Changing the succession law: not that difficult
Written by Professor David Flint AM   
Tuesday, 26 April 2011

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This is the latest in ACM's series of reports on the succession.  
To access these, click on this icon, "The Succession" on the right hand column of the front page.


  

 

Whenever a republican attacks the law relating to the succession, or tells you how difficult it will be to change,  this is being used as a reason for Australia to become  some as yet unknown version of a politicians’ republic.

This came to mind when I was reading Professor Williams piece, “The female factor sets up a right royal mess,” in The Sydney Morning Herald (26/4).   

 
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 as sovereign or monarch- 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.

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[ Discussing the principles of the Statute of Westminster]


..proposed changes...



There have long been suggestions that the Act of Settlement should be amended in relation to the succession of females and in relation to Catholics.  

At common law, males at the same level always rank before females. But females could succeed if there were no males of the same rank. This was more liberal than many other European states which forbad any female succession.

Under the Act, Catholics and those married to Catholics could not succeed.

This was imposed by Parliament in 1701 to remove the influence of the Stuarts who were trying to follow France in moving to a more absolutist monarchy.Legislation on the succession was passed after the Abdication of King Edward VII in 1936, when the Australian Prime Minister  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.  He argued  that such a marriage would be unacceptable to Australians.

Separate legislation was passed in Canada, South Africa and Ireland but not Australia where we had not yet adopted the Statute of Westminster. iIf changes are to be made today, the most likely procedure would involve the Commonwealth Parliament legislating at the request of the States.




...republican problems... 

Professor Williams sees two problems.

First, “if a state parliament decided to hold out instead for a transition to a republic, the process across Australia, and indeed the Commonwealth, could fall in a heap. “

 Second, “unravelling the religious connection between the monarch and the Church of England could prove even more difficult than fixing the precedence given to men over women.”

Both are drawing a long bow.  
Professor William’s answer explains his purpose.

Perhaps, in Australia's case, it might simply be easier to become a republic.”

No, Professor. Changing the rule in relation to female succession would be relatively simple.   As for the Church of England, its status is precisely as the UK Parliament determines.

Since 1999, neither the republican movement nor any republican dominated Australian parliamentary chamber  have been able to indicate precisely what they form of republic  they want. Turning Australia into some form of politicians’ republic can only be done with the approval of the people.

Without knowing what the republicans are proposing, the process has not got to first base.