Common(wealth) Knowledge #12: What is the Crown?

Queen Elizabeth II visited Australia 16 times during her 70-year reign.

With Queen Elizabeth II passing away in the early hours of September 9th, the Crown has passed to King Charles III. Or, is it really the Crown of the United Kingdom and the Crown of Australia. And are the Crowns of the States and Territories also separate? In this edition of Common(wealth) Knowledge, we’re going to answer these questions and more, as we explore the role that the Crown plays in the Australian government.

The first question is the easiest to answer. King Charles III will be King of Australia and King of the United Kingdom, as separate political entities. However, this was not always the case, as it wasn’t until the 20th century that the notion of the ‘indivisible Crown’ ended.

To explain the ‘indivisible Crown,’ we have to go back to King James VI of Scotland and James I of England. When the English Crown passed onto James, he held the two Crowns concurrently. This ended in 1707, with the Acts of Union, when Scotland and England passed laws to merge their governments. This is when the ‘indivisible Crown’ started. It was expanded with the Acts of Union of 1800, when Ireland’s Crown was brought in. This meant that, rather than being the holder of three separate Crowns as the monarch of three kingdoms, the monarch instead ruled one kingdom, with one Crown of the United Kingdom of Great Britain and Ireland.

There is one exception to this history, as Wales was always treated as being part of the English Crown.

This was then applied to the colonies, and then the early Dominions, like Australia. As late as 1920, the High Court said in the Engineers Case, at page 148, that there was a “common and indivisible sovereignty” of the Crown.

The situation changed after the Balfour Declaration of 1926. Returning readers may remember this name from ‘Common(wealth) Knowledge #7’. We saw that it was when Australia formally began developing a foreign policy that was separate from the UK’s. That is because foreign policy is the job of the Executive government, of which the Queen or King is the head. However, at the Imperial Conference in 1926, the Dominions and the UK declared that they were:

“Autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or foreign affairs, united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.”

So, although there was still a common Crown, the governments of the Dominions were becoming more independent, and the fact that they were all ruled by the British monarch did not mean that the UK government ruled over the rest. This was furthered by the Statute of Westminster Adoption Act 1942 (Cth), and by the time of the Australia Act 1986 (Cth), when the last vestiges of British sovereignty over Australia ended, it was clear that the Crown was, indeed, divisible.

The most obvious evidence of this was in the Royal Style and Titles Act 1973 (Cth), which declared that Queen Elizabeth II was “Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.” There was no mention of the UK in her title. It was clear that the two Crowns were separate.

As a side note, I guess we’re going to need to update that law for King Charles III’s title.

The question of whether King Charles III has a separate Crown for each State and Territory is a bit more complex, and requires looking at the role of the Crown in government.

In an absolute monarchy, the Crown exercises the legislative, executive, and judicial functions of government. As Australia and the UK are constitutional monarchies, not absolute monarchies, the Crown has surrendered its legislative and judicial functions. However, it retains its executive functions, and therefore the monarch is the head of state. As seen in Section 61 of the Australian Constitution, these executive powers are given to the Governor-General.

The Governor-General then grants these powers to the Prime Minister and other Ministers, to carry out the duties of the Executive government.

Because all of these powers spring from the Crown, the Executive government is referred to as the head of the ‘body politic’ that is the government. This term can be hard to understand. It is a development of religious beliefs about a person having two bodies, one which is physical and one which is spiritual, i.e. a soul. The mortal monarch who wears the Crown is the physical body, or ‘body natural,’ and the Crown is the soul, or ‘body politic,’ which does not die when the physical body does.

This may seem odd, but you have to remember that this was developed at a time when the Catholic, and later Anglican, Church was seen as being above the government, and this is why the Archbishop of Canterbury continues to coronate new monarchs.

The Crown, and therefore Governor-General, possess some ‘reserve’ powers that cannot be given to Ministers, as the powers are a facet of the monarchy itself. These include declaring wars and appointing Prime Ministers. I looked at one of these powers in ‘Federalism and Covid.’

Now that we understand that the Crown refers to the Executive as a whole, we can answer the question of whether the States and Territories have separate Crowns. Given that the State and Territory governments have separate Executives, they can each be considered to have their own Crown. Just as the Executive branch of the government can be referred to as the ‘Crown in right of the Commonwealth,’ as it is the Crown acting through the Commonwealth government, each State has its own ‘Crown in right of [State],’ represented by the Governor.

The ‘Crown in right of the Northern Territory’ is represented by the Administrator, who is appointed by the Governor-General, on advice from the Commonwealth government. In contrast, State Governors are appointed by the monarch. In the Australian Capital Territory, the Governor-General represents the Crown, and the reserve powers are exercised by the Commonwealth Minister for Territories.

Each Territory is referred to as a ‘body politic under the Crown’ in the Commonwealth legislation granting them self-governance, and they possess Executive governments. Brownhill J said on 29 August 2022, in Phillips v Chief Health Officer (No 2) [2022], at paragraph [42], that:

“The Crown in right of the Northern Territory is the executive government of the body politic, represented by the Ministry and the administrative bureaucracy which attends its business, as distinct from the legislative branch of that body politic, the Legislative Assembly.”

However, as Territories have much more limited sovereignty than the States, it has also been argued that they are not separate Crowns in one sense. There is no direct representative of the monarch appointed on advice from the Territory government. Rather, the Commonwealth government has control over this. So while they have Crowns in the sense of having a body politic and Executive, their limited sovereignty means that they do not have Crowns in the sense that their relationship with the monarch is not the same as it with the States and Commonwealth, as they cannot advise the Crown on how to act in relation to the Territories. So while their status is a bit of a grey area, they definitely have a Crown of some form.

Understanding how the Crown operates is important to understanding the relationship between King Charles III and the Commonwealth of Australia, and each of the States and Territories. Although one of the harder parts of constitutional law to grasp, it will provide important context as we watch Australia and the UK undergo the transition from Queen Elizabeth II to King Charles III.

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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Sources:

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; [1920] HCA 54.

Australia Act 1986 (Cth).

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Phillip & Ors v Chief Health Officer and Anor (No 2) [2022] NTSC 72.

Royal Style and Titles Act 1973 (Cth).

Statute of Westminster Adoption Act 1942 (Cth).