Commonwealth of Australia: New succession laws take effect today

After the Australian Parliament passed the changes to the laws of succession (Succession to the Crown Bill 2015) the new rules come into effect on 26th March 2015. Australia was the last Commonwealth country to finish the legislative process because the federal parliament had to wait for the state parliaments to accept the new succession laws. Constitutional rules in Australia require that each of its six states consent to the changes – and while five have passed or are passing the necessary legislation, Western Australia was holding out.

Four years ago, during the Commonwealth Heads of Government meeting in Australia, an agreement was made between those 16 countries who recognise The Queen as their Head of State that there would be changes to the royal succession laws. Four years on and despite an Act of Parliament being passed in the UK, the changes only come today into force.

Ironically, the hold-up for these changes was down the very state from which they originated in Australia. Part of the Perth Agreement in 2011 was that each of the 16 Commonwealth realms would, where appropriate, each introduce their own laws with the necessary changes and that these laws would all be brought into effect at the same time.

The Queen in Perth on 27th October 2011 (to her left is WA Premier Colin Barnett), where and when the Perth agreement was made during the Commonwealth Heads of Goverment Meeting (CHOGM).

While every other realm has either asserted that legislation isn't needed or that they have passed any necessary changes, the Western Australia parliament took its time.In February 2015 the WA parliament passed the necessary bills, which gave the federal parliament the green light to act. The Bill was passed with the votes of the Australian Labor Party and the Coalition.

The purpose of the Succession to the Crown Bill 2015 (the Bill) was to assent to three reforms concerning the succession to the Crown consistent with changes enacted in the United Kingdom Succession to Crown Act 2013 (UK) (UK Succession to the Crown Act). Those reforms are:

• to bring to an end the system of male primogeniture so that the order of succession will be determined by order of birth

• to remove the statutory provisions under which anyone who marries a person of the Roman Catholic faith loses their place in the line of succession and

• to limit the requirement that the Sovereign consent to the marriage of a descendant of his late Majesty King George the Second in certain circumstances.

Background

The United Kingdom enacted the UK Succession to the Crown Act on 25 April 2013. Whilst the UK Succession to the Crown Act commenced on that day, its provisions come into force ‘on such day and at such time as the Lord President of the Council may by order made by statutory instrument appoint’. According to an ABC media report in February 2014:

Commonwealth realms rushed to agree to the changes after Prince William, the eldest son of Prince Charles and next in line to the throne after his father, got married in April 2011.

They were agreed in principle by prime ministers of the 16 countries at a Commonwealth summit in Perth on October 28, 2011.

On 3 December 2012, the Duke and Duchess of Cambridge announced that they were expecting their first child, so in a sense the impending birth of Prince George became the catalyst for activity to modernise the laws of succession. The Deputy Prime Minister of the United Kingdom, Nick Clegg, announced the agreement of the realms on 4 December 2012:

"The new rules will apply to any baby born in the line of succession, taking effect after the Prime Minister made the announcement in Perth, Australia, at the Commonwealth Heads of Government meeting in October 2011. At that meeting, an agreement was reached with all of the realms that the change should take effect immediately, and would be confirmed in legislation at a later date. This comes at the end of a significant period of work by the Government, the realms and Buckingham Palace."

The process of changing Royal succession laws is a lengthy one. As noted in a House of Commons research paper:

The Bill is tied into an international process. The Queen is Head of State of 16 states, including the UK, and her status is entrenched separately in each of these. The decision has been taken to move forward with changes at the same time in each of these “realms”. In October 2011, the political leaders of the realms agreed to change the rules of succession in two ways, to treat men and women equally, differentiating solely on the basis of age, and to remove the bar on the monarch or any person in the line of succession being married to a Roman Catholic (though the bar on the monarch being a Roman Catholic will remain). Work then began to bring all 16 of these states into a position in which the legislation could be introduced.

The ABC media report referred to above noted that British Government Ministers said that Australia was holding up changes to royal succession laws and that ‘all realms that took the view that legislation is required have passed the necessary legislation apart from Australia’.

The Council of Australian Governments agreed to the reforms on 25 July 2012 and at its April 2013 meeting agreed to the process to be undertaken:

COAG agreed to a hybrid model to implement the previously agreed changes to the rules of Royal succession in Australia. Under the hybrid model, States may choose to enact State legislation dealing with the rules of Royal succession. States have agreed that they will request the Commonwealth under s.51(38) of the Constitution to enact legislation, and that any State legislation will be consistent with their requests to the Commonwealth under s.51(38).

Section 51(xxxviii) of the Commonwealth of Australia Constitution Act (Constitution) provides that:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia

All the Australian states have now enacted the necessary legislation requesting the Commonwealth to enact legislation for the whole of Australia and this legislation has now commenced, which was required before the Parliament of the Commonwealth of Australia could enact the Commonwealth legislation.