The Chameleon Crown: The Queen and Her Australian Governors
Written by Dr. Anne Twomey   
Wednesday, 28 March 2007

What is the difference between the ‘Queen of Australia’ and the ‘Queen of the United Kingdom’?  This is not a riddle, and the answer does not relate to which cricket team she barracks for in the World Cup.  It’s a question that has not been given sufficient analysis in Australia, which is surprising given that it is a fundamental constitutional question.


As we all know, at the beginning of the 20th century, the Crown was regarded as ‘one and indivisible’.  However, the status of the monarch was changed by the Imperial Conferences of 1926 and 1930.  In 1926, the Balfour Declaration declared the Dominions to be equal in status with the United Kingdom and terminated the role of the Governor-General as an Imperial Officer.  This gave rise to the difficult question as to who should advise the King regarding Dominion matters, if it were no longer the role of British Ministers.  At the 1930 Imperial Conference it was confirmed that Dominion Ministers were to advise the King in relation to Dominion matters and to be responsible for that advice to their respective Dominion Parliaments.  From that point, at the latest, it was clear that separate Crowns had been established for each of the Dominions.


While this was the case at the national level, it did not apply to the States.  The NSW Premier, Jack Lang, in his many fights with the NSW Governor, sought to advise the King directly to instruct the Governor to comply with Lang’s requests for him to swamp the Legislative Council.  Lang’s attempt to advise the King was considered by the British Cabinet.  It concluded that he had no right to advise the King and that the changes made by the Imperial Conference applied only at the national level of the Dominions.  They did not apply to the Australian States.  The King would continue to be advised by the British Foreign Secretary in relation to matters concerning the Australian States.


Hence, from 1930 (at the latest) two separate Crowns applied to Australia.  The King acted on the advice of his responsible Commonwealth Ministers with respect to Commonwealth matters under an Australian Crown and the King acted upon the advice of his responsible British Ministers in relation to Australian State constitutional matters under the Crown of the United Kingdom.  The States remained colonial dependencies of the British Crown.


Eventually, once there was agreement in 1952 amongst the British Commonwealth of Nations that the royal style and titles of the monarch could be different in each nation, the Queen obtained a separate Australian title in 1953 that reflected the existence of a separate Australian Crown.  It still made reference to Her Majesty as Queen of the United Kingdom as well as Australia because of covering clause 2 of the Commonwealth Constitution which identifies our Queen by reference to her sovereignty of the United Kingdom.  Commonwealth legislation concerning the royal style and titles did not (and could not) itself make any substantive change in the status of the monarch.  All it could achieve was a more accurate reflection of the existence of separate Crowns.  In 1973, Her Majesty’s title was changed so that it referred only to the ‘Queen of Australia’ without reference to the United Kingdom.  However, this change had no substantive effect, despite the subsequent arguments of the Whitlam Government to the contrary. 


It was, indeed, the Whitlam Government that caused the first serious assessment of the status of the Queen and her separate Crowns.  It introduced into the Commonwealth Parliament in 1973 legislation which claimed ownership and control the seas and seabeds off the coasts of the States.  The States had always regarded the seabed within the territorial waters along their coasts as belonging to them.  The Queensland and Tasmanian Governments decided to petition the Queen to seek an advisory opinion from the Privy Council about ownership of the seabed. 


This gave rise to the question of who advised the Queen as to whether to refer the matter to the Privy Council.  Queensland and Tasmania claimed that they were petitioning the Queen in her capacity as Queen of each State.  Was Her Majesty the Queen of Queensland, or should she respond to the petition as Queen of Australia or Queen of the United Kingdom?  The Whitlam Government claimed that when Australian matters were involved (including State matters) Her Majesty should act only in her capacity as Queen of Australia on the advice of her Commonwealth Ministers.  The States objected that this would change the constitutional status of the States, which had always maintained an independent relationship with the United Kingdom and had not been made subordinate to the Commonwealth Government.


The British Cabinet addressed the issue and sought the advice of leading academics as well as the Crown Law Officers.  Its conclusion was that the Queen was not Queen of Queensland as she could not be advised directly by Queensland Ministers.  While she was Queen of Australia, this was only with respect to Commonwealth matters.  When she performed functions with respect to the Australian States, she did so as the Queen of the United Kingdom, advised by her responsible British Ministers.


Accordingly, the British Cabinet concluded in 1973 that the British Foreign Secretary should advise the Queen about the petition to the extent that it concerned the Australian States.  However, as the Commonwealth Government also claimed ownership of the seabed, then it too had a right to advise the Queen of Australia about the petition.  This gave rise to the question of how the Queen ought to act if given contradictory advice in relation to the same matter by two different sets of responsible Ministers.  Whose advice ought to be preferred?  This thorny question was never resolved.  Both British and Commonwealth Ministers advised the Queen not to refer the petition to the Privy Council.


What is most significant, however, is that the British Cabinet took the view that it was under no duty to act in the interests of the States in so advising the Queen, nor to pass State advice on to the Queen.  The British Cabinet took the view that its Ministers must advise the Queen on State matters independently and that they could (and in this case did) take account of British political interests in doing so.


This was contrary to the belief that had grown up in Australia (and is repeated in virtually every political, history and legal book on the subject) that the British Government was the mere ‘channel of communication’ for State advice to the Queen on State matters and that it did not intervene or give its own independent advice to the Queen. 


This misunderstanding about the role of the British Government with respect to State constitutional matters became even more apparent in 1976.  The Queensland Governor, Sir Colin Hannah, attracted controversy in 1975 by criticising the Whitlam Government.  Buckingham Palace and the British Government were concerned that he had breached the primary vice-regal requirement of complete impartiality.  The British Government was about to recommend his dismissal when Sir John Kerr dismissed the Whitlam Government.  This made it politically impossible for the British Government to intervene with respect to one vice-regal representative who had become involved in political affairs but not the other.  Sir Colin was therefore not dismissed, but the Queensland Premier, Joh Bjelke-Petersen, was advised that Sir Colin’s term of office would not be extended as requested.  Bjelke-Petersen later noted that until then he had thought that he alone advised the Queen on such issues.  He had no idea that the British Government advised the Queen independently on all State matters.  He tried to get the decision reversed, but was refused.


Worried by these events, the Wran Government in New South Wales decided to enact legislation which would provide that the Queen was to be advised by State Ministers in relation to State matters.  It also proposed to enact legislation that terminated appeals to the Privy Council from State courts.  These proposals were announced in the Governor’s speech on the opening of the NSW Parliament in 1978.  As is the custom, the speech was referred to the Queen.  The Foreign Office advised the Palace that it should merely acknowledge receipt of the speech as usual, and the Foreign Office would deal with the matter through diplomacy.  Buckingham Palace objected.  It wanted stronger action – a shot across the bows of the NSW Government.  A despatch was prepared that warned the Wran Government that the Foreign Secretary would advise the Queen to refuse assent to such legislation.  The despatch was handed to the NSW Governor, Sir Roden Cutler, on the morning of 13 December 1978.  That afternoon, he received the Bill for the termination of Privy Council appeals, which had passed both Houses and was awaiting assent.  He was horrified. 


British officials waited anxiously to receive the reserved Bill, checking to see if there were postal strikes.  They prepared themselves for the political furore that would result from the refusal of royal assent.  The Bill never came.  The New South Wales Government blinked.  It decided not to give to the Governor the mandatory certificate advising whether or not the Bill should be reserved.  The Governor therefore could take no action on the Bill.  It simply sat in the Governor’s desk drawer, in legislative limbo.  It had been passed but could not come into effect unless it received assent. 


This did not end the NSW Government’s efforts.  It continued with its plans to terminate the role of British Ministers in advising the Queen.  After many meetings and communications disputing the constitutional position, the British eventually prevailed.  The New South Wales Government shifted its efforts to achieving the same outcome though a co-operative scheme involving all the States and the Commonwealth, which resulted in the Australia Acts.


The Australia Acts 1986 are two substantively identical Acts that were enacted by the Westminster Parliament and the Commonwealth Parliament.  The reason for two Acts was that there were (and remain) doubts as to whether the Commonwealth Parliament alone could achieve all the Acts entailed.  They terminated the constitutional relationship between Australia and the United Kingdom.  This included the end to Privy Council appeals from State Courts, the termination of the power of the Westminster Parliament to legislate in a manner that bound Australia, and the termination of the role of the British Government in advising the Queen on Australian State matters.


The most contentious issue was who would advise the Queen with respect to State matters once the British ceased to fill this role?  The Fraser Government initially argued that the Commonwealth should fill this role.  The Prime Minister, Malcolm Fraser, argued that the Queen would never accept advice from different sources within Australia, and that he would not ‘embarrass’ her by asking her to do so.  The States were not prepared to accept this outcome.  If the Commonwealth could advise the Queen with respect to State matters, it could advise her to amend the letters patent to expand the categories of Bills that had to be reserved, and then advise her to refuse assent to State Bills.  The Commonwealth would therefore obtain control over State legislation.


Various compromises were proposed.  One, which almost succeeded, was the ‘post-box’ solution, which involved the Commonwealth Prime Minister acting as a ‘post-box’ in passing on State advice to the Queen.  The advice would come from one Australian source only, making the Palace happy, but the States would still have control over State matters.  This proposal was supported in 1983 by the new Labor Attorney-General, Gareth Evans, but was destroyed by the Department of the Prime Minister and Cabinet, which convinced the Prime Minister, Bob Hawke, that he did not want to bear formal ‘responsibility’ for State advice that might be objectionable.  The example commonly used was that Queensland might seek the appointment of Sir John Kerr as the Governor of Queensland, and oblige Bob Hawke to make the formal recommendation of appointment!


Years of negotiation on this issue failed, leaving an impasse.  It was resolved as a result of a misunderstanding at a meeting between the NSW Solicitor-General, Mary Gaudron, and British officials in London in November 1983.  After listening to the ‘diplomatic-speak’ of Foreign Office officials, Gaudron came away with the impression that direct access by the States to the Queen would be acceptable to the British Government as long as there was no possibility of conflicting advice.  This could be achieved by limiting the functions of the Queen to the appointment and removal of State Governors, and leaving all other functions to the Governors themselves.  There could be no question as to which Ministers had the sole right to advise the Queen about the appointment or removal of a State Governor.


The NSW Solicitor-General convinced the States and Commonwealth that such a revised provision would be acceptable to the British Government.  Foreign Office officials were shocked when they discovered the misunderstanding as they had not meant to give that impression – they were just being polite.  However, when faced with the unanimous agreement of seven Australian Government, they concluded that they could not object unless there were good constitutional reasons to do so.  They could not find any.  The British Prime Minister, Margaret Thatcher, concluded that it would be ‘too colonial for words’ for the British Government to object. 


Buckingham Palace fought on against the provision.  It was concerned that it would be ‘unconstitutional’ for State Ministers to advise the Queen as this would create separate realms within Australia.  It also remained concerned about the continuing possibility of conflicting advice.  After much further debate and negotiation, the head of the Department of the Prime Minister and Cabinet, Sir Geoffrey Yeend, finally turned the tables and placed the burden back on the Queen.  He advised her that it was the informal advice of her Commonwealth Ministers that she agree to the Australia Acts and that even if she objected, this would still be their formal advice.  The responsibility was then passed to the Queen to cause a constitutional crisis by rejecting the formal advice of her responsible Ministers.  She did not do so.  She reluctantly agreed to the Australia Acts and being directly advised by State Ministers.  She only did so, however, after negotiating a ‘convention’ that when in a State she would not act on the advice of State Ministers except with prior and mutual agreement.


How did this affect the status of the Queen?  Does the fact that she receives advice directly from State Ministers mean that separate State Crowns were created?  Is she now really Queen of New South Wales?  Has the status of the ‘Queen of Australia’ changed to encompass the States as well as the Commonwealth?  There is no clear answer.


During the negotiation of the Australia Acts, it was the British who raised this issue.  A British official queried Australian officials about what was intended.  He reported that the Australians refused to address the issue as there were ‘obvious differences of opinion’.  The issue was addressed by Foreign Office lawyers and the British Attorney-General.  They concluded that in the normal course, if the Queen were to be advised directly by State Ministers, then a new Crown would be established and the Queen would become Queen of each State.  However, they suggested that perhaps by way of convention the status of the Queen of Australia could be transformed to make her a federal Queen with respect to the Commonwealth and the States, taking advice from the relevant Ministers with respect to any particular matter. 


Whether the Australia Acts made this transformation in the status of the Queen of Australia remains uncertain.  Certainly, there is no reference at all in the Australia Acts to either the Queen of Australia or the Queen of the United Kingdom.  The constitutional cracks were papered over by the simple reference to ‘Her Majesty’. 


Does it matter?  It might matter in the future.  If the republic issue were to arise again, an important issue would be whether the Crown of the Queen of Australia could be abolished while leaving in existence separate Crowns in the Australian States.  Questions might also arise as to the power to legislate concerning matters such as the Queen’s royal style and titles or even the laws of succession to the throne.  If there is one federal Queen of Australia who is no longer Queen exclusively in relation to the Commonwealth level of government, then the Commonwealth’s powers to legislate with respect to her title or the succession becomes highly doubtful.  In such circumstances s 51(xxxviii) might provide the only means of enacting such legislation, requiring the consent of all the States.


Difficult questions would also arise if there were a change in the law of succession in the United Kingdom.  This occurred in 1936 with the abdication crisis.  South Africa took the view that the throne passed to the Duke of York upon Edward VIII signing the Instrument of Abdication on 10 December 1936.  In the United Kingdom, Canada, Australia and New Zealand, the succession occurred on 11 December, when the relevant legislation was passed by the Westminster Parliament and came into force.  In the Irish Free State, the change did not occur until 12 December 1936, when Irish legislation was passed and came into effect.  Thus, from 10-12 December 1936 the divisibility of the Crown extended as far as different Kings in the different Dominions.


What if there were another such crisis?  What if Her Majesty died and Prince Charles decided to abdicate the throne in favour of Prince William?  What effect would this have in Australia?  Covering clause 2 of the Commonwealth of Australia Constitution Act provides that references in that Act to the Queen shall extend to her heirs and successors in the sovereignty of the United Kingdom.  Some have regarded this merely as a statement of historical fact or at best an interpretative provision that is in no way prescriptive.  Indeed, the Commonwealth Government was so dismissive of the significance of the covering clauses in 1999 that it proposed that they simply not be reprinted in the Constitution (rather than be repealed) if the republic referendum were to pass – a form of revolution by ignorance.


On the face of covering clause 2, however, it would appear to tie the Australian Crown to the person who bears the Crown of the United Kingdom.  What would happen if the Westminster Parliament changed the rules of succession with regard to the Crown of the United Kingdom?  After the Australia Acts such a law would not be binding in Australia as part of Australian law and could not therefore change the rules of succession with respect to the Crown(s) of Australia.  However, it is arguable that covering clause 2 defines the Sovereign of Australia by reference to an external fact or qualification, being that the King or Queen of Australia must simultaneously be the heir and successor of Queen Victoria in the sovereignty of the United Kingdom.  Accordingly, if a British law changed the law of succession, it would not form part of Australian law, but would still affect its operation by changing the external fact by which the Sovereign is identified. 


British officials raised this issue amongst themselves during the negotiation of the Australia Acts in 1982 and 1983.  They took the view that it would be best to face it head-on and resolve the relationship between covering clause 2 and the Australia Acts.  They wanted to know whether the Australia Acts were intended to impliedly amend covering clause 2.  However, they were concerned that if they formally raised the issue they would be seen by the Palace as fostering republicanism.  On the Australian side, although the issue had been expressly addressed earlier by the NSW Law Reform Commission in 1972, the Commonwealth and the States again turned a blind eye to it, as it was too controversial to be resolved. 


The consequence is that we do not know for certain whether we have one Crown or seven and we cannot be certain what effect a change in the law of succession in the United Kingdom would have upon the question of who holds the Crown or Crowns in Australia. 


To answer my opening question, we know that the difference between the Queen of the United Kingdom and the Queen of Australia is that they are advised by Ministers responsible to different Parliaments, but we do not know whether they must be the one person or might in the future be different persons.  What is most important to recognise, however, is that the power to resolve these conundrums rests in Australian hands.  The greatest significance of the Australia Acts is that they transferred to Australia full power to change all its constitutional arrangements, including its relationship with the Crown.  While the true nature of the Crown or Crowns in Australia remains shrouded in mystery, it also remains within Australian control.

* This speech is derived from the more detailed account and analysis in:  A Twomey, The Chameleon Crown – The Queen and Her Australian Governors (Federation Press, Sydney, 2006).