Talk:Monarchy of Australia/Archive 1

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Should this be at Australian monarchy like Canadian monarchy and British monarchy? It'll be one less thing to do if for some reason she croaks in the near future. --Jiang 11:02, 9 Apr 2004 (UTC)

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You can write a lot about "Australian Monarchy" on its own and still keep the "Queen of Australia" page. There have been monarchs before Elizabeth II and there will be others after.

Could we mention some of the things Elizabeth II has done in this capacity? I vividly remember the day she opened Australia's Parliament House in Canberra for one. On Armistace Day 2003 she also opened the Australian War Memorial in Hyde Park, London, which was an occasion of great national significance, widely reported in Australia.

more accurate, less pro-republican info

I've ammended this page so that it includes more accurate info on the Australian monarchy, and has a less neagative, pro-republican attitude.

For example: "It is sometimes asserted that the 1973 Act establishes Australia as a monarchy completely separate from the monarchy of the United Kingdom, linked only by the fact that they happen to have the same monarch. This is not entirely true. When Elizabeth II dies or abdicates, for example, her successor as King or Queen of Australia will be determined according to the The Act of Settlement of 1701, which is an act of the Parliament of the United Kingdom..."

This is incorrect as the Act of Settlement is, since the patriation of Australia's constitution in 1986, now Australian constitutional law, not British.

Also, to claim "This Act is on the face of it in conflict with Australian law preventing discrimination on grounds of religion" is only opinion. It has been altered to say: "Some Australians feel this Act is in conflict with Australian law.." gbambino

This is true from a technical point of view, but from a historical point of view, the Act of Settlement is a 1701 Act of the UK's Parliament, not Australia's. That Australia much later incorporated it into its constitution doesn't change the nature of its origin. --Delirium 10:59, August 29, 2005 (UTC)

• Which section of the Australian Constitution incorporates the Act of Settlement?
• Which Act of the Australian Parliament makes the Act of Settlement Australian law?

Adam 11:36, 29 August 2005 (UTC)

• Like the Canadian constitution, the Australian one consists of more than one document (as well as a good lot of unwritten convention), so the Act of Settlement is not 'incorporated' into any other Act but stands on its own as a part of Australian law.
• I'm not sure of the date that Australia adopted the Act of Settlement as a part of Asutralian law. It may have been in 1986 when the Australia Act was passed. But it's definitely been adopted by Australia: "The point is that although Britain may alter its Act of Settlement, Australia, which adopted it, may not adopt the change." 1 --gbambino 15:42, 29 August 2005 (UTC)

I do not believe that the act of settlement per se was ever adopted in Australia. The person who is Queen/King of Australia is defined in section 2 of the Commonwealth of Australia Constitution Act (Imp) (part of the preamble) as the King/Queen of the UK. Xtra 23:49, 29 August 2005 (UTC)

The Australia Constitution Act was passed in 1900. Since then each Realm has become independent of the UK, but all have agreed to continue to share the Crown in a symmetrical fashion. Thus, to keep the line of succession to the Crown the same in each Realm, each had to adopt the Act of Settlement, as well as other Acts touching on the line, Royal Titles, etc. --gbambino 00:05, 30 August 2005 (UTC)

Nothing is constitutional law in Australia unless it has (a) been written into the Constitution by the people at referendum or (b) been enacted by the Australian Parliament. The Constitution does not incorporate the Act of Settlement, and I am still unaware of any statute which does so. Certainly the Australia Act 1986 does not do so. There are many references in Australia law to "her heirs and successors according to law," but the question is, "which law?" The schedule of the Statute of Westminster Adoption Act 1942 refers to the "established constitutional position of all the members of the Commonwealth" 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 the Parliaments of all the Dominions as of the Parliament of the United Kingdom." A schedule, however, is not actually a provision of a statute, and we know this is statement in the schedule is a dead letter because the Queen now has different styles and titles in the various countries of which she is head of state. Furthermore there is no longer a legal category of "the Dominions." My view therefore is that the Act of Settlement is not part of Australia law. When Elizabeth II dies, however, I imagine the government will advise the Governor-General to proclaim Charles III of the United Kingdom to be King of Australia, and will dare someone to challenge this in court. Adam 00:32, 30 August 2005 (UTC)

The Act of Settlement is not and need not be adopted into Australian law. As I said above, the Constitution provides for this. Also, only the following comprise the australian constitution: The Constitution Act, the Statute of Westminster, the Australia Acts, the Letters Pattent. Xtra 03:13, 30 August 2005 (UTC)

The Commonwealth of Australia Constitution Act is not part of the Constitution and, as an act of the UK Parliament, is not Australian law. So neither the Constitution nor any statute provides for the succession as King or Queen of Australia to be the same as the succession in the United Kingdom. We just assume that this is so, and that assumption will probably survive challenge when it comes to the point. Adam 03:37, 30 August 2005 (UTC)

You forget the Statute of Westminster, 1931 which most certainly is a part of Australian constitutional law. "And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another 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 the Parliaments of all the Dominions as of the Parliament of the United Kingdom" --gbambino 16:15, 30 August 2005 (UTC)

Adam, I think you will find that that Act is binding on Australia. Xtra 05:22, 30 August 2005 (UTC)

Where will I find this? No act of the UK Parliament has had effect in Australia since 1986 (in fact since 1942 in almost all cases) unless the contrary has been specifically provided. Where has it been provided that either the Act of Settlement or the Commonwealth of Australia Constitution Act still have effect in Australia? Adam 05:41, 30 August 2005 (UTC)

The Constitution Act is the founding Act of the federation and all parts of the act are binding on Australia . I do not really see much point in arguing about this anymore though as it is not facilitating the writing of this article. Xtra 05:55, 30 August 2005 (UTC)

That is quite untrue, but if you don't want to discuss it further, fine. Adam 07:52, 30 August 2005 (UTC)

In reponse to Gambino's edit above. Section 3 of the Statute of Westminister Adoption Act 1942 says: "Sections two, three, four, five and six of the Imperial Act entitled the Statute of Westminister, 1931 are adopted" etc. None of those sections deals with the succession to the throne. The statement you quote is in the preamble to the Statute of Westminster, which was specifically not adopted, and is therefore not Australia law (even if it was, it doesn't actually say what the law of succession is). I will maintain my view that there is no law in Australia relating to the succession to the throne, until someone can show me when and by what process such a law was enacted. Adam 00:37, 31 August 2005 (UTC)

After further research it seems I've previously been mislead in regards to Australia's relationship to the Crown. Canada adopted the full Statute of Westminster in 1931, and it was my impression Australia had done the same in 1942. But it's true that it was only five sections of the Act that were adopted, not including the preamble.

In addition, a Canadian constitutional scholar, Dr. Richard Toporoski wrote the following: "But there is a danger that this concept of the 'divisibility' of the Crown, which... can lead to the idea that the Crown is at present 'divided'. This is not true, but it would immediately become true if, let us say, an alteration were to be made in the United Kingdom to the Act of Settlement 1701, providing for the succession of the Crown. It is my opinion that the domestic constitutional law of Australia or Papua New Guinea, for example, would provide for the succession in those countries of the same person who became Sovereign of the United Kingdom. But this would not be true in Canada. There is no existing provision in our law, other than the Act of Settlement 1701, that provides that the King or Queen of Canada shall be the same person as the King or Queen of the United Kingdom." [emphasis mine]

Still, the preamble to the Statute of Westminster only verbalises a convention which had existed for some time previous, and still exists today (one fundamental to the relationship of the Commonwealth Realms to one another under the Crown). Even without the preamble to the Statute in Australia, I doubt a unilateral alteration to the line of succession by the UK would be accepted without comment by Australia, as such an action would breach the convention of any Realm seeking the consent of all others before altering any law which touches on the line of succession.--gbambino 15:10, 31 August 2005 (UTC)

Gambino is a monarchist - i wouldn't trust him to be objective in a pink fit. PMA 04:40, 31 August 2005 (UTC)

That is a bit of an unfair generalisation. Xtra 12:48, 31 August 2005 (UTC)

Indeed, it is. --gbambino 14:57, 31 August 2005 (UTC)

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I am not interested in whether anyone is a monarchist or not. I am interested in the subjects under discussion, which are:

• Is the British Act of Succession valid law in Australia?
• If it is not, what law determines who will be Australia's head of state on the death of Elizabeth II?

My answer to the first question is "no", because: certainly since 1986, and probably since 1942, no British statute has had legal force in Australia unless the Parliament of Australia has so provided, and because no-one can show me an Australian statute so providing. We have established that it isn't the Statute of Westminster or the Australia Act.

(If I may digress, the reason there has been no move to make the Act of Succession an Australian law is that no-one could defend its discriminatory provisions before an Australian Parliament, and that monarchist governments haven't had the courage to try.)

My answer to the second question is: "none." There is no constitutional provision or Australian statute addressing this question. I will be happy to recant when someone can cite such a provision or statute. What there is, of course, is convention, and it will be convention which will determine the succession to the throne of Australia. So when Elizabeth II dies, the Prime Minister will advise the Governor-General to proclaim Charles III of the United Kingdom as King of Australia, on the grounds that (a) Australia is a monarchy, as confirmed by referendum in 1999, (b) monarchy is a hereditary system, (c) Charles is Elizabeth's heir, and (d) the Parliament has not provided otherwise. This chain of logic will probably survive any legal challenge, since no-one will have any better ideas. The only alternative would be for the High Court to rule the Australian monarchy defunct on the grounds that Elizabeth has no legal heir in Australia. That would be fun, but I doubt the Court would contemplate it. Adam 00:14, 1 September 2005 (UTC)

Just wondering Adam, are you in the legal profession?--JSIN 06:27, 7 October 2005 (UTC)

I'm a Monash 2nd year law dropout and proud of it. I later resumed my education and have a PhD in Australian history. Adam 07:55, 7 October 2005 (UTC)

How is the Act of Succession Australian law? I don't understand how. Weren't the Australia Acts just to provide that legislative change in the UK would not affect Australia? And if the Act of Succession really was included into our Constitution, how would this be possible without a Referendum. In all seriousness, who would be interested to take part in a court challenge when Charles III ascends the throne? Hmm... and any constitutional law experts going to say something?JSIN 09:58, 7 October 2005 (UTC)

As was discussed last month (above), there doesn't seem to be any evidence that the Act of Succession has ever been adopted into Australia law. My view, however, is that a challenge to the right of Charles Mountbatten-Windsor to become Charles III, King of Australia, would fail on the following propositions:

• Australia is a monarchy, as confirmed by the 1999 referendum
• Monarchy is a hereditary institution
• Charles is the heir at law of Elizabeth II, and will succeed her in her other titles
• The Australian Parliament has not made any other provision for the succession
• There is a settled expectation among the Australian people that Charles will succeed
• One of the duties of the courts is to uphold stable constitutional government, not make capricious decisions that create constitutional vacuums

In other words, I believe the court would rule that it has become a constitutional convention under Australian law that the succession to the Australian throne will follow the succession to the UK throne, and that only a decision by the Australian people, by way of referendum or legislation, to make some other provision could overturn that convention. Adam 11:01, 7 October 2005 (UTC)

But is there anything to indicate that constitutional convention, as opposed to law, is binding and has legal effect?JSIN 12:58, 7 October 2005 (UTC)

If the High Court upholds it, it is law unless overturned by statute. Adam 13:02, 7 October 2005 (UTC)

I've said this before... but I like repeating myself. The Queen of Australia as referred to in the Constitution is defined as the Queen/King of the UK in section 2 of the Commonwealth of Australia Constitution Act (Imp). I have it on reliable advice (i.e. from a constitutional lawyer) that this is:

a) binding on Australia, and

b) not a part of the constitution that can be ammended (i.e. we cannot change the succession unless we become a republic)

This implies UK succession law into Australian succession law by necessity.Xtra 13:39, 7 October 2005 (UTC)

Ask your lawyer:

• When and by what means was the Commonwealth of Australia Constitution Act (as distinct from the text of the Constitution) adopted into Australian law?
• How can the Commonwealth of Australia Constitution Act be part of the Constitution if it is not amendable by the Australian people at referendum (and I agree that as a British statute it is not amendable), when s128 prescribes a method of altering the Constutution by referendum and does not exclude any section of the Constitution from that provision?
• If the Commonwealth of Australia Constitution Act is binding on Australia, does it not follow that if the UK Parliament repealed that Act, as it could, that the Commonwealth of Australia would cease to exist? Was it not precisely to end this anomalous situation that first the Statute of Westminster and then the Australia Acts were passed?

Adam 13:52, 7 October 2005 (UTC)

If that happened the High Court would interpret things whichever way allows it to make the monarch of the UK, the same as that of Australia. If Australia became a republic that clause would become inefectual as there would be no Queen to succeed. But Australia has no right to say who the Queen is under the present constitutional sittuation. Xtra 14:29, 7 October 2005 (UTC)

• If that happened, there would be no High Court, according to your doctrine.
• Australia is a sovereign state. The Australian people therefore must have the right to determine their constitutional arrangements, including who their head of state will be. Adam 14:53, 7 October 2005 (UTC)

I think I agree with Xtra, that the people have no right to determine who the Queen is. Correct me if I am mistaken, but does she not form part of Parliament, do not the courts find judgement in her name, and is not all executive power vested in her? I think the arrangement is that the Queen holds sovereignty over Australia, with this sovereingty not coming from the people, but from God.JSIN 00:50, 9 October 2005 (UTC)

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I'm not sure what century JSIN thinks we are living in. He/she should also study some Australian history. Here is a quick rundown:

• Sovereignty in Australia derives from the Australian people, as expressed through a Constitution which was approved by the Australian people at referendums in each of the colonies in the 1890s.
• The Queen of Australia holds her title by virtue of that Constitution and subsequent legislation enacted under that Constitution, and for no other reason. The basis of her sovereignty in the UK is quite different, but that is irrelevant because Australia is a fully independent state.
• It follows from this that the Australian people have the right to abolish the monarchy by referendum, as even monarchists agreed in 1999 when they campaigned against the republic referendum - they did not argue that the referendum itself was invalid.
• It also follows that the succession to the title King/Queen of Australia must be determined by Australian law, not UK law. The UK Act of Succession has never been incorporated into Australian law and is therefore irrelevant.
• Since there is no constitutional or statutory provision for the succession, it must be a matter of common law, a perfectly valid form of law, expressed in this case as a constitutional convention. As there has never been a succession to this title since the complete separation of Australia from the UK, this will be a new convention, but there is nothing wrong with that.
• My view is that the new convention will be established as I outlined above: that Charles III will be proclaimed as King of Australia, because:
  • Australia is a monarchy, as confirmed by the 1999 referendum
  • Monarchy is a hereditary institution
  • Charles is the heir at law of Elizabeth II, and will succeed her in her other titles
  • The Australian Parliament has not made any other provision for the succession
  • There is a settled expectation among the Australian people that Charles will succeed

Adam 03:30, 9 October 2005 (UTC)

Thanks very much for your explanation. So what do you think is the significance of "by the Grace of God" in her title as Queen of Australia? Also, because as you say, the Act of Succession has never been incorporated into Australian law, is it true that it does not form part of the Constitution? s116 of the Commonwealth of Australia Constitution Act. "The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth." In your opinion, might this affect the expected reign of Charles III? JSIN 04:01, 9 October 2005 (UTC)

• "By the Grace of God" is a relic with no constitutional significance. If God wishes to make a claim to sovereignty over Australia he is free to take a case to the High Court.
• The Act of Succession (to repeat myself) is an act of the UK Parliament. As a result of the Statute of Westminster and the Australia Acts, no UK statute is law in Australia unless the Australian Parliament says that it is. I have asking for several weeks now for someone to tell me when and by what means the Act of Succession has been made Australian law.
• On the face of it, the Act of Succession is in conflict with s116, since it sets up a religious test to hold an office (King of Australia). The matter has of course never been tested, and in my view never will be, because the Act of Succession is not Australian law. When Charles III becomes King of Australia, he will do so under Australian law, not UK law.

Adam 04:11, 9 October 2005 (UTC)

Adam. Sovereignty in Australia is derived from the Queen, not the people. The Queen, if she wished, could veto any constitutional ammendment to get rid of her. Although she would not. The Act of Succession is not in conflict with the Australian Constitution, as it is not an Australian Act. The Constitution only limits Australia's legislative ability. In any event, the monarchy is non-justiciable in Australia. Xtra 04:58, 9 October 2005 (UTC)

You should read the Constitution some time, Xtra. Adam 05:05, 9 October 2005 (UTC)

I think Xtra is right, to some extent. I seem to remember that the final step in constitutional amendment is the amendment being presented for the Queen's assent. So in theory, she could have vetoed the 1999 referendum, had it been successful. Also, the Act to hold a referendum received Royal Assent, and the Queen could have withheld this if she had preferred. Does the Constitution only limit Australia's legislative ability? Or does it also limit everything that is applied within Australia, including the Act of Succession?JSIN 05:30, 9 October 2005 (UTC)

I hate to sound patronising, but both of you need to read the Constitution and also to learn some constitutional history, British as well as Australian. Then you would know that:

• The Queen's functions in Australia are delegated to the Governor-General. The Queen does not give the Royal assent to Australian legislation, the Governor-General does.
• No monarch has withheld the Royal Assent since 1708, and no monarch or Governor-General would today even dream of doing so.

I agree (as I have said several times) that the Act of Settlement 1701 (and I have been reminded that that is its correct title) is not an Australian Act. That is why it is in my opinion not valid law in Australia. If you want to argue that it is, you must show me when and by what process it was made so.

However, if it is Australian law, it is clearly in conflict with s116 of the Constitution and is, to that extent, invalid.

I don't know what the statement "the monarchy is non-justiciable in Australia" means. Australia is an independent state and everything that happens within it is within the jurisdiction of its courts, including matters relating to the office of King/Queen of Australia.

The G-G gives Royal Assent in the Queen's name. The Queen, if she wishes, can overrule that. I am aware that Royal Assent is nearly always granted, but the point I was making that she is capable of witholding it, thus, proving the point that she, not the people, is sovereign over Australia.JSIN 06:17, 9 October 2005 (UTC)

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• "The Queen, if she wishes, can overrule that": No she can't. She understands constitutional convention and political reality perfectly well - better than you, evidently.
• "Royal Assent is nearly always granted": Nearly? No British Monarch has ever defied the will of a democratic Parliament, and none ever will.
• "she is capable of witholding it": No she isn't. Get real, please.
• "she, not the people, is sovereign over Australia": No she isn't. Australia is a constitutional monarchy in a way that the UK is not.

I have forgotten why we are having this debate. Are we discussing something in the article, or I am conducting a constitutional history class just for the fun of it? Adam 06:30, 9 October 2005 (UTC)

Constitutional convention and political reality is different from legal right. It is unarguable she has the legal right to do so, even though it is highly unlikely that she ever will. It is this legal right, not political considerations, that makes her Sovereign over Australia. I doubt you are qualified to teach a constitutional history class and ask that you stop with your patronising attitude.JSIN 06:43, 9 October 2005 (UTC)

Note that the Act of Settlement is an English Act, not a UK one. The UK did not exist at the time it was passed. Australia appears to have based its legal system on English Law rather than Scots Law, since it uses English conventions and forms, whether or not they have been mentioned in constitutional documents. -- Derek Ross | Talk 23:26, 12 October 2005 (UTC)

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I'm reading this discussion with great interest, and would like to make one small point. (This is certainly not intended to take a side in this discussion. I am not Australian, have never read the Australian constitution in full, and pretty much what I know about Australian constitutional law would come from the discussion above and related articles here; but I do claim some knowledge of Anglo-American common law principles in general.) The point is with regard to Adam's comment, replying to JSIN's question about the significance of "by the Grace of God" in the title, that "By the Grace of God" is a relic with no constitutional significance.

It's a general principle of statutory construction, at least in the United States where acts of the legislature are subject to judicial review, that no word in a statute is to be considered superfluous and that the legislature is presumed to have had a reason for including every word and phrase that it does. Therefore, some effect would have to be found for the retention of this clause in the sovereign's title; the more so in view of the fact that Parliament kept that clause in the Royal Style and Titles Act (1973) at the same time as it deleted the equally relicky clause "Defender of the Faith," thereby showing that it was paying attention to each portion of the historical style.

I would expect an argument such as this to be advanced by advocates of the proposition that the queen's sovereignty in Australia derives from God rather than from the people. From what I glean from the discussion above, I don't think this makes any difference to the resolution of the question being debated (i.e., who gets to be the next monarch of Australia), but I wonder what Adam's response to my small point is. -EDM 21:21, 13 October 2005 (UTC)

Title/status

Adam, I asked a question on this issue a while ago at Talk:Elizabeth II of the United Kingdom, but it was obscured in a discussion about Pakistan, and is probably more relevant to this article anyway. My understanding of the 1973 law is that it did nothing but change the title of the Queen. Your comments, and to a lesser extent this article, seem to imply that the change was more than a change of title. Are you actually claiming that something other than the Queen's title changed in 1973? JPD 09:46, 11 October 2005 (UTC)

It's my understanding that the Her Majesty's change of title to Queen of Australia in 1973 further proved that the Australian Crown is completely unique from the Crown of the United Kingdom and other Realms such as New Zealand. Dpd 22:45, 11 October 2005 (UTC)

Not "further proved", "began to establish". Remember the Crown in right of the various states still relied on UK government advice to appoint state governors up until 1986. Slac speak up! 03:51, 12 October 2005 (UTC)