The Framework Of Constitutional Monarchy In The Australian States
Written by R.D. (Darrell) Lumb   
Friday, 20 August 1993
The phrase 'Head of State system' is well chosen. In any discussion of Australia's system of executive government, and indeed in any discussion of the basis of the Australian legal system - the Monarch being in constitutional theory the fountain of justice - one must take account of the individual States and their structure. Together with the federal polity centred in Canberra, the States and the internal Territories make up the Commonwealth of Australia. Unlike the Canadian situation where the Governor-General appoints provincial Lieutenant-Governors, each Australian State has a vice-regal representative, the Governor, directly appointed by the Queen. This separateness of the vice-regal representatives in the Commonwealth and State spheres reflects our federal structure.

From the aspect of our political and, indeed, cultural heritage, the position of State (before 1901, colonial) Governor is an important one. In the Crown Colonies which were founded from Britain in various parts of the world in the seventeenth, eighteenth and nineteenth centuries - and which collectively were earlier known as the British Empire, i.e., the grouping made up of Great Britain, colonies, possessions and dependencies - the role of the Governor was an important one. In the early years in New South Wales, the Governor was, of course, the chief executive officer, legislator and judge, but was subject to imperial supervision and approval. It cannot be denied that in the nineteenth century the impact of the Monarch's supervision exercised through the Colonial Office and Law Officers of the Crown was of great significance: whether exercised through Letters Patent, commission, order in council, or other form of executive act. The multitudinous dispatches from the Colonial Office to Governor, and back, were of great importance in shaping the institutions of the Colony of New South Wales and the other colonies - whether founded from New South Wales or founded separately - on the Australian continent. This enabled the needs of the individual colonies to be reconciled with basic principles of British justice and the fundamental principles of the common law.

Under the umbrella of British sovereignty, representative government and later responsible government came to be established for each colony, and these institutions were adapted to local territorial conditions. With the passage of the Colonial Laws Validity Act, Australian legislatures were free to devise their own solutions to new problems, though certain imperial statutes of uniform application throughout the Empire continued to operate. Thus, there was a right of appeal to the Judicial Committee of the Privy Council under the Judicial Committee Acts of 1833 and 1844. Admiralty and Maritime Law were regulated by merchant shipping acts. Colonial legislation could be reserved for the royal assent, and there was a power of disallowance vested in the Monarch in relation to legislation: particularly that which might effect the treaty rights of the mother country.

The coming of Federation did not involve any major restructuring of the status and powers of the State Governors (apart from the issue of new Letters Patent substituting State for Colony and other procedural changes). The Crown was embodied in Queen Victoria and her successors, who were monarchs in the sovereignty of the United Kingdom, of the new Commonwealth of Australia and of the individual States. The Monarch was represented by her vice-regal representatives, the Governor-General and State Governors. As to the States, the Governor had access to the Monarch through the British Government, which exercised an advisory role.

The Statute of Westminster was of fundamental importance in conferring equality of status on the member countries of the British Commonwealth of Nations. Governors-General, exercising the executive power of the Monarchy in relation to their respective dominions, acted on the advice of the local Ministries. The States, however, remained outside the Statute of Westminster restructuring evidently because of fears that their relationship with the Federal Government might be affected. Their independence from Britain was not established until the Australia Acts 1986 (Commonwealth and UK).

The Australia Acts had a profound impact on the position, powers and status of the Governors as vice-regal representatives and in terms of their relationship with the Monarch.

A brief summary will suffice in this context:

Her Majesty's representative in each State is the Governor.

Now powers or functions are exercisable by the Monarch except the power to appoint and to terminate the appointment of a Governor, and to exercise the powers of the Governor on those infrequent occasions when the Monarch is personally present in the State. Advice in relation to these matters is tendered by the Premier of the State.

State laws are no longer subject to reservation or disallowance.

As a concomitant of these changes there is no further responsibility on the part of the British Government for the government of the State.

Appeals to the Privy Council have been abolished.

The Australia Acts can only be amended by the Commonwealth Parliament at the request or concurrence of all State Parliaments (see section 15 sub-section [i]).

The Governor has substantive powers (under the Letters Patent and each State Constitution Act) in relation to the parliamentary government of the State. Thus, he or she has power to appoint and dismiss Ministers and to dissolve Parliament. Power of assent to bills is vested in the Governor, the Monarch being regarded as part of Parliament, i.e. an essential part of the legislative process. Judges of the higher courts are appointed by commission an are not removable except on an address by Parliament to the Governor.

It should be pointed out that the doctrine of reserve powers is not affected by the Australia Acts, despite some opinion to the contrary. Thus, in certain circumstances, the Governor may exercise a personal discretion without, or against, the advice of the Ministry of the day. This is an important check and balance in our constitutional system.

The question now arises of whether, an in what way, the Monarchy within the States and the position of Governor can be abolished. This will be examined under two headings: State constitutional procedures; and Federal constitutional procedures.

State Constitutional Procedures

If we leave aside for the time being the Australia Acts section 15, the question will revolve around the requirements of each individual State Constitution Act. Section 106 of the Federal Constitution preserves the Constitutions of the States and the methods of alteration contained in those Constitutions. This section has been interpreted as giving federal constitutional recognition to the State Constitutions and to the methods of altering them.

In Queensland and Western Australia the abolition of the office or powers of the Governor and other sections relating to the Queen requires a referendum. In certain other States a referendum requirement may be implicit. Even in those States where there is no overt requirement of a referendum, there are dicta in High Court cases that the power of constitutional alteration does not extend to the abolition of the Crown, which is regarded as an essential part of the State legislative processes.

Moreover, even if the internal constitutional processes of a State were complied with, it would still be necessary for the State to comply with the requirements of the Australia Acts. Section 7 of the Acts both implicitly and explicitly recognises the existence of the Monarchy. Section 15 of the Acts requires any amendments to the Acts (including section 7) to be passed by the Commonwealth Parliament at the request or concurrence of all State Parliaments. Unanimity is therefore required for the conversion of a State Constitution to a republican one. (This is subject to the constitutional alteration procedure in section 128. See below.) Any State legislation which did not comply with section 15 would be inconsistent with the Australia Act (Commonwealth) and therefore invalid under section 109 of the Constitution. It would also be invalid under the Australia Act (UK).

Further, insofar as the office of Governor is recognised in various sections of the Commonwealth Constitution (for example, sections 12 and 15, regarding the filing of casual vacancies in, and issuing writs for, the Senate), the abolition of the office by State legislation may well infringe the Commonwealth Constitution and, on that separate ground, be invalid.

In one or two States, legislative initiatives have been foreshadowed to abolish or modify the oath of office for holders of certain public offices which require such an oath. This type of initiative may be regarded as a softening-up process in the conversion of the State to a republic, presumably in co-operation with federal initiatives. Thus, in place of the present oath of swearing allegiance to Queen Elizabeth II, the changed oath would only refer to Australia or the particular State: i.e. to the body politic. It is even proposed to modify the oath of the Governor. Consequently, if these proposals were carried, those who sore the new oath would no longer owe loyalty in the formal sense to the Queen.

This immediately raises the question of whether such State action would be contrary to the Commonwealth Constitution and/or Commonwealth legislation. Here is a summary of the arguments. Apart from the preamble to the Covering Clauses, the concept or status of 'subject of the Queen' is recognised in the Federal Constitution (see section 117). Under the general law, subjects of the Queen owe allegiance to the Crown. The major way in which one becomes a subject of the Queen is of course by birth in her dominions or, for those members of our community who are naturalised, fulfilling the requirements of the Australian Citizenship Act. In Nolan's case (1988), which upheld the doctrine of the divisibility of the Crown, it was accepted that a subject of the Queen was a subject of the Queen in right of Australia. This takes account of the Royal Style and Titles Act 1953 (as amended in 1973). Therefore any State Act which attempted to interfere with this relationship between citizen and Crown, even though the Act was restricted to certain holders of State public offices, could be construed as interfering with the common citizenship and its incidents, which are implicit in the Federal Constitution, as well as receiving explicit recognition in section 117. Australian citizens owe allegiance under the common law to the Queen of Australia (or the Queen in right of Australia). It would be inconsistent with this common citizenship for there to be different loyalties in different States or between different groups of people in the same State: that is, between ordinary citizens and those who hold public office.

Abolition of the Monarchy - Section 128 of the Commonwealth Constitution

The fundamental question, of course, is whether the abolition of the office of Governor of a State - and of the monarchical system within a State - is protected, by its own Constitution and by the Australia Acts, from alteration under section 128 by a nationwide referendum.

Three major issues have been raised in this debate so far. They are:

That the Monarchy is an essential component of the Federal Constitution and that section 128 does not extend to it;

That the Covering Clauses, in other words the first eight clauses of the Constitution Act 1900 (Imp.), some of which recognise the Queen, are immune from constitutional amendment;

That exact relationship between the Constitutions of the States and the amending process in section 128.

One should note that even if a 'section 128' referendum were successful, it would appear that a High Court challenge to the validity of a Constitution Alteration (Republic) Act could be mounted on one or more of these grounds, because the High Court would have the final say on the validity of any action taken under section 128.

Let us examine each of these issues in turn:

The status of the Crown as a fundamental part of both the Commonwealth and the State Constitutions.

Those who have argued for a limitation on the amending process have referred to an Indian Supreme Court decision which suggests that the basic structure of a constitution is not amenable in the ordinary manner. Whatever might have been the status of this argument before the Statute of Westminster was adopted in 1942, it is not likely to succeed before the present High Court. In the decisions last year on political advertising and contempt of the Industrial Relations Commission - the Nationalwide and Australian Capital Television cases - several Justices have emphasised that representative democracy is a basic doctrine of the Constitution. From this doctrine flowed the right of the people to change the Constitution under section 128. Deane and Toohey JJ referred to the position of the Crown under the Constitution, specifically section 1 which vests legislative power in the Queen (as a component part of Parliament) and section 61 which vests executive power in the Queen. They did not mention any specific limitations on the right of the people voting - in accordance with section 128 - to amend these sections of the Constitution under a proposal submitted by one or both houses of Parliament. (However, they left aside for future determination the status of Covering Clause 2: see later.)

If we recognise that the power of constitutional alteration under section 128 extends to all other sections, including sections 1 and 61, this is not to deny that such a fundamental change should be examined in great detail by a representative body before being submitted to the people at a referendum. An elected constitutional convention, along the lines of the 1890s' popularly elected convention, seems an appropriate mechanism for such a review. (The centenary of the Corowa Conference was celebrated in 1993. At the 1893 Conference Dr John Quick moved the resolution that an elected constitutional convention be established to frame a Federal Constitution for the Australian colonies.)

The Covering Clauses

The only clause among these which appears to have a continuing operation is clause 2. As well as providing for the constitution of the Monarchy, it prevents an indigenous Monarchy from being instituted.

In relation to the Covering Clauses, the argument advanced is that they are not part of the Constitution which (under section 128) may be amended. The Constitution, the argument runs, is in clause 9 of the Covering Clauses: the first eight clauses are not part of it. While this is a meritorious argument, it does seem that whatever interpretation may have been given to these clauses before the Australia Acts were passed in 1986, they would not be now be immune from alteration under section 128.

The Constitution now depends on its acceptance by the Australian people, and section 1 of the Australian Acts denies legislative power to the United Kingdom Parliament. It is true that section 15(1) of the Australia Acts provides for an amendment requiring unanimous participation by the State Parliaments, but section 15(3) indicates that this method does not exclude an amendment which may be made in accordance with section 128.

However, the actual wording of the sub-section (sub-section 3) is significant. It provides that the unanimity procedure in sub-section 1 does not limit of prevent the exercise by the Commonwealth Parliament of any powers that may be conferred upon by the Parliament by the alteration of the Commonwealth Constitution (in accordance with section 128). This may require that a "republican" amendment affecting the Australia Acts be framed in a way which confers upon the Commonwealth Parliament further powers to alter State Constitutions in relation to their individual Heads of States. This would have a dramatic effect on the Federal structure.

The Position of State Governors

It will be necessary for any Constitution Alteration (Republic) Bill which goes the whole way to eliminate the monarchical system from all Australian Constitutions; this in its turn will dramatically affect section 106 of the Federal Constitution (which, as we have seen, preserves the Constitutions of the States), and it would also dramatically affect section 7(1) of the Australia Acts (which preserve the States' monarchical system). The republican amendment could do this directly, or could do it indirectly by requiring that the Head of State be an Australian citizen and not represent or be appointed by an official outside the country.

Whether it were done directly or indirectly, this would be a demonstrable intrusion into the States' Constitutions. If such an intrusion is seriously contemplated in any Constitution Alteration Bill - an abolitionists may wish to see every vestige of monarchy eliminated from the Australian system - then it should be seen by the Australian people as a whole, and by the States, for what it is: Not only an attack on the Crown, but also an assault on our federal system of government.

Indeed, in this "maximalist" drive, an attempt might be made to have the chief executive officers of the States (vice-presidents, perhaps?) appointed by the Governor-General on the recommendation of the Prime Minister of the day. (This is the position in Canada, where the appointee is normally of the same political party as that which is in Ottawa. They provincial Premier will be consulted only if he or she is a member of that party.) If the appointment is not made at Federal level, would it be made by the Premier of the State (which would totally politicise the process) or by the State Parliament (which would also politicise the process)?

The abolitionists may wish to leave no gaps, and therefore the Constitutions of the States would be eroded by a Commonwealth republican proposal: the structure of the Constitution as envisaged by its founders would be no more. Surely, before such a proposal is put to the people, it should be widely discussed, should be widely examined, and should result in recommendations made to, Commonwealth and State Parliaments by an appropriately elected constitutional convention. Such a convention's establishment (as distinct from a statutory convention) would require a proposal to amend section 128, a proposal which must be submitted to the people.

R.D. (Darrell) Lumb is Professor of Law at the University of Queensland. This is an edited version of a speech given to Australians for Constitutional Monarchy on 4 June 1993.