Opinion Number. 1724


Delegation OF FUNCTIONS by the Sovereign Delegation OF FUNCTIONS by the Sovereign to Counsellors of StaTE in case of partial incapacity or of absence from United KingdOM: proposed amendments BY Government of the United Kingdom: whether request and consent of Australia required

Key Legislation

Regency Act 193 7 (U.K.) (1 Edw. 8 & 1 Geo. 6 c. 16) ss 2(1),2(2), 6: Statute of Westminster 1931 (U.K.) (22 & 23 Geo. V c. 4) s 4

  • The Government of the United Kingdom proposed to amend section 6 of the Regency Act, in order to remove some practical defects in the provision made by the Act for the delegation by the Sovereign to Counsellors of State, in case of his partial incapacity or of his absence from the United Kingdom, of some of his functions. In my opinion the Act as it stands does not extend to Australia as part of the law thereof. The proposed amendments will likewise not so extend. I think there is nothing either in the established constitutional conventions or in the Statute of Westminster 1931 which requires the request or consent of Australia in respect of the proposed amendments.
  1. The very fact however that the Regency Act does not extend to Australia creates a position that may be worthy of some attention. The matter is considered further in paragraph 7 below.
  2. Neither the Regency Act nor the proposed alteration deals with the succession to the throne, or with the royal style and titles. The convention set out in paragraph 2 of the preamble to the Statute of Westminster is therefore inapplicable.
  3. The operation of section 4 of the Statute of Westminster must next be considered. In the Regency Act there is no recital that any single Dominion has requested and consented to its enactment. Unless therefore the Act is treated as impliedly repealing section 4 of the Statute of Westminster, the law is that the Act ‘shall not extend or be deemed to extend’ to any Dominion as part of the law thereof. But there is no ground for treating the Regency Act as intended to override the Statute of Westminster. Its terms are perfectly general. Express provision is indeed made (by section 2(2)) for communicating to the Governments of the Dominions and India a declaration under section 2(1) of the Sovereign’s total incapacity. But this is in no way inconsistent with the view that the Act does not operate of its own force in any Dominion. The fact that in section 2(2) India is linked with the Dominions strongly suggests that the provision has nothing at all to do with the Statute of Westminster.
  4. The operation of the Regency Act was discussed by Mr. David Maughan, K.C., in an article in the Australian Law Journal in 1939 (13 A.L.J. at page 159).(1) Mr. Maughan does not express a concluded opinion on the point discussed above, though he does I think incline to the view that the Act should be construed as applying to all the Dominions. Mr. Maughan mentions the fact however that when the Regency Act was under discussion ‘the view of the Imperial Government was that each Dominion Government could if it wished pass legislation through its own Parliament dealing with the question of a regent’.
  5. This point was explicitly made by the Home Secretary in the House of Commons (See Official Report Parliamentary Debates, 5th Series, volume 319, columns 1452 to 1453 and 1853). The Imperial Government expressly took the same view as that stated in paragraph 4 above—i.e. that the Act does not, as it stands, extend to a Dominion.
  6. Mr. Maughan remarks that under the existing Commonwealth Constitution the Parliament could not pass a Regency Act of its own, since regency is not one of the heads of Commonwealth power. It is perhaps a matter for speculation whether the power with respect to ‘external affairs’ would permit such an Act. But it would probably be better for the Australian Parliament to request and consent to the enactment by the Parliament of the United Kingdom of a measure extending to Australia the provisions of the Regency Act. This however is a matter entirely distinct from the amendments that are now proposed.

[Vol. 35, p. 299]

(1) Maughan, D ‘The Statute of Westminster’ (1939) 13 Australian Law Journal 152.