Since 1999 the republican movement has refused to say what major changes they want to make to one of the world’s most successful constitutions.  It’s a very different movement from the one Malcolm Turnbull led. They knew what they wanted in those days.

Nowadays the republican movement has adopted a pincer movement. The first arm of the pincer involves coming up with some stunt every few months.  These can be excruciatingly embarrassing and gauche.  Sometimes you have to feel sorry for the republicans.

Just remember, for example, the "Mate for a Head of State" campaign designed by Peter FitzSimons.  Or when the republicans demanded The Queen “give back” the Tom Roberts Federation painting which hangs in Parliament House.

They even persuaded the then Victorian Premier Steve Bracks to write a letter to The Queen asking her to give it back. He might as well have asked her to give back "her" Crown Land.

The second part of the pincer movement involves searching for some silver bullet to have Australia magically reconstituted as some form of politicians' republic. 

The latest silver bullet comes from the Canberra Times.   This was in a full page article on the Saturday before Australia Day, 24 January, 2009.  

Under a headline  “Mending a Royal Mess”, the subheading declared “The constitution has no provision fo The Queen’s functions to be performed by a regent, so we should become a republic now. Philip Dorling writes.” 

Curiously, the article does not seem to be on the web. But a letter responding to the article is on the Canberra Times website.  The writer of that letter says he has found yet another silver bullet. We’ll answer that on another day.

…alleged "Royal Mess"…. 

So what is this  “Royal mess” which the Canberra Times would mend?

The current British Regency Act declares that if the Sovereign is unable to act, a regency may be declared in favour of Prince Charles. Under the New Zealand Constitution of 1986, the British regent simply becomes the New Zealand regent.

(It provides that   where, “under the law of the United Kingdom, the royal functions are being performed in the name and on behalf of the Sovereign by a Regent, the royal functions of the Sovereign in right of New Zealand shall be performed in the name and on behalf of the Sovereign by that Regent.”)

Dr Dorling says that since there is no similar provision in the Australian Constitution,  federal and  state referendums would be required to appoint an Australian regent. He says it would be easier  to establish a republic.

I am sorry to disappoint Dr Dorling. No constitutional change is needed to declare a regency.

Although our constitution was approved by the people, it could only be given legal effect by the British Parliament. So the Constitution is contained within a British Act, The Commonwealth of Australia Constitution Act, 1900, which was drafted in Australia.

The covering clauses of that  Act arguably provide for regency. Section 2 declares  that the references to The Queen in the Constitution, Queen Victoria,  “shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.”

And if there were some doubt as to whether the regent is a “successor”, there can be no doubt that the Commonwealth Parliament has full legislative power to pass legislation confirming regency.

(Anyone who is worried by the fact that a British Act still holds sway in Australia, should know it’s not the only one. In any event the British have surrendered any power to change it. )

…legislative power to establish a regency….

In 1936 the Australian government assented to the abdication legislation which gave effect to Edward VIII’s Instrument of Abdication. 

As we delayed adopting the Statute of Westminster until 1942 separate Australian legislation was not considered necessary. The British legislation recites the agreement of the Australian government. The Canadians and the Irish passed separate legislation

The Australian Parliament adopted the Statute of Westminster in 1942 and has since legislated with respect to issues related to the Crown in 1953 and 1973. These were on the Royal Titles and Royal Powers.  This legislation has not been challenged and would appear to be within power.

Legislation with respect to a regency would also be within power. That this is covered by the New Zealand Constitution is not of great moment. Unlike ours, the New Zealand Constitution is an act of the New Zealand Parliament.

If a regent were to be appointed because the Sovereign was found to be unable to act, the  Commonwealth of Australia Constitution Act, 1900, would extend that to Australia. 

For more abundant caution, the Australian Parliament could speedily pass approving legislation. There is no need to do this in advance.

While separate state legislation would probably not be necessary, again for more abundant caution, the States could join in the legislation using one of two ways prescribed in the constitution.

This could be done by the States simply referring any power they have to the Commonwealth.

Alternatively the States could request or concur in Commonwealth legislation to exercise the power to create a regency  (For those interested the relevant  provisions are set out below.)

 

The point is this so called “Royal Mess” is not a mess, and is certainly not the silver bullet the republicans are dreaming about.  Please, can someone tell the republicans to go back to the drawing board and work out what they want.

….constitutional provisions for the States…

Under section 51 (xxxvii) of the Constitution the Commonwealth Parliament has power to make laws for the peace, order, and good government of the Commonwealth with respect to matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.

Under section 51 (xxxviii) of the Constitution the Commonwealth Parliament has power to make laws for the peace, order, and good government of the Commonwealth with respect to the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia.