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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 law relating to the succession: religious restriction of little practical significance Print E-mail
Written by Professor David Flint AM   
Friday, 07 January 2011

The law relating to succession to the throne is in the news.

It's an opportune time for the monarchy to do away with gender prejudice, writes Margaret Fitzherbert in a considered opinion piece in The Age , 30 December, 2010. 

In the meantime, Leader of the Opposition Tony Abbott argued recently that the religious restriction is of little practical relevance.

To return to Ms. Fitzherbert, she  says:

“Prince William's wedding and the new British government create an opportunity for change that is long overdue: overhauling the rules of succession to the British throne.”

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{ Landing of William III in Ireland; attributed to Pieter van der Muelen ]

"In 2000, The Guardian challenged Britain's succession laws in court, claiming they violated the European Convention on Human Rights. The claim was rejected.

"
The paper's legal action was possibly intended to galvanise the then newly elected Blair government into action. If so, it failed. While it enacted extensive constitutional change, including a massive overhaul of the House of Lords, the Blair government quashed attempts to change the succession laws."

"This became clear when delightfully named Labour peer Lord Dubs introduced the Succession to the Crown private member's bill in 2004. He withdrew it after the government said it would block the bill. Lord Dubs's motion would have enabled the eldest child of a monarch to succeed regardless of gender, and allowed the monarch and his or her heirs to marry Catholics."

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[Pope Innocent XI ]






... religious rule of no practical significance...







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[Republican hero, Al Grassby: more below}

[Continued below]



Read more...
 
Another media concoction: shadow king Print E-mail
Written by Professor David Flint AM   
Monday, 04 January 2010

It should be surprising just how gullible the world’s media can be (this column “Dream on comrades” 16 December). The editors of the London Daily Mail and its Sunday stable mate must know that the idea of the Crown not passing to the heir is preposterous. If they don’t they are in the wrong job. This change would involve submitting a proposal to change the law relating to the succession to the governments of sixteen realms. Even if it were approved, legislation would have to be considered by sixteen parliaments, to say nothing of any complexities which may arise in federations.

This did not stop them manufacturing a story that Prince William was to become the “shadow King” in preparation for the Crown to pass to him. This story then went around the world, getting into evening TV bulletins where it was treated as if it were a serious possibility.




...Telegraph briefed on the facts....




Prince William has now made it very clear that he will not become "shadow king" and is instead determined to spend the next few years developing his military career, writes the London based Daily Telegraph’s Chief Reporter, Andrew Alderson in “Prince William: I will not become 'shadow king'” (2/1)

Mr. Alderson’s interpretation is that the 27-year-old Prince has ruled out doing anything that would undermine the role of his father, the Prince of Wales, as heir to the throne.

Major Jamie Lowther-Pinkerton, the former SAS officer who now acts as Prince William's private secretary, went on the record to outline the immediate plans for the Queen's grandson and to quash misguided speculation. It was wise of Major Lowther–Pinkerton to brief a serious newspaper, and to do it after the intitial furore over the Mail article. This has resulted in a “stand- -alone” story which has been given added credibility through the inclusion of  a named source for at least part of the story.

Image  

The spokesman for St James's Palace told The Sunday Telegraph: "Prince William will not be a 'shadow king' – the possibility is not even being considered. Over the next few years, Prince William will be concentrating primarily on a military career while also slightly increasing his [charity] patronages and the other interests that he pursues."

The Telegraph says that Prince William is constantly aware of the sensitivities of being seen to encroach on his father's role as heir to the throne. An unnamed “senior source” is quoted as saying:

"Prince William sees more closely than anyone the huge amount of hard work that the Prince of Wales puts in to trying to make a difference in this country. The Prince of Wales is a hugely passionate man and Prince William wants the spotlight to fall on his father as much as possible. Prince William does not want to be put in a position before his time – before he is ready."




...Prince's future plans....




The Telegraph reports that Royal aides have given the newspaper an exclusive insight into the Prince's future plans. They say that Prince William's focus for 2010 is largely military flying. He will be based at RAF Valley in Anglesey while he embarks on the hardest and most challenging part of his course: further training to become a fully-operational search and rescue pilot.

 "It's going to be tough, very intensive," the Telegraph reports “a senior royal aide” asserting. "For the first time, he is going to be testing his skills not on a generic helicopter but on the type of helicopter [a Sea King] that he is passionate about and wants to fly.

"The pressure will be on him and, although he has always risen to the pressure, Prince William knows that he has got to keep his head down in order to realise what is, frankly, his dream of becoming a fully-qualified search and rescue pilot. He is incredibly motivated to achieve this."


Image
[ Prince William spends a night on the streets ]

The Telegraph says that Prince William has been awarded his "provisional wings" after completing a year-long advanced helicopter pilot's course, but he now needs at least eight months of  further training before he fully qualifies.

The newspaper reports one Royal official saying : "Part of Prince William's motivation is to be able to earn his rank and position. He wants to be able to look other members of the Armed Forces in eye and say: 'I am a genuine full-time serving officer in the RAF. I want to be used like any other officer and not be favoured or mollycoddled.'"

A “senior aide “ told the newspaper "If he stays in the Armed Forces, Prince William will want a meaningful role. If appropriate, he would want to deploy in a front-line role."




....New Zealand and Australia...




On The Queen’s invitation, Prince William will embark on January 17 on a long awaited five-day visit to New Zealand and Australia. "It is an instance of Her Majesty seeing an opportunity for her grandson to learn the ropes."  

According to the Telegraph Royal sources say that Prince William will, slowly, develop his role within the Royal family and consolidate his charitable commitments. His on-duty, off-duty work patterns for the RAF this year will free up time for a few additional royal duties.

The newspaper says that as president of the Football Association, Prince William wants to lobby hard for Britain to host the 2018 soccer World Cup. The Prince plans to attend the World Cup in South Africa in June to promote the FA's cause.

Prince William is patron of 13 charities and he is particularly committed this year to promoting the cause of Tusk, the wildlife conservation charity, which is celebrating its 20th birthday.   . Last month Prince William spent a night on London's streets in freezing temperatures to raise awareness of a charity's work with homeless young people.

 
Dream on comrades Print E-mail
Written by Professor David Flint AM   
Wednesday, 16 December 2009

Surely the Daily Mail and its Sunday stablemate know that the idea of the Crown not passing to the heir is preposterous. This would involve submitting a proposal to change the law relating to the succession to the governments of sixteen realms. Even if it were approved, legislation would have to be considered by  sixteen parliaments, to say nothing of any complexities which may arise in federations.

And what would be the reason, the explanation? The need for a newspaper headline?

That of course did not stop this foolish story from going around the world. It managed to get into evening TV bulletins, and was treated as if it were a serious possibility.

 

Image


That Prince William will obviously take up more duties over the years is self evident. As a spokesman for St James’ Palace told the Mail on Sunday (13/12): “Both Prince William and Prince Harry have gradually increased the number of engagements they carry out in support of the Queen, although their focus remains on their full-time careers in the Armed Services.”

In fact, according to Andrew Pierce in the London Daily Telegraph (12/12), Prince William graduated with “flying colours” according to the Ministry of Defence after an intensive training course at RAF Shawbury in Shropshire. The Prince of Wales will be at the ceremony at Shawbury next month when his son is presented with his wings.  

This clarification from St James’ Palace did not stop the Mail from speculating that The Queen believes Prince William represents the best long-term interests of the monarchy and even that the Crown will go straight to him.




...manufactured controversy....




Glen Owen, the Mail on Sunday Political Correspondent referred to a government announcement  granting Prince Charles tax relief “worth hundreds of thousands of pounds”, by allowing him to deduct his sons’ official expenses from his tax return. This they said , was “slipped out” on Budget Day in a separate ministerial note and was picked up by newspapers only several days later.

The report said this relates to an office at St James’s Palace, with six members of staff, which for the past few months has been organising the affairs of Princes William and Harry. Previously, the Princes had been represented by Charles’ staff.

St James’ Palace explained the arrangements: “The Royal Household and HMRC agreed to update the Memorandum of Understanding for the first time in many years to reflect changes in the Royal Family. The previous Memorandum still included the Princess of Wales and not Prince William or Prince Harry.” “The new MoU merely streamlined the bureaucratic arrangements concerning Prince William’s and Prince Harry’s official lives.”

“The new MoU made no difference to the amount of tax paid by the Prince’s Household.”

  

This of course is a reasonable, proper and lawful measure. If His Royal Highness is paying for the performance of official duties out of his own pocket, he ought to be allowed to include them in his tax return.

So why did the Mail refer to this as a tax “perk”? Would the Mail refer to its reasonable proper and lawful deductions as perks? Would journalists?
 

 And was it really necessary to obtain the mandatory vicious comment on this from some miniscule republican group? Or did the Mail just want to create an artificial controversy?





....republican silver bullet...

 

Image


In the meantime the leading Australian press and broadcast commentator Andrew Bolt (15/12)  has written a piece summarising the quandary Australia’s republicans are in. Referring to the nation’s leading women’s magazine, he has posted a comment on his blog headed : “Try telling Women’s Weekly it can’t have King William.“

He refers to the latest silver bullet the republicans think will ensure some sort of politicians’ republic falls into their laps. That is the end of this reign.  

Andrew Bolt points out that the architect of 1999’s failed republican referendum says the reign must end “ “before Australians would vote out the monarchy forever.”

He notes that  Malcolm Turnbull said the Queen’s departure from the throne would be a watershed event that would galvanise the population into debating what type of head of state they wanted.Andrew Bolt then refers to the prominent republican   Greg Barns, who said:

“One of the reasons why Australians voted against the proposition advocated by the republican cause in 1999 was because of an enduring admiration and affection for the Queen Mother and the current Australian Head of State – Elizabeth....”

 Mr. Barns forgets that his republicans attacked ACM at the time of the referendum for “not mentioning The Queen.” We of course concentrated on the ramifications of their proposal, and not on the evident qualities of our Sovereign.

“ Last year in the north-eastern Victorian town of Corryong,” continues Mr. Barns,” a group of women in their 60s and 70s gathered in the main street for their morning ‘cuppa.’ I was introduced to them and we began to talk about the republic. All six of these women told me that they would vote for a republic once the Queen Mother had died and Elizabeth had also died or abdicated in favour of Charles.”


But as Andrew Bolt says it:  “Dream on, comrades.”

Any republican who thinks Australians will be rushing to take up some politicians’ republic at the end of this reign just does not understand the Australian people, the way the nation the Commonwealth and the world will be engrossed in this sad event and how they will gradually measure the impact of the new reign, the new sovereign and the next Prince of Wales.

Referring to the speculation in the Mail, he adds: “Do you really think the women of Australia will vote to get rid of King William?”

   

 

 
 
Elect our own monarch? Print E-mail
Written by Professor David Flint AM   
Sunday, 22 November 2009

As long as I can recall, the argument has been made to ACM by concerned citizens that Australia should choose a sovereign different from The Queen who is The Queen of Australia a separate Crown from that of the United Kingdom.  This would involve a royal prince or princess  being invited to become King or Queen of Australia and also to replace the Governor-General.

This could involve a referendum. This would be a vote on a new dynasty; this would be different from states such as the United States and France which are sometimes referrd to as elective monarchies. In these a ruling president or elective monarch is chosen every few years.

It is argued that there would be advantages in Australia having a resident monarch. Some even think this is the only way to ensure our constitutional monarchy survives - I do not think this is so. The continuation of our Federal Commonwealth under the Crown, our crowned republic, is of course a matter for the Australian people - if and when they are asked in a referendum, as in 1999. 

The debate then was on constitutional principles, as I expect it to be in any subsequent referendum. It was curious then that the republicans spent a vast amount of time telling ACM how to campaign. I expect  we will take the same amount of notice of their advice in any future campaign - zero.

Presumably Canada, New Zealand and other Realms should also do this. The result would be fifteen new kings and queens.



Image


There are precedents for this, mainly from or near the nineteenth century. On the whole they were very successful; most invited princes proved to be model constitutional monarchs. 

In 1831 Prince Leopold of Saxe-Coburg and Gotha was offered the Belgian throne. In 1832 Otto of Wittelsbach, Prince of Bavaria, was offered the Greek throne. In 1862, Archduke Ferdinand Maximilian of Austria was offered the Mexican throne, but  more by the French than the Mexicans. He became the Emperor Maximilian, briefly. In 1866, Prince Karl of Hohenzollern-Sigmaringen was offered the Rumanian throne, later becoming King Carol.

Image
[ King Otto of Greece ]
 

In 1878, Alexander, Prince of Battenberg was offered the Bulgarian throne. In 1905, Danish Prince Carl was offered the Norwegian throne - a republic was rejected in a referendum after the personal union with Sweden came to an end.

Luxembourg is not an example of a country choosing its own monarch.  The personal union with the Netherlands ended by operation of a version of the German Salic law against female succession in 1890 when a woman, Queen Wilhelmina, ascended the Netherlands throne.  This was similar to Hanover in 1837, when Queen Victoria ascended the British throne, thus ending the personal union with the United Kingdom .



...Commonwealth Realms are different...



 The Commonwealth Realms, inwhich there is a personal union of sixteen crowns, are different. They have had a very long and successful experience of the exercise of the role and function of the Crown through viceroys. Most have no republican movement worth mentioning, except Australia. Even there, the movement has been in serious decline, particularly since Malcolm Turnbull ended his very generous funding. According to Greg Barns, all of the other wealthy republican celebrities were parsimonious, and the movemnet was prinicpally subsidised by Mr. Turnbull.

In any event most Australian republican politicians have put off a referendum proposing some form of politicians’ republic to beyond the current reign. In other words, they are saying the issue is unlikely to come up while any of them are still in Parliament. Any of them.

The reason is they expect to be defeated in any referendum. Whether any would propose a separate monarchy is unknown, although it is said Malcolm Turnbull once supported this. Most Australian republicans will not even tell the people what sort of politicians' republic they are planning.

The development of separate Commonwealth Crowns –apart from pre-existing indigenous Crowns as in Tonga – does not seem to have been onsidered at the time the Realms were given self government. Although Queen Victoria was proclaimed Empress of India, none of her children were ever made, say, Prince of Nova Scotia or Prince of Canada in preparation for the emergence of separate thrones.





..Crowned republic a natural form of government for Australia ....



Dr Harry Melkonian is an American constitutional lawyer and a senior lecturer at the United States Studies Centre in the  University of Sydney. In “A novel solution to the republican debate” in The Sydney Morning Herald and The Age 14 November, 2009, he argues that the way ahead for Australia is to elect our own monarch. It is clear that he realises that Australians are unlikely to turn their backs on our crowned republic.

“The debate about whether Australia should retain its British monarch or become a republic fails to consider,” he says “what may be the most acceptable arrangement for a majority of Australians - an Australian constitutional monarchy. Republicans rail against having a king or queen who hails from another land and monarchists fear the instability of a republic and the danger of an elected president undermining the Westminster system. Both sides raise valid concerns - concerns which could be resolved through a domestic monarch.”

“Monarchists maintain the current system provides stability and works well with the Westminster form of government. Their argument is meritorious. A constitutional monarch deprived by law of any real power does not threaten the ability of the prime minister to govern. A president, elected by the people, could claim a substantially greater franchise than a prime minister selected in secret party-room negotiations.”

“By the same token,” he writes, “republicans certainly have a legitimate concern that an independent country should not have any of its leaders reside in another country and be subject to the constitution of another country. Further, the British constitutional requirement that whoever is the king or queen of England (and Australia) must also be the head of the Church of England is about as un-Australian as anything imaginable.”



...why do complaining republican politicians never try to change the law?

 



There are three points to make. First, we are not subject to the UK Constitution. The law relating to the succession is an Australian law. And not one of the republican politicians who complain about its terms has ever tried to change it. This is because it suits them to complain. It has been left to the UK Prime Minister Gordon Brown to propose removing the old religious test and male primogeniture. This is to be discussed by the Commonwealth Heads of Government in Trinidad and Tobago this month.



...a republican confession...




Dr.Melkonian’s basic position seems to be that constitutional monarchy is the natural form of government for Australians. He is right.

This is consistent with the recent observation made to me by an elegant and  prominent republican. 

Let us call him Petronius.

” David, I know this will distress you," he said. " I am coming to the conclusion that Australia is essentially a monarchical country.” 

"Waiter," I called.  "The weeping vase...one tear for me, one tear for dear Petronius."    
 

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[ Nero, on learning Petronius has suicided on his orders:"The weeping vase,..... one tear for me , one tear for Petronius" Quo Vadis, 1951 ]

 
Succession: The Australian Crowns and the Rules of Succession Print E-mail
Written by Dr Anne Twomey   
Monday, 28 September 2009
 Print E-mail
 
 
The Australian Crowns and the Rules of Succession

Dr Anne Twomey addressed an ACM lunch in Parliament House Sydney on 25 September, 2009. The following is the text of a paper on the subject published in Quadrant, June 2009.  A paper discussing  some of the compexities in other Commonwealth countries which Dr. Twomey averted to in her address will be publshed later.

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At the next Commonwealth Heads of Government meeting in November, Kevin Rudd will be consulted by the British Prime Minister, Gordon Brown, about whether discrimination against women and Catholics should be removed from the rules for succession to the throne.

A recent BBC poll in the United Kingdom found that 89 per cent of people polled supported equal rights for royal women and 81 per cent supported permitting the heir to the throne to marry a Catholic.

It is likely that there would be similar support in Australia. Such a change, while relatively minor and overdue, may have the unintended effect in Australia of stripping back the paper that has covered over the cracks in our constitutional settlement and exposing the fundamental disagreements about the nature of the Crown in Australia.

Painful as this sounds, it would be better to face these issues now, in the context of minor but popularly supported changes to the rules of succession, than in the more acrimonious context of a republic debate.



The Rules of Succession



The rules concerning succession to the throne are a complex mix of common law and legislation. On the common law side, the rules are based on a form of primogeniture that favours males over females. Male heirs inherit, in order of birth, before any female heir, even if she was born first. A female heir may only inherit if she has no living brothers and no deceased brother who had children.

This bias has long been removed from English laws concerning the inheritance of property, but remains fossilised in the rules concerning succession to the throne.

On the legislative side, the Bill of Rights 1688, the Act of Settlement 1701, and the Accession Declaration Act 1910 require that the monarch be “in communion” with the Church of England and declare himself or herself to be a faithful Protestant.

The Bill of Rights and the Act of Settlement also state that any person who is in communion with the Church of Rome or who shall profess a Popish religion or marry a Papist shall be excluded from inheriting the Crown or exercising any regal power, authority or jurisdiction and shall be treated as dead for the purposes of succession to the throne.

This means that a person who marries a Catholic loses his or her place in the line of succession, although his or her children may still inherit the throne as long as they are Protestants who are in communion with the Church of England and are not married to a Catholic.

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[ King William III and Queen Mary II ]


To what extent do these laws apply to Australia? The Bill of Rights 1688 and the Act of Settlement 1701 formed part of the British law that was adopted when Australia was first settled. They therefore formed part of the law of the Australian colonies. In some states, these laws have been formally re-enacted as part of the state’s laws.

In addition, the oath set out in the Constitution refers to allegiance to “Her Majesty Queen Victoria, her heirs and successors according to law”. It does not specify which law. However, section 2 of the Commonwealth of Australia Constitution Act states that the provisions in that Act (including the Constitution) that refer to the Queen, “shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom”.

Whether this provision imposes a requirement that the Queen referred to in the Constitution must be the person who is Queen of the United Kingdom, or whether it is simply a redundant interpretative provision, remains a matter of dispute.

When the Constitution was enacted, the Crown was regarded as indivisible. There was only one sovereign, who was advised by her United Kingdom ministers with respect to all her functions throughout the empire. That position began to change in the late 1920s. By 1930 it was accepted that the King was to be advised by the responsible ministers of a self-governing dominion when exercising functions with respect to that dominion.

The appointment of Sir Isaac Isaacs as Governor-General of Australia in 1930 was made, most reluctantly, by the King on the advice of the Australian Prime Minister. This led to the Crown being described as divisible. There was a separate Crown for Australia, Canada, New Zealand, South Africa and the other dominions, with the monarch being advised by the responsible ministers of a dominion on the exercise of powers in relation to it.

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[ Sir Isaac Isaacs ]


The Statute of Westminster 1931 gave the dominions the power to enact laws that were inconsistent with previously binding English laws and also provided that no future British act of parliament would extend to a dominion “as part of the law of that Dominion” unless it was declared in the act that the dominion had requested and consented to it.

This meant that any unilateral change by the parliament of the United Kingdom to the succession to the throne would not apply automatically as part of the law of the dominions.

Recognising that this could give rise to problems, including a divergence of the rules concerning royal succession, the preamble to the Statute of Westminster states that it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as the Parliament of the United Kingdom.

Hence Gordon Brown’s need to consult Kevin Rudd.What if these parliaments do not agree? Could there be different rules of succession and ultimately different monarchs amongst the remaining dominions?

This question was tested with the abdication of Edward VIII in 1936. As the Statute of Westminster was already in operation in Canada, the Irish Free State and South Africa, it was necessary for these dominions to enact separate legislation to change the rules of succession.

Because of the speed of events, the South African and Canadian laws were passed after the event, with the South African law giving retrospective effect to the abdication on December 10, 1936, being the date that Edward VIII signed the Instrument of Abdication, and the Canadian law giving effect to the abdication on December 11, being the date the British abdication legislation received royal assent. The Irish parliament passed its legislation on December 12, and the abdication took effect there on that date. Hence during the period December 10 to 12, 1936, there were different monarchs in different parts of the dominions, with different laws of succession applying.

Australia and New Zealand had at that time not yet adopted the Statute of Westminster, so only the convention outlined in the preamble to the statute applied. New Zealand indicated its request and assent by way of executive agreement.

In Australia it was done by a resolution of both houses of the Commonwealth parliament. The reason that a resolution was chosen, rather than legislation, was because of doubt as to whether the parliament had a head of legislative power to support a law concerning succession to the Crown.



The Effect of the Federal System on Succession



In Australia the federal system has an important role to play in relation to the Crown and any changes to succession to the Crown. Unlike Canada, where the provincial lieutenant-governors are appointed by, and subordinate to, the governor-general, in Australia the states have always maintained direct and independent relations with the Crown.

Back in 1930 when the Crown became divisible at the national level, a problem arose as to what to do with the Crown in the Australian states. The monarch, rather than the governor-general, had always appointed state governors and dealt with giving assent to reserved bills and the disallowance of state laws. He or she did so upon the advice of United Kingdom ministers.

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[ 1926 Imperial Conference declares dominions equal in status to the UK ]


There were two ways in which this could have been changed to accommodate a divisible Crown.

First, Commonwealth ministers could have advised the monarch on state matters as well as Commonwealth matters. The states strongly objected to such an idea. Commonwealth ministers could not be responsible to the Commonwealth parliament for decisions on internal state matters unless a fundamental change were to be made to the federal structure of the Constitution.

The other option was for state ministers to advise the monarch directly on state matters, as they would be responsible to their state parliaments for such advice. However, this would create separate Crowns with an equal status to the Crown of Australia, to which the Commonwealth strongly objected.As neither option was acceptable in Australia, the status quo remained with regard to the states.

From 1930 to 1986, when the monarch fulfilled functions with respect to the Commonwealth level of government in Australia, she acted as Queen of Australia on the advice of Commonwealth ministers. When she fulfilled functions with respect to the Australian states, she acted as Queen of the United Kingdom, on the advice of her responsible ministers for the United Kingdom.

In Australia, most people regarded this anomaly as a mere formality and the view was held that in practice the states advised the Queen on state matters through the formal channel of communication of British ministers. This was shown not to be the case when in 1975 the Queensland government sought to extend the term of the Governor, Sir Colin Hannah, but this was refused on the advice of British ministers, who considered that Sir Colin had breached the cardinal vice-regal rule of political impartiality.

In 1979 the New South Wales Labor government was also advised by the British Foreign Secretary that if the New South Wales parliament passed certain proposed laws concerning the termination of Privy Council appeals and the method of appointment of state governors, he would be obliged to advise the Queen to refuse assent.

These incidents galvanised the states, both conservative and Labor, to remove their residual constitutional links with the British government.

This was achieved with the enactment of the Australia Acts 1986. These were two substantively identical acts of parliament, one of which was enacted by the Commonwealth parliament at the request of all the state parliaments, with the other being enacted by the Westminster parliament, at the request of the Commonwealth and state parliaments

The reason for the double enactment was to ensure that there was sufficient constitutional power to support the legislation. These acts severed all residual constitutional links with the United Kingdom, but not with the Queen.

They ended Privy Council appeals, they terminated the reservation of state bills for the Queen’s assent and the power to disallow state laws, and they gave the states the same power that the Commonwealth had been given by the Statute of Westminster to enact laws that are inconsistent with British laws that had previously bound the states.

Most importantly, for these purposes, the Australia Acts ended the responsibility of the British government to advise the Queen with respect to state matters and terminated the power of the Westminster parliament ever to legislate for Australia again.



The Effect of the Australia Acts



There are two important consequences for the succession to the throne that arise from the enactment of the Australia Acts.

The first is that any British law changing the rules of succession would not apply as part of the law of the Commonwealth or the states, even if the Commonwealth or states requested or consented to it.

This would mean that the old laws concerning succession would remain part of the law of the Commonwealth and the states until changed within Australia, potentially resulting in the future in Australia having a different monarch from that of the United Kingdom.

The alternative view, however, is that section 2 of the Commonwealth of Australia Constitution Act operates to define the sovereign of Australia by reference to an external fact or qualification, being that the person must simultaneously be the heir and successor of Queen Victoria in the sovereignty of the United Kingdom.

A British law changing the rules of succession to the throne would therefore not form part of Australian law but would still affect its operation by changing the external fact by reference to which the Constitution operates.

During the negotiation of the Australia Acts, British officials were mystified as to why section 2 of the Commonwealth of Australia Constitution Act was not repealed as part of the package, as they viewed it as being inconsistent with the provision that sought to terminate the application of British legislation to Australia.

British Foreign Office officials were reluctant to go on the record as suggesting the repeal of section 2. One of them noted in July 1982:

 

I am sure we do not want to suggest a change to the Bill to allow this to be done, since this would, I fear, be construed as our facilitating the possible future transformation of Australia into a Republic. Not something, I think, which would be looked upon favourably by our Ministers, and certainly not by the Palace.

So section 2 remained and its status continues to be unclear, with some regarding it as no more than a redundant interpretation provision and others regarding it as having a continuing substantive effect.

The second consequence of the enactment of the Australia Acts is that it ended the previous bifurcation of the Crown with respect to Australia, with the states under the Crown of the United Kingdom and the Commonwealth under the Crown of Australia. What replaced the old system remains in dispute.

The Australia Acts themselves simply refer to “Her Majesty” and do not identify the capacity in which she acts. What they did was terminate the role of British ministers in advising the Queen on state matters and substitute state premiers, who now directly advise the Queen on state matters.

The question is whether this created separate Crowns with respect to each state or whether it changed the nature of the Crown of Australia from being one concerned with Commonwealth matters only, to a federal Crown in which the sovereign takes advice from different ministers depending on the issue

.The nature of this change was not explicitly addressed in Australia during the negotiation of the Australia Acts. It was the British, again, who were more concerned with analysing the effect of this change on the Crown.

Throughout the 1970s and the early 1980s the British Crown law officers took the view that if state ministers were to advise the Queen directly on state matters, the states would become separate “realms” and the Queen would become Queen of Tasmania and Queen of Queensland.

In 1984 Buckingham Palace sought a formal legal opinion from the British Attorney-General on the subject of state advice to the Queen. The Attorney-General concluded that the natural outcome of state premiers directly advising the Queen on state matters would be the creation of six new Crowns in relation to the states, but that it might be necessary instead to develop a concept of a single federal Crown that reflects the federal division of powers within Australia.

One of the British legal advisers, Sir Arthur Watts, was sent to Australia to find out what the Australians thought they were doing. He reported back as follows in September 1984:

The Australians are wholly satisfied that the Queen in exercising her powers and functions in relation to a State will be acting as an Australian Queen, not as a Queen of the United Kingdom. They prefer, however, not to be asked which Australian Queen is involved—Queen of Australia or Queen of the State. There are obvious differences of view out here.

In Australia no one wanted to open up this debate, as it could have destroyed the consensus supporting the Australia Acts. In effect, the existence of a single set of rules governing succession to the Crown has masked the divisions and uncertainties concerning the status of the Queen with respect to Australia.

If there is only one person who wears multiple Crowns and it is clear who advises that one person with respect to state or Commonwealth matters, then one can simply refer to that person as “Her Majesty” and not enquire any further into her status. This strategy works well until one confronts the question of how to remove the Crown(s) to become a republic, or how to deal with a change to the rules of succession.



Who has the Legislative Power to Change the Rules of Succession?




If the British government wishes to proceed with changes to the rules of succession to the throne, and if the Commonwealth and the states also support such a change (which would appear likely because it would be consistent with anti-discrimination laws at both Commonwealth and state levels), who would have the legislative power to enact such a change with respect to Australia?

Back in 1936 the Commonwealth government accepted legal advice that it had no head of legislative power to deal with succession to the throne. Today it is likely to argue that it has an implied “nationhood” power to enact such a law, or that it falls within the external affairs power, if it can be argued that such a law would implement an agreement made by Commonwealth heads of government.

However, there are also constitutional implications that prevent the Commonwealth from legislating in a way that interferes with matters fundamental to state constitutions. So some doubt must arise as to whether the Commonwealth could unilaterally enact legislation that changed the rules for determining the Queen of a state (if there are separate state Crowns) or the Queen of Australia (if there is a federal Crown that applies both to the states and the Commonwealth).

It is also arguable that such legislation would be invalid because it would be inconsistent with the Australia Acts, which are entrenched and cannot be amended by unilateral Commonwealth legislation.

The most obvious and constitutionally acceptable course is to use the method of co-operative federalism, set out in s 51(xxxviii) of the Constitution and s 15 of the Australia Acts, which involves the Commonwealth parliament enacting a law at the request of each of the parliaments of affected states.

By involving all the states, this would have the benefit of avoiding all question of invalidity and being consistent with Australia’s federal structure. The opportunity could also be taken through this process to clarify the effect of section 2 of the Commonwealth of Australia Constitution Act and to clarify in the Australia Acts whether we have one federal Crown or separate state and Commonwealth Crowns.

The UK proposals to change the law of succession in the United Kingdom might then not only have the advantage of stripping away some of the discriminatory aspects of the rules underpinning our hereditary monarchy, but also of exposing the ambiguities and uncertainties regarding the Crown in Australia and forcing us to tackle and resolve them ourselves in a co-operative fashion.

[ Anne Twomey is an Associate Professor at the University of Sydney Law School and the author of The Chameleon Crown: The Queen and Her Australian Governors (2006).  We are grateful to both Dr Keith Windschuttle , editor, and Dr Anne Twomey,  as the  author,  for their consent to our posting this article to this site. ]

 
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