Constitution (Demise of the Crown) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 22 June 2016.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:17): I rise to speak on this bill, and I am almost too frightened to even record the descriptor of this bill for fear that I might be aiding and abetting the offence of treason.

The DEPUTY SPEAKER: I was just going to say, it is punishable by hanging still.

Ms CHAPMAN: There are some rather unsavoury penalties for treason, and I am going to refer to those in a moment, but they do include expulsion, transportation, and death, of course, by execution. May I just first indicate that, whilst we have been a little sceptical from our side of the house as to the necessity for this bill, we will accept the passage of the bill in an abundance of caution that it is necessary to extinguish historical common law.

Essentially, this bill will add a clause to our Constitution Act of 1934 and purports to dispose of any possibility, remote as that may seem, that a litigant may challenge the continuation of court matters in the event of the death of our sovereign—who, I remind the house, is The Queen of Australia under our Australia Act, as well as The Queen of England. It is the dissolution of parliament and the currency of court proceedings and the capacity for them to continue and conclude without interruption.

The origins of this, the Attorney suggests, are from the inquiry by the Legislative Council in Western Australia that reported in August 2015, the Standing Committee on Legislation in its Report No. 28. That report again confirms that, in a circumstance where the inquiry considered a number of matters and also the question of the transfer of sovereignty to another king or queen and how that may affect legislation, that had its origins in the United Kingdom, which had force in Western Australia.

What the Attorney-General did not tell us in his presentation to the parliament is that that recommendation came as a result of the Law Reform Commission of Western Australia 1994 report, that is 21 years before, entitled Project No. 75 on United Kingdom Statutes in Force in Western Australia. The identification of imperial acts that were relevant to this issue were considered, and this proposal emanated from that. In fact, in the standing committee's consideration of this matter, back in 2015, the Hon. Michael Mischin MLC, Attorney-General for Western Australia, gave evidence. He questioned whether legislation was required to deal with the circumstances, and he noted a number of complexities in relation to the imperial acts that were effective but about which there had been some mixed view as to whether they had been extinguished by subsequent legislation.

Again, on inquiry as to whether they acted on their own recommendation, it now appears clear that they have not and will not, and it may be considered after the next state election in Western Australia, which, as I am sure everyone knows, is in early 2017. So, from 1994 to 2017, they have not seen fit to rush this legislation, this protective envelope. However, they apparently had a meeting last year to suggest that they would consider advancing it, again to close the envelope of any possibility, remote as that may be.

It seems that New Zealand, as the government is aware, also had its origins from Britain legally and was run from Sydney for many years. It is now a country in its own right. It has its own parliaments and statutes. They did pass legislation. They have a slightly different system, but they have passed it. The commonwealth has not seen fit to need it. Their constitution covers it. I have to say that it has been a long time since I have read the 1856 state constitution, which is our first South Australian constitution, but on my rereading, it appears to extinguish the alleged ill that we are apparently redressing today.

It seems as though other jurisdictions are advancing at a glacial pace the urgency of this. There are two events that give me some comfort (as I am sure it would give the house if we did not pass this). One is the death of Queen Victoria and her son's ascension to the throne. After the establishment of the South Australian colony all those events occurred. It did not appear to interrupt our legislative assembly or a court litigation at the time. Then of course we had the death of The King in 1954 and the elevation of Her Majesty Princess Elizabeth to become Queen Elizabeth II.

The Hon. J.R. Rau: And a couple before that as well.

Ms CHAPMAN: There were a couple before that, true, but I am talking now in more recent time. I am happy to go through the others if you would like me to, but I think I am making the point here that, if we fast-forward from 1954, when Princess Elizabeth was recalled from Africa to take the throne, she has served us so well, and she is now in her 90^th year. She has continued to serve for more than six decades. She has that responsibility.

Whilst I was not alive at that time—I do not even think the Attorney was alive, possibly a few people in this house were alive at that stage—on reading accounts of the time, it appears that there was no major crisis in the state of South Australia. There were no challenges to the Supreme Court, people rushing down with petitions to have their litigation struck down as a result of the change of sovereign, or any rioting protests out the front of Parliament House to try to challenge the validity of legislation that was continuing to be passed in this forum.

I think South Australia took a bit of time off to welcome The Queen that year, have the Coronation Ball and all sorts of other happy events, but there was no challenge to these institutions which had some common law precedent. I am not personally persuaded that it is something that we need. It seems that Western Australia has not advanced past a glacial pace of consideration, nevertheless, in the abundance of caution, we will support it.

Let me return, however, to the criminal offence of treason. It is set out in our Criminal Law Consolidation Act as being confined to petty treason but, interestingly, just in case the Director of Public Prosecutions is listening in and wanting to charge anybody with treasonable behaviour, I just remind the Attorney that appendix 1 to our Criminal Law Consolidation Act 1935 makes provision, and I quote:

When a Man doth compass or imagine the Death of our Lord the King, or of our Lady his Queen, or of their eldest Son and Heir…

etc., and it includes mistresses and various others which we have referred to before in this house. It goes on to say:

…that ought to be judged Treason which extends to our Lord the King, and his Royal Majesty…

and further provision. Just in case the Attorney is worried, he can look at the provisions of the 1795 Treason Act, which came after the 1351 Treason Act, which is an appendage to our legislation even today, to find out what fate of penalties might attract him if the DPP decides to prosecute for his treasonable thoughts of the demise of Her Majesty by introducing this legislation.

I would not actually want him to be dragged away and shackled and charged or convicted for that. I could think of a number of other things that he should be punished for, but introducing this legislation is not one of them. I would even offer to go down as a character witness to say that he was just blindly ignorant when he came to the importance of issuing these proceedings; nevertheless, the bill will pass with our blessing.

The DEPUTY SPEAKER: Before I call the Attorney, I want to draw to the attention of the house that King George VI actually died in February 1952—

Ms Chapman: Sorry.

The DEPUTY SPEAKER: Yes, we need to correct Hansard for you. The Queen ascended on 6 February 1952 but was crowned in June 1953. None of us could remember that, of course.

Ms Chapman: We weren't alive.

The DEPUTY SPEAKER: That's right—only by a few months in some cases.

Mr PEDERICK (Hammond) (11:29): I rise to speak to the Constitution (Demise of the Crown) Amendment Bill 2016. Like the deputy leader, I certainly do not wish any ill will on Her Majesty in debating this legislation. I note the comments that the deputy leader made around the possible treasonous effects of the Attorney-General's bringing this to the house, but I hope he has no ill effects, apart from perhaps a session in the stocks. I would hope to see nothing higher than that.

This bill refers to the transfer of sovereignty from one queen or king to another upon their death, resignation, abdication or being deposed. You have to wonder whether we have to go through this process. As the deputy leader has outlined, certainly Western Australia and other jurisdictions have gone at a snail's pace. I certainly believe The Queen will live for quite a long time yet, and long may she reign. She has done an excellent job over her time as Queen.

I want to give a little bit of history on Queen Elizabeth II. She was born on 21 April 1926 and was the daughter of Prince Albert, Duke of York, who later became King George VI. As has been indicated in the house, she became Queen in 1952 but was not crowned until 1953. She is now the longest serving monarch in British history, having reigned for 63 years. Queen Elizabeth II is the 40^th monarch since William the Conqueror obtained the crown of England. In June 2012, Queen Elizabeth celebrated her 60 years on the throne with the Diamond Jubilee.

Prior to ascending to the throne, Queen Elizabeth had the life of a royal family member. However, in 1939, during the Second World War, both Elizabeth and her sister were relocated to Windsor Castle for the majority of the time. It was at age 14 that Elizabeth made her first radio broadcast, when she reassured children with the words 'that in the end, all will be well, for God will care for us and give us victory and peace'. Furthermore, Elizabeth's father, The King, appointed Elizabeth Colonel-in-Chief of the Grenadier Guards. Her first public appearance was in 1942 and it was to inspect the troops. Elizabeth also participated in the Auxiliary Territorial Service in an attempt to help the war effort.

Queen Elizabeth is certainly extremely well travelled, and an example of this is her Silver Jubilee tours. It is estimated that The Queen travelled some 56,000 miles that year, which is somewhere a bit over 90,000 kilometres, as she wanted to mark her jubilee by meeting as many of her people as possible. It was noted that no other sovereign had visited so much of Britain in the short period of three months.

Events to mark The Queen's Golden Jubilee began in 2002, and six key themes surrounded these: celebration, community, service, past and future, giving thanks and the commonwealth. The Queen again travelled great distances for this jubilee and visited countries such as Jamaica, New Zealand, Australia and Canada, as well as every region of the United Kingdom from Falmouth, in Cornwall, to the Isle of Skye.

The Queen has provided royal assent to more than 3,500 acts of parliament. Queen Elizabeth has attended every opening of parliament, excluding two as she was expecting her children. She has a well-known love for corgis and has owned more than 30 corgis during her reign. She introduced a new breed called the dorgi which is a corgi-dachshund cross. She now only has two corgis, Holly and Willow, and two dorgis, Candy and Vulcan. The corgis and the dorgis have played a significant role in her reign.

The DEPUTY SPEAKER: You know of course, member for Hammond, that we are being really lenient here this morning, but we should put on record that her first corgi was actually from South Australia—well, not from South Australia, but the woman who bred the first corgi, the late Thelma Gray, actually came to South Australia. So, we have a connection to the corgis that perhaps people do not realise.

Mr PEDERICK: Well, that is fantastic news, Madam Deputy Speaker. I am glad you added to that great history of the corgis—

The DEPUTY SPEAKER: Well, it is about as relevant as everything else that we are hearing this morning.

Mr PEDERICK: —and The Queen. Getting to what happened in Western Australia, it was the Western Australian parliament that concluded that demise of the Crown provisions were required in that state to put beyond doubt the legal effect of the demise of the Crown, and it has been noted that they still have not moved down that path. This bill, no matter what happens, will ensure the continuity of parliament, public offices and legal proceedings. I guess it faces all of us, and obviously we are not sovereigns, but on the sovereign's demise all the functions, duties, powers, authorities, rights, privileges and dignities are transferred to the sovereign's successor but has no other legal effect.

Essentially, this would prevent parliament being immediately dissolved or a litigant challenging current court proceedings at the time of the sovereign's death. Certainly, I agree with the deputy leader that it is probably highly unlikely to have a legal case, but we have seen cases where there have been issues around GST funding in this great country, and that has been challenged and has caused effects down the line. I guess at the very least this blocks out litigants who may decide that they have a case and they want to push it. In closing my brief remarks, I wish The Queen all the best. Long may she live and long may she reign.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:36): I thank the member for Hammond for his thoroughly researched contribution on Her Majesty. If the house would bear with me for the next 13 minutes, I would like to speak about Edward VII, George V, Edward VIII and George VI. But I do not know all their dogs' names, so I would just embarrass myself if I did; I would show myself up to be not quite as well researched. I will let people know I will not be doing that.

I accept the point the deputy leader has made that we may be dealing with something here which could be put in the class of legal esoterica. It is true that when each one of those sovereigns I just mentioned moved on or abdicated, or whatever they did, the world did not end. What has happened to me, though, is at some point in time I had drawn to my attention the fact that however unlikely this matter might be it remains a risk and, in a litigious community, it is worth actually eliminating that risk. I must say my initial reaction was somewhat sceptical but after reflecting on it I thought, if the risk is small and it can be rectified so that it is reduced to zero, then it is probably worth doing. So, that is why we are doing this.

The comments made by the member for Bragg, the deputy leader, about the relatively esoteric nature of this, I accept, and to some extent I agree with, but having been presented with some advice about this matter it was worth resolving. As I understand it, some of the other Australian jurisdictions do not have the same potential problem we do because of the way their constitutional arrangements are framed. In fact, I think it is in the second reading speech that in New South Wales, Queensland, Tasmania and Victoria there are particular provisions which apparently deal with this matter. Whilst I accept that this is possibly not the most urgent or active piece of legislation we might pass, one day we may have saved ourselves considerable trouble.

On a lighter note, for the member for Bragg and the member for Hammond, at least we have not created a portfolio to deal with this matter as we did in the year 2000 situation when the then member for Bright saved the whole of the world, I think, from an absolute catastrophe where at midnight the world was going to come to an end, but fortunately because the then member for Bright was the minister for Y2K, that crisis was averted. The night passed as many other nights do. Trains continued, refrigerators continued to operate and aircraft continued to fly. Thank goodness we had him there to make sure that happened.

This is a far less expensive and time-consuming exercise than having the member for Bright deal with all of those difficult matters for a couple of years, and so I am sure in retrospect that it probably will be seen as being worth the effort.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:40): I move:

That this bill be now read a third time.

Bill read a third time and passed.