Sunday, July 14, 2013

Y: The Last Man, 10 Downing Street, & Australian (and Canadian) Constitutional Law

First off, let me say that I love Y: The Last Man by Brian K. Vaughan. This entire 60 issue series is fantastic and I have never torn through trade paperbacks as quickly has I have these. If you have a friend who wants to try comics but isn't interested in Batman or Spider-Man, et al then I highly recommend Y. It’s a thought-provoking story with compelling characters and accessible and enjoyable art. 
Cover of Vertigo Comic's Y: The Last Man #1 (September 2002) Written by Brian K. Vaughan, pencils by Pia Guerra & inks by Jose Marzan, Jr. 
I also have a love of Constitutional history and being from Canada -- a country with a similar constitutional history as Australia -- I was struck by a page in issue 38 as I re-read one of my favourite parts of the series. The scene depicts an Australian government agent explaining to an American doctor how her country is being run after all the men were wiped out by mysterious plague. Take a look:
From Vertigo Comic's Y: The Last Man #38 (December 2005) Written by Brian K. Vaughan, pencils by art by Pia Guerra & Goran Zudzuka, inks by Jose Marzan, Jr.
From Vertigo Comic's Y: The Last Man #38 (December 2005)
In the timeline of Y, “10 Downing Street” – a metonym for the British government – is controlling Australia because Queen Elizabeth was forced to appoint her own Governor-General of Australia when no women were able to take the position. It's certainly an interesting situation, but is it plausible either legally or politically? To begin to answer this question we will first look at some constitutional history of the former British Empire and from there apply the existing law to the situation above. 

Let's begin with a survey of the history of the largely English speaking countries that are often very friendly with the United States and have Queen Elizabeth II as their Head of State, but are not the United Kingdom. These countries include a number of Caribbean nations as well as larger countries such as Australia and Canada. Australia and Canada until the post-war period were settled in large part by people from Great Britain and Ireland. Of course, they were never completely homogeneous (Canada had a signficant French-speaking population for example) and both are currently multicultural and pluralistic societies. But what they did have were largely British-styled political and legal institutions.

And these is a key point. Gradually as Australia and Canada built their legal and political institutions they were modelled after what they knew in Great Britain. However, as these societies started to expand across their continental land-masses (often to the consternation of the aboriginal populations living there: but that's for another blog entry) their political and legal institutions began to experience new demands. So it was towards the end of the nineteenth century that the various disparate colonies of Australia and Canada started to consider merging into federal states. It first happened in North America when the four colonies of British North America merged to become the self-governing Dominion of Canada in 1867. Then, in 1901, the same happened in Australia, with six colonies there forming a federation called the Commonwealth of Australia. 

Changing from colonies to "provinces" (Canada) or "states” (Australia) meant that the former colonies kept their own elected legislatures while at the same time having laws passed by a new federal parliament as well; similarly to what happened with the 13 colonies of North America in 1776. But unlike the USA, which cut all ties to Great Britain, Canadians and Australians were responsible for most things but not everything: the British still maintained a measure of control over imperial matters, especially as they related to defence. This is why when King George V declared war in 1914 on behalf of the British Empire he did so with Canada and Australia automatically in tow.

The flag of the State of New York. Notice the crown at the feet of Liberty on your left. This symbolizes the break the American Revolution made between the Crown and the 13 colonies. Canada and Australia did not have a similar cut of sovereignty until 1982 and 1986 respectively.   
But as wars are prone to do, the Great War changed things significantly. Both Canada and Australia made important and distinctive contributions – Canadians at Vimy Ridge and Australians (and New Zealanders) at Gallipoli – and rightfully took their places at the table when sorting things out at Versailles in 1919. This, in turn, led to an increased desire for autonomy and was eventually realised when the Statute of Westminster 1931 was passed by the British parliament. It declared in law, what was already a de facto truth: Canada and Australia were equals to the United Kingdom.

But is often the case with law, things were not that simple. Because the Westminster parliament was sovereign the Australian and Canadian parliaments were still creations of that body, even the Statute did not break the legal connection when they were adapted by Canada and Australia. Simply put, if Britain wanted to repeal the Statute of Westminster, and have Canada and Australia join them again as subservient colonies, it was legally possible because of the doctrine of the Sovereignty of Parliament. Practically impossible, yes, but still legally so.  

Pierre Trudeau, the Prime Minister of Canada talks with Guardian in Marvel's Uncanny X-Men #110 (March 1977). Art by John Byrne. It is actually an accurate depiction of what Trudeau looked like.
Trudeau was the driving force behind the patriation of the Canadian constitution. Art again from Uncanny X-Men #110 (March 1977)

Which brings us to the 1980s and the wave of patriation efforts that followed, starting in Canada with Prime Minister Pierre Trudeau. This former legal scholar wanted to bring home the constitution and sever all remaining legal ties to the British parliament. After substantial negotiations with provincial political leaders, this happened in 1982 with the passing of the Canada Act 1982 (UK) in London and the Constitution Act, 1982 in Ottawa. This was soon followed with the similar Australia Act 1986 (UK), and Australia's own Australia Act 1986. These four pieces of legislation changed the nature of the legal relationships between Canada and Australia and cut all sovereign ties with the former mother country's parliament. So while both countries kept Queen Elizabeth II as their head of state, she became the Queen of Canada and Queen of Australia respectively. Which takes us back to our original question. Could the Queen or British Prime Minister step in to govern Australia if there were no woman in Australia capable of doing so?

Personally, I would say this is both politically and legally impossible. While, I'm not overly familiar with Australian political affairs, I’m sure there are many well qualified women who would step in and run the federation if there were no men left alive. Moreover, although she was recently removed by a vote of her own party, a woman named Julia Gillard was prime minister from 2010 to 2013. Further to that, the current Governor-General of Australia (the Queen's representative) is also a woman. And while this position is ostensibly appointed by the Queen, by constitutional convention it is actually the prime minister who makes the pick. Because of this, it would be highly irregular for the Queen to appoint "her own Governor-General" after decades of deferring to her prime ministers. Because of this convention, even the most junior female minister of state in the government of Australia has a more practical right to choose a Govenor-General than the Queen. 

Also, the republican movement which has been much more active in Australia than in Canada (a 1999 referendum to replace the Queen was lost by a 54.8 to 45.2 margin) would  take umbrage with the legally impossible notion that the British could step in and make policy decisions on behalf of the Australian government.  

So there you have it. I don't think the scenario presented by Brian K. Vaughan could really happen. But it was fun thinking about it, and as I hope you enjoyed learning a little bit about British, Australian and Canadian constitutional law in the process. Of course, this slightly inaccurate seven panel exchange does not take anything from what is an amazing 60 issue story and I encourage any comic reader to check out Y: The Last Man. Thanks again for stopping by WGTB and have a great day.

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