Talk:Monarchy of Australia

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Disgusted[edit]

Had to comment that I'm utterly disgusted to find an article on Australia being lumped with Canadian ideas of the roles and functions of the AUSTRALIAN Government and Constitutional interpretation. I am fully aware that Wikipedia is an international collaborative project and many can access sources on this and other Australian topics. But when I come to a talk page and see continuous arguments from Canadian editors attempting to develop a consensus of how the AUSTRALIAN system works with Canadian references and comparisons that don't apply, I worry that Wikipedia is failing as a knowledge base. As bad as it is to say, maybe Australian editors know more about this topic than others and we should defer to their knowledge. The Australian system is unique, I think many have failed to note this. Just my 2cents but I have been thoroughly disappointed by many "facts" I've read on Australian articles lately. 139.218.177.138 (talk) 19:11, 1 November 2014 (UTC)

Kindly point out specific errors. Wikiain (talk)
Yes, one important point some have failed to appreciate is that the Australian Constitution is very different from that any of the other Commonwealth countries.Gazzster (talk) 05:21, 4 April 2015 (UTC)
Anybody can edit articles or make constructive comments on the Talk page. BeenAroundAWhile (talk) 08:03, 22 November 2016 (UTC)

Divisible crown[edit]

The article states as a fact that the monarchy of the various realms are "independent and legally distinct". That is a debated and contentious argument, and certainly should not be recorded as a fact. There are practical and legal reasons for arguing against the idea of a separate monarchy, not the least of which is that British laws pertaining to the Crown have effect on the "Queen of Australia".Royalcourtier (talk) 00:46, 4 April 2015 (UTC)

Actually they don't. Laws pertaining to the succession have to be agreed to by all the Commonwealth nations. As to the definition of the royal powers and the manner in which they may be exercised, they are he concern of the separate national constitutions. But the divisibility of the Crown is referenced often and solidly enough in this and other articles.Gazzster (talk) 05:28, 4 April 2015 (UTC)
I don't think this has ever been tested. Certainly before the abdication of Edward VIII and recently before the birth of Prince George, the Commonwealth realms did agree. Secondly, s 2 of the Preamble of the Constitution says that: "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." None of the acts passed by Australian parliaments can override the Constitution. What would happen if Australia did not agree to an abdication, or if Britain became a republic???--Jack Upland (talk) 11:39, 9 September 2015 (UTC)
We'd be in a very tricky situation, far worse than the one Canada is currently exploring. But it's not really something we need lose sleep over - before we got to that situation, any number of clever dicks would nut out a solution. Worst case, I guess, is that Australia would end up with a monarch who wasn't the British monarch, and while that might be kind of awkward, it wouldn't have much effect on Australia. How could it? --Pete (talk) 12:02, 9 September 2015 (UTC)
What??? Nobody would know who the monarch was.--Jack Upland (talk) 12:07, 9 September 2015 (UTC)
I'm sorry? If - to take your example - the UK became a republic without a monarch, and Tony Abbott decided we would remain a monarchical state, then we'd retain the monarch. This would be a bizarre and awkward situation, especially if they didn't want to be King or Queen of Australia, but the practical effect would be negligible, at least until the Governor-General's term expired. But these sort of things usually don't happen overnight, and we'd most likely work something out ahead of time. --Pete (talk) 12:15, 9 September 2015 (UTC)
Well, for a start, it's not up to Abbott to decide.--Jack Upland (talk) 12:23, 9 September 2015 (UTC)
However it may seem to a citizen of the world, Pete has a better grip on the practcal, specuation free, reality. Obviously, Abbott or his successor, not to mention legal experts and whatever influence popular opinion may have in Australia at the time if it ever comes, and the willingness of any person to become king/queen of Australia in the circumstances. Qexigator (talk) 13:40, 9 September 2015 (UTC)
You didn't finish the sentence. The point is, however, that the divisibility of the Crown is uncertain. My source is Blackshield and Williams Constitutional Law and Theory (6th Edition). It quotes Anne Twomey as saying "The root of the difficulty in analysing the divisibility of the Crown in the different meanings of the term 'the Crown'. The use of the term 'Crown' has been described as 'slippery', bording on the incoherent, deeply ambiguous and deeply troubling, and giving rise to a mass of fiction and subterfuge" (p 354). And Chief Justice Latham: "The principle that the Crown is one and indivisible is very important and significant from a political point of view. But, when stated as a legal principle, it tends to dissolve into verbally impressive mysticism" (p 355).--Jack Upland (talk) 14:17, 9 September 2015 (UTC)

To return to my earlier point, Malcolm Turnbull in The Reluctant Republic said: "If Britain became a republic, the British President would become the Australian Head of State - and until we had amended our Constitution there would be nothing Australians could do about it." (p 214).--Jack Upland (talk) 09:32, 8 November 2015 (UTC)

I've restarted this, Jack, to follow and then agree, that Turnbull is correct. Irrespective of the interminable speculations (since at least the 1930s—on which please kindly nobody continue here about divisibility of the Crown until having read Anne Twomey's book The Chameleon Crown, 2006), covering clause 2 in the Commonwealth of Australia Constitution Act 1900 (Imp) states:
Act to extend to the Queen's successors.
2. 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.
For that reason, when Charles Windsor visits Australia in a moment he will do so as next in line to be King of Australia—and so on. Wikiain (talk) 13:10, 8 November 2015 (UTC)
I don't think there's any question that Charles would become King of Australia should his mother suffer an untimely demise, through thrillsports or being devoured by canines, perhaps. I suspect that he might not hold this title for long, given the inevitable resumption of the republican debate, but that's neither here nor there.
Whether a future British President would assume the role of "The Queen" in Australian government is another matter entirely. Turnbull might be correct if it were to happen overnight, a prospect which seems unlikely, but in any case it would be up to the High Court to make its own interpretation, and I think that they would consider the intent of the founding fathers who wrote the Constitution, and the developments which would naturally occur in other Realms.
However, this is speculation. In practical terms, if the British were to move to a republican model of government, then it would happen through consultation, it would presumably be the result of some popular decision, whether through the election of a profoundly pro-republican government or some referendum similar to last year's vote on Scottish independence, and there would be some further lengthy period before the new order was proclaimed. It wouldn't be a surprise in the morning and there would be ample opportunity for the other Realms to consider their options. I doubt that Australian (or New Zealand or Bermudan etc.) people would relish a British President's feet occupying the Queen's constitutional shoes. What those crazy Canucks would do is another question. They might like it.
As to the divisibility of the Crown, that's the current state of affairs. "The Crown" is, as Twomey notes, an uncertain term, but it certainly extends to the machinery of sovereignty in the various Realms, each distinct from the other, and all extending uninterrupted over any past or future changes of monarch. --Pete (talk) 14:35, 9 November 2015 (UTC)
Yes, it wouldn't happen overnight. The future of the UK monarchy was presumably being canvassed by the Commons’ select committee on Political and Constitutional Reform, within its general project of a written constitution for the UK. Though its successor after the 2015 election, the Public Administration and Constitutional Affairs Committee, doesn't have that on its listed agenda—it is urgently dealing with the problem of EVEL. Either a UK constitution or a separate measure dealing with the monarchy would surely go to a referendum. The rest, as you say, is speculation. The Australian High Court's perspective on constitutional interpretation is currently murky, though in 2013 it went out of its way to find that "marriage" in the constitution can include same-sex. However, I'm sure that the prospect of a British president as the Australian head of state would be totally unacceptable. As to Canada, who can tell—until President Beckham attempts to speak French? Wikiain (talk) 20:12, 9 November 2015 (UTC)
On 11 November 2015 Turnbull said that Charles would become the Australian head of state, and as prime minister met Charles and Camilla; and a poll for the Australian Republican Movement (Turnbull a founder member and major financial backer) found that even Coalition voters would prefer a republic to Charles as the Australian head of state. A frabjous day for Mal. Wikiain (talk) 04:42, 11 November 2015 (UTC)

Corporation[edit]

I have removed the statement that the Crown is a corporation. This refers to a report of a Canadian court case. We need something more substantial than that.--Jack Upland (talk) 11:51, 9 September 2015 (UTC)

Perhaps we need more than your say-so to dismiss that particular source. Please discuss. Better yet, can we call on Mies to comment? --Pete (talk) 11:54, 9 September 2015 (UTC)
Does this suffice to carry the point, at least for the purpose of the article? "...In England we now (1901) say that the Crown is a corporation: it was certainly not so when the king's peace died with him, and 'every man that could forthwith robbed another'...If the corporation sole had never trespassed beyond the ecclesiastical province in which it was native, it would nowadays be very unimportant. Clearly it would have no future before it, and the honour of writing its epitaph would hardly be worth the trouble. Unfortunately, however, the thought occurred to Coke --or perhaps in the first instance to some other lawyer of Coke's day -- that the King of England ought to be brought into one class with the parson: both were to be artificial persons and both were to be corporations sole."-The Crown as Corporation, Maitland, Law Quarterly Review[8] Qexigator (talk) 14:08, 9 September 2015 (UTC)
I don't think so. Maitland goes on to say:
The way out of this mess, for mess it is, lies in a perception of the fact, for fact it is, that our sovereign lord is not a "corporation sole", but is the head of a complex and highly organized "corporation aggregate of many" -- of very many. I see no great harm in calling this corporation a Crown. But a better word has lately returned to the statute book. That word is Commonwealth.
Maitland does not say that the Crown is a corporation. Blackshield and Williams Australian Constitutional Law and Theory (6th ed.) quotes Anne Twomey as saying, following on from the quotation given above: "Accordingly, in the United Kingdom one finds an ongoing dispute as to whether the Crown has legal personality, is a corporation sole or a corporation aggregate, means the 'Government' or the 'Queen', and whether it includes Ministers and public servants or not" (p 354). As discussed above, the identity of the Crown is disputed.--Jack Upland (talk) 14:36, 9 September 2015 (UTC)
Yes, Maitland says a lot more as one can see reading to the end. I daresay the various ways in which words such as "crown" are habitually or innovatively used in certain contexts is fairly well known, and, like the Maitland article, the quote from Twomey is a good way of pointing out that it makes little sense for editors here to pretend to resolve issues which are often left deliberately open in political contexts. Academic and legal discussion tends to proceed by arguing points making fine distinctions, often comparing one uncertain precedent with another, with little consequence unless legal rights are affected (given or taken away, confirmed or annulled) as a result of judicial ruling. That strays too far from the topic of this article. Perhaps it could be taken up for discussion on an appropriate specialist page. Qexigator (talk) 14:59, 9 September 2015 (UTC)
Which is why I removed the contentious statement, taken from a Canadian court case, from this article.--Jack Upland (talk) 15:42, 9 September 2015 (UTC)
Well, I agree that the statement contributes practically no useful information to the article, and an expert eye may see the source as not fully supporting it anyway. If retained it could be tweaked to read: "The Crown is regarded sometimes described as a corporation." Qexigator (talk) 16:28, 9 September 2015 (UTC)
I don't think it belongs here. If anywhere, it belongs in the article on the Crown. The issue is amply covered here by the "Personfication of the state" section. Based on Blackshield and Williams, it doesn't appear that the Crown is usually viewed as a corporation in Australia. The quote from Twomey suggests that this is a UK debate.--Jack Upland (talk) 01:01, 10 September 2015 (UTC)
Perhaps it's a matter of personal perception. In law courts, "The Crown" is certainly not seen as the Queen. "Crown Lands" are not lands belonging to the monarch, but lands held by the public. "Ministers of the Crown" are not the Queen's personal advisors, but the Government itself. It is an uninformed common or garden view to equate "The Crown" with the wearer. There may be some leeway under WP:COMMONNAME, but finding good sources would be the difficulty. --Pete (talk) 03:37, 10 September 2015 (UTC)
I've provided sources.--Jack Upland (talk) 03:52, 10 September 2015 (UTC)
"Sources equating "The Cown" with "The Queen"? --Pete (talk) 03:57, 10 September 2015 (UTC)
The Acts Interpreation Act, S.16: "In any Act references to the Sovereign reigning at the time of the passing of such Act, or to the Crown, shall be construed as references to the Sovereign for the time being." --Ħ MIESIANIACAL 04:09, 10 September 2015 (UTC)
Blackshield and Williams: "When executive power is said to be exercised in the name of 'the Crown', the ceremonial jewelled headpiece is used as a depersonalised symbol of the monarch, who in turn is treated as a personalised symbol of what in other constitutional systems is usually referred to as 'the State'" (p 352). Twomey's statement quoted above indicates that there is debate about what 'the Crown' means, with a corporation and the Queen being some of the alternatives she lists. But I wasn't saying the article should say that the Crown is the Queen. I was objecting to the bald statement that the Crown is a corporation. This is just one interpretation, and apparently not one favoured in Australia.--Jack Upland (talk) 05:18, 10 September 2015 (UTC)
':Thanks. I don't think that "The Crown" equating to a corporation is a view widely held here. Twomey's roundabout way of saying "The Crown" is "The State" resonates with me. Not the government so much as an Englished term for the concept of Australian sovereignty. --Pete (talk) 07:26, 10 September 2015 (UTC)
That quote ("depersonalised...personalised") is actually Williams, Brennan, and Lynch. It's complicated because their text quotes Twomey at length, but here they are speaking for themselves. I think the problem in Australia with the Crown being a corporation is that in practice you want to specify the state or federal government, whereas in Britain that's not really an issue. In any case, I suggest putting the Maitland quote on the Crown page where it is in context.--Jack Upland (talk) 08:30, 10 September 2015 (UTC)
"'The Crown' is 'the state'" and "the Crown is a corporation sole (with the monarch being the centre of a construct in which the power of the whole is shared by multiple institutions of government—the executive, legislative, and judicial—acting under the sovereign's authority)" are not mutually exclusive statements. The latter really just expands on the former. --Ħ MIESIANIACAL 02:02, 11 September 2015 (UTC)
Nick Seddon, "The Crown", Federal Law Review, Vol 28 No 2, 2000 [9]: "The identification of the ten legal entities in Australia [the Commonwealth, the six states, the two territories, and Norfolk Island] is clear and without complication. It has not been necessary, as it has in the United Kingdom, to theorise about whether the Crown in Australia is a body corporate and whether that body is a corporation sole or aggregate."--Jack Upland (talk) 04:54, 11 September 2015 (UTC)
That's one person's opinion that doesn't prove or disprove my statement. --Ħ MIESIANIACAL 04:58, 11 September 2015 (UTC)
To sum up: (1) Both Seddon and Twomey say it's a UK debate. (2) Maitland discusses the debate and says it's a "mess", while tending to support corporation aggregate rather than sole. (3) Cox describes the UK debate and indicates that corporation aggregate is dominant. (4) The corporation sole article says, "Some lawyers consider The Crown in right of each Commonwealth realm to be a corporation sole". Conclusion: The status of the Crown as a corporation is debatable and the issue is not prominent in Australian law. Your opinion might be right, but it is not universally held.--Jack Upland (talk) 09:09, 12 September 2015 (UTC)

Not corporation[edit]

A part of the text, stemming from Revision of 21:49, 26 July 2007 by G2bambino (expand, reorganize to parallel Monarchy in Canada & British monarchy) [10] is discussed above. In view of the discussion, given that

  • we may suppose an author of a reliable source commenting on the legal fiction of the monarch or the Crown as a corporation, sole or aggregate, in connection specifically with the law of all or any of the countries which were formerly Dominions of the British Empire, and more particularly in connection today with the Commonwealth of Australia, or any of its states, would know of
    • Maitland's article and
    • the Acts Interpretation Act 1901, s. 16[11],
  • and that we may further suppose that such an author would be aware of any judicial ruling connecting s.16 with the monarch or the Crown of Australia as a "corporation",

have we not reached the point (unless there is any such judicial ruling available for citation) to let the sentence in the article The Crown is regarded as a corporation, in which several parts share the authority of the whole, with the Queen as the person at the centre of the constitutional construct be removed (see reasoning given in comments above) or be revised to read thus:

Both the monarch and the Crown are sometimes described as a "corporation sole" (not to be confused with incorporated entities known as corporations, such as News Corporation or Australian Postal Corporation).

Qexigator (talk) 09:59, 10 September 2015 (UTC)

I don't see why it's so legalistic. The issue of the Crown can be dealt with at its page. And Maitland emphatically rejects the suggestion the Crown is a corporation sole.--Jack Upland (talk) 10:11, 10 September 2015 (UTC)
The proposed revision is not "legalistic", it clarifies that in relation to the monarch or Crown, mention of "corporation" here or anywhere else (such as Canada), is quite different from what most readers may think of. If you wish to revise any other article with similar clarificarion, please go ahead. Qexigator (talk) 10:19, 10 September 2015 (UTC)
+The need for clarification is demonstrated by Maitland's highly specialist but informative discussion of the topic, relating the concept to the parson's freehold, but with the comment "Abortive as I think the attempt to bring the parson into line with corporations aggregate -- abortive, for the freehold of the glebe persists in falling into abeyance whenever a parson dies --the attempt to play the same trick with the king seems to me still more abortive and infinitely more mischievous." He also comments "The suggestion that 'the Crown' is very often a suppressed or partially recognized corporation aggregate is forced upon us so soon as we begin to attend with care to the language which is used by judges when they are freely reasoning about modern matters and are not feeling the pressure of old theories. ...However, the main point is that the American State is, to say the least, very like a corporation." etc. Qexigator (talk) 10:39, 10 September 2015 (UTC)
+We may also notice that Maitland, writing in 1901, opined: "I would not, if I could, stop the process which is making 'the Crown' one of the names of a certain organized community; but in the meantime that term is being used in three or four different, though closely related, senses. 'We all know that the Crown is an abstraction', said Lord Penzance. I do not feel quite sure of knowing even this." Qexigator (talk) 11:19, 10 September 2015 (UTC)
+Disambig: The "Murdoch" of Murdoch University which hosts the linked source is Walter Murdoch, not the Murdoch of Newscorp. The author cited is Noel Cox[12]. Qexigator (talk) 17:38, 10 September 2015 (UTC)
+I see nothing in the CA ruling in Black v Chrétien[13] about the position of the Crown as a corporation, but have added a link to Cox's other article which he cites in his article about the Canadian case. Qexigator (talk) 17:38, 10 September 2015 (UTC)
I meant that the process of editing this page is legalistic.--Jack Upland (talk) 00:57, 12 September 2015 (UTC)
Just as an aside, G2bambino changed his user name some years back and still pops in from time to time. He (or possibly she, who knows?) is monitoring this discussion. Editing Wikipedia can often seem quasi-legalistic, but that's the way that has evolved and been demonstrated to work. Otherwise we get editors at each other's throats over trivia. Qexigator, I find your approach most helpful. --Pete (talk) 04:19, 12 September 2015 (UTC)
That may help to explain some of the edits here. In passing, and noting that often "less is more" in respect of npov, we may note that G2bambino[14] chose to make known that s/he was, among other things, a proud Canadian from Ontario, an advocate of democracy who supported the Crown, a Canuck, had seen 31 countries and travelled over 312,000 km (or, about 8 times around the Earth), had been to more McDonalds than World Heritage Sites, lived 1 year in Australia (2001), was in UK a number of times (1981-2005), thought The Simpson's simply excellent, linked to Nudity page, was a former member of Scouts[15], used to go by the name Gbambino, and had at least 4 barnstars[16] Qexigator (talk) 09:14, 12 September 2015 (UTC)

Notifications[edit]

If anyone here has sent me a message please note that a change in the Wikipedia system seems to have disabled my access, click as I might. Do others have this problem? Qexigator (talk) 09:08, 12 September 2015 (UTC)

I've no problems, but the change is annoying. GoodDay (talk) 14:30, 12 September 2015 (UTC)

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Lord Paramount[edit]

The information about Lord Paramountcy and Crown Land is interesting and relevant to the article, but, its connection specifically to the head of state matter is unclear. -- MIESIANIACAL 17:47, 20 February 2016 (UTC)

I think we can't say there's a link in Wikivoice. Someone needs to say it in a reliable source. I also think that in Commonwealth Realms, or other polities such as States or Provinces, "Crown land" does not personally belong to the monarch, either as person or office. --Pete (talk) 17:51, 20 February 2016 (UTC)
It seems to be adequately sourced. The question is of its relevance to the section. Maybe @Qexigator: can explain? -- MIESIANIACAL 19:28, 20 February 2016 (UTC)

I don't know anything about Crown land stuff, so I reckon ya'll can work that out. Let's just be careful that we don't push against edits that we think may directly or indirectly point towards the monarch being head of state. From what I'm reading at a related Rfc, such a push could be construed as PoV pushing. As for Wiki-voices? those voices are being backed up by reliable sources, so let's wait for a certain Rfc to run its course. GoodDay (talk) 20:03, 20 February 2016 (UTC)

  • It seems a rather odd piece of information tacked on to an otherwise coherent paragraph. What is 'Lord Paramount', a phrase I can't see in either of the references? If the phrase refers to ownership of Australia by the Crown the Mabo decision would seem to specifically refute that by annulling the doctrine of terra nullius.Gazzster (talk) 20:56, 20 February 2016 (UTC)
I think the concept of "the Crown" as in the owner of Crown land, and the head of state are two different things. Unless, of course, one imagines the head of state to be the one upon whom an actual crown rests. --Pete (talk) 20:59, 20 February 2016 (UTC)
Mies. and others: In response to above, please seeTalk:Australian head of state dispute#Queen of Australia, sovereign and "Lord Paramount". Commenters will be aware that, typically of common law countries, this is part of the constitution that is unwritten, and ascertained from the law as pronounced and declared by the courts. As can be seen when looking at the sources, while it is an unfamiliar title, the judges found it useful in the line of reasoning in the Mabo case, derived from way back in the days when the common law of land tenure, including primogeniture, was being evolved, with lords of manors, copyhold, socage and so forth, and, of course, intimately connected with the descent of title to the crown according to English common law, and which became the origin of the law of the English/British colonies, including that of the rebel colonies which formed the USA. It is the underlying common law element of the monarch's title to the crown, which as a result of political events, has from time to time been modified by parliamentary enactments, recited in the article. The position in Australia is similar to that of England, the originating source of the Australian colonies'/states' common law, the land is held of the monarch, who is one and the same as the sovereign and head of state of the federation. This was evidently left out of account by those asserting that the governor-general could be regarded as head of state. It is, however, indisputably an attribute of the Queen of Australia, as of her predecessors in title. The same rationale may not apply to Canada in all respects insofar as in some parts, the system of land tenure originated under the monarchy of France. Qexigator (talk) 21:47, 20 February 2016 (UTC)
Do you have a source making the statement? Otherwise it is WP:SYNTH. I get what you are saying, but you need a source making a direct link between Crown land, Queen, and head of state. We can't dump in three facts and sort of smoosh them together to create a statement that nobody but a Wikipedia editor has actually made. --Pete (talk) 22:01, 20 February 2016 (UTC)
+ Australian law does not define who is Australia's head of state. The governor-general and the state governors are defined as the monarch's "representatives".[1] The position of the monarch as "Lord Paramount" in respect of the system of land tenure in Australia, including public land held in "right of the Crown", has been judicially affirmed.[2][3] Qexigator (talk) 22:46, 20 February 2016 (UTC)
Even if what you are saying is true, I do not see the phrase 'Lord Paramountcy' or even an enunciation of the concept in any of the references you cite. Also the connection with the head of state question is obscure as you have written it.Gazzster (talk) 02:23, 21 February 2016 (UTC)
The expression "Paramount Lord" or "Lord Paramount" is used in Mabo by Brennan J at paras 48-52 and he goes to discuss "paramount" title of the Crown; just as title in fee simple depended on that paramount title, so now would native title. As Brennan and others emphasise, the concept of paramount title is feudal. So is its connection with sovereignty: Toohey J at paras 14-15. However, the relevant meaning of "the Crown" today (possibly even since the 17th century in England, but certainly in Australia since 1900) is an abstraction, a label for the "body politic": Gleeson CJ, Gummow and Hayne JJ in Sue v Hill at paras 84-85. It is only symbolically connected with the actual person who wears the national rocks. Accordingly, the concept "Paramount Lord" is only remotely connected with the concept "head of state". At least I don't see any connection sufficient to contribute to the question of whether the G-G of Australia is the head of state. Wikiain (talk) 03:08, 21 February 2016 (UTC)
Thank you Wikiain. I propose Qexigator's edit be undone as irrelevant and obscure.Gazzster (talk) 03:50, 21 February 2016 (UTC)
National rocks? --Pete (talk) 05:43, 21 February 2016 (UTC)
Edna rocks, Princess of Wales Theatre, Toronto, "one of the true wonders of the modern world"[17]: how they laughed! Cheers.
Gazzster: Thank you for your remarks, as corrected by Wikiain; and Wikiain, are you aware that practically all concepts used about an invisible entity such as a country's constitution tend to be symbolical abstractions, including body politic, crown lands, public lands, head of state, sovereign, president, White House, Whitehall, Commonwealth. There's enough for a Wikipedia list, to add to all the others. Please see Talk:Australian_head_of_state_dispute#Edna's_elephant -- Qexigator (talk) 06:40, 21 February 2016 (UTC)
Yup, I don't think I've ever seen an abstraction. Nor a white elephant or a red herring, though I suppose it's possible. "Rocks" - of the type that are a girl's best friend and, specifically, guarded by beefeaters. Wikiain (talk) 23:26, 21 February 2016 (UTC)
+ Not sure why any Australian should have difficulty about letting it be known that the root of title to land in their country is the present successor in title to the throne of the British monarch in whose reign the land was first colonised. No one here need have difficulty websearching for themselves. Here are samples of information:
  • A Crown Grant is a title to land, formerly Crown land, granted by the Queen (by her Western Australian representative, the Governor) to a person, company, statutory body or incorporated association. The grant may be made for a cash consideration or on the completion of certain developments that will benefit the State or for a mixture of both.....Most titles for freehold land in Western Australia were derived from a subdivision of land contained in an earlier Crown Grant and all titles derived from a grant are held subject to the same conditions as those listed in the grant.[18]
  • The most important legislation covering Crown lands in NSW are: Crown Lands Consolidation Act 1913, Closer Settlement Acts, Mining Act 1973, Prickly Pear Act.[19]
  • Crown Lands Consolidation Act, 1913: An Act to consolidate the Crown Lands Acts and certain other Acts or parts thereof dealing with the alienation occupation and management of Crown Lands. [8th October, 1913.] Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows :— "Crown Lands" means lands vested in His Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee-simple under the Crown Lands Acts.[20]
Qexigator (talk) 17:38, 21 February 2016 (UTC)
That is understandable. But I don't understand what connection it has to the question of the Sovereign as head of state. Gazzster (talk) 19:53, 21 February 2016 (UTC)
Well, it's not the place to give a tutorial, but since you ask let me simply say "raison d'être of the state's sovereignty" -- tacitly most of the time but as much a given fact of the way in which the colonies began, became federated and continue as a body politic united under the monarch in the person of the Queen, as the territory of the place and its inhabitants are given facts. As all can readily understand, it is not unimportant that if the monarchy were changed to a republican form of government, this too would need to be replaced with some other legally valid arrangement, but that has not happened, nor has the position of the monarch changed as what has come to be called, when speaking of any modern state, "head of state". Qexigator (talk) 21:00, 21 February 2016 (UTC)
+ In other words, to speak of "Australian head of state dispute" would be pure invention. Qexigator (talk) 21:30, 21 February 2016 (UTC)
I understand what you're saying, but the concept of The Crown as the principle of dominion is not intrinsically linked to the concept of a head of state. Neither is the latter intrinsically bound with the concept of sovereignty. For example, the President of the United States is head of state. But he is not sovereign. 'The People', a term roughly equivalent to 'The Crown' are.Gazzster (talk) 00:06, 22 February 2016 (UTC)
When speaking factually of the monarch (or crown) of a Commonwealth realm, the concepts, rightly understood, are not identical, of course, but, let us say, inseparable, and that is one of the main distinguishing features of the monarchy of those realms and other states, such as USA, or France, or Germany. It could be otherwise, but it is not at the present time, and the proposition that, in this context, the crown is roughly equivalent of "The People" is fanciful and of no practical significance. POTUS may speak of We, the people of USA, and the Roman Republic frequently used "SPQR", but they are not the source of the Australian monarchy or people. Qexigator (talk) 00:40, 22 February 2016 (UTC)
+ Is your proposition what is being taught in Australian law schools nowadays?Qexigator (talk) 00:48, 22 February 2016 (UTC)

"Sovereign" is a chameleon term, with several senses. In one sense, any monarch is a "sovereign" by definition. In another sense, the "sovereign" is whoever is the ultimate source of legal authority. That might or might not be a monarch. In the USA the sovereign in the second sense is the people - usually spoken of as "popular sovereignty". Also in the UK, indirectly, as the "sovereignty of parliament". So in the UK there is a monarch who is "sovereign" in the first sense but not in the second. Likewise in Australia, in a different way, since the people alone can amend the federal and state constitutions. Thus "sovereign" in the second sense does not help to explain "sovereign" in the first sense and only the first sense appears to be relevant here. Wikiain (talk) 02:35, 22 February 2016 (UTC)

Yes, some of that information may further help Gazzster or others , if still perplexed, as may consideration of the Succession to the Crown Act 2015 and the prior legislation passed in the states. The Act was "not intended to affect the relationship between the States and the Territories as existing immediately before its enactment", and in the Act Crown meant the Crown in all of its capacities. Your opinion about "relevance" noted, but, of course, does not alter the status of the Queen as Lord Paramount in respect of land in Australia, as judicially determined in the Mabo case. Is any Australian law school[21] teaching the contrary? Qexigator (talk) 07:32, 22 February 2016 (UTC)

This "Lord Paramount" material is WP:OR. It is one editor's opinion of two primary sources. I have asked repeatedly for a secondary source: someone who says what Qexigator wants us to declare in wikivoice. None has been forthcoming. I intend to delete it. Final chance for a source, Qex. --Pete (talk) 10:31, 2 March 2016 (UTC)

Head of state section[edit]

If you (anyone) consider the edit[22] copied below acceptable, or wish to propose a tweak or content correction, please comment.

Head of state

Australia is a constitutional monarchy, such that its head of state is the monarch and its head of government is the prime minister, with powers limited by both law and convention for government to be carried on democratically.[4] The constitution provides that the Queen is part of the Parliament and is empowered to appoint the governor-general as her representative, while the executive power of the Commonwealth which is vested in the Queen is exercisable by the governor-general as her representative. In practice, the Queen does not play a day-to-day role in the government, and the few functions which the Queen does perform (such as appointing the governor-general) are done on advice from the prime minister.[5] The constitution does not directly mention the term "head of state". The constitution defines the governor-general and the state governors as the monarch's representatives.[6] The position of the monarch as "Lord Paramount" in respect of the system of land tenure in Australia, including public land held in "right of the Crown", has been judicially affirmed.[7][8]

While current official sources invariably use the description "head of state" for the Queen, in the lead up to the republic referendum in 1999, Sir David Smith proposed an alternative explanation, that Australia already had a head of state in the person of the Governor-General, who since 1965 has invariably been an Australian citizen. This view has some support within the group Australians for Constitutional Monarchy[9].

The former Governor-General, Major General Michael Jeffery, said in 2004: "Her Majesty is Australia's head of state but I am her representative and to all intents and purposes I carry out the full role." In 2005, when asked to confirm if he was a representative of the head of state, he said "The Queen is the monarch and I represent her, and I carry out all the functions of head of state."[10]

Qexigator (talk) 07:58, 1 March 2016 (UTC)

I fail to understand why your additions were reverted. They should be restored. GoodDay (talk) 08:03, 1 March 2016 (UTC)
They should be discussed here on this article's talk page under BRD. --Pete (talk) 16:09, 1 March 2016 (UTC)
Head of state aside, what on earth is the point of mentioning the executive power? Perhaps Qex could explain his precise understanding of what this encompasses? --Pete (talk) 16:09, 1 March 2016 (UTC)
Anyone who has read the article intelligently will see that "executive" recurs in it, and if anyone has a problem with that s/he need not ask.... Qexigator (talk) 18:38, 1 March 2016 (UTC)
Yeees, but your understanding of the executive power seems to be somewhat grander and more comprehensive than any constitutional authority supports. The High Court, Anne Twomey etc. all have a stab at defining the executive power.[23] If you could just make a brief statement of your perception, it would help me and others confirm whether you know what it actually is or not. --Pete (talk) 16:04, 2 March 2016 (UTC)

Given that:

  • Twomey's article is headed:"A majority of the High Court in Pape v Commissioner of Taxation accepted that the Commonwealth has executive powers beyond those derived from statute, the prerogative and its capacities as a person. This fourth category of executive power, left nameless by the Court but generally described as the ‘nationhood’ power, remains ill-defined and ill-confined. This article explores the limits on the different categories of executive power, why it was perceived necessary to imply a nationhood power, whether this justification is adequate and how such a power might be limited."
  • Twomey's conclusion states "The major problem with the Pape case is that the majority relied on an implied executive nationhood power without giving adequate justification for that reliance and without clearly explaining how that power is to be implied from the text and structure of the Constitution, and what limits necessarily apply to it."

perhaps P/S would let us know what part or parts s/he considers affects the content of the current version of the article? Qexigator (talk) 18:49, 2 March 2016 (UTC)

The executive power is rarely used by the Governor-General. It is not an important power. As Twomey describes it, it is a few scraps derived from legislation, the remnants of the royal prerogative (such as treaties and pardons), ability to enter into contracts, and the fourth, nebulous "nationhood" power, used to spend money to celebrate anniversaries and to extradite state criminals. You would have Wikipedia give the impression that it is more important than (say) s64 (under which Gough Whitlam was dismissed). Again I ask, why? --Pete (talk) 20:53, 2 March 2016 (UTC)
Maybe some could find that information or opinion or OR/SYN notable and relevant, if in the right place in the right article. It seems to be way off the mark from the current version of the article discused here, and we are left to surmise, if we wish, why P/S mentions it. Qexigator (talk) 22:33, 2 March 2016 (UTC)
+ For the information of any less-informed participants here, who may be baffled about P/S's comment: Bryan Pape was a senior lecturer in the law school at a university in New South Wales. He died, aged 69, peacefully at home in 2014. He had been a "fervent and longtime believer in federalism and state's rights". He argued that "the Commonwealth has no constitutional power to spend consolidated revenue on gifts under section 81 and 83 of the Australian Constitution". The Court held (2009) that sections 81 and 83 alone do not authorise expenditure and require that the spending of government funds be authorised by the Parliament of Australia. There was report of comment that the decision raised practical question about the implications for Commonwealth spending programs, whether or not supported by legislation. For further detail, see linked articles. It can readily be understood that there was no hint that the issues in the case were relevant to the position of the Queen, not the governor-general, as head of state. Qexigator (talk) 08:24, 3 March 2016 (UTC)
There are two relevant RfCs going on that should be closed before there is a major change like this. StAnselm (talk) 18:43, 1 March 2016 (UTC)
FWIW, the 2 Rfcs-in-question are leaning heavily in the direction of Qex's contributions. GoodDay (talk) 18:55, 1 March 2016 (UTC)
The one at Wikipedia talk:WikiProject Politics is certainly leaning towards having us say that the Queen is the HoS; the one at Talk:Australian head of state dispute‎ is probably still at no consensus, which would suggest that we still should link to that article from this one. (Certainly, Australian head of state dispute‎ should not be deleted without an actual deletion discussion.) StAnselm (talk) 19:10, 1 March 2016 (UTC)
Neither Rfc is an inhibition on this expansion of part of the article. Qexigator (talk) 10:17, 2 March 2016 (UTC)
Anyone who considers that the above Head of state section is acceptable, or wishes to propose a tweak or content correction, is invited to comment. Qexigator (talk) 18:49, 1 March 2016 (UTC)

I think that until we have consensus right here, inserting a slab of contentious text is disruptive. --Pete (talk) 10:33, 2 March 2016 (UTC)

Or maybe, persistently reverting & filibustering against similar edits based on WP:IDLI, is disruptive. I think that sooner rather then latter, the community will start looking into this particular matter. I can only hope, this won't be the case. GoodDay (talk) 14:49, 2 March 2016 (UTC)
Just quietly, GoodDay, but this is standard procedure. Discussions on talk pages of one article are not necessarily seen by the regular or otherwise interested editors at a different article. Gaining local consensus before inserting slabs of controversial material is good practice. Edit-warring over it is not. --Pete (talk) 15:53, 2 March 2016 (UTC)
I've been around the old 'pedia for years. My past experiences tells me, this entire Australian head of state topic? is a growing concern for the community. I sense it's heading towards either AN or Arbcom. Note: Not every editor has my patience. GoodDay (talk) 16:00, 2 March 2016 (UTC)
If you mean a community of a handful of editors, sure. The Wikipedia community in general couldn't give two squirts of lukewarm pelican poo about constitutional trivia. ArbCom is busily working on deflector shields, I'm told. --Pete (talk) 16:08, 2 March 2016 (UTC)
You may joke as much as you want, about it. GoodDay (talk) 16:13, 2 March 2016 (UTC)

Noted that P/S has not responded to the open invitation to tweak or correct. Thus, it is clear to others who have been patiently participating in the discussions that, if there has been disruption to the editing process, it is not due to...Qexigator (talk) 11:17, 2 March 2016 (UTC)

My position is still that consensus needs to be gained for this. Saying that because I haven't "tweaked" a change I am completely opposed to implies that I am in agreement with it is rather a bold statement! --Pete (talk) 15:53, 2 March 2016 (UTC)
Contributor Pete/Skyring could find in any good textbook of Australian constitutional law (such as Blackshield & Williams or Winterton/Gerangelos) that the "executive power" (s 61) is one of the three "powers" of government in the scheme of a "separation of powers" together with the legislative power (s 1) and the judicial power (s 71). What is meant by "power" in each case is not defined, but these provisions (whatever their grammatical form) are prescriptive: they prescribe that certain persons shall be so empowered.
S 61 in that way establishes executive government in Australia. It has to be taken together with the rest of Constitution Ch II, headed "The Executive Government", and also with the British constitutional conventions that were assumed as background, principally those that had established the positions of Prime Minister and Cabinet - which are not mentioned in the Constitution although they formally existed from the moment of Federation. Once all of that is taken into account, at least day-to-day little remains for the Governor-General.
Ch II also has to be understood against the background of Imperial and on that level subsequent conventions, particularly that the monarch will be advised upon affairs of any Empire/Commonwealth member state solely by the government thereof.
Pete/Skyring, please study Australian constitutional law. Wikiain (talk) 12:38, 3 March 2016 (UTC)

References

  1. ^ Constitution, s 2; Australia Act 1986 (Cth and UK), s 7.
  2. ^ ("Mabo case") [1992] HCA 3, Brennan J. para.51[1]
  3. ^ Native Title Act 1993,[2]
  4. ^ Parliament House, Info Sheet 20 The Australian system of government [3]
  5. ^ The Constitution (2012) Overview by the Attorney-General’s Department and Australian Government Solicitor [4]
  6. ^ Constitution, s 2; Australia Act 1986 (Cth and UK), s 7.
  7. ^ ("Mabo case") [1992] HCA 3, Brennan J. para.51[5]
  8. ^ Native Title Act 1993[6]
  9. ^ Australia’s Head Of State, Australians for Constitutional Monarchy, Accessed=1-Mar-2016 [7]
  10. ^ "The Governor-General is Interviewed by Greg Turnbull on the Ten Network's Meet The Press" (Press release). Office of the Governor-General. 29 May 2005. Retrieved 18 January 2007. 

Title and numbering[edit]

Given the jargon and tone of the debate I believe this is the right place to ask the following for it appears there are many voice voices with qualification to answer.

The debate in Britain over Queen Elizabeth's regnal style drew this quote from PM Winston Churchill

"HC Deb 15 April 1953 vol 514 cc199-201

I think it would be reasonable and logical to continue to adopt in future whichever numeral in the English or Scottish line were higher. Thus if, for instance, a King Robert or a King James came to the throne he might well be designated by the numeral appropriate to the Scottish succession".

Now I'm not sure if this was ever written into succession law or any law, but has this debate ever been had in Australia or has the regnal number of the monarch been accepted?

Thanks Comes.amanuensis (talk) 13:48, 6 December 2016 (UTC) Comes.amanuensis (talk) 13:48, 6 December 2016 (UTC)

According to the Royal Style and Titles Act 1973 (Cth), the Queen is designated as "Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth".--Jack Upland (talk) 22:48, 6 December 2016 (UTC)
The issue has been before Scottish and English courts: see MacCormick v Lord Advocate (Scotland, 1953). The current law in Australia is as stated by Jack Upland. The Royal Style and Titles Act 1973 (Cth) replaced the Royal Style and Titles Act 1953 (Cth), which had the title as: "Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith." HM is also the Second in the UK, Canada and elsewhere—in English, French and Latin: Royal Style and Titles Act. (Now I'll get back to watching The Crown.) Wikiain (talk) 23:45, 6 December 2016 (UTC)

Succession[edit]

Should we or should we not, have a link to Succession to the British throne article, at the top of the Succession section? AFAIK, we don't have this linkage in any of the other Commonwealth realm articles' in that manner. BTW - My concern here is consistency across the Commonwealth realms. Add the linkage to all or remove linkage from them all. GoodDay (talk) 23:37, 15 January 2017 (UTC)

Yes, but why isn't it in the other articles? Your edit summary was "per removal at Monarchy of Canada", but the edit summary there was "link already provided", which doesn't seem to apply here. In fact, it looks erroneous - I can't see where the link is provided in the Monarchy of Canada article. StAnselm (talk) 23:48, 15 January 2017 (UTC)
Someone had added the linkage to that article weeks ago (in fact it was the same person that added the linkage to this article), but it was reverted today at Monarchy of Canada by someone else. I don't mind either way, as long as all the commonwealth realm articles are consistent. GoodDay (talk) 23:56, 15 January 2017 (UTC)
Since I've mentioned @Tavix:, may as well invite him here. GoodDay (talk) 00:25, 16 January 2017 (UTC)
Also inviting @Miesianiacal:, too. GoodDay (talk) 16:34, 16 January 2017 (UTC)

I've created a redirect, will that suffice? GoodDay (talk) 16:00, 16 January 2017 (UTC)

I'm happy with linking to the redirect. StAnselm (talk) 21:12, 16 January 2017 (UTC)

Move discussion in progress[edit]

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