I went to sleep a Queen’s Counsel on the evening of 8 September last year, but next morning found that I had been transformed overnight, mercifully not into a cockroach,[1] but into a King’s Counsel.
And that metamorphosis happened notwithstanding that Charles III had not then been crowned King of Australia (or King of Queensland, the source of one of my letters patent) – his Coronation wasn’t held until 6 May this year.[2]
And this metamorphosis happened even though my letters patent[3] are not expressed to anything more than an appointment by Elizabeth II personally:
“Elizabeth the Second, by the Grace of God, Queen of Australia and Her other Realms and Territories, Head of the Commonwealth, … We of Our own especial grace … by these Presents do constitute, ordain, and appoint our trusty and Well-beloved Francis Lister Harrison … to be one of Our Counsel … Learned in the Law …
In Testimony Whereof, We have caused these Our Letters to be made Patent, and the Public Seal of Our said State to be hereunto affixed.”
Richard Douglas KC has explained some of the political and legislative history surrounding the accession of Queen Anne in 1701 in his March Hearsay article about the tenure of judges, in particular notwithstanding the demise of the monarch that appointed them, and the successful battle for judicial security of tenure[4].
I mention this because the position of silks in 1701 was similar to that of judges: in that regard Holdsworth’s History of English Law[5] quotes the following from Hill v Grange[6]:
“[T]he death of him who is the King is in law called the demise of the King, because thereby he demises the kingdom to another.”
But he goes on to observe that nevertheless:
“The law still steadily stuck to the idea that the results which followed upon a demise of the Crown, were the same results as those which followed from the death of a natural man, who had delegated many of his powers to others”
with the result that “[a]t the delegator’s death the delegation ceased …”[7].
Holdsworth then refers to legislation in the eighteenth and nineteenth centuries[8] extending the continuance in office of officeholders from the Crown for six months, and later, in the colonies, for eighteen months, and observes[9] that it was not until 1901 that the six months limitation was removed. It was enacted then that “the holding of any office under the Crown, whether within or without His Majesty’s dominions, shall not be affected, nor shall any fresh appointment thereto be rendered necessary, by the demise of the Crown”.[10]
The 1901 Act was the Demise of The Crown Act, 1901 (Imp).[11] It provided:
“1. Effect of demise of Crown on holding of office.
(1) The holding of any office under the Crown, whether within or without His Majesty’s dominions, shall not be affected, nor shall any fresh appointment thereto be rendered necessary, by the demise of the Crown.
(2) This Act shall take effect as from the last demise of the Crown.”
This was followed in Queensland by The Demise of the Crown Act 1910, s 2 of which provided[12]:
“2. (1.) The holding of any office under the Crown shall not be affected nor shall any fresh appointment thereto be rendered necessary, by the demise of the Crown.
(2) It shall not be necessary for the holder of any office under the Crown who before such demise has taken any oath prescribed or provided for in any Statute to take such oath after such demise; but where any such oath relates only to the then reigning Sovereign, it shall be deemed to relate to such Sovereign, his Heirs and Successors, according to law.
(3) This Act shall take effect as from the last demise of the Crown.”
That Act was repealed[13] by another Queensland Act, the Constitution of Queensland 2001,[14] which provides in its place:
“80 Continued holding of office under the Crown despite end of Sovereign’s reign
(1) This section applies if the Sovereign’s reign ends and a person is holding an office under the Crown immediately before the end of the Sovereign’s reign.
(2) The person continues holding the office for as long as the person would have held the office if the Sovereign’s reign had not ended.
(3) If, before the end of the Sovereign’s reign, the person had taken any oath or made any affirmation provided for under an Act, the person is not required, because the Sovereign’s reign has ended, to again take the oath or make the affirmation.
(4) If the oath taken or the affirmation made before the end of the Sovereign’s reign related only to the then reigning Sovereign, the oath or affirmation is taken to relate to the then reigning Sovereign and the Sovereign’s heirs and successors.”
There was no need for the legislation to refer to “King’s” or “Queen’s” counsel, as the letters patent, at least when I was appointed, did not describe the appointee as “Queen’s Counsel”, but rather, used the expression “one of Our Counsel …”.
So my metamorphosis was achieved by s 80 of the Constitution of Queensland 2001.[15]
[1] Cf. Metamorphosis (German: Die Verwandlung) by Franz Kafka, first published in 1915. Though I also have a commission as Queen’s Counsel for New South Wales, so perhaps followers of rugby league may assert that to that extent I was already a cockroach.
[2] According to Geoffrey Robertson KC, in his article of 13 September 2022 referred to below, “this event has no meaning in law; it is merely a superstitious rite whereby God is supposed to anoint the King to run the Church of England, a church to which, according to our last census, only 9.8% of Australians adhere.”
[3] Letters Patent, it will be noted, not Letters Dormant or Latent.
[4] Hearsay Issue 91; March 2023; See also ‘It has been an honour to serve as the Queen’s Judges’ [2022] (Summer) Bar News The Journal of the NSW Bar Association, p 24; Government dies with the sovereign no more by David Townsend [2022] (Summer) Bar News The Journal of the NSW Bar Association, p 90 articles in The Sydney Morning Herald Australia has no need for a head of state, royal or not, 13 September 2022 and In a land far, far away, a silly ritual will hand ‘our’ new King and Queen, 29 April 2023, both by Geoffrey Robertson KC, and Our New King may love Australia more than Australians love him by George Brandis KC, 1 May 2023.
[5] Vol. X (1938), p 433 (footnotes omitted).
[6] (1557) Plowden at p. 177; … .
[7] Maitland Collected Papers iii 253; … .
[8] The above articles by Mr Wazdani and Mr Townsend refer also (pp 26 and 91 respectively) to the Security of King and Government Act 1695 (Eng), (7 & 8 Will. III c.27). As Mr Wazdani notes (p 26) “s 20 of [that Act] provided that no commission, civil or military was to lapse on the demise of the Crown but was to continue for six months after the Sovereign’s death (or until earlier terminated by the new legitimate Sovereign)”. The text of that Act may be found at https://www.british-history.ac.uk/statutes-realm/vol7/pp114-118#h3-0003. It was originally intituled “An Act for the better Security of His Majesties Royall Person and Government”, and was originally cited as “7 & 8 Gul. III. c.27”, the “Gul” being short for the Latin “Gulielmi”. As a matter of possible interest, an online commentator on RootsChat observes of that name at https://www.rootschat.com/forum/index.php?topic=581538: “It is a form of Latin for William – Guilelmus. In documents such as wills etc. Latin was used right up to the 1600s, I think. Guilelmus would probably be the genitive case denoting belonging to = of William. Latin was used for Christian names but not surnames.” Compare the French name Guillaume.
[9] Page 435.
[10] Holdsworth cites Anson The Crown (4th ed) ii Pt I 278-281. See also the Wikipedia entries at https://en.wikipedia.org/wiki/Demise_of_the_Crown#:~:text=Demise%20of%20the%20Crown%20is,or%20abdication%20of%20the%20monarch and https://en.wikipedia.org/wiki/Commonwealth_realm.
[11] 1 Edw. 7 c. 5.
[12] The Queensland Act was based on the NSW Demise of the Crown Act 1901 (No 57 of 1901), the long title of which is “An Act to amend the law relating to the holding of offices in case of the demise of the Crown”.
[13] Schedule 3.
[14] No. 80, 2001.
[15] As for my New South Wales commission, Mr Yazdani states (pp 26 and 28 n 20) that while in New South Wales the Crown’s prerogative power to appoint QCs was abrogated by s 30O(2) of the Legal Profession Reform Act 1993 (NSW), that Act did not affect an appointment made before the commencement of that Act. In fact s 24 of that Act provided that nothing in that Act affected the law and practice relating to the appointment of Queen’s Counsel. However, s 3 of that Act provided that the Legal Profession Act 1987 was amended as set out in Schedule 1, and s 30O(1) in Schedule 1 abrogated the power of the Crown to appoint a person as Queen’s Counsel, while s 30O(2) in Schedule 1 preserved existing appointments. His reference to s 160(2) of the Legal Profession Uniform Law Application Act 2014 (NSW) also seems to be wrong. I note also that the Austlii page for New South Wales Repealed Legislation doesn’t mention the Demise of the Crown Act 1901 (No 57 of 1901), the long title of which is “An Act to amend the law relating to the holding of offices in case of the demise of the Crown”.
