Hopes v Australian Securities and Investments Commission [2016] WASC 198

“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 [1988] 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 [1975] 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 [2009] HCA 23; (2009) 238 CLR 1; Williams v The Commonwealth [No 1] [2012] HCA 23; (2012) 248 CLR 156; Williams v The Commonwealth [No 2] [2014] HCA 23; (2014) 252 CLR 416 and CPCF v Minister for Immigration & Border Protection [2015] 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 [126] – [127]. 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.”

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