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ACM Home arrow The Succession

The Succession

The Succession

 

...the Succession in Australia...  


As Australia became independent, probably by 1926 and certainly by 1942,  our oldest institution  which is  at the very centre of our constitutional system, the Crown, also evolved.

With independence, it  separated from the once indivisible Imperial Crown of the British Empire and became the Australian Crown.

At the same time the British  Empire evolved into the British Commonwealth, which then became the Commonwealth.

This has been confirmed by  the highest legal and constitutional authority in our nation, the High Court.

In 1999, in Sue v Hill, the High Court ruled that the Australian Crown is legally and constitutionally separate from the Canadian, New Zealand, British and other Crowns. 

What we have is well known in international law. It is a "personal union."  This best describes the fact that the Queen is Queen of Canada and also Queen of Australia etc. 

It is important to understand that this is not a union of states, or a colonial or residual legal or constitutional relationship with or subservient to the United Kingdom.

The union is personal in the Sovereign.
 

The key word is "personal"; it is not "legal" or "constitutional." 

If the law governing the succession, the Act of Settlement, 1701 is to be changed, the constitutional convention among the Realms - those 16 countries which share The Queen - is that the Realms should legislate  together.  

There is a specific acknowledgement of this convention in the preamble to the Statute of Westminster, 1931. This is an integral part of Australian constitutional law -it is a schedule to the Statute of Westminster Adoption Act, 1942.

There have long been suggestions that the Act of Settlement should be amended in relation to the succession of females and Catholics.   At common law, males at the same level always rank before females. Under the Act, Catholics and those married to Catholics could not succeed. This was imposed by Parliament  to remove the influence of the Stuarts who were trying to follow France  in moving to a more absolutist moncarchy.

This would reflect modern views on these matters.  

This would require legislation by all of the Realms.  

Legislation on the succession was passed after the Abdication in 1936, when the Australian PM was the most adamant of The King's Commonwealth Prime Ministers in objecting to his proposed marriage to Mrs Simpson, who would later become the Duchess of Windsor, and in arguing that were it to take place it would be unacceptable to Australia.

Now those who claimed so vociferously claim the law of succession is so offensive that the Australian constitutional system should be rent asunder are usually being tendentious.

  It is not they are in any way interested in  reforming or modernising   the law of succession.  

Their motives are transparently obvious.

They are using the Act of Settlement to destroy our constitutional system. In fact the last thing they want is any change in the law.  

There is no evidence that any of them have done anything whatsoever to seek an amendment of the law, indeed when some of these people who claim to be so "concerned" about the discriminatory nature of the Act of Settlement  have actually been in a political office where they could have initiated such a change.

In fact they have done precisely nothing, which indicates that their "concern" is not so much shallow as non- existant.  

When, for example have they raised this in discussion with the other Realms?

It is not the Sovereign who is blocking change -  if change is thought appropriate.  

We understand that Buckingham Palace has, for example, advised that The Queen would not object to a change in the primogeniture rule which presently requires  that males of the same rank succeed before females.

Change to the law of succession is in the hands of the politicians of all the Realms.

 If the republican politicians were actually concerned about this, rather than using it to score points they would begin discussions within the Commonwealth on this question.





The Succession-no change Print E-mail
Written by Professor David Flint AM   
Saturday, 15 January 2005
We recently reported on Lord Dubs private members bill to change the Act of Settlement, and the Royal Marriages Act. The purpose was to provide the eldest child succeed, whether a boy or girl, that the heir be allowed to marry a Catholic and ending the requirement that a Royal Marriage must be approved by The Queen.
Read more...
 
Changing the succession? Print E-mail
Written by Professor David Flint AM   
Saturday, 11 December 2004

The London newspaper The Observer of 12 December 2004 reports that three of the British Fabian Society’s recommendations on the monarchy have been included in the draft of a private members’ bill.

Lord (Alf) Dubs will introduce a Bill containing three of its recommendations. His Succession to the Crown Bill, scheduled for a second reading in the Lords on 14 January, 2004 proposes ending male primogeniture, under which a male succeeds to the throne before any female of the same degree, abolishing the ban on an heir marrying a Catholic and doing away with the Royal Marriages Act, under which members of the Royal Family need The Queen’s approval to marry.

Read more...
 
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