3 Nov 2016
The Hon. A.L. McLACHLAN ( 15:24 ): I rise to speak to the Constitution (Demise of the Crown) Amendment Bill 2016. I speak on behalf of my Liberal colleagues. The Liberal opposition supports the second reading of the bill. Accompanying the introduction of the bill was a pithy second reading speech by the minister but, on reflection, it may have been a touch taciturn. I start with the existential proposition that this bill seeks to solve a potential theoretical problem which, on closer examination, may not be a problem at all.
In the DNA of every Liberal there is an inherent reluctance to legislate on a whim. Instead, we seek out the truth and exercise caution before making law. This is not the habit of the Labor benches, considering that, as their socialist hearts tell them, they are the font of all knowledge, and this gives them the right to legislate on a whim. In other words, the volume of the legislation is their goal, not the utility of the legislation.
There appears to be no truer expression of this than is encapsulated in this bill. Against this backdrop, I question the need for this bill. Nevertheless, the Liberal Party is inclined to support the passage of the bill because it has a minimal impact on the lives of South Australians, and it seems to be an occasion where the application of the precautionary principle is called for. In other words, we will allow the bill to pass because our support for it to become law is out of an abundance of caution.
A maxim you are taught early in your legal education is, ‘The king never dies.’ This means that there is no break in succession upon the death of a monarch. However, the monarch acts in two capacities: one, as a natural body subject to death and the other, as a body politic, which is a corporation sole. The latter is deemed to be immortal. I acknowledge that the powers exercised by a monarch in a personal capacity do not necessarily survive the demise of the Crown, unless specifically cured. These include:
However, it is my understanding that the rules regarding the demise of the Crown in this state have been cured by statute. I am guided in this opinion by the late federal court justice Brad Selway. He was one of our leading legal minds whom I knew professionally. In the mid-nineties, he was the state’s solicitor-general. He was taken too early from us at the age of 50. In his treatise The Constitution of South Australia, he makes clear that the state parliament was established by statute, not by the common law. Therefore, it will not be dissolved on the demise of the Crown.
According to Selway, although the rules regarding the demise of the Crown were received law in South Australia, the inconveniences I previously referred to have largely been cured by statute. He elaborates, arguing that the commonwealth and state parliaments are all established by statute, as I have said, and not by common law. Therefore, it is generally accepted in the law that parliaments established by statutes are not dissolved. Further, the Demise of the Crown Act 1901 (United Kingdom) provides in section 1(1):
T he holding of any office under the Crown, whether within or without H is Majesty’s dominions , shall not be affected, nor shall any fresh appointment thereto be rendered necessary, by the demise of the Crown.
This provision applies by paramount force in South Australia. [Not only does] t he provision avoid the common law rule that officers are vacated by the demise of the Crown , it also avoids the requirement that officers who take an oath of office , must take a fresh oath on thedemise of the Crown.
Selway further states:
Where an office is created or held pursuant to statute and the statute impliedly grants tenure to the office holder (as applies to most judges and public servants ) s uch a statute would also seem to exclude the common law consequences of the demise of the Crown.
2.3.3 The distinctions between royal grants and other grants and privileges have been rendered inapplicable in that almost all grants and privileges are now governed by statute and are unaffected by the demise of the Crown.
2.3.4 The rule that all legal proceedings abated upon the death of the monarch has been overcome by statutory provisions. Se ction 1 of the Act of 1547 for ‘ the Continuance of Actions after the Death of any King of this Realm ‘ provides that legal proceedings between party and party shall not be discontinued by the demise of the Crown.
Selway writes that this statute was received law into each of the Australian colonies. He continues:
More importantly, ss 4 and 5 of Statute 1 Anne (1702), c 2 provide that, notwithstanding the demise of the monarch, all then existing types of criminal, civil, prerogative and equitable proceedings are to continue.
Again, Selway is of the view that this statute applied by paramount force to the colonies. Although these statutes have been replaced in whole or in part in the United Kingdom, in South Australia they still provide the basis for the continuance of legal proceedings upon the demise of the Crown.
Lastly, the distinction drawn in England between the personal and official or corporate capacities of the monarch in determining whether or not liability attaches to a monarch’s successor has, according to Selway, little or no application in Australia. From the decision in China Ocean Shipping and South Australia , it follows that it can be asserted that all debts and liabilities incurred by the Crown in Australia are incurred in an official or corporate capacity and that such debts and liabilities do not abate upon the demise.
Furthermore, the Crown Proceedings Act 1992 provides statutory rights of recovery in respect of debts and liabilities incurred by the government. Such statutory rights would also survive. In summary, I believe Selway rightly argued that the difficulties that might arise upon the demise of the Crown have been appropriately cured. I acknowledge that there is some support for this bill to be found in a 1984 report from the Law Reform Committee of South Australia. However, this report was in the context of repealing the imperial statutes relating to the demise of the Crown and replacing them with a bill similar to the one before us.
As to the application of these imperial statutes, South Australia follows the essential principle that all English law, up to the date of settlement both enacted and not enacted, was received into South Australian law from 28 December 1836 when this province was established. This ensured that the new province was immediately subject to the rule of law and that there has been no legal vacuum. After this date, the principle that imperial statute applied by paramount force became fundamental to South Australian law.
I am not one of those in the legal fraternity who has the view that the effect of the imperial statutes that were enacted to mitigate the effect of the demise of the Crown are piecemeal and that their application is uncertain. In my perspective, the imperial statutes are easy enough to find and apply. Further, since this report, a suite of legislation known collectively as the Australia Act were passed by both the commonwealth and Westminster in 1986. Presumably, section 3 of the Australia Act (Commonwealth) has been used by the government and parliamentary counsel to render unnecessary the repeal of the Imperial statutes currently in place. I ask the minister to clarify this and detail advice as to why this position has not been deemed sufficient.
I note that similar legislation has been adopted in several Commonwealth jurisdictions. A similar rationale appears to have been adopted as being put forward for this bill. Commentary from other states on this issue has come to the same conclusion as I have—that it is most unlikely that the demise of the Crown would have any substantive effect upon the parliament or the offices of persons appointed under the Crown. However, in an effort to provide certainty, the default position has been to support a similar type of bill, if for no other reason than that it is clear that there will be no significant consequence when it does occur.
My questions for the government are: has the government received advice from the Solicitor‑General? If advice has been received, is it on the basis of that advice that the government has taken a different view to that of Mr Selway? Is the government able to provide the chamber with examples where it anticipates difficulties on an occasion where there will be a demise of the Crown? In closing, I note that, after South Australia achieved self-government in 1857, the state has had to survive the passing of Queen Victoria in 1901, Edward VII in 1910, George V in 1936 and George VI in 1952. It seems we have done remarkably well without this bill.View source