Source and read full article from https://constitutionwatch.com.au/are-the-australian-election-writs-valid/
Prior to 1953 the Monarch’s role in the British Empire was ‘indivisible’ meaning there was but one Monarch over all of the British realms (Australia, New Zealand, Canada etc). Since that time in 1952, the British realms at an economical conference in London decided to divide the Monarch’s Crown into localised Crowns, (Queen of Australia, Queen of New Zealand, Queen of Canada).
In the context of Australia, when a new monarch ascends to the throne, the legal transfer of powers is not automatic. For the Monarch’s powers to be exercised in Australia, specific legislation (such as the Royal Style and Titles Act 1973) would typically clarify and confirm the title and authority of the new monarch in the Australian context. These pieces of legislation ensure that the new monarch’s authority is recognized and applied within Australia specifically.
The key point is that the powers and authority of the Monarch, as exercised in Australia, would not automatically transfer from the previous monarch to the new one without explicit recognition in Australian law. This legal separation is a result of the Quark Fishing case https://constitutionwatch.com.au/judgments-regina-v-secretary-of-state-for-foreign-and-commonwealth-affairs-appellant-ex-parte-quark-fishing-limited/and other legal principles, where it was established that the Crown’s powers are distinct and must be separately recognised in each realm.
Therefore, upon the ascension of a new monarch, Australian law ensures the continuation of the monarchy’s legal and constitutional role by enacting legislation that confers those powers and establishes the legal identity of the new monarch in the context of Australian governance.
Therefore when a new monarch ascends to the throne, their title as monarch of Australia and its territories doesn’t automatically transfer in the legal sense. Instead, the title must be specifically confirmed and declared in Australian law.
This is typically achieved through one of two methods:
1.Royal Style and Titles Act 1973: This Act defines the title of the Australian Monarch. In the case of a new monarch, Australian Parliament would need to pass a new Act or amendment to this legislation to legally recognize the title of the new monarch in the context of Australia. This ensures the new monarch is formally recognized as the Sovereign of Australia with the specific style and title.
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2. In addition to authority granted by an Act, a Royal Proclamation issued by the Governor-General, acting on the advice of the Australian Government, could be used to announce the title of the new monarch for Australia. This proclamation would specify how the new monarch’s title is to be applied within Australia and its territories. The Royal Proclamation would typically be issued by the Governor-General in the exercise of executive authority, following a process established by the Australian Parliament and empowered by legislation.
For election writs (which are issued in the name of the monarch), the legal recognition of the new monarch through such legislation or proclamation is necessary. The title of the new monarch must be confirmed (either through a Royal Style and Titles Act or a Royal Proclamation) to ensure that the writs can be issued in the proper name and under the correct authority of the new monarch.
So, for election writs to be issued by the Governor-General in the correct legal context, there must be some legal instrument (such as the Royal Style and Titles Act empowering a Royal Proclamation) that affirms the new monarch’s title in relation to Australia. This ensures that their authority is recognised and that official acts like election writs are issued in the proper Monarch’s name.
The new monarch’s title must be legally confirmed (through an Act empowering Proclamation) by the Australian Parliament for it to be validly applied to legal actions, including the issuing of election writs. Without this confirmation, the title of the monarch would not be legally applied to Australian government acts.
Why did the Canadian Parliament create a new Royal Style and Titles Act in 2023 providing ‘the Parliament of Canada assents to the issue by His Majesty of His Royal Proclamation under the Great Seal of Canada’ if this Royal Proclamation can be created by the Governor General of Canada?
Full article at https://constitutionwatch.com.au/are-the-australian-election-writs-valid/
Last Updated 1 year ago
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