Bills Digest no. 84 2014–15
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Moira Coombs
Law and Bills Digest Section
19 March 2015
Contents
Purpose of the Bill
Background
Committee consideration
Statement of Compatibility with Human Rights
Financial implications
Key issues and provisions
Date introduced: 5 March 2015
House: House of Representatives
Portfolio: Prime Minister
Commencement: Sections 1–5 and Part 5 commence on Royal Assent. Parts 2, 3 and 4 and Schedule 1 commence on Proclamation. (Schedule 1 may commence on the same or a different day to Parts 2 to 4.)
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.
The purpose of the Succession to the Crown Bill 2015 (the Bill) is 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).[1] 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.
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’.[2] 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.[3]
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.[4]
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.[5]
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’.[6]
The Council of Australian Governments agreed to the reforms on 25 July 2012[7] 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).[8]
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. [9]
All the Australian states have now enacted the necessary legislation requesting the Commonwealth to enact legislation for the whole of Australia[10] and this legislation has now commenced, which was required before the Parliament of the Commonwealth of Australia could enact the Commonwealth legislation.[11]
Senate Selection of Bills Committee
The Bill has not been referred to a Committee for inquiry.[12]
Senate Standing Committee for the Scrutiny of Bills
The Scrutiny of Bills Committee noted that clause 2 of the Bill provides for Parts 2 to 4 of, and Schedule 1 to, the Bill to commence on a proclaimed day or days, but does not provide for the Bill to commence at the end of a specified period after Royal Assent if a commencement date has not been proclaimed.[13] Restricting the period for proclamation in this way is the usual approach taken in drafting Bills.[14] The Committee stated that departures from the usual approach should be explained in the Explanatory Memorandum. However, given the nature of the Bill, the Committee made no further comment.[15]
As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible as it promotes rights.[16]
The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.[17]
The Explanatory Memorandum notes that this Bill has no financial impact.[18]
Part 1—Preliminary matters
Object of the Bill
Clause 3 of Part 1 of the Bill sets out that the object of the proposed Succession to the Crown Act is:
... to change the law relating to the effect of gender and marriage on royal succession, consistently with changes made to that law in the United Kingdom, so that the Sovereign of Australia is the same person as the Sovereign of the United Kingdom.
Clause 5 defines the Crown as meaning the Crown in all of its capacities.
Part 2—Succession to the Crown not to depend on gender
Clause 6 provides that when determining the succession to the Crown, gender will have no relevance. The gender of a person who is born after 28 October 2011, does not give that person or any of the person’s descendants, precedence over any other person (whenever born). The Explanatory Memorandum notes that the inclusion of the words ‘whenever born’ make it clear that this will be the case even where the ‘other person’ was born on or before 28 October 2011.[19]
Part 3—Marriage and succession to the Crown
Clause 7 provides for the removal of the disqualification in succeeding to the Crown if a person marries a person of the Roman Catholic faith. Subclause 7(1) provides that a person who marries a Roman Catholic will not be disqualified from succeeding to the Crown nor prevented from possessing the Crown. Subclause 7(1) will apply to marriages that occurred before the commencement of this provision where the person is still living at the time of commencement, as well as to marriages occurring after the commencement of this provision (subclause 7(2)).
Clause 8 provides that a person is disqualified from succeeding to the Crown if that person is disqualified by subsection 3(3) of the UK Succession to the Crown Act as in force at the time of commencement of this section.
Under subsection 3(1) of the UK Succession to the Crown Act, a person who is one of the six persons next in line of succession to the Crown must obtain the consent of the Queen before marrying. Subsection 3(3) provides that the effect of failing to comply with subsection 3(1) is that the person and their descendants are disqualified from succeeding to the Crown.[20]
Clause 9 provides that the items in Schedule 1 to the Bill that refer to amendments or repeals of Acts of England or Great Britain have effect according to the terms set out in the Schedule in so far as they form part of the law of the Commonwealth, a state or a territory.
Part 4—Other modifications of parts of the law of Commonwealth, states and territories
Clause 10 provides that where there are any references to the provisions of the Bill of Rights,[21] or the Act of Settlement,[22] relating to succession to, or possession of, the Crown in any law of the Commonwealth or territory, that law is to be read as including references to the provisions of this Bill.
Clause 11 lists the legislation which brought into effect the United Kingdom which is affected by this Bill. So far as any of the listed Acts are part of the law of the Commonwealth, a state or a territory, the items in the list are subject to the provisions of this Bill. The relevant provisions are:
- Article II of the Union with Scotland Act 1706 of England[23]
- Article II of the Union with England Act 1707 of Scotland[24]
- Article Second of the Union with Ireland Act 1800 of Great Britain[25] and
- Article Second of the Act of Union (Ireland) 1800 of Ireland.[26]
Part 5—Repeal or amendment of this Act
Clause 12 provides that this Act may be expressly or impliedly repealed or amended only by an Act at the request or concurrence of the Parliaments of the states.
Schedule 1—Further provisions relating to marriage and succession to the Crown
Part 1—Amendments relating to marriage to a Roman Catholic
Part 1 amends the Act of Settlement and Bill of Rights in relation to a person marrying a Roman Catholic.
Part 2—Repeal of the Royal Marriages Act
Item 8 repeals the Royal Marriages Act 1772.[27] This Act provided that all descendants of King George II must obtain the sovereign’s permission to marry, and if they married without that permission, the marriage was considered null and void.
As set out in relation to clause 8 of the Bill, the new position will be that only the first six people in line to the throne are required to seek the sovereign’s consent to marry and, if they marry without that consent, the legitimacy of the marriage will not be affected. Instead the person and their descendants will be disqualified from succeeding to the Crown.
Subitem 9(1) of Part 2 of Schedule 1 of the Bill validates marriages voided by the Royal Marriages Act subject to certain conditions. In so far as that Act was a part of any Commonwealth, state or territory law such a marriage is to be treated as though it was never void. Subitem 9(2) provides that subitem (1) applies for all purposes with the exception of those relating to succession to the Crown.
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.
[1]. Succession to the Crown Act 2013 (UK), accessed 14 March 2015.
[2]. Succession to the Crown Act 2013 (UK), section 5.
[3]. Australian Broadcasting Corporation (ABC), ‘Royal succession laws: Australia delaying new rule to allow women to reign’, ABC News (online edition), 27 February 2014, accessed 14 March 2015.
[4]. N Clegg (Deputy Prime Minister), Royal succession rules will be changed, media release, 4 December 2012; and P Bowers, Succession to the Crown Bill 2012–13, Bill No. 110, 2012–13, Research paper 12/81, House of Commons Library, 19 December 2012, pp. 9–10, accessed 14 March 2015.
[5]. P Bowers, Succession to the Crown Bill 2012–13, op. cit., p. 2.
[6]. ABC News, op. cit.
[7]. Council of Australian Governments (COAG), Communiqué, COAG Meeting, Canberra, 25 July 2012, accessed 16 March 2015.
[8]. Council of Australian Governments (COAG), Communiqué, COAG Meeting, Canberra, 19 April 2013, accessed 14 March 2015.
[9]. Commonwealth of Australia Constitution Act, accessed 16 March 2015.
[10]. Succession to the Crown Act 2013 (Qld); Succession to the Crown (Request) Act 2013 (NSW); Succession to the Crown (Request) Act 2013 (Vic); Succession to the Crown (Request) Act 2013 (Tas); Succession to the Crown (Request) Act 2014 (SA); Succession to the Crown Act 2015 (WA), all accessed 16 March 2015.
[11]. C Porter, ‘Second reading speech: Succession to the Crown Bill 2015’, House of Representatives, Debates, 5 March 2015, p. 3, accessed 16 March 2015.
[12]. Standing Committee for the Selection of Bills, Report No. 3 of 2015, The Senate, Canberra, 18 March 2015, accessed 14 March 2015.
[13]. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 3 of 2015, The Senate, Canberra, 18 March 2015, p. 43, accessed 19 March 2015.
[14]. Office of Parliamentary Counsel, Drafting direction 1.3, paragraph 22, 21July 2014, accessed 19 March 2015.
[15]. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 3 of 2015, op. cit., p. 44.
[16]. The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill.
[17]. Parliamentary Joint Committee on Human Rights, Twentieth Report of the 44th Parliament, The Senate, Canberra, 18 March 2015, p. 2, accessed 19 March 2015.
[18]. Explanatory Memorandum, Succession to the Crown Bill 2015, op. cit., p. 2.
[19]. Explanatory Memorandum, Succession to the Crown Bill 2015, op. cit., p. 5.
[20]. Succession to the Crown Act 2013 (UK), section 3(1), (3).
[21]. Bill of Rights 1688 (UK), accessed 16 March 2015.
[22]. Act of Settlement 1700 (UK), accessed 16 March 2015.
[23]. Union with Scotland Act 1706 (England), accessed 16 March 2015.
[24]. Union with England Act 1707 (Scotland), accessed 16 March 2015.
[25]. Union with Ireland Act 1800 (GB), accessed 16 March 2015.
[26]. Act of Union (Ireland) 1800, (Ireland), accessed 16 March 2015.
[27]. Royal Marriages Act 1772 (GB), accessed 16 March 2015.
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