§ 7. “Under the Crown.”
This phrase occurs in the preamble, and is not repeated, either in the clauses creating the Commonwealth or in the Constitution itself. It corresponds with similar words found in the preamble of the British North America Act (supra) and in the Commonwealth Bill of 1891. It is a concrete and unequivocal acknowledgment of a principle which pervades the whole scheme of Government; harmony with the British Constitution and loyalty to the Queen as the visible central authority uniting the British Empire with its multitudinous peoples and its complex divisions of political power. It has been introduced rather out of an abundance of caution, than from any consideration that its omission might suggest a doubt or from any present idea of actual necessity.
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Some years ago a few ardent but irresponsible advocates of Australian federation indulged in predictions that the time would inevitably come when Australia would separate from the mother country and become an independent Republic. Those ill-considered utterances caused, at the time, strong expressions of disapproval throughout the colonies, which effectually prevented the repetition of such suggestions, as being beyond the arena of serious contemplation and debate. Throughout the political campaign which preceded the election of the Federal Convention, not a solitary public writer or speaker seriously discussed the possibility, much less the probability, of separation.
Hence the words, “Under the Crown,” have been inserted in the preamble to the Constitution, not as a protest against any growing sentiment adverse to the British connection, but partly to harmonize it with the Canadian precedent and partly because there was no reason for departure from the precedent of 1891.
In explanation of the appearance of the words in the preamble and their non-repetition in any of the enacting clauses or sections, it may be mentioned that though the words, “Under the Crown,” are introduced in the shape of a recital of an apparently accepted and indisputable fact that the people have so agreed, and not in the shape of a command, coupled with a sanction, yet the origin of the Commonwealth and its form of government shows:—
- 1. That it has been established by the concurrence of the Queen.
- 2. That the Queen is an essential part of the Federal Parliament.
- 3. That the Queen is the head of the Federal Executive.
- 4. That the Queen is to be represented in the Commonwealth by a Governor-General.
These provisions are stronger than any formal affirmation in the preamble, as evidences and guarantees that the Commonwealth is an integral part of the Empire presided over by the wearer of the Triple Crown of England, Ireland, and Scotland—which, let us hope, it will continue to be so as long as that Empire endures. Although to some extent they are surplusage, as involving a recapitulation of what is otherwise provided in the Constitution, the words, “Under the Crown,” standing as they do in the preamble to the Imperial Act, may hereafter be of service in answering arguments in favour of amending the Constitution by repealing the provisions above referred to. Strictly speaking, such amendments might be proposed, in the manner provided by the Constitution; they are not in terms prohibited by the Constitution. Should they be proposed, however, strong arguments against their constitutionality, and even their legality, would be available in the words of the preamble. It might be contended with great force that such amendments would be repugnant to the preamble; that they would at least involve a breach of one of the cardinal understandings or conventions of the Constitution, and, indeed, the argument might go so far as to assert that they would be ultra vires of the Constitution, as being destructive of the scheme of Union under the Crown contemplated in the preamble.
On the other hand, it would be urged that section 128 of the Constitution defines the procedure by which, and the limits within which, the Constitution may be altered; that the only limitation on the power of alteration is the one indicated at the end of the section, viz.:—That no alteration diminishing the proportionate representation of any State in either House of the Parliament or the minimum representation of a State in the House of Representatives, or altering the limits of a State, shall become law, unless the majority of the electors voting in that State affirm the proposed amendments. That is the only thing like an exception to, or a restriction on, the general power of amendment specified in the Constitution, and it might afford ground for the contention that according to the rule of construction, expressio unius exclusio alterius, no other limitation was intended. It might also be submitted that an alteration not contrary to any express provision in the covering clauses would be quite legal even though it were inconsistent with the preamble, and even though it were contrary to the obvious intentions of the
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plan of Government therein contemplated. It might be added that the preamble could not be utilized to cut down the general power to amend, and that if there were any inconsistency between an affirmation in the preamble and the power to amend, conferred by the Constitution, the enacting words must prevail.
To this the opponents of such amendments might rejoin by drawing attention to the Colonial Laws Validity Act, 1865 (28 and 29 Vic. c. 63), passed to remove doubts as to the validity of colonial laws; section 2 of which provides that any colonial law, repugnant to the provisions of any Act of Parliament extending to the Colony to which such law may relate, shall, to the extent of such repugnancy, but not otherwise, be absolutely void and inoperative. An amendment of the Constitution of the Commonwealth would of course be a colonial law within the meaning of this section.
Probably such a question would not be so far developed by legislative action as to assume a form capable of being discussed in the Federal High Court. Even if any amendment, to the effect under consideration, were carried by an absolute majority in both Houses of the Federal Parliament—even if it were approved of by a majority of the electors and a majority of the States—it would still have to be reserved for the Royal assent. It is not likely that such assent would be given without the authority of the Imperial Parliament. If that Parliament, which created the Commonwealth and the Constitution of the Commonwealth, consented to a form of legislative and executive government which ignored the Crown, no trouble would arise. It is not likely that such consent would either be asked for or given, except in a combination of circumstances and a revolution of ideas and sympathies of which we can now form no possible conception.