Australia is bearing the burden of too many Crowns

The British system of constitutional monarchy is outdated and complicated, and we would fare better from an Australian head of state, writes Robert Vose.

HOW MANY Crowns are there in Australia?

That is a trick question. The answer is — it depends. It’s complicated.

There is quite a lot of ambiguity and varied opinions about the nature of the Crown in Australia.

The question has been deliberately avoided and has been left hanging during discussions about major changes to Australia’s system of government, such as for the Australia Act. This is still a contested topic today.

At Federation, there is no question that the Australian states became a federation under the indivisible British Crown. One hundred years ago, there was one Crown in Australia and that was the Imperial British Crown. The Second Covering Clause in our Constitution still refers to the British Crown.

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Through the 20th Century, Australia gradually gained some independence. The first indication of this independence was King George V accepting the advice of then Prime Minister James Scullin to appoint Sir Isaac Isaacs as our Governor-General in 1930, even despite the strong and public opposition of the appointment by the King.

In 1926, the Balfour Declaration led to the Statute of Westminster 1931, which granted independence to dominions including Australia, Canada and New Zealand. The Statute of Westminster formally instituted the divisibility of the Crown and the divisible Crown, in right of the Commonwealth of Australia, became a formal reality with the ratification of the statute in 1942, backdated to take effect from the 3 September 1939. That the Crown is now divisible is an accepted fact and is not disputed.

What is the difference between Australia being under the British Crown as opposed to operating under a divisible Crown of Australia? The monarch, currently Queen Elizabeth II, in the British system of constitutional monarchy that has developed since the Magna Carta, can through convention only act on the advice of Her Ministers under the relevant Crown. For any polity that is under the British Crown, the Queen must take advice from Her Ministers in the Parliament at Westminster.

For the Crown of Australia, the Queen must only act on the advice of the Prime Minister of Australia. Ministers from the Parliament of the United Kingdom have no right to advise the Queen on affairs related to Australia which is under the divisible Crown of Australia. If they do, it is understood that they are acting in the interests of the United Kingdom, not Australia. The same goes for all the 16 Commonwealth realms that currently have Queen Elizabeth II as their Head of State.

The concept of the Crown as being divisible is well established. A divisible Crown usually also includes a specific style and title for the monarch, at least for national entities.

What holds all these divisible Crowns together? The generally accepted answer is that it is the person of the monarch — Elizabeth Windsor for the current time. The monarch unifies the divisible Crowns. This is another concept that is relevant to federalism in Australia and how the states relate to the Commonwealth.

For over 40 years, from the ratification of the Statute of Westminster to the passing of the Australia Act in 1986, Australia operated under a bifurcation of Crowns. The Commonwealth was operating under the Crown of Australia, while each of the six states was still operating under the colonial British Crown.

In a number of test cases during the 1970s, Australians suddenly realised that if there was any kind of dispute between the Commonwealth and the Australian states, the Queen was obliged to take advice from the ministers of the United Kingdom Parliament on affairs to do with the Australian states. One of these controversial cases was a dispute about the extent of territorial waters around Tasmania and Queensland. In that case, both sides advised the Queen to reject the relevant partitions, so the Queen did not have to decide which advice had priority. But these events did spur on efforts for a more thorough level of independence for the states which culminated in the Australia Act of 1986.

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So, what happened with the passing of the Australia Act in 1986? Is there now just one Crown of Australia for the Commonwealth and the six states, or are there now seven Crowns with a divisible Crown in right of each of the Australian states respectively? Again, it depends and it’s complicated. Most of all, the issue has been avoided and swept under the carpet. It would have been a central topic for the Australia Act, but to avoid contention, the topic was bypassed in the legislation by using the term “Her Majesty” in lieu of specifying the particular divisible Crown that the states were to be operating under.

In the Sue v Hill case in 1999, the High Court of Australia elaborated on the common meanings for the term “Crown”.

They identified five distinct definitions of the Crown, summarised by Professor Anne Twomey:

the Sovereign’s regalia;

the body politic;

the international personality of a body politic;

the “government” or “executive”; and

the office of the Sovereign and the capacity in which the Sovereign acts.

It can be argued that each of the Australian states has a Crown in right of that particular state. The argument has also been extended to include the Australian Capital Territory, Northern Territory and perhaps also Norfolk Island. This is a contested topic and some experts on Constitutional law are hesitant to accept that the divisibility of the Crown can extend to sub-national entities such as the Australian states. The interpretation of the nature of the Crown is still developing and this may yet have an impact in Australia even after the Australia Act, as the judgement in the Quark Fishing case demonstrates.

Australia is unique among the Commonwealth realms in that the governors of the states represent the Queen directly and the premiers can also advise her directly on the governor’s appointment. Only Nigeria, for a period between 1960 and until independence in 1963, had regional governments with representatives who could advise the Queen. In Canada, there is a hierarchical structure for the representatives of the Queen for Canada and its provinces and territories, and only the Governor-General of Canada is appointed by the Queen.

Another question related to this issue is whether the Australian states consider themselves to be operating under their own divisible Crown in right of their particular state respectively. There are some key acts of State Parliament that indicate that they do. Another thing to consider is that for issues related to the change in rules of succession to the Crown, legislation was simultaneously passed in the Commonwealth and all the states in 2015. If there was only one divisible Crown of Australia, then perhaps the states did not need to pass these acts of Parliament. This is a topic I intend to study further.

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Another issue concerns the meaning of the Crown as identified by the High Court and the current situation of border closures due to the coronavirus. The way that some borders have been closed to residents of particular states demonstrates that in practice, the body politics of the six states differ and are perceived as being different. Perhaps this strengthens the argument that the divisibility of the Crown extends to the state level in the Australian context. The coronavirus has been devastating in many ways. Hundreds of thousands of people have died from this novel coronavirus and it has ravaged the world economy. This epidemic may yet have further consequences for succession to the Crown and Australia’s structure of government in a republic.

Back to the initial question of this article — how many Crowns are there in Australia? It started with one during colonial times and through Federation – the British Crown – and underwent a bifurcation with the ratification of the Statute of Westminster from 1939 and until the Australia Act in 1986. One becomes two: British Crown in the states and the Crown of Australia for the Commonwealth. With the passing of the Australia Act, the British Crown is no longer in operation in Australia and the states are arguably operating under their own divisible Crown in right of that state respectively. So that makes for seven divisible Australian Crowns.

If you consider a divisible Crown to be in operation for a body politic that has its own parliament and executive, then you could include the A.C.T. and Northern Territory, perhaps Norfolk Island. So now we have possibly ten. But this is a contested topic.

The divisible Crowns of Australia are unified by the monarch. For a republic, we would need these Crowns of Australia to be unified in the person of the head of state or president. What we today refer to as a divisible Crown will most likely persist into a republic because a divisible Crown is, in effect, a designation for a body politic.

I see the “throne” to be a very different entity to the divisible Crown. The “throne” is tied to the monarchy, but the divisible Crown is not. One is about guiding principles, democracy, the rule of law and conventions, while the other one is for bottoms. We can democratise the divisible Australian Crown and elect an Australian to replace the Queen and serve as head of state under the divisible Australian Crown to unify our Federation in Australia.

The actual person as an elected Australian president would provide the essential role of unifying the Australian Federation. Then we can say there is one Crown of Australia — and we could even pass acts of parliament to give the Crown of Australia a more relevant republican style and title for an elected president, to give it a “cooler” vibe.