The OPCA movement has many different abstract speculations regarding the validity of the title of the Queen of Australia, most of these false premises are based in a misconception of the changes that had occurred in the constitutional relations between the United Kingdom and Australia. The Queen’s current Australian title is in fact completely valid within constitutional theory.
The amendments made by Whitlam to the Royal Style and Titles Act in 1973 are merely a reflection of decisions previously made throughout all the former colonies at the Imperial Conferences prior to the adoption of the Statute of Westminster, which was decades before the amendments were made by his government.
The whole position of the monarch in today’s political system is easily misunderstood, that’s why this false premise of the invalidity of her title runs concurrent in the pseudo-legal theories of most commonwealth nations, and not just here, about her Australian title amended by the Whitlam government.
The “Crown of the United Kingdom of Great Britain and Ireland” that appears on the Preamble to the Australian Constitution, ceased to exist after the Anglo-Irish treaty of 1922 1 put an end to the union of Great Britain and Ireland, creating a smaller dominion of which George V remained King. The Imperial Conference in 1926 2 proposed a change to the Royal style and titles designated for King George V.
“The title of His Majesty the King is of special importance and concern to all parts of His Majesty’s Dominions. Twice within the last fifty years has the Royal Title been altered to suit changed conditions and constitutional developments. The present title, which is that proclaimed under the Royal Titles Act of 1901, is as follows: — “George V, by the Grace of God, of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India.” Some time before the Conference met, it had been recognised that this form of title hardly accorded with the altered state of affairs arising from the establishment of the Irish Free State as a Dominion. It had been further ascertained that it would be in accordance with His Majesty’s wished that any recommendation for change should be submitted to him as the result of the discussion at the Conference. We are unanimously of the opinion that a slight change is desirable, and we recommend that, subject to His Majesty’s approval, the necessary legislative action should be taken to secure that His Majesty’s title should henceforward read: “George V, by the Grace of God, of Great Britain and Ireland and of the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India.”
The “Crown of the United Kingdom of Great Britain and Ireland” became the “Crown of the United Kingdom of Great Britain and Northern Ireland”. The Parliament in Westminster ceased to represent all of Ireland, which required a change in its style. Therefore, the Royal and Parliamentary Titles Act 1927 (17 Geo 5 c. 4) 3 changed the style of Parliament, which would “hereafter be known as and styled the Parliament of the United Kingdom of Great Britain and Northern Ireland”.
The change was incorporated in the Statute of Westminster 1931. 4
“An Act to give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and 1930. Whereas the delegates of His Majesty’s Governments in the United Kingdom, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland, at Imperial Conferences holden at Westminster in the years of our Lord nineteen hundred and twenty-six and nineteen hundred and thirty did concur in making the declarations and resolutions set forth in the Reports of the said Conferences. And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.”
At the Imperial Conference of 1949 it was agreed that “it would not be necessary for each country to approve all the local variations of the title” and further in 1952 it was again agreed that each country should adopt “a form of Royal title suitable to its own circumstances” but “retain a substantial element which is common to all”. These changes were agreed at the Imperial Conferences by “all the Dominions as of the Parliament of the United Kingdom.” in accordance with the provisions of the second paragraph of the Statute of Westminster Adoption Act 1942, “…shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.”
Extract from the Royal Titles Act 1953 (UK) 5
“And whereas it was agreed between representatives of Her Majesty’s Governments in the United Kingdom, Canada, Australia, New Zealand, the Union of South Africa, Pakistan and Ceylon assembled in London in the month of December, nineteen hundred and fifty-two, that there is need for an alteration thereof which, whilst permitting of the use in relation to each of those countries of a form suiting its particular circumstances, would retain a substantial element common to all.”
This element was retained in “Her other realms and Territories” and in “Head of the Commonwealth”, and all Commonwealth Nations STILL retain this today.
Extract from Re Patterson Ex parte Taylor  HCA 51:
“Notions of allegiance as the factum upon which nationality laws and status turned were accommodated to international realities consequent upon the disappearance of the British Empire. Those realities were reflected in the Royal Style and Titles Act 1953 (Cth). This recited an agreement reached at a meeting of British Commonwealth Prime Ministers in London in December 1952 that “the Style and Titles at present appertaining to the Crown are not in accord with current constitutional relationships within the British Commonwealth”.”
The amendment in 1973 did not alter this element, and was therefore within the powers of the particular parliament for this reason. It had to exclude (in the case of Australia) the papal title given to King Henry VIII, “Defender of the Faith” because it was previously established that neither the Queen, the governor-general, or any state governor have any religious role in Australia. The Church of England lost its legal privileges in the Colony of New South Wales by the Church Act of 1836. Drafted by the reformist attorney-general John Plunkett, the act established legal equality for Anglicans, Catholics and Presbyterians and was later extended to Methodists. There never has been an established church in Australia, either before or since Federation in 1901. This amendment was reflective of one of the key differences from the Queen’s role in England where she is the Supreme Governor of the Church of England.
Elizabeth II agreed in meetings in April 1973 that “Defender of the Faith” be dropped from her title, but insisted “By grace of God” remain.
Both the 1953 and 1973 amendments to the Royal Titles and Styles Acts were reserved for her majesty’s pleasure. 6
Elizabeth II personally Assented to, and made the Proclamation for the Royal Style and Titles Act 1973 while in Australia on the 19th October 1973. 9
The Proclamation was published in the Government Gazette (No 152, 19 October 1973) 10
Hopes v Australian Securities and Investments Commission  WASC 198 provides an excellent analysis of the historical perspective (from 42):
“A history of the royal style and titles of the monarch is summarised in two works by Professor Anne Twomey: The Chameleon Crown – the Queen and Her Australian Governors (2006) (chapter 9) and The Australia Acts 1986: Australia’s Statutes of Independence (chapter 6). The history is partly recorded in the second reading speeches for the Bills that became the Royal Style and Titles Act 1953 (Cth) (the 1953 Act) and the 1973 Act and, so far as is relevant to Australia, can be traced in a succession of legislative enactments: the Royal and Parliamentary Titles Act 1927 (Imp), the Statute of Westminster 1931 (UK), the Royal Style and Titles (Australia) Act 1947 (Cth), the 1953 Act and the 1973 Act.
Briefly stated, the royal style and titles of the monarch were originally determined in the United Kingdom. The Royal and Parliamentary Titles Act authorised the King to issue a royal proclamation altering the royal style and titles in accordance with recommendations made by an Imperial Conference. The change authorised by the Act was declared in Australia by way of proclamation in June 1927 (Twomey, The Chameleon Crown, 104). The object of the Statute of Westminster was to ‘give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and 1930’. The preamble to the Statute then recorded a convention agreed at those Conferences: “And whereas it is meet and proper to set out by way of preamble to this Act that … it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.
The purpose of the Royal Style and Titles (Australia) Act was to give assent to an alteration in the royal style and title consequent upon the enactment of the Indian Independence Act 1947 (UK). The preamble to the Act recited that the Act gave effect to the convention recognised in the preamble to the Statute of Westminster. The 1953 Act gave effect to a further agreement made at a Prime Ministers’ conference held in London in December 1952. It was agreed that each member country of the British Commonwealth should use, for its own purposes, a form of the royal style and titles that suited its particular circumstances but retained a substantial element that was common to all countries. The preamble to the 1953 Act again recited the convention recorded in the Statute of Westminster and the agreement made at the Prime Ministers’ London conference. Section 4(1) of the Act provided for the assent of the Commonwealth Parliament to the adoption by the Queen, for use in relation to the Commonwealth of Australia and its Territories, the style and titles set out in the schedule to the Act and to the issue of a royal proclamation. The royal style and titles provided for in the schedule was ‘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’. Accordingly, the style and titles of the Queen under the 1953 Act included a reference to ‘Queen of Australia’.
Section 2(1) of the 1973 Act also provided for the assent of the Commonwealth Parliament to be given to the adoption by the Queen of the royal style and titles set out in the schedule in lieu of the royal style and titles set out in the schedule to the 1953 Act and for the issue by the Queen of a royal proclamation for that purpose. The royal style and titles provided for in the schedule was ‘Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth’. The second and third reading speeches for the Bill that became the 1973 Act indicated that it was proposed that the Queen would sign the proclamation and personally give assent to the Bill during a forthcoming trip to Australia. That occurred in October 1973 (Twomey, The Chameleon Crown, 109; Commonwealth, Government Gazette, No 152 (19 October 1973) 5).”
The case also provides a summary on the power to enact the 1973 Act (from 51):
“Professor Twomey noted that a briefing paper prepared by the Commonwealth Attorney-General’s Department in 1974 identified four sources of power to enact the 1973 Act (The Australia Acts, 452, citing Commonwealth Attorney-General’s Department, Briefing Paper, ‘The Queen of Queensland’, November 1974, National Archives of Australia, 1209 1974/6962):
- (a) the Statute of Westminster ‘as adopted by the Australian Parliament in 1942 in its character as a basic constitutional instrument modifying and extending the Constitution Act of 1900’;
- (b) an ‘inherent power of the Commonwealth to provide for matters essentially involved in its existence as a self-governing Dominion under the sovereignty of the Queen within the Commonwealth of Nations’;
- (c) the incidental powers conferred on the Parliament by s 51(xxxix) of the Constitution in relation to such provisions as s 1 and s 61; and
- (d) possibly, the external affairs power conferred by s 51(xxix).
Professor Twomey, in The Chameleon Crown, expressed doubt as to whether the Statute of Westminster conferred legislative power on the Commonwealth Parliament to enact the 1973 Act, either by reason of the preamble or the provisions of s 2. Although the external affairs power supported the Australia Act 1986 (Cth), Professor Twomey dismissed the suggestion that the Commonwealth Parliament was empowered to enact the 1973 Act by s 51(xxix) of the Constitution. As she observed, it is difficult to characterise the subject matter of an Act that deals with the title of the Queen of Australia as an external affair (although see Freeman D, ‘The Queen and her dominion successors: the law of succession to the throne in Australia and the Commonwealth of Nations (2002) 4(3) CLPR 28). Accordingly, Professor Twomey prefers the ‘nationhood’ power as the head of power to support the 1973 Act ‘either characterised as an inherent power deriving from the status of the Commonwealth as a nation to deal with national matters such as the flag, anthem or the celebration of a bicentenary, or as a legislative power, under s 51(xxxix) of the Australian Constitution, to enact laws incidental to the executive power of the Commonwealth’ (The Chameleon Crown, 110).
The reference to an inherent power to deal with matters such as the ‘flag, anthem or the celebration of a bicentenary’ is apparently a reference to the reasoning of the Mason CJ, Deane and Gaudron JJ in Davis v The Commonwealth  HCA 63; (1988) 166 CLR 79. Their Honours concluded that the commemoration of the Bicentenary fell squarely within Commonwealth executive power as a ‘matter falling within the peculiar province of the Commonwealth in its capacity as the national and federal government’ (94). Consequently, the incidental power conferred by s 51(xxxix) of the Constitution supported the enactment of the Australian Bicentennial Authority Act 1980 (Cth). Further, it was considered that it might have been possible to conclude that the legislation was validly enacted without recourse to s 51(xxxix) as the ‘requisite legislative power may be deduced from the nature and status of the Commonwealth as a national polity’ (95) as ‘the legislative powers of the Commonwealth extend beyond the specific powers conferred upon the Parliament by the Constitution and include such powers as may be deduced from the establishment and nature of the Commonwealth as a polity’ (93). The ‘nationhood power’ is a term that has been given by academic writers to the power recognised in that case and in earlier authorities, particularly in the judgments of Mason J and Jacobs J in Victoria v The Commonwealth and Hayden  HCA 52; (1975) 134 CLR 338. The scope of the Commonwealth’s executive power has been subsequently considered in a series of cases challenging legislation to give effect to various Commonwealth programmes and most recently, in relation to a claim for damages for wrongful imprisonment commenced by a refugee claimant who was detained on an Australian border protection vessel: Pape v Commissioner of Taxation  HCA 23; (2009) 238 CLR 1; Williams v The Commonwealth [No 1]  HCA 23; (2012) 248 CLR 156; Williams v The Commonwealth [No 2]  HCA 23; (2014) 252 CLR 416 and CPCF v Minister for Immigration & Border Protection  HCA 1; (2015) 89 ALJR 207; (2015) 316 ALR 1.
I do not consider that it is necessary to further explore the scope of the Commonwealth’s executive power and the incidental power conferred by s 51(xxxix), read with s 61, or the ‘nationhood’ power as discussed in those cases for two reasons. First, the royal style and titles referred to in the schedule to the 1973 Act was actually adopted by royal proclamation – that is, by a prerogative act of the Queen. As French CJ observed in Pape, the executive power of the Commonwealth Government includes the prerogatives of the Crown  – . Second, there is nothing in the authorities to which I have referred that suggests that the style and titles of the monarch to be adopted in Australia is a matter that is outside the executive and legislative powers of the Commonwealth. The 1973 Act (and the 1953 Act) were within the executive power of the Commonwealth by their very subject matter and within the legislative power of the Commonwealth as either incidentally conferred by s 51(xxxix) or deduced from the nature and status of the Commonwealth as a national polity.”
“…allegations that the plaintiff was prosecuting provisions of law that are not recognised by the Commonwealth Constitution, and was making fraudulent misrepresentations of their nature and standing, that there are no acts or provisions made recognised by the Constitution from a time in 1973 upon using the Queen of Australia for Royal Assent, that the action was a departure from the constitutional law, that the Queen of Australia is not a legal personality and that name cannot be placed on court documents, and that, effectively, laws passed since the Royal Style and Titles Act 1973 are invalid and, judges and magistrates in Western Australia have taken an alternate or extra jurisdictional oath in contempt of the Commonwealth of Australian Constitution Act, and such office bearers have not been lawfully installed by a deputy governor or administrator commissioned under the Queen of Australia.”
These or similar submissions, in relation to both State and Commonwealth Acts, using the same grounds or variants thereof have been made in a large number of cases and characterised over a period of almost 17 years as having no basis in law by Commonwealth courts: Joosse & Anor v Australian Securities and Investment Commission  HCA 77; (1998) 159 ALR 260; Helljay Investments Pty Ltd v Deputy Commissioner of Taxation  HCA 56; McKewin’s Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation  HCA 27; (2000) 171 ALR 335; and State courts: Hedley v Spivey  WASC 325; Shaw v Jim McGinty in his capacity as Attorney General & Anor  WASCA 231; Glew & Anor v Shire of Greenough  WASCA 260 (special leave refused: Glew v Shire of Greenough  HCATrans 520); Glew Technologies Pty Ltd v Department of Planning and Infrastructure  WASCA 289; Glew v City of Greater Geraldton  WASCA 94; Glew v Frank Jasper Pty Ltd  WASCA 93; Krysiak v Hodgson  WASCA 114; Glew v The Governor of Western Australia  WASC 14; Glew v Frank Jasper Pty Ltd  WASCA 87; O’Connell v The State of Western Australia  WASCA 96; Hedley v Spivey  WASCA 116; Bell v Cribb  WASCA 234; and also by courts in other jurisdictions: Meads v Meads  ABQB 571.
Some of these cases dealt with submissions relating to the alleged constitution invalidity, particularly since the Royal Style and Titles Act 1973 (Cth) of, inter alia, the ITAA, the TAA and various state courts. In each case the points sought to be agitated were found not to be arguable, as are the defendant’s submissions in this case. Accordingly, I reject the submission that the ITAA or the TAA are invalid on Constitutional grounds and that the writ is in some way invalid because it refers to the Queen of Australia.
Extract from Conroy v Deputy Commissioner of Taxation  QSC 206:
“The argument is that the Governor- General was appointed by commission by the Queen as Queen of Australia and that there is no-one answering that description having any legal role in the constitutional or legal affairs of this country. The argument is one which has been raised a number of times and it can, I think, be seen set out in somewhat more extensive form in the judgment of the Chief Justice of South Australia in Money Tree Management Systems Pty Ltd v Deputy Commissioner of Taxation  SASC 54.
The argument, wherever it has been raised, has been rejected. I, with respect, adopt what was said by the Chief Justice of South Australia in that case. The position is, in my view, clear that the Queen acts in her capacity as Queen of Australia using that style or title in exercising the relevant powers and I reject this argument. I also refer to the judgment of Hayne J in Joosse and Anor v Australian Securities and Investment Commission (1998) 159 ALR 260. I also reject the argument that the great seal of Australia is not the correct seal for use by the Queen. This argument is based upon a similar premise to the first argument and, in my view, also has to be rejected.
MR. LAMONT: Further, my notice of motion of 27 March seeks to have this Court answer a number of questions applicable to the Queen’s title, role and authority as identified in the Commonwealth of Australia Constitution Act. It is my submission that the Queen of Australia is not a recognisable entity within the Commonwealth of Australia Constitution Act 1900 and at no time since that Act’s implementation has the United Kingdom Parliament suitably amended that Act so as to recognise a Queen of Australia.
The letters patent of 1984 signed by Prime Minister Hawke identifies only the Queen of Australia and the Great Seal of Australia, both having no nexus to the Commonwealth of Australia Constitution Act and are so ultra vires. It is to this end that I have applied to this Court to have the current proceedings before the Family Court removed, in part, to this Court so that the matters arising under the Constitution and certain treaties to which Australia has ratified our acceptance can be dealt with more fully and appropriately.
HIS HONOUR: Arguments similar in principle but not in detail to those now relied on by the applicant were considered and rejected by Justice Hayne of this Court in Joosse v ASIC in a judgment with which I fully agree. The questions that the applicant seeks to argue do not, in my view, have sufficient prospects of success to warrant removal into this Court and taking up the time of the Justices of the Court. Even if I thought that the applicant had an arguable case, which I do not, I would not order the removal of the Family Court proceedings.
Extract from Nibbs v Devonport City Council  TASSC 34:
“The Queen’s title in the Commonwealth of Australia was changed, firstly by the Royal Style and Titles Act 1953 (Cth), and again by the Royal Style and Titles Act 1973 (Cth). Following those changes, Her Majesty’s title was Elizabeth II, by the Grace of God Queen of Australia and her other Realms and Territories, Head of the Commonwealth. For some, that left room for argument about Her Majesty’s title in the States, what power the British monarch could exercise in and in relation to those States, and whether the relationship of Australian States to the Crown was truly independent of the relationship of the Commonwealth to the Crown: see for instance Commonwealth v Queensland  HCA 43; (1975) 134 CLR 298 (the ‘Queen of Queensland Case’) 409 The Australia Act 1986 (UK) repealed the Imperial Colonial Laws Validity Act 1865. Thereafter there were no residual powers or responsibilities of the United Kingdom in relation to Australian States. Generally, the provisions of the Australia Act (UK) left a discrete Australian monarchy.”
There are many more cases in relation to this contention, you can locate them on this website under the Tag “The Queen of Australia“.
There is also another article The Royal Style and Titles, which looks into the Volume 1 of the Final Report of the Constitutional Commission 1988 and Sue v Hill  HCA 30
- 1 https://en.wikipedia.org/wiki/Anglo-Irish_Treaty
- 2 https://www.foundingdocs.gov.au/resources/transcripts/cth11_doc_1926.pdf https://freemandelusion.files.wordpress.com/2020/11/balfour-agreement-1926.pdf
- 3 http://www.legislation.gov.uk/ukpga/Geo5/17-18/4
- 4 http://www.legislation.gov.uk/ukpga/1931/4/pdfs/ukpga_19310004_en.pdf https://freemandelusion.files.wordpress.com/2020/11/statute-of-westminster-act-1931.pdf
- 5 http://www.legislation.gov.uk/ukpga/Eliz2/1-2/9/introduction/enacted
- 6 https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/Practice6/Practice6HTML?file=appendix19
- 7 https://www.legislation.gov.au/Details/C1953A00032 https://freemandelusion.files.wordpress.com/2019/06/rstact1953.pdf
- 8 https://www.legislation.gov.au/content/HistoricGazettes1953
- 9 https://www.legislation.gov.au/Details/C2004A00044 https://freemandelusion.files.wordpress.com/2019/06/c2004a00044.pdf
- 10 https://www.legislation.gov.au/content/HistoricGazettes1973 https://freemandelusion.files.wordpress.com/2020/09/seal.pdf