How Scottish elections could deliver an Australian republic

First Minister Alex Salmond has promised to hold a referendum on Scottish independence. AAP

Australian republicans should watch the Scots. In the Scottish Parliamentary election held on 5 May, the Scottish National Party (SNP) secured an overall majority. Formerly in minority government in Scotland, the SNP’s central aim is Scottish independence.

The SNP proposes an independence referendum in Scotland. The SNP introduced a bill for such a referendum in the Scottish Parliament in 2010, but withdrew the bill when it became clear that, at that time, they did not have the numbers in the Parliament.

Now they do have the numbers and they are planning to re-introduce the bill. They will need to gain much greater public support specifically for independence, which has been running at no more than 30%, but they will be working on that.

If the result of a referendum were to favour independence, it would constitute advice to the UK Parliament at Westminster. In terms of democracy, the Scots - or at least the SNP - would expect that advice to be accepted.

Westminster would need to be convinced that the result represented the voice of the Scottish people; a small majority on a low turnout (voting in the UK is voluntary) might not suffice. The point, however, is: Scottish independence is now a more distinct possibility.

An independent Scotland might be a republic. Or, as the SNP proposes, the Queen (who will address the Scottish Parliament on 1 July) could be offered a separate, revived Scottish crown. Or the Scots could choose a monarch entirely of their own.

Whichever way, there would no longer be a “United Kingdom of Great Britain and Northern Ireland”. “United” refers to the unification of the Great Britain and Ireland, including their respective crowns, in 1801. Ireland, for the most part, has since gone its own way. However, Scottish independence would put an end to “Great Britain” and hence to “the United Kingdom”.

This could affect Australia in a major way. Clause 2 of the British statute of 1900 that contains the Australian Constitution states: “The provisions of this Act referring to the Queen [i.e. Victoria] shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.”

The word “sovereignty” there refers to the position of head of state. The constitutional provisions to which this refers make the Queen Australia’s head of state, especially sections 1 and 61 of the Constitution, which respectively vest the legislative and executive powers of the Commonwealth partly or primarily in the Queen.

That the Queen is Australia’s head of state is also confirmed in Australian statute by her separate title as “Queen of Australia” in the Royal Style and Titles Act 1973 (Cth). Hence, if there were no longer a “United Kingdom” for there to be any sovereignty of, it would require some pretty fancy legal footwork to claim that Australia still has a head of state.

The crucial issue is the continuance of the UK itself, not of its monarchy. If there were no longer a UK monarch, a UK President might be considered a “successor” to the monarch, satisfying Clause 2. But there would be a much greater problem if there were no longer a UK.

It gets better. Section 61 of the Constitution provides: “A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.”

Some such assignments are set out in royal Letters Patent, from a letter constituting the office of Governor-General issued by Queen Victoria on 29 October 1900 (now revoked) to letters dated 21 August 2008, one of which sets out certain powers of a Governor-General and another of which appoints Quentin Bryce to the office.

The Letters Patent assume with clarity that a Governor-General is appointed by the monarch and holds office at the monarch’s “pleasure”. They may now be written on the advice of the Australian Prime Minister and, in at least one case on 21 August, countersigned thereby. But that does not affect the constitutional position, that the office of Governor-General derives from and depends on the Constitution, section 2.

An incumbent Governor-General might be thought to continue by virtue of appointment by Queen Elizabeth II, in terms of Constitution section 2, and of the current Letters Patent. Yet it seems difficult to argue that the incumbent could continue to exercise those powers as a “representative”, and subject to the “pleasure”, of nobody.

And, if there could not validly be a Governor-General, who alone can summon the federal Parliament, federal government in Australia might last only until the end of the next Parliamentary session. Or not even that long, if there were to be a sudden need for a general election, which formally only the Governor-General can call.

Change to the royal succession requires the consent of the parliaments of the former British Dominions, including Australia according to the Statute of Westminster 1931 (Imp). Such a process may be undertaken soon, to change the rule by which male heirs to the throne take precedence over female - soon, that is, to allow for the possibility that a first child of the Cambridges might be female. But such a change would not affect the Australian Constitution.

The question, also currently in the air, of whether a non-Anglican could be allowed onto the UK throne is much more difficult and has no urgency. As to the possibilities looming in Scotland, however, there is urgency and Australia needs a contingency plan. Or, even better, a replacement for the instrument of colonial self-government that those of us who pay attention to it find ourselves required to recognise as our Constitution.