Succession in Australia

Anne Twomey, a Professor of Law at the University of Sydney, has written extensively on the Crown of Australia and other issues of government. I consider her the foremost expert on constitutionalism and Westminster parliamentarism in our sister Realm down under!

Most recently, Professor Twomey has written an op-ed to the Sydney Morning Herald which I regard as the direct Australian equivalent of the op-ed that Professor Lagassé and I just submitted to the Ottawa Citizen. In “Archaic and Sexist Law Overshadows Pending Arrival of New Royal,” Twomey explains why altering the laws of succession to the Crown of Australia also involves a constitutional amending procedure that requires the concurrence of the parliaments of the 6 Australian States and of federal Parliament of Australia:

In Australia, the issue is complicated by the federal system. It is most likely that the Federal Parliament does not have unilateral power to change the rules of succession. It has no specific power to do so and as the Queen is also a part of state constitutions and state parliaments, it is likely that any Commonwealth attempt to interfere with state constitutions would be invalid. The most appropriate approach is to use a section of the constitution that permits the states and the Commonwealth to co-operate to enact laws that only the Westminster Parliament could have enacted at the time of Federation. This would entail each state parliament passing a law that requests the Commonwealth to enact the changes to the Australian law of succession.

The Australian and Canadian Amending Formulas Compared

Under s. 51(xxxviii) of the Australian Constitution, the Commonwealth Parliament may legislate on behalf of the states after each state parliament has given its consent through enabling legislation. The Commonwealth Parliament would amend the rules that govern the line of succession to the Crown of Australia by an act of parliament, though it would probably be regarded as an organic statute of constitutional importance. As Twomey alluded in her column, s.51(xxxviii) of the Australian Constitution acts as the equivalent to s.4 of the Statute of Westminster, which Canada repealed in 1982 and which Australia repealed in 1986. Before its repeal, s.4 allowed the Westminster Parliament to legislate on behalf of the Dominions after obtaining their approval. Today, however, the Westminster Parliament may only legislature for the United Kingdom itself, which is why each of the 16 Realms must change its succession pursuant to its own laws or constitution.

s. 51 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

Under s. 41(a), the 10 provincial legislatures, the House of Commons, and the Senate would pass concurring resolutions (not bills), which the Governor General would then proclaim into force. (As with Royal Assent, the Governor General would promulgate the constitutional amendment by and with the advice and consent of the legislative assemblies, and not on and in accordance with the advice of the federal and provincial governments). This amendment to the Constitution of Canada would codify and amend the hitherto unwritten constitutional principles that govern succession. It would be the first amendment to codify an unwritten constitutional principle (UCP) and the first pursuant to s. 41.

s. 41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province

Conclusion

Twomey’s comparative scholarship on succession in Australia and Canada has has highlighted the importance of federalism and written constitutions, and how federalism affects the Crown. Both countries have always benefited from Constitution Acts (which, however, only form part of a overall hybrid written-conventional constitution) that set up a division of powers between the federal and state/provincial levels. In both countries, the Crown also guarantees federalism, and both federal Realms have provided for mechanisms whereby the federal and state/provincial levels must act in concert in order to change their respective Crowns. These issues simply do not apply to unitary states like New Zealand, which is precisely why Australia and Canada should be set apart in this discussion and compared to one another.

In “Changing the Realms of Succession: The Problem of the Realms,” Twomey also argues that succession to the Crown of Canada falls under s.41(a). (You can download the video at that link). Succession in Australia helps show why succession in Canada must be subject to s.41(a).

Similar Posts:

• The Line of Succession: Coordinating Amendments to the Act of Settlement Across 16 Realms
• The Maple Crown and the Commonwealth Realms
• Why Altering the Succession Requires a Constitutional Amendment
• The Queen’s Annual Christmas Message
• Succeeding to the Canadian Throne
• The Monarchist League of Canada on Succession to the Crown