The NSW Succession to the Crown Bill undermines constitutional federalism

Alex Greenwich MP argues that the NSW Succession to the Crown Bill undermines states right and constitutional federalism, and that NSW should instead use the "Queensland model" of the bill"

The Succession to the Crown Bill rightly removes discrimination against female heirs and includes other changes proposed to regulate royal marriages 

While I support Australia becoming a republic I welcome moves to modernise succession.

Having said that, I am concerned about the approach taken in the New South Wales bill and think the State would be in a better constitutional position if it adopted a similar approach to that agreed between the Commonwealth and Queensland.

The bill before Parliament could impact on the Crown of New South Wales because it only acknowledges in its objects a single Sovereign of Australia as opposed to seven separate sovereigns for the Commonwealth and the states. Either single or several sovereigns is the constitutional position and the issue remains without resolution or hope of it in the near future. The Bill should not refer to New South Wales as having as its sovereign, “the Sovereign of Australia”.

It is strongly argued that the negotiations proceeding the Australia Acts 1986 produced an outcome where the sovereign who succeeded the Queen of the United Kingdom in New South Wales was and is the Queen (in the right) of New South Wales. It is certainly the view of the Queensland Parliament and if Queensland, by adopting the approved Hybrid Model, thinks it is better off, why should we put ourselves in the way of missing out with unknowable constitutional implications.

I believe that the State’s sovereignty with a Crown separate to the Crown of the Commonwealth was established by the 1986 Australia Act. The effect of the Australia Acts is that the Queen may now only receive advice on State matters from the relevant Premier instead of from the relevant Minister in the United Kingdom. The Australia Acts of 1986 did not make the Queen of Australia sovereign of the states - each state sovereign is separate from the other state Sovereigns and from the Sovereign of Australia. These seven Sovereigns are not the same entity and should not be collectively referred to by the State of New South Wales as the “Sovereign of Australia”.

At the 2012 Council of Australian Governments the Commonwealth agreed that all states had two options to enact succession changes. The first option is the Referral Model, which is adopted in the NSW State Bill, refers all power to the Commonwealth. The second option is a model which allows a state to enact its own succession legislation while referring legislative power to the Commonwealth Parliament to pass the Commonwealth Succession to the Crown Act. This is known as the Hybrid Model.

The Hybrid Model was developed to accommodate the concerns of the Government of Queensland to deliberately preserve state rights from a state rights perspective.

The Hybrid Queensland act changed succession to the Crown of that State and assented to Australian legislation to the same effect. It defines the Crown as the Crown in all its capacities in respect of which the Parliament of the State of Queensland has the power to legislate. This is constitutionally preferable.

By comparison, the New South Wales bill refers only to the Sovereign of Australia and does not define the Crown in relation to the State.

Adoption of the simple process of a Hybrid Model bill along the lines of the Queensland Act would remove any risk to the separate sovereignty of New South Wales.

The New South Wales bill should preserve the existence of a State Crown, and failing to do so is a backward step and has been justifiably described by Professor Anne Twomey – who supports the Queensland hybrid model – in the Canadian context as “de-patriating” the Crown.

Every effort should be made to ensure that the legislation does not, even unintentionally, strengthen the federal Crown argument. The bill should emphasise and protect the New South Wales Crown while referring to the Commonwealth Parliament any additional powers it requires to enable it to finalise the change on a national basis.

I am not convinced that there is a valid explanation for the State not adopting the protective Queensland Hybrid Model. It would clearly preserve the State’s separate sovereignty while having no adverse impact on the agreed and proper object of the legislation.

Why would NSW contemplate an action which may impair its separate sovereign status when it does not need to take that risk and has the blessing of the Commonwealth to avoid that outcome with certainty?

Alex Greenwich MP is the independent Member for Sydney 

Comments

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1.

who cares - surely more important things to worry about - seems a technical legal point

[Steve]

2.

I care - it's an interesting discussion.

Alex with respect I disagree with your point of view. I do not agree that the Australia Acts established sovereignty for each state, nor do I accept that each state was sovereign at any point before that. I have read many of Professor Twomey's journal articles on this point and I believe that there is a fundamental misgiving.

The Australia Acts do not establish sovereignty - they recognise and confirm the states' rights to make laws for their own peace, order and good governance, and confirm the relationship between state governors and the Crown. This does not establish sovereignty either by international or common law standards.

I disagree with Professor Twomey on this crucial point - that the states were never sovereign before the establishment of the Commonwealth of Australia. There was not a union of sovereign states, as in the USA after independence (and why they are called the 'Republic of Texas' or the 'Commonwealth of Massachusetts'), we became one indivisible nation through the Constitution. The issue that has 'no hope of resolution' is one that really should never have come up in the first place.

NSW is not a state inebriated by self-importance. We've generally left that for Queensland and Victoria. We were a colony of the United Kingdom until we were a state of the Commonwealth of Australia. There can be no doubt that, under the Constitution, NSW has very important obligations and powers subject to the enumerated rights and s61. Each state is and should remain independent of the Federal Government. But we don't need our own Queen.

[Phil S]

3.

Really points up the inherent absurdity of hereditary succession of leaders or rulers. As Thomas Paine said, the notion of hereditary succession of rulers is absurd as the notion of hereditary judges or hereditary mathematicians.

[John Humphreys]

4.

Well said Alex... and it's great to see you standing up for constitutional federalism.

[oldskool]

5.

Alex Greenwich has 5 agendas:

1. Homosexualise our schools
2. Homosexualise our society
3. Indoctrinate homosexuality into our children
4. Cast as bigots, haters and ignorant anyone who opposes the homosexual agenda
5. Remodel our laws and constitution to give power to the homosexual agenda to silence any opposition

This man will stop at nothing to further his agenda with no regard of those who sincerely object to his agenda

[Allan]

6.

oldskool, you are correct. I just spend half and hour looking up the antics of Greenwich. On the basis of that I would have to say that your assessment is very accurate.

[Arthur Dent]

7.

G'day oldskool. I take it you're not a fan of Bishop Gene Robinson ?

[oldskool]

8.

As it is Arthur, I did have the opportunity to tune into Q and A

As for Bishop Gene Robinson I am sure is a sincere man who has a faith.

I do however believe he has distorted the teachings of God to justify his situation. I don't believe he actively promotes homosexuality.

Greenwich in my opinion does not represent the people. his agenda is too narrow and is very damaging for our society. I can not accept that his article here is not about promoting homosexuality