While most of the discussion of the impending royal birth falls into the category of fawning adulation, dismissive contempt or celebrity gossip, the one substantive issue that has arisen concerns the rules of succession to the throne and the attempt to change them. This blog post seeks to illuminate the legal and constitutional issues involved with respect to Australia.
The current rules
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. One of the proposals agreed by the Realms in a side-meeting at CHOGM in 2011 was to remove the bias against females, but otherwise retain the system of primogeniture.
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. This does not necessarily mean that the monarch must be a member of that Church, as George I and George II were both Lutherans. 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. The other proposal agreed by the Realms at CHOGM in 2011 was that a person would not lose his or her place in the line of succession if he or she marries a Catholic. However, to be monarch, a person must still be ‘in communion with the Church of England’ and not be a Catholic.
The British Government also proposes to repeal the Royal Marriages Act 1772 and replace it with more limited legislation. The Royal Marriages Act requires all descendants of George II to obtain the monarch’s consent ‘signified under the great seal and declared in council’ before marrying. If not, the marriage is void (except for princesses marrying into foreign families or persons over 25 who go through a formal process that permits the UK Parliament to disapprove of the proposed marriage). Given that the number of descendants of George II is now significant, and many would not know that they were descendants of George II, it is likely that there are many marriages that are technically void. The British Government intends to validate such marriages and to restrict the need for permission to marry to the first few (probably six) in line to the throne.
The application of the rules of succession to Australia
To what extent do these laws apply to Australia? The Bill of Rights 1688, the Act of Settlement 1701 and the Royal Marriages Act 1772 formed part of British law at the time Australia was settled. The common law arrived in Australia with its settlers. Doubts about the extent of reception of British statutes led to the enactment of the Australian Courts Act 1828. From then, at the latest, the Bill of Rights 1688, the Act of Settlement 1701 and the Royal Marriages Act 1772 applied as 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 (see the Imperial Acts Application Acts in the ACT, NSW, Qld and Vic). For example, s 6 of the Imperial Acts Application Act 1969 (NSW) provides that these Acts are declared to have remained in force in NSW since 25 July 1828 and to continue in force. While there is debate about whether these laws applied by paramount force, it is generally accepted that the colonies and their successor States had no legislative power to change them.
The Statute of Westminster 1931 permitted the Commonwealth Parliament (and the Parliaments of the other Dominions) to enact laws that were inconsistent with laws of paramount force. Recognising that this could potentially affect the laws of succession, the preamble to the Statute provides 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 of the Parliament of the United Kingdom.’ The problem for the Commonwealth, however, is that it has limited heads of power. In 1936 the Commonwealth approved of the changes to succession resulting from the abdication, but did so by way of resolution rather than statute, because of doubts that it had any legislative power to enact a law about succession to the throne.
The States remained bound by laws of paramount force until the enactment of the Australia Acts 1986. Section 2 gives the States ‘all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State’. Hence it arguably gives the States the legislative power to make laws concerning the succession in relation to the Crown of the State. This, however, depends upon whether there are separate State Crowns, or only one Commonwealth Crown. This was a matter left unresolved by the Australia Acts.
The Australia Acts also terminated the power of the United Kingdom to legislate for Australia. Hence, any changes made by British law to the succession to the British Crown would not affect the Act of Settlement or the Bill of Rights to the extent that they form part of Australian law.
The final complicating factor involves the references to the Queen in the Commonwealth Constitution. The oath set out in the Schedule to the Commonwealth Constitution refers to allegiance to ‘Her Majesty Queen Victoria, Her Heirs and successors according to law’. It does not specify which law. However, covering clause 2 in the Commonwealth of Australia Constitution Act states that the provisions in that Act (s 9 of which contains the Commonwealth 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 Commonwealth 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.
The different approaches to the meaning of covering clause 2
There are three views as to how covering clause 2 operates in Australia. The first is that it mandates that whoever is the sovereign of the United Kingdom is also, by virtue of this external fact, sovereign of Australia. According to this view, a change in the United Kingdom law of succession would have no legal application as part of Australian law, but if it had the effect of changing the sovereign (eg as a result of abdication) then the new sovereign of the United Kingdom would automatically become the new sovereign of Australia because of the operation of covering clause 2.
The second view is that covering clause 2 is merely an interpretative provision which simply assumes, but does not enact, the existence of a succession law that is operative in Australia. According to this view, covering clause 2 operates to ensure that references to the sovereign are not taken to be confined to the sovereign at the time of the enactment, but extend to whoever happens to be the sovereign from time to time in accordance with the applicable law. This view is consistent with the position in Canada where the equivalent provision was repealed because it was regarded as a redundant interpretative provision, rather than a substantive requirement. The consequence in Australia of this approach is that, as the United Kingdom can no longer legislate for Australia, the applicable law would be the pre-existing law of succession as altered by Australian law.
The third view, which falls between the two extremes is that covering clause 2 incorporated by reference into the Commonwealth of Australia Constitution Act the British laws of succession to the throne. Under s 4 of the Statute of Westminster, those laws could be amended or repealed by United Kingdom legislation to which Australia had given its request and consent. That is no longer the case as s 1 of the Australia Acts provides that no Act of the United Kingdom Parliament may now extend to Australia as part of Australian law. In Sue v Hill (1999) 199 CLR 462, three Justices of the High Court of Australia noted that covering clause 2 identifies the Queen ‘as the person occupying the hereditary office of Sovereign of the United Kingdom under rules of succession established in the United Kingdom’. Their Honours went on to state at :
The law of the United Kingdom in that respect might be changed by statute. But without Australian legislation, the effect of s 1 of the Australia Act would be to deny the extension of the United Kingdom law to the Commonwealth, the States and the Territories.
The argument here is that the rules of succession have been effectively patriated with the Australian Crown and while they continue to exist in their current British form, they may only be amended or repealed by Australian action.
Covering clause 2 could have been amended or its effect clarified at the time of the enactment of the Australia Acts 1986, but it was not. The issue was too contentious and was swept under the carpet, leaving the application of covering clause 2 unclear. However, given the nationalistic approach of the High Court and the view of three judges in Sue v Hill, it is likely that a future court would hold that no British changes to the law of succession could have either a direct or indirect effect upon the law of succession with respect to Australia and that Australian legislation would have to be enacted to effect such a change.
Changing the rules of succession in Australia
What power, then, permits a change to the rules of succession with respect to Australia? Given that the Queen plays an integral role in relation to State Constitutions and State Parliaments and given the Commonwealth’s lack of a specific head of power to deal with succession to the throne, the preferable approach is to employ s 51(xxxviii) of the Constitution. This entails State legislation requesting the enactment of a law by the Commonwealth that only the United Kingdom Parliament could have enacted at the time of federation. Such an approach would be consistent with both a single federal Crown or a heptarchy of State and Commonwealth Australian Crowns.
The only problem with using s 51(xxxviii) is the fact that the succession would be formally placed in a Commonwealth law and there is insufficient jurisprudence yet to be certain that the only way of amending or repealing that law would be through another law supported by s 51(xxxviii). The States might wish to ensure that the law is framed in such a manner as to make clear that it can only be amended or repealed by the same procedure.
A full academic article on these issues, including the continuing application of the Statute of Westminster and the constitutional issues that arise in other realms was published in  Public Law 378-401 and is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1943287