May 19

Crucial Royal legislation slips through unnoticed

Last year, 2008, Queen Elizabeth, as Queen of Australia, legislated in relation to the nation. (This is re-published below.)  Few people noticed, and I do not recall the media reporting this.

I was made aware of this only recently by Nick Hobson DFC AFC, a retired RAAF Wing Commander who was a helicopter pilot in Vietnam. He is a splendid defender of our constitutional system, working tirelessly to inform Australians how extraordinarily successful it has been.  His site, Australian Republic Unplugged is well worth consulting. He has prepared an excellent and well reviewed  video series on constitutional matters, a "Beginner's Guide to the Australian Constitution."

 

The legislation  by The Queen was in the form of Letters Patent made under what is called the Royal Prerogative. This is where The Queen as Sovereign may legislate without an Act of Parliament. This area has narrowed over the centuries ever since it was established beyond doubt in 1688 that  the Sovereign may not exercise this power to revoke or suspend Acts of Parliament.

 

As a constitutional monarch and outside of her reserve powers Her Majesty acts on the lawful advice of Ministers of State for the Commonwealth. This is so in relation to matters falling under the Prerogative.

Even then, it should not be assumed that  Her Majesty is ever  an  automaton, a mere rubber stamp. She remains entitled to be consulted, to advise and to warn, as she did in ensuring the Australia Acts of 1986 could proceed. He r Majesty was crucial to the solution of  a major constitutional problem which had eluded our politicians certainly from 1942, and for the more prescient, from 1926.

 

The Letters Patent were about the office of Governor General. Her Majesty revoked the Letters Patent of 1984.

… Constitutional Head …

There is an interesting story about the 1984 Letters Patent, which is told in that excellent study by Sir David Smith, Head of State, 2005, pp 92-101.

The original Letters Patent issued by Queen Victoria in 1900 purported to create the office of Governor-General. I trust that I would not commit the offence of lèse-majesté if I were say that this was an error.

As Sir David Smith so cogently argues, alone in the British Empire, our Constitution had not only already created the office of Governor-General, but made it independent and not susceptible to the Royal Instructions usually given to vice regal officers.

In this way the Constitution made the Governor-General the constitutional head of the Commonwealth of Australia.

This was finally acknowledged in the Letter Patent of 1984 which revoked Queen Victoria’s.

…new legislation vital…


So why was it necessary for Mr. Rudd to advise Her Majesty  to revoke them again in 2008?  Thanks to Nick Hobson we can now reveal that this was something of crucial import.

It was to add after ‘himself’ the words ‘or herself’, after ‘he’ the words ‘or she’ and after  ‘him’ the words ‘or her’.

Under the rules of interpretation masculine words are usually taken to include the feminine. I suppose this was done for more abundant caution.

Or was it done to make a point?

[The next three pages of the Letters Patent follow]

 

   


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