Not just monarchists, but all Victorians should be a little taken aback at the way the Victorian Attorney General (and Acting-Premier to boot) is carrying out his Republican agenda without consultation with The People and radically rewriting our legal procedure. (Cf. this article in yesterday’s Age “Victorian courts banish ‘outdated’ Queen” and this article in today’s “Tension over Queen’s removal”
The changes are changes to terminology, but (as in our discussion of the meaning of “men” in the Nicene Creed) words, in law as in religions, are never “just” words. Here are the changes according to The Age which Hulls is driving through for the start of the new year (why have we only just heard about this?).
”From New Year’s Day, criminal prosecutions will be brought in the name of the Director of Public Prosecutions, rather than the Queen…
Referring to the Queen is outdated,” he said last night. ”Substituting the DPP for the Queen or Regina reflects the legal and political independence from the United Kingdom and its monarch that has been achieved by Australia.”
From January 1, law lists will read ”DPP vs Bill Smith” instead of ”Queen vs Bill Smith”.
It follows two controversial changes to the legal system that the then new Labor Government made in 2000: substitution of ”senior counsel” for ”Queen’s counsel”, and the removal of the requirement for new lawyers to swear an oath of allegiance to the Queen…
Under the Criminal Procedure Act, effective from January 1, state laws will be written in plain English. For example, the word ”accused” replaces ”defendant”, ”sentence” replaces ”sentencing order” and ”set aside” replaces ”quashed”.
Well, I’m sorry, but this has nothing to do with “updating”. It has everything to do with what is actually going on in our courts. It is the State of Victoria which brings people to trial and the State to which criminals must answer, not the Director of Public Prosecutions, who is merely a public servant – a servant, in fact, of the State. And whatever way you look at it, and I know this is a matter for argument but it remains the fact as long as “the Crown” is the Queen of Australia the Queen is our Head of State. She is not our Head of State as Queen of the United Kingdom, but as our own Queen. Under our current constitution and legal system the Queen remains the only one in whose name trials can be brought about. NOT the DPP. Even if you were to argue that the Governor is the de facto head of state (an argument which holds some water) he is this because of his Vice-Regal status representing the Queen. It is still the Queen who appoints our Governors, last I checked.
We should be asking what right and authority the Attorney General has to change our legal system. As for the other changes, I don’t see how changing “defendant” to “accused” serves any purpose, and surely “quash” is still “plain English”.
However ,unlike the Constitution of the Commonwealth of Australia ,the Victorian Constitution can be changed by unrighteous men like Hulls,because there is no provision for a plebiscite. A throw back to when we were the Crown Colony of Victoria.We need a model of parliamentary democracy where politicians cannot meddle with the rules but must be accountable. Despite the opinionpolls being favourable to Brumby i think that they will be very surprised at the voter reaction in the 2010 State election
This is a change which has already been made in most of the Commonwealth realms. Indeed, it’s already been made in Scotland (except they say “Procurator Fiscal” instead of “DPP”) and in the lower courts in England and Wales, where the great bulk of criminal cases are brought. In the Crown Court in England still use “R”, but that’s likely to change before long.
The trouble with “R” (pronounced “the Crown”, so that “R –v- Schutz” is said “the Crown against Schutz”) is that the “crown” also appoints the judges, runs the prisons and the police, etc. In other words, the “crown” appears to be judge, jury and executioner.
In fact, prosecution decisions are taken by the DPP, an independent officer. The view that prosecutions must not only be independent, but must be seen to be independent, has led to an almost universal fashion in common law countries for naming the DPP as the prosecuting party in criminal matters.
It’s not a particularly republican move. The republican move would be to name the republican sovereign entity as the prosecuting authority. In the US, prosecutions in the state courts are usually “the People –v- Schutz”, while in the federal courts it’s “the United States –v- Schutz”. So if Australia becomes a republic (and decides not to continue with “DPP -v Schutz”, it would likely be “the Commonwealth against Schutz”, or “Victoria against Schutz”, or “the People against Schutz”, or whatever.
Well, I would prefer even now, perhaps, “the Commonwealth-v-Schutz” than the DPP.
Well, you won’t get that in Victoria, obviously. Will you settle for “State -v- Schutz”?
Oh come on Peregrinus. Of course it is a Republican move by a Republican Party (ALP) in Office. They can never win a referendum in the proper way, so they change things by regulation. No vote of the people, no vote of the Parliament, just the usual kind of subversion one expects from the Left. “We must set the people free – by force if necessary – even if the masses don’t want the kind of freedom that we bien pensants want. After all, we just know better than the people, don’t we?”
I am all in favour of anyway you can get rid of the English royal family from our civil life. Bring on the republic and as soon as possible!
Irish?
Check.
You say you are in favour of “any way” we “can get rid of the English royal family”! Does that include assassination?
Assasination has proved ieffective in the past. There are just too many of them and they are prepared to pull in no hopers from anywhere to fill the gaps. Once they even got this poor dutch guy who couldn’t even speak the language. Since none of his cabinet ministers spoke Dutch, the cabinet meetings must have been a hoot. No, legal means promise to be more effective and less messy.
Then you are on a loser! Get used to it!
While I appreciate Peregrinus’ legal expertise, I’m puzzled that he should suggest that listing criminal cases as “the Crown vs___” gives the impression that the Crown is “judge, jury and executioner”. The Westminster parliamentary system expressly provides for the formal separation of powers, a doctrine inherited from the ancient Romans and Greeks as a means of ensuring real distinctions between the executive, the legislature and the judiciary and preserving the independence and integrity of each.
If the perception of conflict exists when the reality clearly does not, then surely education rather than a confusing change in nomenclature is the simplest remedy? Further, how precisely does listing cases as “DPP vs_____” overcome this perception when the DPP is itself known to be a political appointment? (I hail from Queensland, where the DPP has been the subject of some controversy in recent years.)
In any case, although I am admittedly only a legal layman, it seems to make much better intuitive sense to me to retain “the Crown vs_” or even “the Commonwealth” in Federal cases or “the State of…” in state jurisdictions, since that is where sovereignty resides in each case, and such phrases bear more gravitas than “DPP”. If I were ever brought up on criminal charges, it would shame me much more to have offended against “the Crown”, “the Commonwealth” or “the State”, or even “the People”, than “the DPP”, not to mention “the Procurator Fiscal” .
Hear, hear!