In Australia there is ambiguity about the nature of the Crown. The question whether there are divisible Crowns in right of the states is contested with the notion that there could be a Federal Crown.
Many people still think that the Crown in Australia is the old imperial British Crown of colonial Australia.
Perhaps the notion of a Federal Crown appeals to people who think of the Crown as being indivisible – as the old imperial British Crown was. Their model for the Crown may be that it is a monolithic institution.
So we need to consider that there are varying models of the Crown. Even if people accept that the Crown in Australia is independent of the British Crown since the Australia Acts 1986, there might be a lingering notion of the Crown in Australia as being monolithic.
What series of questions could help tease out the distinctions in these views about the Crown in Australia, and what are the perspectives that could widen people’s views on the matter?
The Albanese Government has distanced itself from the prospect of holding a second referendum on a republic, saying the topic is on hold. Yet, that may be a stalling tactic.
The legislation for a referendum needs to be passed by the federal parliament between two and six months before the referendum is to be held. They used the Voice to Parliament referendum to adjust relevant legislation like the Referendum (Machinery Provisions) Act 1984 (the Referendum Act), so the preparations and a test run have been completed.
The next federal election is expected to be held after the 12 of October 2024 and before 24 May 2025, as there is usually a half senate election with a federal election for the House of Representatives. A referendum held in conjunction with a general election is more likely to be passed.
If Albanese (or agents manipulating Albanese) want a referendum on a republic with the ARM Choice model they will have to start working on making the prospect public very soon. There are only five sitting weeks left this year. They would have to aim to have the legislation passed by November so campaigning could run through summer. If they leave it to 2025, they may run out of time, and not be able to shift the polls. There are usually no sitting days in December or January.
King Charles III will be visiting Canberra in October. He has always said that he supports Australia’s wish to become a republic, if that is what Australians want. If Albanese is banking on King Charles III giving his blessing for a referendum on a republic, he will have to start discussion of the topic this week. It would be rude to broach the topic during a royal visit of the monarch.
Lets see what happens. Maybe it is still on hold, as everyone expects it to be.
Update 11 September 2024
A public announcement about the Royal Visit of King Charles III has been made today. The Royal visit is scheduled from the 18th to the 23rd of October. That means that if Albanese is planning on a republic referendum he will have up till the Royal visit to announce it.
Given there is a sitting week from the 8th of October , if Albanese wants to go for the referendum, he will likely announce it during that week.
Perhaps we could determine his intention before that if his government is passing funding that could reasonably be for a referendum.
But if the Royal Visit has ended and there has been no mention of an impending referendum on a republic we can safely assume it will not happen at the next general election.
Written by Robert Vose 1 August 2024 Alice Springs
Section 129 – An Australian republic
Since time immemorial, Australians walk sovereign on this land. We recognise and honour the Aboriginal and Torres Strait Islander peoples of Australia.
The people of Australia agree to restore sovereignty within our nation, by electing an Australian to serve a fixed term as head of state, in place of the monarch, under the democratic Crown of Australia.
Commencing from 10 am on the 3rd of September, 2032, successors for the Crown of Australia shall be elected of the people, by the people, and for the people of Australia.
(See Note 1 – Section 129)
Section 130 – Election of the head of state
A successor for the Crown of Australia must qualify for nomination as a Senator or Member of the House of Representatives.
The term of office is one year.
The title of the head of state is “Australian of the Year”.
The gender of the head of state taking office in even years must be female, and the gender of the head of state taking office in odd years must be male. (see Note 2)
A successor for the Crown of Australia must serve an apprenticeship under the previous head of state, for a duration of six months prior to their term in office, starting on the 3rd of March.
A successor for the Crown of Australia must serve as a mentor to the incoming head of state, for a duration of six months after their term in office, ending on the 3rd of March.
The people of New South Wales, South Australia, Queensland, Tasmania, Victoria, Western Australia, and all the Territories combined for the Commonwealth, shall elect an Australian to serve as head of state in turn through a round robin.
Every State, and the Territories combined for the Commonwealth, must elect an Australian to serve as head of state once every seven years.
A candidate for election must be a resident of the relevant State or Territory.
The gender of the head of state elected in a State, and all the Territories combined for the Commonwealth, must alternate between male and female for each seven year cycle.
Voting shall be first past the post. (see Note 3)
There shall be two rounds of voting to elect an Australian head of state.
The first round of voting shall result in a short list of no more than the seven candidates with the highest number of votes.
The second round of voting shall be to elect the successor for the Crown of Australia from the candidates on the short list, who shall be the person receiving the highest number of votes.
If there is a draw between first and second place, the Commonwealth Parliament shall decide between these two candidates by a majority vote.
If a State, or the Territories combined for the Commonwealth, fail to adequately elect a head of state for their turn in the round robin, the Governor of the State, or the Governor-General of the Commonwealth for the Territories combined, shall serve as head of state, regardless of gender.
Section 131 – Impeachment of the head of state
The Commonwealth Parliament may impeach and remove an elected head of state with a two thirds majority vote of both houses.
Section 132 – Vacancy in the office of head of state
A successor for the Crown of Australia who has died while in office, resigned, been impeached, or who has otherwise left office prematurely shall be replaced by the Governor of the State they were elected in, or by the Governor-General if elected in the Territories combined for the Commonwealth, regardless of gender.
Section 59 – Disallowance by the Queen. Powers of the head of state
The Queen may disallow any law within one year from the Governor-General’s assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.
The elected head of state replaces the monarch under the democratic Crown of Australia. He or she must abide by the conventions practiced during the reigns of monarchs since the Statue of Westminster Adoption Act 1942 and in accordance with the Australia Acts 1986.
Process
Once this is considered a possibility, we will need to convene a convention, conference, establish a Parliamentary Inquiry, or set up an expert working group, to examine and document the options.
If expert opinion supports this possibility, it would then be suitable to start engaging with the Parliaments of the Commonwealth and States, as well as political parties.
There would need to be a formal agreement between the Commonwealth and all States on the nature of the Crown in Australia, and a commitment for the Commonwealth and States to agree to work together on any changes to the Crown in Australia. This step is critical, and further progress will need to paused until there is a formal and universal agreement on this topic. There must also be a consensus between political parties that this option will be supported.
A draft referendum question can then be prepared and publicly discussed.
Discussions with the British monarchy, Parliaments of the UK and Canada need to be initiated.
If polling suggests that this option can win a double majority in a referendum, the next step would be to prepare for a referendum vote.
If a referendum is passed, and the new sections added to the Commonwealth constitution, this will not automatically achieve our objective.
We will then need to formally request the Parliaments of the UK and Canada to pass legislation to amend the Statute of Westminster. The text of the Acts needs to be prepared by experts, and a process similar to that initiated at CHOGM 2011 with the Perth Agreement need to be started. Every State needs to pass identical legislation requesting the Commonwealth to request the UK and Canada to enact Acts in their parliaments to modify the Statute of Westminster.
Even if the UK and/or Canada refuse, we will still be able to carry on with our own arrangements. It would be better to include them and the monarchy, and it would be poor form for any of them to refuse if the referendum passes. It isn’t essential but it would be nice to have a formal handover.
The first election would need to be conducted before we are a republic.
Ideally, we will have the monarch visit Canberra for the transition to a democratic Crown of Australia on the 3rd of September 2032.
Note that Brisbane will host the summer Olympics in 2032 – albeit it is scheduled to run through Brisbane’s winter from Friday, 23 July 2032 to Sunday, 8 Aug 2032. Perhaps we could arrange to have this rescheduled to the second and third weeks of September so that the whole world can witness the establishment of the new republic in Australia.
We have eight years to make this happen!
Notes
Note 1 – Section 129
This refers to Covering Clause 2 by changing and redefining the rules of succession for “successors” for the Crown of Australia only. If passed by a referendum, and enacted by identical legislation in all Australian States, the Commonwealth, and the Parliaments of the UK and Canada, the idea is to redefine rules of succession for the head of state in Australia under the Crown of Australia.
The new rules of succession define a democratic process for electing our head of state. If successfully added to the Commonwealth Constitution, and accepted under the Statute of Westminster by the UK and Canada, we can keep the divisible Crown of Australia, no matter whether this is a federal Crown or not, and turn this into a democratic Crown. Everything else can stay the same.
The Statute of Westminster changed the nature of the Crown from indivisible to divisible and thus it arguably changed the scope of sovereignty under divisible Crowns, even if there continues to be only one Sovereign.
Australian Constitution Covering Clause 2: Act to extend to the Queen’s successors 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.
The date of the 3rd of September is chosen to commemorate the Statute of Westminster Adoption Act 1942 which was made to apply retroactively from the 3rd of September 1939.
The year 2032 is chosen because the length of time between the Statute of Westminster Adoption Act 1942 (starting from 3/09/1939) and the Australia Acts 1986 (starting from 3/03/1986) is the same as the length of time between the Australia Acts 1986 and the potential establishing of an Australian republic on the 3/09/2032 – 46 years and six months.
10am is the start of the day in Greenwich Mean Time (GMT) and Coordinated Universal Time (UTC). It’s best to start on the dot.
Note 2
Assuming the last monarch for Australia in 2032 will be a King, the first elected head of state for Australia in 2032 would be female.
Note 3
Two party preferred voting systems are not relevant for contests between individuals.
The Commonwealth took the lead, and the Australian States followed through on the 3rd of March 1986 with the Australia Acts 1986. The Prime Minister at that time was Bob Hawke, who is best remembered for his comment after Australia II won the America’s Cup in 1983.
On the day of the birth of the Crown of Australia, Australia declared war against Nazi Germany. The Prime Minister of the day, Robert Menzies, informed Australians through a live radio broadcast that Australia was in a state of war against fascism.
The second generation Crown of Australia was born through a declaration of freedom, human rights, the rule of law, and democracy. In the Second World War Australians fought with the other major democratic nations to protect the world from fascism, racism and some of the worst forms of genocide.
Following the Second World War, Australia was a founding member of the United Nations and one of the eight nations involved with drafting the Universal Declaration of Human Rights. The aim is to preserve an international order based on the human rights and the rule of law.
Today, the Crown in Australia remains poorly understood. The High Court outlined some of the meanings of the Crown in Australia in the Sue vs Hill 1999 case.
In a paper about this case and the meaning of the Crown in Australia, Professor Anne Twomey summarised five meanings of the Crown:
1. the Sovereign’s regalia;
2. the body politic;
3. the international personality of a body politic;
4. the ‘government’ or ‘executive’; and
5. the office of the Sovereign and the capacity in which the Sovereign acts.
Twomey, Anne, Responsible Government and the Divisibility of the Crown. Public Law, pp. 742-767, Winter 2008, Sydney Law School Research Paper No. 08/137, Available at SSRN: https://ssrn.com/abstract=1301166
The second generation Crown in Australia is the body politic (at least for the Commonwealth and states). It refers to the international personality of the Australian body politic. The divisible Crowns in Australia are synonymous with the ‘government’ or ‘executive’ of the Commonwealth and each of the six states, independent of each other.
Each of the six Australian states has a current Act of Parliament that defines the Crown in right of their respective state. The definitions vary slightly, but they generally affirm the Crown in right of their state as being the government of the state.
For example, in New South Wales the Crown Proceedings Act 1988 No 70 states:
Crown means the Crown in right of New South Wales, and includes: (a) the Government of New South Wales, and (b) a Minister of the Crown in right of New South Wales, and (c) a statutory corporation, or other body, representing the Crown in right of New South Wales.
The body politics in Australia are democratic. We elect parliamentarians to serve our communities. We have a Westminster system where the party with the majority in the lower house form government and is responsible to the people through Parliament. The Crown in Australia is a democratic institution that enables our federal system of government with three tiers (federal, state and local).
Yet, we still have the legacy from the old British Crown of a monarch and hereditary rules of succession for our head of state.
One option for an Australian republic is to replace the monarch with an elected Australian to serve a fixed term in office as our head of state. We could leave everything else as it is in the constitutional monarchy. We could even keep the Crowns of Australia, and turn them into democratic modern second generation Crowns.
Australian Crown – Gen II
Crown in right of the Commonwealth – remember WW II
Crown in right of the states – remember Australia II
We have one more step to complete and that is to recognise the Crown of Australia as a second generation Crown born in an age of democracy.
***
This is an anthropomorphic take on the Crown, which is a common narrative technique used to attribute human characteristics or behaviour to an object.
In this case it is attributing the start or establishment of the divisible Crown of Australia as an initial stage in a lifecycle – commonly referred to as a ‘birth’.
It is also seeing the change from the old British Crown to the new divisible Crown in Australia as a generational change.
If the old British Crown is nearly 1000 years old, starting with the Norman invasion of England, the second generation Crown in Australia is a mere infant. It is in the stage of life before even being baptised (in a Christian sense), before it has been given a name and prior to being introduced to the community and world. It has the potential to protect our rights and freedoms. But it cannot speak yet, it is vulnerable, and it needs to be protected and nurtured. In today’s world, we need to protect our democratic institutions.
Replacing the monarch with an elected Australian to serve as head of state for a fixed term under the Crown of Australia – would be the introduction of “Australia II” to the world. A target date for the first elected Australian to replace the monarch under the Crown of Australia is the 3rd of September 2032.
“…Crown means the Crown in right of the State of Queensland and includes a corporation representing the Crown, constituted by or under any Act or incorporated or registered under the Corporations Act… 8 Proceedings by or against the Crown Mode of proceeding (1) Subject to this Act and any other Act or law, a claim by or against the Crown may be made and enforced by a proceeding by or against the Crown under the title the ‘State of Queensland’.”
New South Wales – Crown Proceedings Act 1988 No 70
“Crown means the Crown in right of New South Wales, and includes: (a) the Government of New South Wales, and (b) a Minister of the Crown in right of New South Wales, and (c) a statutory corporation, or other body, representing the Crown in right of New South Wales.”
Victoria – Interpretation of Legislation Act 1984 (see p55)
“5 …Act to bind Crown This Act binds the Crown, not only in right of the State of Victoria, but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities… Crown means the Crown in right of Victoria; (p55)”
“3. Act to bind Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities, but does not extend to the Crown in right of the Commonwealth except where specific provision is made for its application to the Crown in right of the Commonwealth. Interpretation In this Act, unless the contrary intention appears – …State Crown means the Crown in right of this State.”
“4—Interpretation …State Crown means the Crown in right of this State… (2) This Act extends not only to the Crown in right of the State but also (as far as the legislative power of the State admits) to the Crown in any other capacity but does not extend to the Crown in right of the Commonwealth except where specific provision is made for its application to the Crown in right of the Commonwealth 1 Note— 1 Specific provision is made in section 9 for representation of the Crown in right of the Commonwealth in State proceedings.”
These designs include an outline of the Aboriginal Flag in the canton. The outlines are in black and red to demonstrate that the Sun is derived from the Aboriginal Flag.
