Academic journal article University of Queensland Law Journal

Keeping the Queen in Queensland - How Effective Is the Entrenchment of the Queen and Governor in the Queensland Constitution?

Academic journal article University of Queensland Law Journal

Keeping the Queen in Queensland - How Effective Is the Entrenchment of the Queen and Governor in the Queensland Constitution?

Article excerpt

I INTRODUCTION

This year marks the sesqui-centenary of the Queensland Constitution. On 6 June 1859 Letters Patent were issued by Queen Victoria establishing Queensland as a separate colony. On the same day an Imperial Order in Council was made, providing Queensland with a Constitution based upon the New South Wales Constitution. Clause 14 of the Order preserved the application in Queensland of ss 31-3 and 40 of the Australian Constitutions Act (No 1) 1842, concerning royal assent, reservation, disallowance and the Governor's instructions. Clause 22 of the Order gave the Queensland legislature the power to amend or repeal the Order in Council and enact a new local Constitution for Queensland, except that it could not amend or repeal clause 14. The provisions of the Australian Constitutions Act (No 1) 1842 concerning assent, reservation, disallowance and royal instructions continued to apply to Queensland by paramount force.

The Queensland legislature took up the invitation to enact its own Constitution. It repealed all but clauses 14 and 22 of the Order in Council and enacted the Constitution Act 1867 (Qld), which in its preamble recognised that ss 31-3 and 40 of the Australian Constitutions Act (No 1) 1842 were preserved and beyond the power of the Queensland legislature. In 1977, fearing that the State might become subordinated to the Commonwealth, either through the delegation of the Queen's powers to the Governor-General or through the repeal of British laws of paramount force concerning vice-regal powers, the Queensland Parliament chose to entrench in its Constitution the role of the Queen in Parliament, the appointment of the Governor, the requirement that the Governor conform to royal instructions and the vice-regal powers concerning royal assent and the reservation of Bills.

Less than ten years later, these provisions had to be altered by the Australia Acts 1986 to be consistent with the severance of residual constitutional links with the United Kingdom. Although the Queensland Constitution was thoroughly revised and replaced by the Constitution of Queensland 2001, the rump of those 1977 entrenched provisions remains. (1) On their face, these provisions are entrenched and cannot be repealed without a referendum, although this remains the subject of dispute. They also potentially have the significant, but unintended, effect of preventing the Queensland Government from entrenching any other constitutional provisions without holding a referendum to do so. Hence nothing has been entrenched in the Queensland Constitution since 1977. (2)

This article draws on original government documents to address the legal, political and psychological reasons for the enactment of these provisions, their validity, the effectiveness of their entrenchment and their unintended consequences. It concludes by considering to what extent is the Queensland Government bound by them today.

II BACKGROUND

The Imperial Conferences of 1926 and 1930 accepted that the King was to be advised by the responsible ministers of the self-governing Dominions, including Australia, with respect to matters concerning those Dominions. This meant that the Governor-General ceased to be a representative of the British Government and that the Australian Prime Minister could advise the King on the appointment of the Governor-General or the grant of royal assent to reserved Commonwealth Bills. The Crown had become divisible and there was a separate Crown for the Commonwealth of Australia. The Statute of Westminster 1931 gave the Commonwealth Parliament full power to repeal British legislation that had previously applied by paramount force to the Commonwealth and power to enact laws with an extra-territorial effect.

The same concessions were not made with respect to the Australian States. (3) They remained colonial dependencies of the British Crown and it was the King or Queen of the United Kingdom who appointed State Governors, on the advice of British Ministers. …

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