CHAPTER THIRTEEN - AUSTRALIA’S CONSTITUTIONAL CROWN - OUR RIGHTFUL QUEEN

CHAPTER THIRTEEN -
AUSTRALIA’S CONSTITUTIONAL CROWN
OUR RIGHTFUL QUEEN
(Written in February 2006)

There is a movement intent on destabilizing the Constitution of Australia by inferring, as copied from a circulatory email:

That the ‘Queen of Australia’ is a person unknown under the provisions of the Commonwealth of Australia Constitution Act, 1900 (U.K.) and legislation assented to in the name of Elizabeth II of the United Kingdom or the ‘Queen of Australia’ is invalid in both British domestic and international law.

That the Queen to whom power is given by the provisions of the ‘Australian’ Constitution, being the Queen of the United Kingdom of Great Britain and Ireland, is an Office that has not existed since at the very latest the 1927 Royal and Parliamentary Titles Act (U.K.).

That Queen Elizabeth II of the United Kingdom has never held sovereignty over the Commonwealth of Australia, as a colony, a colonial Federation or as an independent sovereign nation.

That the Australian people became a free, independent and sovereign nation on the 1st of October, 1919 and that as a consequence Australia’s politicians could not continue to use British colonial law to govern the Australian people, just as the Americans didn’t use British colonial legislation after 1776.

That William Morris Hughes and Sir Joseph Cook acting on behalf of the Australian people signed the Peace Treaty of Versailles⁵⁸⁶ on 28th June 1919 as a belligerent nation in its own right – the Commonwealth of Australia’s first act as an independent sovereign nation - and that international law acknowledges this document as the legal instrument that transferred sovereignty from King George V of the United Kingdom to the Australian People.

This was confirmed in Hansard 10th September, 1919 – 1st October, 1919.

That the 1923 Imperial Conference held in London declared that the ‘Dominions’, of which Australia was one, were autonomous nations with the power to enter into international treaties.

That the former political system in use in Australia with assent for all bills of law signed by the Governor-General or State Governors who were the representatives of Queen Elizabeth II or the ‘Queen of Australia’ is quite impossible to uphold historically or legally under British domestic or international law.

I answer these assertions paragraph by paragraph as below:

That the ‘Queen of Australia’ is a person unknown under the provisions of the Commonwealth of Australia Constitution Act, 1900 (U.K.) and legislation assented to in the name of Elizabeth II of the United Kingdom or the ‘Queen of Australia’ is invalid in both British domestic and international law.

This has no foundation whatsoever. The Commonwealth of Australia Constitution Act, 1900 (U.K.)⁷⁰ specifically mentions Queen Victoria⁶², as it was she who was the Monarch at the time of Assent (on the 9th of July 1900). Obviously the present Queen was not mentioned in the Constitution. (She would not be born for another twenty-six years), but Section 2 of the Australian Constitution, which was a schedule to the British Act, states: 2: The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.

Whilst our Constitution is established ‘under the Crown of the United Kingdom of Great Britain and Ireland’, following the Queen’s accession, the Australian Parliament enacted, in 1953, the ‘Royal Style and Titles Act, 1953²⁷⁸’ declaring the Royal Style and Title in Australia to be:

Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.

Similar Acts were passed through the Parliaments of all Commonwealth Realms. Twenty years later the Australian Parliament enacted a new style under the ‘Royal Style and Titles Act, 1973²⁷⁶’ declaring that in Australia the style was thereafter to be:

Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.

It is these two Acts of the Australian Parliament which determine the title ‘Queen of Australia’.

That the Queen to whom power is given by the provisions of the ‘Australian’ Constitution, being the Queen of the United Kingdom of Great Britain and Ireland, is an Office that has not existed since at the very latest the 1927 Royal and Parliamentary Titles Act (U.K.).  Actually the title . . and Ireland ceased to exist in 1922 when the Anglo-Irish Treaty⁵⁸⁵ was ratified.

It was thought at the time that the British Parliament could simply add the words ‘Northern’ to the title in the Preamble to our constitution by amending their own Commonwealth of Australia Constitution Act 1900 (UK), but found that they could not do so as Section 128 of our constitution places the entitlement to change solely with the Australian people through the referendum process. It has therefore remained unchanged, but this does not impede or affect in any way the validity of our Constitution for that was the title at the time of enactment. Put simply, when a woman gets married and, as is common nowadays, retains her maiden name for professional purposes, does this make any act in that name legally invalid? Of course not!

Indeed since Federation, no Act passed by the British Parliament or any other parliament has any jurisdiction over Australia unless ratified by a separate Act of the Australian Parliament.

That Queen Elizabeth II of the United Kingdom has never held sovereignty over the Commonwealth of Australia, as a colony, a colonial Federation or as an independent sovereign nation.

This ridiculous and absurd comment is, I think answered above.

That the Australian people became a free, independent and sovereign nation on the 1st of October, 1919 and that as a consequence Australia’s politicians could not continue to use British colonial law to govern the Australian people, just as the Americans didn’t use British colonial legislation after 1776.

and:

That William Morris Hughes and Sir Joseph Cook acting on behalf of the Australian people signed the Peace Treaty of Versailles on 28th June 1919 as a belligerent nation in its own right – the Commonwealth of Australia’s first act as an independent sovereign nation - and that international law acknowledges this document as the legal instrument that transferred sovereignty from King George V of the United Kingdom to the Australian People. This was confirmed in Hansard 10th September, 1919 – 1st October, 1919.

This claim refers to Australia being a signatory in its own right to the Treaty of Versailles⁵⁸⁶, but the Australian Parliament itself enacted the Treaty of Peace Act 1919⁶³⁵ that gave effect to Australia’s status in this regard.

The Australian Parliament, once elected and convened was empowered to act independently of any other authority, including the Government and parliament of the United Kingdom. It was by a vote of the people in the constitutional referendums of the 1890s that the Australian Constitution was established ‘Under the Crown’ but this did not make the parliament of the people subject to the dictates of the Crown. as was earlier the case when Australia was still a colony, but actually quite the reverse. The Americans adopted British Law and conventions to suit their own purposes, just as the Australian Parliament has likewise done.  The Peace Treaty was not the first act of a sovereign nation for that was the election of the Australian Parliament, which was subject only to the people. I know of no international law acknowledging the transfer of ‘sovereignty from King George V of the United Kingdom to the Australian People.’ The actual transfer of British rule took place on the 1st January 1901.

That the 1923 Imperial Conference held in London declared that the ‘Dominions’, of which Australia was one, were autonomous nations with the power to enter into international treaties.

Quite correct and confirmation of what I have stated herein.

That the former political system in use in Australia with assent for all bills of law signed by the Governor-General or State Governors who were the representatives of Queen Elizabeth II or the ‘Queen of Australia’ is quite impossible to uphold historically or legally under British domestic or international law.

These spurious arguments originated from attempts to challenge Australia’s taxation laws, for the purpose of avoiding tax impositions and, failing in this through normal channels sought to challenge the validity of the Constitution document itself.

There are also critical comments that the Queen does not reply in detail to letters sent to Her Majesty expressing concerns against actions of the Government. Under our Westminster system, it is the constitutionally elected parliament which is supreme for it is that which represents the will of the people. I know that there are often valid comments that, once elected the politicians ignore the wishes of the people, but this is not the fault of the Constitution and most definitely not the fault of the Queen. Rather it is the apathy and disinterest of the majority of the people who elect one political party in preference to another.

Once appointed, it is the Governor-General who assumes the role of the Monarch in Australia. Both the Queen and the Governor-General must accept the advice of their constitutionally elected government, for to do otherwise would be to go against the will of the people who elected it.

This is why they should not make any response which may be taken to be adverse to the Government. However, those who write to the Queen can be assured that Her Majesty, on being informed, makes her opinions known to her Prime Ministers. Under our system of government, as the famous Victorian constitutionalist Walter Bagehot¹²¹ indicated in the 1860’s: The Sovereign has, under a Constitutional Monarchy such as ours, three rights: the right to be consulted, the right to encourage and the right to warn.⁷⁵⁸

Just as there are checks on the Government to ensure that it does not act in contravention of the Constitution and goes to the people at or before the appointed time, so are there likewise limitations on the authority of the Sovereign and Governors-General. It is because of this system, which keeps power from any one individual or entity, that our Constitution has worked so well and has made Australia, one of the youngest nations into the one of the oldest existing democracies in the World¹⁵⁷