Prior to 1953 the Monarch's role in the British Empire was 'indivisible' meaning there was but one Monarch over all of the British realms (Australia, New Zealand, Canada etc). Since that time in 1952, the British realms at an economical conference in London decided to divide the Monarch's Crown into localised Crowns, (Queen of Australia, Queen of New Zealand, Queen of Canada).
In the context of Australia, when a new monarch ascends to the throne, the legal transfer of powers is not automatic. For the Monarch’s powers to be exercised in Australia, specific legislation (such as the Royal Style and Titles Act 1973) would typically clarify and confirm the title and authority of the new monarch in the Australian context. These pieces of legislation ensure that the new monarch's authority is recognized and applied within Australia specifically.
The key point is that the powers and authority of the Monarch, as exercised in Australia, would not automatically transfer from the previous monarch to the new one without explicit recognition in Australian law. This legal separation is a result of the Quark Fishing case https://constitutionwatch.com.au/judgments-regina-v-secretary-of-state-for-foreign-and-commonwealth-affairs-appellant-ex-parte-quark-fishing-limited/and other legal principles, where it was established that the Crown’s powers are distinct and must be separately recognised in each realm.
Therefore, upon the ascension of a new monarch, Australian law ensures the continuation of the monarchy's legal and constitutional role by enacting legislation that confers those powers and establishes the legal identity of the new monarch in the context of Australian governance.
Therefore when a new monarch ascends to the throne, their title as monarch of Australia and its territories doesn't automatically transfer in the legal sense. Instead, the title must be specifically confirmed and declared in Australian law.
This is typically achieved through one of two methods:
1.Royal Style and Titles Act 1973: This Act defines the title of the Australian Monarch. In the case of a new monarch, Australian Parliament would need to pass a new Act or amendment to this legislation to legally recognize the title of the new monarch in the context of Australia. This ensures the new monarch is formally recognized as the Sovereign of Australia with the specific style and title.
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2. In addition to authority granted by an Act, a Royal Proclamation issued by the Governor-General, acting on the advice of the Australian Government, could be used to announce the title of the new monarch for Australia. This proclamation would specify how the new monarch’s title is to be applied within Australia and its territories. The Royal Proclamation would typically be issued by the Governor-General in the exercise of executive authority, following a process established by the Australian Parliament and empowered by legislation.
For election writs (which are issued in the name of the monarch), the legal recognition of the new monarch through such legislation or proclamation is necessary. The title of the new monarch must be confirmed (either through a Royal Style and Titles Act or a Royal Proclamation) to ensure that the writs can be issued in the proper name and under the correct authority of the new monarch.
So, for election writs to be issued by the Governor-General in the correct legal context, there must be some legal instrument (such as the Royal Style and Titles Act empowering a Royal Proclamation) that affirms the new monarch's title in relation to Australia. This ensures that their authority is recognised and that official acts like election writs are issued in the proper Monarch's name.
The new monarch’s title must be legally confirmed (through an Act empowering Proclamation) by the Australian Parliament for it to be validly applied to legal actions, including the issuing of election writs. Without this confirmation, the title of the monarch would not be legally applied to Australian government acts.
Why did the Canadian Parliament create a new Royal Style and Titles Act in 2023 providing 'the Parliament of Canada assents to the issue by His Majesty of His Royal Proclamation under the Great Seal of Canada' if this Royal Proclamation can be created by the Governor General of Canada?
The creation of the Royal Style and Titles Act 2023 https://laws-lois.justice.gc.ca/eng/acts/R-12.1/FullText.html by the Canadian Parliament, which provides that "the Parliament of Canada assents to the issue by His Majesty of His Royal Proclamation under the Great Seal of Canada", reflects a distinct legal and constitutional nuance in Canada, especially with respect to the role of the Governor General and the legal processes involving the monarch's authority.
Why did Canada create this Act in 2023?
The Act was passed to formally recognise and confirm the title of King Charles III as the monarch of Canada, and also to clarify the specific constitutional role of the Governor General in the process of issuing Royal Proclamations in Canada. Here’s why this was necessary:
Constitutional Legal Framework: While it is true that the Governor General of Canada acts as the representative of the Monarch and can issue Royal Proclamations, this power is derived from the authority of the Monarch and is carried out under the monarch's name. However, the Canadian Constitution requires explicit legal clarity when it comes to the recognition of the monarch’s authority within Canada. This was particularly important when transitioning from Queen Elizabeth II to King Charles III.
The Role of Parliament: By passing the Royal Style and Titles Act 2023, the Canadian Parliament ensured that the process of recognising the new monarch and confirming the Royal Style (the formal title) was not left solely to executive action. The Act makes it clear that Parliament itself assents to the issuing of the Royal Proclamation by the King, which is an important step in maintaining the constitutional integrity and the legal order for Canada's unique status within the Commonwealth.
In this context, Parliament’s assent is a formal step ensuring that the Canadian people and government legally recognize the new monarch's title and role, rather than leaving it to a purely executive action (i.e., the Governor General alone).
Symbolic and Legal Importance of the Royal Proclamation: The Royal Proclamation under the Great Seal of Canada issued by King Charles III affirms the title of the monarch in the Canadian context. While the Governor General may exercise this authority on the monarch's behalf in the execution of many tasks, the Royal Proclamation is a key constitutional tool that links the Crown directly to the legal and formal recognition in Canada.
Legal and Practical Distinction: The Act reflects that although the Governor General has the authority to issue Royal Proclamations on behalf of the Monarch, the Royal Style and Titles Act 2023 places the Monarch's role at the centre of the constitutional process. This provides a clearer legal framework and ensures that there is no ambiguity regarding the monarch's title and their authority in Canada, especially in the event of a change of monarch.
Why the Assent of the Parliament?
The Canadian Parliament’s assent to the Royal Proclamation being issued by the monarch (King Charles III) is a form of constitutional consent. It’s important because it formally recognises the new monarch's legal and symbolic role in Canada. This is more than a procedural step—it’s a constitutional affirmation of the monarch’s position in the realm, making it clear that Canada continues to recognise the British Crown as the legal authority in Canadian law, albeit within Canada’s distinct constitutional framework.
While the Governor General can issue Royal Proclamations on the monarch’s behalf in practice, the Royal Style and Titles Act 2023 acknowledges the parliamentary role in the process, ensuring legal clarity and continuing the tradition of constitutional monarchy in Canada.
While the Governor General of Canada can issue Royal Proclamations, the Royal Style and Titles Act 2023 serves to ensure parliamentary recognition of the new monarch’s title and role. By formally providing that the Parliament of Canada assents to the monarch issuing a Royal Proclamation, the Act clarifies that parliamentary authority is involved in the legal recognition of the monarch's title in Canada, reinforcing the constitutional framework. This ensures that the legal processes surrounding the monarchy are explicit and clear, reflecting both tradition and legal necessity.
"Has the Australian Parliament endangered the constitutional integrity and legal order of Australia by failing to pass legislation similar to Canada's, which would formally ensure legal recognition of the new monarch’s title and role, and confirm the monarch’s authority to validly issue election writs in Australia?"
Election writs must be issued in the name of the monarch (e.g., "Charles the Third, by the Grace of God, King of Australia and His other Realms and Territories...") If the monarch's formal title for Australia has not been legally updated, you could argue that there is now a legal mismatch between the authority that must be exercised (i.e., by "the King of Australia") and the legal instruments available (still formally tied to Queen Elizabeth II under statute).
This mismatch could theoretically be challenged, especially by someone arguing that official acts relying on the monarch's title (e.g., election writs, royal assent to bills, government commissions) lack proper legal authority unless the monarch's specific Australian title is validly created by Parliament or Proclamation under license of Parliament.
The Proclamation of the Executive Government essentially only applies to the Executive, without an Act to empower the Parliament to create a Royal Proclamation making King Charles III title official in law the current title at law in Australia remains the Queen of Australia. It is only the laws of the Commonwealth that are binding and not executive actions in the form of a proclamation that has no legislative power for its valid creation to establish the new title.
https://constitutionwatch.com.au/proclamation-of-the-king/
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