Senate Submission
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The Amendments
Section 126
The Succession of the Crown
Although it is the last of the six, the new section 126 provides for the transitional arrangements establishing the republic, so for our purposes it needs to be discussed first. One must remember that the constitution belongs more to future generations than to us and they will regard this section as an anachronism, perhaps not unlike a student today reading section 95 on the Customs duties of Western Australia. For this reason section 126 is placed in the Miscellaneous Chapter of the Constitution and it replaces the Queen’s power to appoint deputies to the Governor General – a section even more anachronistic.
An explanation of 126 is best prefaced with reference to the existing section 70, where the powers and function of the colonial governors did pass to the Governor General at Federation. The section demonstrates a concise method of establishing authority without problems of continuity.
The Australian constitution did not need to establish colonial governors, more so the Crown or the Queen, through whom they took their authority. Furthermore the powers and functions to be transferred were themselves established and their authority largely determinable. Although the transfer took place in the framework of the British Empire, such authority remains established in the independent nation we have become.
The proposed section 126 seeks to achieve the same result – the transfer of authority from the Queen to the executive government of Australia.
The use of the word "succession" is meant encapsulate all the transitionary implications that would otherwise need to be made explicit. In fact, the Australian Commonwealth has completed a number of the successions of the King and Queen and under this model the establishment of the republic is fundamentally another instance of such succession.
The use of succession simplifies the transition from monarchy to republic more than any other model and the chance of uncertainty or legal challenge regarding prerogative powers, privileges and immunities is removed.
Although the role of the Queen has diminished over time, even in the 21st century the concept of Queen or Crown remains a personification of executive government. So, to who (or what) exactly should the transfer these executive powers and functions be made?
The obvious choice is the Honorary President. Although more than acceptable, the author has chosen not to personify executive government and instead chosen a contemporary approach, separating government from its officers.
So the new Crown is the Presidency.
In the day-to-day business of government and the courts, the Queen is an entity quite separate from the lady who lives in Buckingham palace. The Crown too is an entity different from the jewelled ornament she sometimes wears on her head. Rather than leave the Honorary President with the same dual nature, the model first separates the Queen (the lady) from what they represent, which is effectively the executive government of, not just the Commonwealth, but also the states.
This difference is analogous to forming a public company from business of a sole proprietorship. The business belongs to the proprietor, but the company does not belong to the chairperson who is an officer within and representing it. This is not to say that Australia belongs to the Queen – Australia is an independent nation, but the language of the constitution, unaltered for a century, implies otherwise.
Consequently, the Presidency becomes the conception of all Australian government, just as all powers and functions (state and federal) are presently conceptualised as the Queen and/or the Crown. There is an underlying advantage in this for the legal student, who rather than needing to learn about the dual nature of the Queen can instead learn about the Presidency which will have a clear conceptual meaning. The same advantage is there for legal theorists outlining their treatises.
Furthermore, defining the Presidency is not actual change to the constitution, but it is a formalisation and clarification of what already exists in practise.
The author anticipates that there may be a better expression to use than Presidency, Executive Government comes to mind, however for the purposes of introducing the model to an able readership, using an original expression provides appropriate emphasis.
The following is a draft of section 126:
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The reader may be surprised to discover a reference to the Commonwealth of Nations. A full explanation on the significance of this reference is found later in this submission (see One Remaining Royal Link ) however, may it be sufficient to say now, that our constitution should not imply the Presidency becomes the new Head of the Commonwealth.
The other point to make is that the constitution would allow, for instance in the courts, the word Crown to continue to be used for an indefinite time, but legally it would mean Presidency. In practice, the author hopes that many uses for the word Crown are not extinguished, for example Crown Land, as such anachronisms add to the variety and interest of Australian English. Unfortunately, it would cause confusion to allow the same for the word Queen.