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  #201  
Old 12-28-2015, 02:51 PM
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Harper recommended to the Queen that David Johnston's tenure be extended and the Queen agreed and extended Johnston an invitation to stay on until 2017, which Johnston accepted.

The PM may be behind the decision, but the decision ultimately has to come from the monarch.
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  #202  
Old 12-28-2015, 03:10 PM
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Interesting discussion.

Our G-G is not appointed for a fixed term, so, in the event of a regency in the UK, the simple solution for Australia would be to just try to keep the incumbent G-G happy to remain in office for the term of the regency. However I suppose that if it is for "the Queen's pleasure", an issue may arise as to whether the Queen's "pleasure" remains if there is a regency.

The Regency Act 1937 (UK) was enacted after the Statute of Westminster and not expressed to apply to the Dominions, but we did not adopt the Statute of Westminster until 1942 and it is not absolutely and unambiguously clear that the 1937 Act does not apply here.
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  #203  
Old 12-28-2015, 04:14 PM
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Roslyn; that's an interesting tidbit regarding the Regency Act and it's debatable application in Australia.

The Statute of Westminster didn't need to be ratified in Canada to come into effect, and the parts that relate to the constitution were never ratified until the Constitution Act in 1982... Which itself hasn't been fully accepted in the Province of Quebec (although their formal consent isn't actually required).

I wonder if realms that gained independence after the Regency Act came into play would adhere to the Regency Act? I would suspect that New Zealand would be in the same unclear state as Australia (they ratified in 1947).

In Canada it's merely convention that the GG serve for 5 years - theoretically they can serve indefinitely, and the current GG is proof that the term can be extended. It might be a way around the issue.
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  #204  
Old 12-28-2015, 04:20 PM
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Originally Posted by TheRoyalCourtisane View Post
No he doesn't automatically becomes king here in Canada according to a law passed in The Canadian Throne Act(Bill C-53) if I may remember in 1982 and revised in 2013 stares that whomever becomes king or Queen in the United Kingdom doesn't automatically becomes king or Queen of Canada. Will have to search more about the bill and post it here.

Actually, according to the Statute of Westminster, the Commonwealth Reams all share a monarch and have the same succession rules - in order to change the succession in one realm, you have to change it in all of them (unless you're abolishing the monarchy, or I guess establishing a new monarchy).

This means that all 16 realms have the same rules for succession. So the monarch in the UK is the monarch in Canada and the monarch in Canada is the monarch in Australia. From the moment the Queen dies Charles, her heir apparent in all 16 realms, will be King of all 16 realms until such a time as either he dies (or abdicates) or his realms remove him as their king.
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  #205  
Old 12-28-2015, 09:05 PM
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Is the Regency Act part of Australian law? Having now looked into the issue further, I think it's fairly clear that it is not, and never has been.

Section 10 of the Statute of Westminster provided that certain sections did not apply in Australia, New Zealand or Newfoundland, unless adopted. One of the sections therein listed was Section 4, which provided that, "No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that that Dominion has requested and consented to, the enactment thereof." The Regency Act was passed in 1937 and didn't mention Australia. Section 4 of the Statute of Westminster was adopted by the Statute of Westminster Adoption Act 1942 (but considered to have effect from 3 September 1939). There is Australian High Court authority from 1976 about another issue which suggests that the absence of an express intent in the Regency Act that it was to apply to Australia means it does not apply.

As to the succession, our Constitution states that its provisions referring to the Queen (Victoria, in that case) shall extend to her Majesty's heirs and successors in the sovereignty of the UK.

I think if there was a regency due to infirmity of mind or body, the existing G-G could/would continue, having already been appointed by the sovereign, but what if due to a set of unfortunate circumstances the UK sovereign were a minor? A new G-G would have to be appointed. Who has the power to appoint a new G-G other than the sovereign of Australia? No-one that I can think of under existing legislation. And the Australia Act repealed Section 4 of the Statute of Westminster and expressly provided that no UK Act could extend to Australia or our States or Territories.

As I see it, there would have to be an amendment to our Constitution, and I do not think it is likely that Australians would agree to an amendment to our Constitution to give the UK regent the power to perform the duties of the Australian sovereign during the sovereign's disability. What an opportunity such a situation would provide for the republican movement here!
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  #206  
Old 12-28-2015, 09:22 PM
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Our constitution refers to the 'heir and successors' of Queen Victoria as having certain roles in Australia - including the appointment of the GG.


The 'heirs and successors' would include the regent acting for an incapacitated monarch - as happened during the regency of George III which saw the appointment of a new governor for NSW by the Prince Regent.


In fact the term 'heir and successors' can actually mean that if the UK became a republic before we did that the President of the UK would become President of Australia.




I had this very discussion with a friend of my father's who lectured in Constitutional Law at university and that certainly was his explanation - a regent would be an 'heir or successor' and he added that last piece as well. This discussion took place around the time of the passing of the Australia Act in the 1980s - and his view was quite clear - a regent has all of the duties of the monarch and that includes appointing GGs for the other realms.
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  #207  
Old 12-29-2015, 01:31 AM
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So the UK Regent for the UK sovereign - as sovereign of the UK and not as sovereign of Australia - appointed under the 1937 legislation that does not apply here and is therefore a foreign law, would become our Australian Head of State as "heir and successor"? Interesting proposition.

Attitudes have changed quite a bit over the last thirty years since the Australia Acts, and I have a feeling that there could be some differences of opinion among modern constitutional scholars as to the definition of "heirs and successors" were the issue to arise in connection with a regency due to the sovereign's age-related incapacity to arise in the near future. During the reign of George III, Australia didn't exist; New South Wales was a Colony of the British Empire, yet even then there was some difference of opinion as to the extent of the regent's power.

However, since the regent would be Charles, it probably would only be of academic interest, and there is a long history of headache-causing constitutional issues such as this between the UK and Australia being swept under the carpet or into the too-hard basket, unresolved. I do not think the ARM would let the opportunity slip through to the keeper though.
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  #208  
Old 12-29-2015, 06:20 AM
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Can a Governor General appoint for example a new Governor General (i.e. his/her successor) without the assent of the Queen or a regent ?
I think the Governor General (or administrator) of Canada could. According to the current letters patent, s/he is authorized to "exercise all powers and authorities lawfully belonging to Us in respect of Canada" and also to "use Our Great Seal of Canada for sealing all things whatsoever that may be passed under Our Great Seal of Canada." The letters patent also say that "appointments to the Office of Governor General...shall be made by Commission under Our Great Seal of Canada." Since the Governor General's authorization to use the seal is unlimited, I don't see how he or she couldn't appoint a successor.

Each realm differs in this area, of course, so this can't be generalized to the others.

Quote:
Originally Posted by Ish View Post
I would suspect that New Zealand would be in the same unclear state as Australia (they ratified in 1947).
New Zealand has planned ahead for a regency in its constitution. I think it's the only realm that has done so explicitly.
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  #209  
Old 12-29-2015, 07:02 AM
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Originally Posted by Roslyn View Post
So the UK Regent for the UK sovereign - as sovereign of the UK and not as sovereign of Australia - appointed under the 1937 legislation that does not apply here and is therefore a foreign law, would become our Australian Head of State as "heir and successor"? Interesting proposition.
Actually, wouldn't it be the case that with HM, The Queen still alive and still recognized as the Australian Head of State that any regent wouldn't be the Head of State but rather "acting" Head of State in his mother's stead? The heir and successor doesn't become Head of State officially until his mother passes and he accedes as King.

I am by no means well read on legislations but I would equate it perhaps with in the US where the Vice President steps and in acts for the President. When JFK was assassinated, as soon as possible, LBJ was sworn in as President on the flight from Dallas if I remember right and although LBJ may have had to make presidential decisions at the top level, he was not actually President and sworn in until after JFK's death had been confirmed.

Very interesting discussion.
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  #210  
Old 12-29-2015, 07:57 AM
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Originally Posted by Osipi View Post
Actually, wouldn't it be the case that with HM, The Queen still alive and still recognized as the Australian Head of State that any regent wouldn't be the Head of State but rather "acting" Head of State in his mother's stead? The heir and successor doesn't become Head of State officially until his mother passes and he accedes as King.

I am by no means well read on legislations but I would equate it perhaps with in the US where the Vice President steps and in acts for the President. When JFK was assassinated, as soon as possible, LBJ was sworn in as President on the flight from Dallas if I remember right and although LBJ may have had to make presidential decisions at the top level, he was not actually President and sworn in until after JFK's death had been confirmed.

Very interesting discussion.

I guess the problem is that the Head of State of the UK and the Head of State of Australia or Canada are two separate legal entitities, even if they happen to be the same physical person. The Regency Act makes provisions for a regent to become the acting Head of State of the UK, but doesn't make him/her an acting Head of State for the other realms unless the UK act extends also to Australian or Canadian law, which doesn't seem to be the case.

One practical argument is that a regent would not be necessary in Australia or Canada because the Governor General is already an acting Head of State for most intents and purposes. My point was, however, that there are certain residual constitutional duties that the GG still cannot perform alone and have to be done by the Queen herself. In those cases, not having a regent for the realms if the Queen is incapacitated might be problematic.
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  #211  
Old 12-29-2015, 09:24 AM
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Originally Posted by Mbruno View Post
One practical argument is that a regent would not be necessary in Australia or Canada because the Governor General is already an acting Head of State for most intents and purposes. My point was, however, that there are certain residual constitutional duties that the GG still cannot perform alone and have to be done by the Queen herself. In those cases, not having a regent for the realms if the Queen is incapacitated might be problematic.
Usually though, when it comes to things that a GG might have to perform alongside with The Queen, don't members of the governments (UK and/or Commonwealth nation) seek to advise The Queen on these matters and then action is taken? If they would advise a regent (and most likely the regent would know how his mother in this case would decide), then the regent as acting for The Queen would have been advised at all angles and carry out "the Queen's pleasure" as she would have if she could.

Now I've come up with a question. If, by chance, Charles had to fill in as a Prince Regent for The Queen for a period of time, does he act according to how he would feel things should go or as regent be obliged to make decisions as he would feel his mother would want them to be? Of course all this would include HM's advisers on matters too I'd presume.
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  #212  
Old 12-29-2015, 10:25 AM
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Do not get how this has anything to do with this thread.
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  #213  
Old 12-29-2015, 11:18 AM
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Originally Posted by DukeofMontpelier View Post
Do not get how this has anything to do with this thread.
The title "The Mechanics of Abdication and of Succession to the Throne" deals with both the ways and means of abdication and also succession to the throne. Sometimes various scenarios occur such as the example of a successor having an interim period as a regent.

Its all relevant.
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“When I was 5 years old, my mother always told me that happiness was the key to life. When I went to school, they asked me what I wanted to be when I grew up. I wrote down ‘happy’. They told me I didn’t understand the assignment, and I told them they didn’t understand life.”
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