his power as King as set out in s.59 and s.60.

I have tried to show in this letter how Australia has incrementally asserted its right to become more responsible for its destiny since colonisation and can see no reason why we should not have our own Head of State, particularly as we may soon have an outspoken King interfering in our polity. I see the move to an Australian Head of State as a natural next step in our relationship that has evolved over the past 232 years and continues to evolve. If you do not agree with the proposal for an Australian Head of State that I outlined above, could you and your Parliamentary colleagues at least, before passing a new Royal Style and Titles Act to accept the succession of Prince Charles when the time comes, please make acceptance of the succession dependent on his agreeing to the principles set out by Bagehot and exercised scrupulously by his mother, the Queen, during her reign?

Yours sincerely

John Gregan

http://www.lawfoundation.net.au/ljf/app/&id=DF4206863AE3C52DCA2571A30082B3D5 https://www.legislation.gov.au/Details/C2004B00491/Explanatory%20Memorandum/Text