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Luke Beck: Scottish Independence and Australia

LukeWhat effect might Scottish independence might have on Australia’s constitutional arrangements? This might seem like an odd question but there has been a suggestion in Australia that there might be a profound effect.

Macquarie University’s Iain Stewart is reported by the Australian Broadcasting Corporation as recently saying that Scottish independence ‘could remove [Australia’s] head of state, the monarch, and thus, at least legally, make government in Australia impossible.’ Stewart wrote a piece on The Conversation to similar effect in 2011. A similar suggestion was made by a senior member of the Victorian Bar, David Denton SC, in 2012.

The Australian Constitution relies heavily on the role of the Queen. Among the most important references to the Queen in the Australian Constitution are section 1 establishing the Queen as formally a part of the Australian Parliament and section 61 vesting the executive power of Australia in the Queen. Of course, in practice, the conventions of responsible government operate. Stewart’s concern relates to how we identify who the Australia monarch is.

The starting point for identifying the Australian monarch is covering clause 2 of Australian Constitution. Covering clause 2 provides: ‘The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.’ The Act referred to in covering clause 2 is the Commonwealth of Australia Constitution Act 1900 (Imp), s 9 of which contains the Australian Constitution. The sections of that Act are usually referred to in Australia as ‘covering clauses’ to emphasise they are not actually part of the Australian Constitution.

Stewart’s essential concern is that should Scottish independence occur as a result of the 18 September referendum there would no longer be any United Kingdom by reference to which Australia determines who its monarch is.

I say that Stewart’s concern is unfounded.

In the first place, we’ve been here before. Covering clause 2 simply refers to ‘the United Kingdom’. That is in fact a short hand reference to ‘the United Kingdom of Great Britain and Ireland’. That was the entity existing in 1900. That is the entity referred to in the oaths schedule to the Australian Constitution. The schedule says regarding the oath of office that ‘The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time’. The constitutional preamble likewise refers to the Australian people agreeing to unite in a federal Commonwealth under the Crown of ‘the United Kingdom of Great Britain and Ireland’.

But, of course, the United Kingdom of Great Britain and Ireland no longer exists. With the independence of the Republic of Ireland, the country became the United Kingdom of Great Britain and Northern Ireland. Scottish independence would, from the point of view of Australia’s constitutional situation, be no different to Irish independence. A chunk of the UK has broken away and become its own independent nation.

The reference to the United Kingdom in covering clause 2 must be read as a reference to the United Kingdom of Great Britain and Ireland and it successor state/s, to adopt the international law terminology. Following Irish independence the successor state was the United Kingdom of Great Britain and Northern Ireland. Australia experienced no constitutional problems as a result of Irish independence and there was no doubt about who Australia’s monarch was. If Scotland becomes independent, the successor state will be what is left of the United Kingdom by whatever name it chooses to go by.

There is another reason why Stewart’s concern is unfounded. That reason is that it is based on an assumption that the legal effect of covering clause 2 is to mandate that whoever is the UK monarch is also by virtue of that fact the Australian monarch. This is certainly one view of the effect of covering clause 2 (which for the reasons given above poses no problems for Australia should Scotland become an independent country). But there are other views of the legal effect of covering clause 2.

As Anne Twomey explained in ‘Changing the Rules of Succession to the Throne’ [2011] Public Law 378, 391 and on the Constitutional Critique Blog in 2012 there are two other possible interpretations:

  • “covering clause 2 is merely an interpretative provision which simply assumes, but does not enact, the existence of a succession law that is operative in Australia. According to this view, covering clause 2 operates to ensure that references to the sovereign are not taken to be confined to the sovereign at the time of the enactment, but extend to whoever happens to be the sovereign from time to time in accordance with the applicable law. As the United Kingdom can no longer legislate for Australia, the applicable law would be the pre-existing law of succession as altered by Australian law.”
  • “covering clause 2 incorporated by reference into the Commonwealth of Australia Constitution Act the British laws of succession to the throne. Under s 4 of the Statute of Westminster, those laws could be amended or repealed by United Kingdom legislation to which Australia had given its request and consent. That is no longer the case. Section 1 of the Australia Acts 1986 provides that no Act of the United Kingdom Parliament may now extend to Australia as part of Australian law. In Sue v Hill [(1999) 199 CLR 462, [93]] three Justices of the High Court of Australia noted that covering clause 2 identifies the Queen ‘as the person occupying the hereditary office of Sovereign of the United Kingdom under rules of succession established in the United Kingdom.’ Their Honours went on to state:

The law of the United Kingdom in that respect might be changed by statute. But without Australian legislation, the effect of s 1 of the Australia Act would be to deny the extension of the United Kingdom law to the Commonwealth, the States and the Territories.

The argument here is that the rules of succession have been effectively patriated with the Australian Crown and while they continue to exist in their current British form, they may only be amended or repealed by Australian action.”

On both of these alternative views of covering clause 2, no change in British law can affect the way in which Australia’s monarch is identified. This is why Australia needed to pass legislation to give effect to the Succession to the Crown Act 2013 in Australia. On the same basis, any changes brought about to the British laws of royal succession as a consequence of Scottish independence would be of no effect regarding the Australian monarch.

In conclusion, it seems pretty clear that Scottish independence will have no direct impact on Australia’s constitutional arrangements.

 

Luke Beck is a PhD Candidate, Postgraduate Fellow (Research and Teaching) and Associate, Constitutional Reform Unit at Sydney Law School, The University of Sydney.

Suggested citation: L. Beck, ‘Scottish Independence and Australia’ UK Const. L. Blog (12th September 2014) (available at http://ukconstitutionallaw.org)

One comment on “Luke Beck: Scottish Independence and Australia

  1. upholdingenglishhonour
    September 12, 2014

    That’s an interesting article. It’s not an issue that I’d ever thought about in connection with the referendum before so thanks.

    I want to take issue with one thing though. You said : “If Scotland becomes independent, the successor state will be what is left of the United Kingdom”

    This is certainly the legal interpretation of international law on state succession that the current UK Govt prefers. However, the Scottish Government say that the UK will be dissolving into 2 successor states, co-equal in legitimacy and in their inheritance of treaty obligations of the current UK. See this academic paper by Professor Scheffer http://www.gla.ac.uk/media/media_269576_en.pdf

    Obviously no court can arbitrate these two views and international organisations like the EU can take their own view on how to treat membership of the rUK and an iScotland.

    If Australia chose to accept the Scottish Govt’s view, I don’t see why it couldn’t decide to accept the jurisdiction of the Queen, as queen of an independent Scotland, and her appointment of a Scottish governor general. I am no constitutional expert so there may be many factors precluding this which I am not aware of.

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This entry was posted on September 12, 2014 by in Australia, Scotland and tagged , , .
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