Stokes, Michael --- "Are There Separate State Crowns?" [1998] SydLawRw 5; (1998) 20 (1) Sydney Law Review 127

Are There Separate State Crowns?

MICHAEL STOKES[*]

One issue which has received little discussion in the republican debate is whether there is one Australian Crown or separate Commonwealth and State Crowns. The debate has proceeded on the basis that Australia is a monarchy whereas it may be that there are seven monarchies in Australia, the Commonwealth and the six States, each with its own Crown. If that is the case, as there is no doubt that Queen Elizabeth is the reigning monarch in the Commonwealth and all of the States, there is, within Australia, a personal union of Crowns, the monarch in each jurisdiction being the same person. However, there may be no legal reason why these Crowns must be occupied by the same person and it is conceivable, although unlikely, that the Crowns of the Commonwealth and the States could come to be occupied by different persons.

The issue is important in the debate about the constitutional changes necessary if Australia is to become a republic. If the States have separate Crowns, each State has a stronger political argument that there should be no change to the status quo without its consent, at least with respect to its own Crown, than is the case if there is only the one Australian Crown. This opens up interesting possibilities. It is conceivable, although unlikely, that if the Commonwealth and some States become republics, one or more States will be able to retain their Crowns, or, if the Commonwealth elects to remain a monarchy, a State or States could seek to become republics.

In my opinion, whether the Commonwealth and the States have separate Crowns makes little difference to the legal steps which are necessary to convert Australia to a republic. It will be necessary to change all of the provisions of the Constitution referring to the Queen to remove those references, and to amend Section 7 of the Australia Act 1986 (Cth),[1] which entrenches the position of the monarch in the States. It will also be desirable, but not essential, to amend the Preamble to the Commonwealth of Australia Constitution Act 1900[2] and Covering Clause 2 to remove the references to the monarch in those provisions. The changes to the Constitution may be made by referendum, while the changes to the Australia Act may be made either by Commonwealth legislation at the request of and with the consent of all the State Parliaments or by Commonwealth legislation exercising a power to amend the Australia Act conferred by a referendum; see section 15 of the Australia Act. There are a number of ways in which it may be possible to alter the Covering Clauses and the Preamble to the Constitution Act, of which the most satisfactory would be by Commonwealth legislation in exercise of a power to make the necessary alterations conferred on the Commonwealth Parliament by means of a referendum under section 128 of the Constitution.[3] State Constitution Acts, including any State legislation attempting to entrench the constitutional position of the monarch in the State could also be amended by referendum as they are subject to the Constitution and hence may be amended under section 128.[4]

If the States have separate Crowns, there may be little political justification for not allowing one State to go it alone and become a republic even if the Commonwealth and the other States decide to remain monarchies. A State which sought to go it alone and become a republic may need the assistance of the Parliaments of the Commonwealth and of the other States to change section 7 of the Australia Act, which entrenches the monarchy in the States.[5] However, it is arguable that a single State may be able to make such a change with the consent of the Commonwealth Parliament under section 51(xxxviii) of the Constitution. Section 51(xxxviii) is sufficiently broad to enable the Commonwealth Parliament, with the request and consent of the Parliament of the State directly concerned, to abolish the monarchy within that State, as it enables the Commonwealth to legislate to provide for the exercise within Australia of any power which at Federation could only be exercised by the British Parliament and has been given a wide interpretation by the High Court.[6] If section 15 of the Australia Act attempts to impose limits on section 51(xxxviii) of the Constitution by requiring the consent of the Parliaments of all the States to changes in the role of the monarchy in any of the States, it is an invalid attempt to change the scope of Commonwealth power without a referendum under section 128.[7] If this is the case and if the High Court declined to recognise that section 15 of the British version of the Act had altered the Constitution, it may be possible for a State to become a republic with the help of the Commonwealth Parliament under section 51 (xxxviii) of the Constitution.

The issue may also be important if Australia elects to remain a monarchy but decides to make changes to the law of succession. This is not an improbable scenario because the United Kingdom is considering changes to the law of succession to the British throne to allow women an equal right to succeed with men. After the Australia Acts, any change to the law of succession enacted by the United Kingdom Parliament would not apply to Australia. We would therefore have to decide whether to change the law of succession to the throne or thrones of Australia to keep it the same as that of the law of succession to the British throne.

It is unlikely that there would be strong support for having a different law of succession leading to a different person occupying the throne of Australia. If there is only one Australian Crown, there is only one law of succession, that implied in Covering Clause 2 of the Constitution, which defines the Queen for the purposes of the Constitution. As there is no definition of the Queen in the Australia Acts, the reference to the Queen in section 7, which entrenches the position of the Queen in the States, is best interpreted as a reference to the Queen as defined in Covering Clause 2. Therefore, if the law of succession were changed by an amendment to Covering Clause 2, the States would be bound by that change.

However, it is arguable that no change to Covering Clause 2 would be required to bring the law of succession into line with changes in the law of the United Kingdom. One interpretation of Covering Clause 2 is that it requires Australia to have as its monarch the King or Queen of the United Kingdom, whoever that happens to be, regardless of any changes in the British law of succession. The Constitutional Commission rejected this interpretation,[8] and it would be unwise to rely on it rather than make it clear beyond all doubt who is the monarch of Australia. Otherwise, as the monarch appoints the Governor-General under section 2 of the Constitution and State Governors under section 7 of the Australia Acts, there could be doubts about the validity of those appointments and of all the Acts of government with which the Governor-General and the State Governors are involved.

The position is different if there are separate State Crowns in that there may be separate laws of succession to those Crowns. If the States have separate thrones, the better view is that the law of succession to those thrones is not contained in Covering Clause 2. That clause defines the Queen for the purposes of “this Act”, that is the Constitution. Although State Constitutions are subjected to the Constitution by section 106, they are not part of it or incorporated into it by reference so that Covering Clause 2 does not apply to them or define the monarch for their purposes. Instead, the law of succession to the throne of the States would be implicit in the legislation establishing the original colonies under the Crown and providing for their government.[9] Although the law of succession was not expressly incorporated or adopted by reference into the early legislation establishing the colonies, it was implicit in the many references to the monarch in that legislation, which would be interpreted as including his or her successors as by law defined. Otherwise, the law of succession would have been received into the colonies as part of the Law of England. That, of course, is not the case because it would have entailed that after the Colonial Laws Validity Act 1865 (UK), the colonies would have been able to amend the law of succession as it applied to them, a ridiculous result while they remained colonies.

The Australia Act gave each State the power to amend or repeal British legislation in its application to it and hence, if it had a separate throne, to amend the law of succession to that throne. Therefore, to bring the Australian law of succession into line with changes which may be made in the United Kingdom law of succession, the law of succession to the thrones of the Commonwealth and each State would have to be changed. This could be done by the Commonwealth[10] and each State legislating independently, by Commonwealth legislation at the request of or with the concurrence of the States under section 51(xxxviii) or by a referendum to alter State laws of succession.[11]

Most discussion of whether the Commonwealth and the States have separate Crowns has been within the context of federalism. Almost from the time of federation, judges of the High Court have disagreed as to whether there is one Australian Crown or separate Commonwealth and State Crowns. The most dogmatic statement on the issue is that of the majority judgment in the Engineers Case[12] to the effect that the Crown is one and indivisible, rejecting the reasoning in earlier cases such as D’Emden v Pedder,[13] the Railway Servants Case[15] and Commissioners of Taxation (NSW) v Baxter[16] to the extent that it was based on the notion of separate Commonwealth and State Crowns. However, the statement in the Engineers’ Case notwithstanding, the High Court has still based reasoning on the assumption that there are separate Commonwealth and State Crowns.[17] The debate has been complicated because there is no uniformity in the use of the term “Crown”, which is often used to personify either the government or the body politic. Both the cases before 1920 and the Engineers’ Case agreed in using terms such as “Crown” and “sovereign” to refer to bodies politic or political communities, the early cases arguing that there were seven sovereign political communities in Australia,[18] the Engineers’ Case countering that Australia was not an independent political community at all but a dependent part of a larger political community, the British Empire.[19] However, later cases have tended to use the word “Crown” in the narrower sense to personify a government, either that of the Commonwealth or one of the States. Good examples are in the judgment of Fullagar, J in Commonwealth v Bogle where he said:[20]

The Commonwealth – or the Crown in right of the Commonwealth, or whatever you choose to call it – is, to all intents and purposes a juristic person, but it is not a juristic person which is subjected either by any State Constitution or by the Commonwealth Constitution to the legislative power of any State Parliament.

and in that of Gibbs ACJ in Bradken Consolidated Ltd v Broken Hill Prop Co Ltd, 21 to the effect that:

I would not wish to decide whether the wider rule of construction should be adopted in preference to the narrower rule by debating the merits of the doctrine of the indivisibility of the Crown, which seems more remote from practical realities than when the Engineers’ Case was decided, and which is of little practical assistance in many cases ... . It is a consequence of our federal system that “two governments of the Crown are established within the same territory, neither superior to the other.”

It is my opinion that the Commonwealth and the States will only have separate Crowns for the purposes of the law of succession if they are separate bodies politic, just as Australia has a separate Crown from that of the United Kingdom because it is a separate body politic.[22] The answer to this question depends not only on narrow issues such as the Commonwealth and the States having separate governments with separate legal personalities and the relationship of those governments to the Crown but on broad considerations about the nature of Australian federalism, the Australian nation and Australian citizenship. Although the position is doubtful, the better argument is that there is only one Australian body politic and hence one Crown, not separate Commonwealth and State Crowns. The question as to whether or not there are separate State and Commonwealth Crowns is distinct from the issue of whether there is an Australian Crown separate from that of the United Kingdom and lies to be determined by the constitutional relationship between the Commonwealth and the States rather than by the relationship between the Commonwealth and the United Kingdom and/or that between the States and the United Kingdom. As noted above, whether the States were separate bodies politic with separate Crowns was discussed in a number of early cases, mostly dealing with the immunity of the Commonwealth and the States from each other’s laws. The issue has important consequences for the nature of Australian federalism, the existence of separate State bodies politic with separate Crowns suggesting a looser, less integrated federal system than would be the case if there were the one Australian body politic with a unified Australian Crown. This is apparent from the cases decided before 1920 which tended to assume that the Commonwealth and the States had separate Crowns, or in the language of the cases, were “sovereign”. In D’Emdem v Pedder, the court said:

In considering the respective powers of the Commonwealth and of the States it is essential to bear in mind that each is, within the ambit of its authority, a sovereign State, subject only to the restrictions imposed by the Imperial connection and to the provisions of the Constitution, either expressed or necessarily implied. That this is so as regards the Commonwealth, apart altogether from the express provisions of the Constitution, appears too plain to need elaborate argument.23

The judges of the early court were no doubt fortified in this conclusion by the fact that the American Supreme Court, in McCulloch v Maryland,[24] had interpreted similar provisions of the United States Constitution in the same way. They used it as the basis of a conception of the Constitution as a contract between self governing sovereign communities which, although subject to the Imperial connection, were basically in charge of their own future and which had chosen to federate into a Commonwealth while retaining their separate sovereignty. Although this was a coherent interpretation of the Constitution, its main supporters on the Court, Griffith CJ, Barton and O’Connor JJ never justified it fully in terms of the express provisions of the Constitution.

The Engineers’ Case rejected the view that the Commonwealth and the States were separate sovereigns by appealing to the British orthodoxy that the Crown was one and indivisible throughout the British Empire,[25] entailing that there was no separate Australian sovereign, let alone Commonwealth and State sovereigns, only a common Empire sovereign. As a result, the Constitution could not be interpreted as a contract between self governing communities which had the choice of whether to federate or not, because it was legislation emanating from the one sovereign authority of the British Empire, the Imperial parliament, “...for the express purpose of regulating the royal exercise of legislative, executive and judicial power throughout Australia”.[26] As an answer to the claim that the Commonwealth and the States were separate sovereigns, this was disingenuous because it ignored the historical truth recognised in the Preamble of the Constitution, that, at federation, although the United Kingdom retained ultimate political and legal authority for Australia, the British parliament enacted the Constitution at the request of and on behalf of the Australian people and colonies and allowed each colony to decide for itself whether to join.

Besides, the Engineers’ Case wrongly views inter se relations between the Commonwealth and the States as dependent upon the relationship between Australia and the United Kingdom. Its argument that there were no separate State Crowns and hence no separate State bodies politic because the Crown was one and indivisible throughout the British Empire implies that once the Crown ceased to be indivisible throughout the Empire, the status of the States vis-a-vis the Commonwealth could change. That argument cannot be accepted because the drafters of the Constitution did not intend that the relationship between the Commonwealth and the States was to depend upon the relationship between Australia and the United Kingdom. However, the relationship with the United Kingdom was important to this extent. At federation, Australia was still a colony, not a completely independent self-governing body politic. At that time, there was only one Crown, which personified the greater polity, the British Empire, of which Australia was a dependent part. When Australia gained independence and its separate Crown, it is arguable that Australia gained seven separate Crowns, one each for the Commonwealth and the States, rather than one Crown. The answer to that question depends upon whether the Constitution establishes one or seven polities, which would, at federation, have been dependent polities, not upon the relationship between those polities and the United Kingdom.

As the reasoning in these early cases is unsatisfactory, it is necessary to analyse the Constitution in more detail to determine whether there are one or seven political communities and Crowns in Australia. Some features of our constitutional structure suggest that the Commonwealth and the States are political communities and have separate Crowns. At the governmental level, the Commonwealth and the States operate as separate systems with separate parliaments, executives, courts and public services. This separation extends, at least in part, to the Crown, because the monarch is the formal head of the Commonwealth and State executives, all formal government acts of the Commonwealth and the States are performed in the name of the Crown, and the Crown is a part of every Commonwealth and State parliament. Importantly, the Crown is separately represented in the Commonwealth and in every State and the Commonwealth Governor-General is not a viceroy, exercising all of the Crown’s powers in Australia, but merely one of the Crown’s representatives. As against the Commonwealth, State Ministers have always had the sole right to advise the Crown on matters of exclusive State concern. Where the monarch has had to exercise a power personally in respect of a State, such as the power to appoint a State Governor, she initially did so on the advice of British ministers, and at least since the Australia Act, she has done so solely on the advice of her State ministers.[27]

Secondly, the Commonwealth and the States are viewed as separate legal persons. The High Court has readily conceded separate legal personality to the Commonwealth and the States to give them easy access to the courts, and in particular to enable each to contest the scope of the others’ legislative powers. Their being separate juristic persons which are able to sue each other is not in itself an argument for the existence of separate Crowns. Many agencies of the same government have separate legal personalities and are able to sue each other.

However, the situation of these agencies differs from that of the Commonwealth and State governments in that agencies which are able to sue each other have been separated from the Crown by statute precisely so that they may be given their own separate legal personality, including the right to sue and be sued in their own name. The parts of the government which have not been incorporated in this way do not have separate legal personalities but are subsumed legally in the personality of the Crown. Therefore, they are not able to sue each other because of the illogicality involved in the Crown suing itself. However, the governments of the Commonwealth and the States are both personified as the Crown yet are able to sue each other. This appears illogical if they are agents of the one Crown because it entails that the Crown can sue itself, but is logical if there are separate Commonwealth and State Crowns each of which is able to sue the other.

These arguments are compelling if the Crown is viewed as the personification of the government. However, if the Crown is viewed as the personification of the body politic, they lose much of their attraction. It is difficult to argue with the thesis that the Commonwealth and State governments are separate institutions. The fact that the Commonwealth and the States each have a monopoly on advice to the monarch with respect to their own affairs shows that this institutional separation extends to their relations with the Crown; at the very least, each is entitled to independent access to the Crown. Even if the Crown is viewed as the personification of the body politic, the monopoly which the Commonwealth and the States have over advice to the Crown with respect to their own affairs is an indicator that they have separate Crowns. Australia gained a separate Crown when in all Australian domestic matters and foreign affairs the Monarch had to act on the advice of the Australian government to the exclusion of advice from the United Kingdom government.[28] Applying this criterion to the States, it appears to support the view that they have separate Crowns.

However, Australia’s gaining a monopoly on advice to the Crown was only crucial to its gaining a separate Crown because by then it had almost all of the features of an independent body politic. The ties to the United Kingdom which had formerly made it part of a greater body politic, the British Empire, had weakened, so that by 1941, Australia already had, for most purposes, exclusive jurisdiction over a defined territory, the territory of Australia, and a separate political and legal system. The United Kingdom in theory and to a certain extent in practice[29] retained some minimal legislative jurisdiction in that British Imperial law was still paramount in Australia and a British Court, the Privy Council, remained the highest court of appeal in the Australian legal system.

However, it was in the power of the Commonwealth government to end some, if not all of the United Kingdom’s jurisdiction over Australia. The Statute of Westminster, section 10 gave the Commonwealth the power to end the UK’s legislative jurisdiction over Commonwealth matters. It has also been suggested that after the Statute of Westminster the Commonwealth had the power to free the States from the constraints of Imperial law under the external affairs power, pl. xxix of section 51 of the Constitution or under section 2(2) of the Statute of Westminster itself.[30] The Constitution, in section 74, gave the Commonwealth parliament power to limit appeals to the Privy Council from the High Court. In Attorney-General of the Commonwealth v T & G Mutual Life Soc. Ltd.,[31] the High Court held that this power extended to the abolition of all appeals from the High Court to the Privy Council except appeals in inter se matters which are obsolete. Although section 74 does not extend to the abolition of appeals from State Supreme Courts to the Privy Council, it is probable that the Commonwealth had the power to do this at the request of or with the concurrence of the States under section 51(xxxviii) of the Constitution. The interpretation given to section 51(xxxviii) by the High Court in Port Macdonnell Professional Fishermen’s Association v SA[32] suggests that the Australia Act 1986 (Cth), including section 11, which abolishes appeals from State Supreme Courts to the Privy Council, is within the power of the Commonwealth parliament. Although in 1941 the Courts may not have interpreted Australia’s power to end the jurisdiction of the United Kingdom over Australia so broadly, these decisions suggest that after the Statute of Westminster, the federal parliament had the power to abolish all remaining British jurisdiction over Australia.

The position of the Commonwealth and the States inter se is different in that they are subject to the one legal system and, in particular, to the one Constitution, share legislative and other jurisdiction over the same territory and do not have the power to end the jurisdiction of the other. In these circumstances, the monopoly which the Commonwealth and the States have over advice to the Crown with respect to their own affairs is as consistent with their being parts of the one body politic as with their being separate bodies politic.

In this context, the Commonwealth and States’ possession of separate legal personalities does not provide unequivocal support for the theory that there are separate Commonwealth and State bodies politic. Instead, it can be used to support the view that the Commonwealth and States are integrated into the one Australian body politic with the one legal system rather than that they are independent bodies politic tied together in a loose scheme of cooperation. As the power of the courts to determine the constitutionality of the actions of either government arises from the Constitution itself, neither government is able to avoid the jurisdiction of the courts. Although individual citizens may have no constitutional right to sue the Commonwealth and the States,[33] it is clear that the right of the Commonwealth and the States to litigate constitutional matters against each other arises from the Constitution itself.[34]

The grant of separate legal personalities to the Commonwealth and the States facilitates their integration into a unified legal system by making it easy for them to litigate issues about the scope of their legislative powers inter se. The subjection of the Commonwealth and the States to the compulsory jurisdiction of the courts differs greatly from the juridical relations of separate polities such as independent nation states. The submission of independent nation states to courts such as the International Court of Justice is voluntary and they cannot be compelled to accept its jurisdiction. Although they can accept the compulsory jurisdiction of the Court, they are not bound to do so.[35]

Other considerations support the view that the Commonwealth and States are not separate bodies politic with separate Crowns. Traditionally, bodies politic have been seen as consisting of a body of persons politically organised under a system of government and of law, that is of citizens. The members of the bodies politic are citizens and have rights to participate in its public affairs and governance. At common law, citizenship was defined in terms of allegiance to the Crown. If the Commonwealth and the States are separate bodies politic with separate Crowns, it follows that Australians may have dual citizenship in that they are citizens both of the Commonwealth and the States, while if there is only one body politic and one Crown, Australians have only the one Australian citizenship. Therefore, the constitutional basis of Australian citizenship may provide some guidance on whether there are separate Commonwealth and State Crowns.

At federation, membership of the body politic, citizenship, was defined at common law in terms of allegiance to the Crown.[36] The preamble suggests that the aim of the Constitution was to create one body politic and one citizenship under the Crown by stating that the people “... have agreed to unite in one federal Commonwealth under the Crown”. In the Convention Debates, there was some opposition to the use of the word “Commonwealth” to describe the new federation but it was retained.[37] During the course of the debate, defenders of the word explained its meaning and why they considered it to be appropriate. It was variously described as a synonym for the body politic, the common weal, the whole body of people in a state.[38] In my opinion, the essence of the meaning which they attached to the word “Commonwealth” is “a body of people politically organised under a system of government for the common good”. To paraphrase the preamble, it records the agreement of the people of the then colonies to organise politically for the common good in one federal system of government under the Crown. As they had agreed to form one federal body politic and the Crown is the symbol of that body politic, it follows that there is one Crown.

Although provisions designed to create a constitutionally guaranteed common citizenship or to give the Commonwealth parliament the power to do so were rejected,[39] it is clear that the Constitution in the Preamble makes all Australians members of this body politic in which they have agreed to unite.[40] At the same time, the Constitution effectively prevents the States from establishing their own citizenship. Although the States are not specifically prohibited from legislating with respect to citizenship, they are prevented from treating Australians from other States as aliens. Aliens differ from citizens in that they are not members of the body politic and can therefore be denied the rights of membership and be excluded from the territory of the body politic.[41] Section 92, by guaranteeing freedom of intercourse, stops the States from denying a right of entry to persons from other States,[42] while section 117 prevents them from discriminating on the grounds of residence against Australian citizens who are residents of other States. The two provisions prevent States from treating Australians from other States as aliens and, as a result, prevent them from establishing exclusive State citizenship. The result is that all Australians are equally citizens of the Australian Commonwealth and by virtue of that, citizens of the States.

Similarly, the constitutional status of the States suggests that Australia is one complex polity incorporating both Commonwealth and States rather than seven separate polities. As noted above, a body politic is a community of persons politically organised under a system of law and government. Some political systems are complex, consisting of a number of governments with considerable independence. In such cases, it may not be clear whether there is one complex polity or a number of separate polities cooperating on certain terms. Whether or not the autonomous governments in such systems are governing separate polities depends in part at least upon the extent to which they are integrated with each other. At one extreme, there are clearly separate polities if the governments of the system have separate sources of legal and political authority and have the power to determine the terms of their cooperation.[43] On the other hand, if there is one over-arching source of political and legal authority, there is only one body politic. In Australia, there is, as discussed above, a high level of separation of governments and arguably of political authority, within the one integrated legal system.[44] The original High Court relied on this separation to argue that the Commonwealth and the States were separate sovereign political communities which had agreed to cooperate on the terms laid down in the Constitution.[45] These arguments were eventually rejected and it is now too late to return to them. There are suggestions that the Commonwealth and the States are separate bodies politic in the recent case of Re the Residential Tenancies Tribunal of NSW v Henderson; ex parte The Defence Housing Authority,[46] especially in the joint judgment of Dawson, Toohey and Gaudron JJ and in the judgment of McHugh J. However, there is nothing in the judgment of Dawson, Toohey and Gaudron JJ which indicates that they were using the terms “polity” and “body politic” other than as synonyms for “system of government” so that they have no bearing on the present point. McHugh J appears to assume that in a federal system, the Commonwealth and the States are necessarily “sovereign” unless the Constitution specifically limits that sovereignty. Otherwise, the one would be able to limit or destroy the capacity of the other.[47] However, he does not see the sovereignty of the Commonwealth and the States as arising from their being separate political communities but from the nature of a federal system, which creates separate systems of government and allocates the powers of government between the separate systems.[48] This reasoning views the Commonwealth and the States as creatures of the Constitution and is consistent with Australia being one political community in which governmental power is divided between a number of governments, Commonwealth and State, rather than seven separate political communities.

Besides, it is difficult to reconcile the claim that the Constitution is an agreement beetween seven separate bodies politic with its words. The Preamble, which can be taken into account in resolving ambiguities in the text of the Constitution, is inconsistent in two ways with the view that the Constitution is an agreement between seven sovereign bodies politic. First, it identifies the parties to the Constitution as the people of the States rather than the States themselves. Secondly, it describes the people’s intention as being to unite in “one indissoluble federal Commonwealth under the Crown”, not seven separate bodies politic. The States were incorporated into this new body politic.[49] It is now generally agreed that their constitutions are confirmed by and, as a consequence, owe their authority to the Constitution to which they are subjected.[50] More importantly, because the States are subjected to the Constitution, the Commonwealth can seek to amend their constitutions and can even seek their abolition by means of the procedure for amending the Constitution, section 128, which is essentially a special procedure for exercising Commonwealth legislative power.[51] The initiative for exercising the power conferred by section 128 lies with the Commonwealth parliament which must pass all proposed constitutional changes before they are put to the people.

The States do not have a similar power to initiate constitutional change.[52] The Constitution also allows for the creation of new States from the territory of existing States and for alterations to the boundaries of existing States.[53] Although the Constitution recognises the interests of the States concerned in any such changes by requiring that they have the approval of the parliament of the State, and in the case of boundary changes, of the electorate of the State, the initiative for such changes lies with the Commonwealth parliament. Besides, these provisions are also subject to amendment or repeal under section 128, allowing the Constitution to be changed to provide for radical changes to the territory of a State without its consent. As the States are completely subject to the Constitution, it is clear that the States are part of the people politically organised which the Constitution creates rather than separate entities which predate and stand outside that political organisation.

If my argument is accepted, the Australian Crown is indivisible because it is the symbol and personification of the Australian Commonwealth, that is of the Australian people politically organised under the one federal system of government. This interpretation is strengthened by the fact that behind the monarchist trappings and language of the Constitution and its form as an Act of the United Kingdom parliament, it is based on popular sovereignty in that, first, most of its provisions define and limit the powers which the people have seen fit to confer on their governments[54] and secondly, amendments to it must have the consent of the people under section 128. Therefore, the central relationship with which the Constitution deals is that between government and people and the central issue with which it deals is the scope of the powers which the people have conferred on their governments as evidenced by the right which persons affected by legislation which is beyond the constitutional powers of the parliament have to ask the courts to declare that legislation invalid. The constitutional relationship between the Commonwealth and State governments is a result of this more fundamental relationship.[55] The basic issues in the relationship between the Commonwealth and the States are determined by the scope of the powers which the people have conferred on each; the extent of each’s jurisdiction and whether each has an immunity from the laws of the other depends upon the extent of the legislative powers which the people have given them not on any rights and duties which they owe each other. Also, constitutional amendments changing the relationship between the Commonwealth and the States do not require the consent of the States but of the people.[56] These fundamental features of the Constitution suggest that the people are the ultimate political authority symbolised by the Crown and that the Constitution is the means by which the people have organised themselves into a polity and established a system of government rather than a treaty by which pre-existing States decided to regulate their relationship.

Nothing has happened since federation to give the Commonwealth and States separate Crowns. It may appear that the Crowns were separated some time after the Statute of Westminster when the Commonwealth gained its own Crown[57] but the States did not, remaining colonies subject to the Colonial Laws Validity Act, 1865.[58] As colonies, they would have continued to owe allegiance to the Crown of the United Kingdom rather than to the Crown of the Commonwealth so that the Crowns of the Commonwealth and the States would have separated. If, prior to 1986, the Commonwealth had its own separate Crown while the States remained subject to that of the United Kingdom, there is nothing in the Australia Acts which unites the States to the Commonwealth Crown. Instead, those Acts appear to give the States separate Crowns by giving them access to the Queen independently of the Commonwealth rather than uniting them by conferring the Queen’s functions with respect to the States on the Governor-General.

The argument that the Commonwealth and State Crowns became separated after the Statute of Westminster, the Commonwealth gaining its own Crown while the States remained subject to the Crown of the United Kingdom, cannot be accepted because it leads to the absurd consequence that the Commonwealth would have become an independent body politic while the States would have remained dependent parts of a greater polity, the British Empire. Besides, as mentioned above, the separation of the Commonwealth and State Crowns would have created separate State bodies politic and would have had a major impact on the constitutional relationship between the Commonwealth and the States. It is counter-intuitive to suppose that changes in the relationship between the governments of Australia and that of the United Kingdom could have a major impact on the relationship between the Commonwealth and the States.

Although, after the Commonwealth had gained a separate Crown, the States remained subject to the Colonial Laws Validity Act, they were not colonies. If they had been, their status would have been inconsistent with Australia’s international independence which was the basis of Australia’s separate Crown. For example, if the States were colonies, according to Australian as well as British law, their citizens would have continued to owe allegiance to the British Crown as well as to the Crown of Australia. Allegiance to the British Crown would have entailed that they were at war with any country with which the United Kingdom was at war, whether or not Australia was at war with that country.[59] That is ridiculous. Therefore, the position of the States was anomalous before the Australia Acts, but they were not colonies.[60]

The view that after the Statute of Westminster, the States were not colonies gains further support from the constitutional position of the States. As noted above, the States do not have an existence separate from the Constitution but are subject to it and their existence and status may be altered by Commonwealth legislation provided that the procedures of section 128 are complied with. Therefore, if the States had been colonies, it was within the power of the Commonwealth to end their dependent status by abolishing them.[61] If they had been colonies, the exercise of such a power would have been a hostile act aimed at the British Empire because it would have stripped that empire of some of its dependent territories. Again, such a result is absurd.

As there is no justification for the view that the States remained colonies after the Statute of Westminster, there is no justification for the view that that Statute separated the Crown of the Commonwealth from that of the States. Therefore, once Australia gained a separate Crown, that Crown was the Crown of the Commonwealth and the States. The Australia Act section 7 guaranteed the States independent access to that Crown but for reasons set out above, that is not sufficient to separate the Crown of the States from that of the Commonwealth. In conclusion, the term “Crown” is used in two ways, to personify the political community at large and to personify the government. The latter usage suggests that there are seven Crowns in Australia, because Australia has seven governments which act in the name of the Crown. However, I have argued that when the term “Crown” is used to personify the political community, there is only one Crown in Australia because there is only one political community or polity constituted by the people of Australia, of which the Commonwealth and States are parts. This conclusion has implications for federalism, as it views the people, not the States, as the basic parties to the federal compact. Accordingly, it rules out arguments based on the assumption that the States are separate political communities which predated the Constitution and agreed to unite in a federal compact, making it clear that the States as well as the Commonwealth are creatures of the Constitution. It does not of course, rule out all federalist implications, including some which flow from the existence of separate governments which act in the name of and are commonly personified as the Crown.[62]

The conclusion that there is one political community personified by the Crown also has implications for the law of succession and the republic debate. If the States were separate polities each personified by its own Crown, they would have strong political and perhaps legal arguments supporting the position that they ought to be free to choose for themselves whether to become republics or to remain monarchies, and if they chose to remain monarchies, whether and to what extent they would be willing to change the law of succession to their separate thrones. The conclusion that they are not separate polities but are parts of the one Australian polity constituted by the people weakens the foundations of this position making it clear that whether or not Australia becomes a republic is more a question for the people than the States.

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[*] Michael Stokes, LLB (Hons), MPhil (Oxon) Senior Lecturer in Law, University of Tasmania.
[1] Referred to below as the Australia Act. The Commonwealth Parliament and the United Kingdom Parliament each enacted an almost identical version of the Australia Act (1986). The Commonwealth Act was based on s51(xxxviii) of the Constitution and was passed at the request of and with the concurrence of the parliaments of all the States, while the United Kingdom Act was passed at the request of and with the consent of the government and parliament of the Commonwealth under s4 of the Statute of Westminster (1931). The States also concurred in the United Kingdom Act.
[2] The Act consists of nine sections, the first eight of which are referred to below as the Covering Clauses while the ninth, which is the Constitution proper is referred to below as the Constitution.
[3] It may be necessary to amend s8 of the Statute of Westminster to allow for the alteration of the Covering Clauses. However, this provision would be amended by implication by the exercise of any grant of power to amend the Covering Clauses; s15(2) of the Australia Act. These issues are discussed at greater length in my as yet unpublished paper, “Changing the Law of Succession to the Throne of Australia”.
[4] See below, nn50 and 51.
[5] The Australia Act cannot be altered by ordinary State legislation; s15.
[6] Port MacDonnell Professional Fisherman’s Association Inc v SA [1989] HCA 49; (1989) 168 CLR 340.
[7] Lindell, G J, “Why is Australia’s Constitution Binding? – The Reasons in 1900 and Now and the Effect of Independence” (1986) 16 Fed LR 29, 34–5 and Zines, L, The High Court and the Constitution (4th edn, 1997) at 305.
[8] Final Report of the Constitutional Commission Vol. 1, (Australian Government Publishing Service, Canberra, 1988) at 80–81.
[9] This law included the basic common law of the law of succession as modified by British legislation such as the Act of Settlement 1701 (UK) and the Royal Marriages Act 1772 (UK). It was most recently amended by His Majesty’s Declaration of Abdication Act 1936 (UK).
[10] Changes to the Commonwealth law of succession would require a referendum conferring power over the Covering Clauses on the Commonwealth parliament; see above, text accompanying n3.
[11] State Constitutions are subject to the Commonwealth Constitution by s106 and therefore may be amended by referendum.
[12] Amalgamated Society of Engineers v Adelaide Steamship Co (hereinafter Engineers’ Case) [1920] HCA 54; (1920) 28 CLR 129, 152–3.
[13] [1904] HCA 1; (1904) 1 CLR 91 at 109–11.
[14] [1904] HCA 57; (1904) 1 CLR 585.
[15] Federated and Amalgamated Government Railway and Tramway Service Association v NSW Railway Traffic Employees Association [1906] HCA 94; (1906) 4 CLR 488 at 536–8, hereinafter the “Railway Servants Case”.
[16] [1907] HCA 76; (1907) 4 CLR 1087 at 1120–32.
[17] See the judgment of Fullagar J with which Dixon CJ, Webb and Kitto JJ concurred in Commonwealth v Bogle (1952–3) [1953] HCA 10; 89 CLR 229 at 259–60, and most recently, the judgments of the Full High Court, especially that of McHugh J in Re the Residential Tenancies Tribunal of NSW v Henderson; ex parte The Defence Housing Authority (1997) 146 ALR 495; (1997) 71 ALJR 1254.
[18] The Court in D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91, 109 described the Commonwealth and the States as “sovereign State[s]”, a description repeated in later cases such as the Railway Servants’ Case [1906] HCA 94; (1906) 4 CLR 488 at 537 and Commissioners of Taxation (NSW) v Baxter [1907] HCA 76; (1907) 4 CLR 1087 at 1121.
[19] [1920] HCA 54; (1920) 28 CLR 129 at 152.
[20] (1952–3) [1953] HCA 10; 89 CLR 229 at 259.
[21] [1979] HCA 15; (1979) 145 CLR 107, 123.
[22] On this point see Stokes, M, “The Constitutional Position of the Crown of Australia” as yet unpublished, available from the author.
[23] [1904] HCA 1; (1904) 1 CLR 91 at 109.
[24] (1819) 17 US [1819] USSC 5; (4 Wheat) 316.
[25] [1920] HCA 54; (1920) 28 CLR 129 at 152.
[26] Id at 152–3.
[27] Although until the passage of the Australia Act 1986 (Cth), State communications with the monarch were through the British government, it was recognised that that was merely a formality and that it would have been a major breach of convention for the British government to have advised the monarch on a State matter.
[28] Recognition that the monarch should act only on the advice of Australian ministers in Australian affairs came in the context of Australia’s desire to issue separate declarations of war against Finland, Rumania, Hungary and Japan. To make it clear that Australia had the constitutional authority to do so, the King, acting under s2 of the Constitution, assigned to the Governor- General the prerogative powers necessary. In doing so, the King acted solely on the advice of his Australian ministers, not on the advice of his British ones as is made clear by the text of the documents, particularly those by which arrangements were made for obtaining the authority for the Governor-General to declare war. The correspondence on the issue and the assignment of authority are printed in Commonwealth of Australia, Parliamentary Debates, vol 169, 1078.
[29] The United Kingdom parliament had the legal power and still in practice legislated in some cases for Australia in the period between the passage of the Statute of Westminster and its adoption in the Statute of Westminster Adoption Act 1942 (Cth); see the Geneva Convention Act 1937 (Imp) which purported to amend the Constitution. I have discussed this legislation in “The Constitutional Position of the Crown of Australia” unpublished, available from the author.
[30] Kirmani v Captain Cook Cruises (No 1) (1985) 159 CLR 351.
[31] [1978] HCA 24; (1978) 144 CLR 161.
[32] [1989] HCA 49; (1989) 168 CLR 340.
[33] Individual citizens do not have a constitutional right to sue the Commonwealth or the States in constitutional matters, but were granted that right in Part 9 of the Judiciary Act 1903 (Cth), enacted by the Commonwealth under s78 of the Constitution. However, even if that provision had not been passed, citizens would have been able to test the constitutionality of Commonwealth and State legislation in the courts by suing the officials charged with implementing it. The Constitution contemplates such actions against officers of the Commonwealth in s75 of the Constitution, which gives the High Court original jurisdiction in cases in which mandamus, prohibition or an injunction is sought against an officer of the Commonwealth.
[34] Victoria v Commonwealth (AAP Case) [1975] HCA 52; (1975) 134 CLR 338 at 380–3 per Gibbs J and at 401– 2 per Mason J.
[35] Statute of the International Court of Justice, Article 36.
[36] When the Constitution was drafted, all persons born in British Dominions, including Australia, were British subjects and owed allegiance to the Crown. For contemporary analyses of citizenship in these terms, see Anson, W, Law and Custom of the Constitution, Part II, The Crown, (1892) at 67–70, and Halsbury's Laws of England (1st edn, 1909) vol 6 at 339–42.
[37] Official Record of the Debates of the Australasian Federal Convention, Sydney 1891 (1986) vol 1 at 550–57.
[38] See in particular the speech of Playford; id vol 1 at 552–3.
[39] Dr Quick moved in the Melbourne Convention 1898 that the Commonwealth be given power over Commonwealth citizenship. The motion was defeated in part on the grounds that it was not needed because all citizens of the States were uniting to form the Commonwealth and, as a result were citizens. It was also feared that the power could be used to deny citizens of the States Commonwealth citizenship, id vol 5 at 1750–68. At that session of the Convention, the section which ultimately became s117 was debated at considerable length. Some of the versions considered guaranteed Commonwealth citizenship to the citizens of the States; see the debate id, vol 5 at 1780–1805.
[40] In Leeth v Commonwealth (1992) 174 CLR 455, three judges of the High Court, Brennan, Deane and Toohey JJ, adopted this interpretation of the effect of the Preamble and relied on it in part in their reasoning, at 475 and 486 respectively.
[41] At common law, the prerogatives of the Crown extended to the expulsion of aliens from British dominions; Toy v Musgrove [1888] VicLawRp 102; (1888) 14 VLR 349.
[42] R v Smithers, Ex parte Benson [1912] HCA 96; (1912) 16 CLR 99, Gratwick v Johnson [1945] HCA 7; (1945) 70 CLR 1 affirmed in Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360.
[43] The European Community is an example of such an organisation formed by a number of separate polities.
[44] In this respect, there is greater integration than in the USA where the States retained separate legal systems with their own ultimate courts of appeal.
[45] The cases are discussed in more detail above, text accompanying nn23 and 24.
[46] (1997) 146 ALR 495.
[47] Id at 518.
[48] Ibid.
[49] The Constitution, s106.
[50] New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at 372; Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353, 371; China Ocean Shipping v SA [1979] HCA 57; (1979) 145 CLR 172, 182; McGinty v WA [1996] HCA 48; (1996) 186 CLR 140, 171–3, 207–10. See also the discussion in Gageler, S, and Leeming, M, “An Australian Republic: Is a Referendum Enough?” (1996) 7 PLR 143 at 152–3.
[51] Quick, J, and Garran, R, Annotated Constitution of the Commonwealth of Australia (1901) at 930.
[52] For similar reasons, Detmold concluded that there are no reservations to the States’ submission to the Commonwealth and that therefore the States are incorporated in the Commonwealth and do not retain an existence independent of it; Detmold, M, The Australian Commonwealth (1985) at 12–15.
[53] The Constitution, ss121 and 124 (new States) and 123 (altering the boundaries of a State).
[54] Sections 51, 52, 61, 71 and 107 are the most important of these. However, there are many others.
[55] I have suggested in other articles, “Is the Constitution a Social Contract?” (1990) 12 Adel L Rev at 250 and “Federalism, Responsible Government and the Protection of Private Rights” (1986– 7) 16 Fed L Rev at 135, that to view the Constitution as defining the powers which the people have granted to government rather than a federal charter is not a coherent interpretation of what is essentially a federal charter. However, it is clearly the dominant interpretation and was probably the interpretation intended by the framers. It is now so well entrenched that it may be too late to abandon it without constitutional amendment.
[56] The Constitution, s128. A majority of people in a majority of States must endorse any constitutional change. However, this does not mean that a majority of States must endorse a change because it is a common but fundamental mistake to equate a State with its people, similar to the mistake of equating a company with its shareholders.
[57] I have suggested that Australia had the power to gain its own separate Crown from the date of the passage of the Statute of Westminster and was clearly recognised as having its own separate Crown when the King, acting on the advice of Commonwealth ministers rather than United Kingdom ones, assigned the Governor-General the power to declare war on Finland, Hungary, Rumania and Japan in December 1941; above n28. Other writers have suggested different dates such as 3 Sept 1939, the date from which the adoption of the Statute of Westminster took effect under the Statute of Westminster Adoption Act 1942.
[58] The Statute of Westminster did not apply to the States; s9(2).
[59] Calvin’s Case (1608) 7 Co. Rep 1a makes it clear that allegiance is a personal relationship between monarch and subject and that therefore the monarch can call on his or her subjects in time of war for assistance regardless of where they live. If the States had remained colonies after Australia gained its independence, the inhabitants of the States would have continued to owe allegiance to the British Crown and could have been called on by the British to take part in wars in which Australia was not involved.
[60] Hudson, W, and Sharp, M, Australian Independence – From Colony to Reluctant Kingdom (1988) at 130–4, have argued that to understand the position of the States after the Statute of Westminster, it is necessary to distinguish between independence and separation. On this thesis, Australia was independent from the UK after the Statute but not completely institutionally separate from it in that the UK retained certain controls over the States.
[61] There may have been other powers which the Commonwealth could have used to end the dependent status of the States, see text accompanying nn30–32 above.
[62] It is likely that lawyers will continue to use the term “Crown” in the two ways which I have identified and that that usage will cause some confusion, especially if I am right and there is one Australian Crown for some purposes and seven separate Crowns for others. Perhaps we need the republic to end such confusion.