What would happen in Australia if King Charles’s condition were to deteriorate to a point at which he could not fulfil his constitutional duties? Our constitution does not have the answer. Philip Dorling and Rex Patrick reveal a flaw that’s been left unfixed for 124 years.
King Charles III has been diagnosed with cancer. All would wish him well. However, in the United Kingdom, there is already discussion about what would happen if the King’s condition were to deteriorate to a point at which he could not fulfil his constitutional duties. This scenario is covered by the British Regency Act, but that doesn’t apply in Australia.
Prime Minister Anthony Albanese’s ambition to make Australia a Republic died when the Government’s indigenous Voice to Parliament constitutional amendment was decisively defeated at the referendum last October.
Although the Labor Government remains nominally committed to the republican cause, Matt Thistlethwaite might keep his job title of Assistant Minister for the Republic for a while yet. But there’s no political appetite for pushing other constitutional change any time soon.
Recent FOI applications to the Department of the Prime Minister and Cabinet (PM&C) show nothing’s happening on the Republic front. It’s as dead as a dodo
Instead, last year, the Assistant Minister to the Prime Minister, Patrick Gorman, got on with legislative housekeeping, late last year shepherding through Parliament the Crown References Amendment Bill 2023, which, following the passing of Queen Elizabeth II, made changes across many pieces of legislation to reflect the accession of a new sovereign.
This legislative package was uncontroversial.
Regency discussions
However, an FOI application for Gorman’s brief on the legislation disclosed a passing reference to the Labor Government’s consideration of another matter, namely the issue of “Commonwealth regency legislation to provide for the Sovereign’s functions during the Sovereign’s minority, incapacity or absence”.
This isn’t something Australian Governments have been very keen to talk about.
Fifteen years ago, when Labor MP Daryl Melham asked about the question of what would happen in Australia if there was a Regency in the United Kingdom, he was loftily told by then Prime Minister Kevin Rudd that “It would not be appropriate for the Australian Government to speculate about a hypothetical situation involving the roles of the Queen in Australia and the United Kingdom.”
In 2021, in response to a question from then Senator Rex Patrick, the Department of the Prime Minister and Cabinet confirmed that they had “most recently considered regency legislation in June 2019” but declined to give any details. With then Queen Elizabeth aged in her 90s but active and devoted to her duties, the Regency question was judged too sensitive for public discussion.
A Regent in the United Kingdom
With King Charles’ cancer diagnosis. Buckingham Palace has indicated that while the King will postpone public-facing duties, he will “continue to undertake State business and official paperwork as usual.”
Within hours, however, there has already been public discussion of the prospect of William, Prince of Wales, serving as Regent in the event that the King’s health deteriorates to a point where he can no longer perform his constitutional duties in the United Kingdom.
Regency is a long-established constitutional practice for the British Monarchy. Aside from the loss of the American colonies, the reign of King George III, incidentally Australia’s first monarch, was notable for an extended regency lasting no less than nine years.
King George III suffered from recurrent and, eventually, permanent mental disturbance (brilliantly portrayed by the late Nigel Hawthorn in the 1994 film The Madness of King George). At the time, King George’s doctors were baffled by his illness, but it is now generally thought that he suffered from the blood disease porphyria.
After a final relapse in 1810, George, Prince of Wales, ruled as Prince Regent from 1811 until King George’s death in 1820.
The Regency Act
Some two centuries later, arrangements for a possible regency in the United Kingdom are governed by the Regency Act 1937, which was passed by the British Parliament following the illnesses of King George V in 1928 and 1936.
The Regency Act, for the first time, made permanent provision for the exercise of royal authority in the United Kingdom during a minority or incapacity of the monarch.
Section 2 of the Regency Act provides that if three or more of the five named persons (the monarch’s spouse, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England, and the Master of the Rolls declare in writing that in the light of medical evidence the sovereign is physically or mentally incapable of exercising his or her functions, then those functions are to be performed by a regent.
Section 3 of the Act provides that the regent would be the person next in line to the succession to the throne.
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In present circumstances, should King Charles III, through illness or infirmity, become incapacitated, the regent will be William, the Prince of Wales.
The people who could, if need be, declare a regency today are the King’s spouse, Queen Camilla, the Lord Chancellor Alexander John Gervase Chalk KC, Speaker of the House of Commons Sir Lindsay Harvey Hoyle, Lord Chief Justice Sue Lascelles Carr, Baroness Carr of Walton-on-the-Hill, DBE PC, and the Master of the Rolls, Sir Geoffrey Charles Vos.
Curiously the Prime Minister of the United Kingdom, Rishi Sunak, would have no formal role in such a decision.
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Constitutional flaw remains in Australia
This might all be well for the United Kingdom, but what of the question of a Regency in Australia?
The short answer is that there are no provisions for a regency here in the event that the King is unable to fulfil his admittedly modest constitutional duties in relation to the appointment of Governor-General, Administrators of the Commonwealth, or else in relation to the Australian states, the appointment of Governors and Lieutenant Governors. The Australian constitution makes no provision for the Monarch’s personal functions to be performed by another person.
Under Section 2 of the constitution, the Governor-General is appointed by the Queen. At the time the constitution was enacted, the monarch was Queen Victoria, and clause 2 of the Constitution provides that references to the Queen extend to ”Her Majesty’s heirs and successors in the sovereignty of the United Kingdom [Britain]”. But there’s no mention of a Regent performing any functions under the Constitution.
Declassified documents held by the National Archives of Australia show that when the United Kingdom’s Regency Act was first presented to British Parliament, there were informal discussions between the British Government and what were then the British Dominions. It was agreed that consistent with the 1931 Statute of Westminster, the British legislation would not apply to the Dominions, which would have to consider whether their own regency legislation was necessary.
However, then Prime Minister Joe Lyons and his Attorney-General Robert Menzies took no action. International events were sliding towards global war and there were many other legislative priorities.
No further consideration was given to the question of regency arrangements in Australia until 1953, when amendments were made to the British legislation to allow Queen Elizabeth’s husband, Prince Philip, to act as regent if the Queen died or became incapacitated before then Prince Charles reached his 18th birthday.
Formerly secret Prime Minister’s Department files reveal that advice to the government of then Prime Minister Robert Menzies confirmed that the British Regency Act did not apply to Australia. The Attorney-General’s Department supported the view that the Commonwealth Parliament had the power to pass Australian regency legislation and pointed to a need for consultation with the states, given that the monarch is separately represented by state governors in each of the states.
Menzies considered the matter but decided it was not a political priority. The Queen was then young and healthy, and a regency appeared to be an unlikely contingency (and indeed, the Queen would continue to perform her constitutional duties in the United Kingdom and Australia for another seventy years).
Moreover, the advice from the Attorney-General’s department also made it clear that any Australian regency legislation would involve change to the Australian Constitution, and a federal referendum under section 128 of the Constitution would be required. There are also no provisions for a regency in the constitutions of the states and legislative change would likely also be required in those jurisdictions. It was all too hard and not a priority.
There the matter has rested for seven decades, very largely unnoticed and forgotten by constitutional lawyers, politicians, republicans and monarchists alike.
No longer a hypothetical
But today, King Charles’ illness puts a spotlight on a constitutional issue that was missed by Australia’s ‘Founding Fathers’ more than 124 years ago.
In the event that the King becomes completely incapacitated, there will be no one able to appoint or remove the Governor-General, sign dormant commissions for state governors to act as Administrator of the Commonwealth, and appoint or remove state governors, lieutenant governors or deputy governors.
This might not be a problem in the short or even the medium term, but given the King’s age and illness, the possibility of constitutional complications in years to come cannot be dismissed.
Perhaps more embarrassing would be the circumstance in which the King, having been declared, by Queen Camilla and at least two British politicians quite unknown to the vast majority of Australians, to be medically incompetent or incapacitated with regard to his constitutional duties in the United Kingdom, continues to be empowered to act as a legally fully competent monarch in relation to Australia.
In contrast, across the Tasman, New Zealand’s constitution provides that a person declared as regent under the British Regency Act shall also serve as regent for New Zealand. Prince William would be regent in New Zealand but King Charles would remain at the top of the constitutional tree in Australia.
Albo’s monarchical legacy
These issues may well remain hypothetical and hopefully will remain so.
But, given the fact that an Australian Republic appears a very distant prospect, this is a constitutional anomaly that needs discussion and arguable legislative action. With King Charles aged 75 and diagnosed with cancer, this is less hypothetical than it ever was during Queen Elizabeth’s long reign.
There won’t be much appetite for a legislative amendment, extensive consultations between the Commonwealth and the States, and a national referendum, but the potential for national constitutional complication and, indeed, international embarrassment is clear.
Anthony Albanese’s constitutional legacy will likely not be a Republic. It may yet be a legislative tweak to fix a centuries-old flaw in Australia’s monarchy.
This is something that the Department of the Prime Minister and Cabinet has been thinking about, and they wouldn’t have been doing so without the concurrence of the Prime Minister.
With that in mind, an FOI request was put in last month, little realising that it would be more immediately relevant than first thought.
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Rex Patrick is a former Senator for South Australia and earlier a submariner in the armed forces. Best known as an anti-corruption and transparency crusader - www.transparencywarrior.com.au.
Philip Dorling has some thirty years of experience of high-level political, public policy and media work, much of that at the Australian Parliament.
He has worked in the Australian political environment from most angles, in both the national and state levels of government including as a senior executive; as a senior policy adviser for the Federal Labor Opposition and for cross bench Senators; and as an award-winning journalist in the Federal Parliamentary Press Gallery.