Memorandum by R J W d'Apice (HON 47)
HERALDIC JURISDICTION IN AUSTRALIA—A
LIMITATION ON THE UK PREROGATIVE
Australia has been a Sovereign State entirely
separate from the UK at least since the Australia Acts 1986 (Australia
and UK).
Unlike the UK and other members of the Commonwealth
such as South Africa, Zimbabwe and Canada, Australia does not
have a formal heraldic system by which I mean an Heraldic Authority
exercising the heraldic power of the Queen of Australia by delegation
from our sovereign.
The College of Arms makes what is, to me, an
entirely untenable claim to jurisdiction over Australia and Australians
in the following terms:
"The English Kings of Arms, who are the
senior heralds at the College of Arms in London, have jurisdiction
over England, Wales, Northern Ireland, and all other countries
where Elizabeth II is head of state, except Scotland and Canada."
This appears to be a claim that either the prerogative
powers of the UK extend to Australia or that the English Kings
of Arms exercise the prerogative powers of Australia by delegation
from our sovereign. In my view neither claim is correct.
I accept that each sovereign has unlimited power
to grant arms to anyone the sovereign chooses (whether or not
that sovereign has jurisdiction over the grantee.) Any sovereign,
including the Queen of the United Kingdom of Great Britain and
Northern Ireland (in each of her various rights) has an undoubted
power to grant arms to anybody who applies to the sovereign including
Australians (or Russians for that matter.)
A sovereign may:
— simply not exercise the power;
— positively decide not to exercise
the power;
— decide not to exercise parts of the
power;
— decide not to exercise any part of
the power in relation to certain persons; or
— decide not to delegate all or part
of the power to his/her heralds.
The heralds, in turn, may decide not to exercise
all of the power delegated to them.
A clear distinction must be made between a power
of a sovereign (which may be extra-territorial) and the jurisdiction
of a sovereign (which will be limited to the territories over
which he/she exercises or (perhaps) claims sovereignty.) The Queen
of the UK has the power to grant arms to Russians but she has
no jurisdiction over them.
The power and jurisdiction of the College of
Arms (whose officers exercise the heraldic powers of the Queen
of the UK in the right of England) cannot exceed the power and
jurisdiction claimed by the sovereign whose power and jurisdiction
has been delegated to them. However, the officers of that College
claim (and purport to exercise) heraldic power and jurisdiction
which the Queen of the UK does not have or claim to have. The
College claims jurisdiction over the subjects of the sovereigns
of all of the various independent countries of which Elizabeth
II is Queen (other than as Queen of the UK in the right of Scotland
and as Queen of Canada.) The Queen of the UK does not claim any
jurisdiction over those persons.
An example of the form of attestation of a Grant
of Arms to an Australian by the English Kings of Arms shows the
extent of the jurisdiction they claim over Australians:
"In witness whereof We the said Garter,
Clarenceaux and Norroy and Ulster have to these Presents subscribed
Our names and affixed the Seals of Our several Offices this Fourteenth
day of August in the Forty-fifth year of the Reign of Our Sovereign
Lady Elizabeth the Second by the Grace of God Queen of Australia
and Her other Realms and Territories Head of the Commonwealth
and in the year of Our Lord One thousand nine hundred and ninety-six."
The Queen of Australia has exclusive heraldic
jurisdiction over Australia and Australians. All other sovereigns
have power to make grants to Australians if they chose.
As far as I am aware, the Queen of Australia
has simply not exercised her heraldic power at all. She has made
no decision. She does not forbid her subjects to adopt arms ex
proprio motu or to seek grants of arms from other sovereigns who
may be willing to grant them. She has not delegated any power
to the heralds of the Queen of the UK (either in the right of
Scotland or of England). Nor does any heraldic power over Australia
or Australians remain in the Queen of the UK as part of the UK
Prerogative, which could be delegated to and exercised by her
heralds. The Australia Acts 1986 (UK and Australia) are, in my
view, the ultimate authority for this.
Whatever may be the claimed or actual power
of the heralds of the Queen of the UK in the right of England
under English law, those heralds have not been appointed to any
heraldic or other office by the Queen of Australia nor have they
received by delegation any prerogative powers, heraldic or other,
from her. They have no authority to purport to exercise the heraldic
prerogative of the Queen of Australia.
The Queen of Australia is not, in relation to
these Kings of Arms, "Our Sovereign Lady Elizabeth the Second
by the Grace of God Queen of Australia and Her other Realms and
Territories Head of the Commonwealth". The Queen of Australia
is not sovereign over them. Their use of the royal style and titles
of the Queen of Australia is mere usurpation from an Australian
perspective. From a UK perspective it must seem to be an aberration
for the servants of the sovereign to lay claim to a prerogative
power which the sovereign of the UK does not herself claim.
These grants to Australians do not purport to
be made as an exercise of the heraldic powers of the Queen of
the UK in the right of England (which powers are undoubtedly delegated
to the Kings of Arms of England and would undoubtedly enable them
to make perfectly valid English grants to Australians.) They purport
to be made in right of a sovereign whose power has not been delegated
to the Kings of Arms. The grants may have as little validity under
UK law as they have under Australian law.
Australia exists in an heraldic vacuum and Australians
may by their own voluntary acts adopt arms designed by themselves
or by foreign officers of arms.
Grants by foreign heraldic authorities to Australians
need not be an infringement of the sovereignty of Australia unless
the Australian sovereign requires that her subjects obtain her
prior approval for the seeking or acceptance of such foreign grants
(which the Queen of Australia does not do except in respect of
foreign orders and decorations.)
Foreign grants of Arms to Australians are unobjectionable
when they derive their validity from a connection between granting
state and the individual grantee. Foreign grants are probably
unobjectionable when they derive solely from the right of any
sovereign state to grant arms or honours to anyone it chooses.
They are objectionable when the grant is made on the basis of
some asserted English or UK "imperial" territorial jurisdiction
over Australia The use of the style and titles of the Queen of
Australia by the English officers of arms has ceased to be proper,
if it ever was proper.
February 2004
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