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.
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.
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.
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.
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. ]