Australia

On 19 April 2013, the Council of Australian Governments (the equivalent of the Council of the Federation plus the Government of Canada) convened in Canberra. All six state Premiers and the federal Prime Minister came to a consensus on how Australia should enact the alterations to the rules of succession to the Crown (or Crowns) of Australia into Australian law based on the Perth Agreement of 2011.

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).[1]

COAG has taken into account the “hybrid approach” because the State of Queensland had introduced its separate Succession to the Crown Bill, 2013 in February. Initially, the Government of Queensland asserted its sovereignty and insisted that each state should pass its own law on succession because in Australia, each state may well possess its own separate Crown (unlike in Canada, where the provinces undoubtedly do not possess separate Crowns). The other states did not agree. Thankfully, COAG struck a reasonable compromise by allowing each state to pass the alterations to the rules of succession into their own laws, provided that they also invoked section 51(38) of  The Commonwealth of Australia Constitution Act, 1901 and delegated their authority to the Commonwealth Parliament to legislate for all of Australia.

Section 51 of the The Commonwealth of Australia Constitution Act, 1901 falls under the “Powers of the [Commonwealth] Parliament.” My Canadian readers will notice some interesting similarities between section 51 of Australia’s Constitution and section 91 of Canada’s Constitution Act, 1867! Section 51(38) reads:

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: […]
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.

As of 1 July 2013, the Parliament of New South Wales has passed its delegated legislation under s.51(38) through the Succession to the Crown (Request) Act, 2013. The other states will soon follow suit. The New South Welsh legislation consists of two parts, the request law itself and an appendix containing the law that the state Parliament has delegated to the Commonwealth Parliament and requested it to enact, the Succession to the Crown Act 2013 of the Commonwealth. Section 3 of the first part explains the “object of this Act:”

The main object of this Act is to facilitate the law relating to the effect of gender and marriage on royal succession being changed uniformly across Australia and 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.  

In other words, the procedure under s.51(38) ensures the uniform application of succession within Australia, and it also preserves the Personal Union of the British and Australian Crowns. This procedure mimics the defunct procedure under section 4 of the Statute of Westminster, by which after 1931 the British Parliament would only legislate for a Dominion (i.e., pass a statute that “extends to a Dominion as part of the law of a Dominion”) “at the request and with the Dominion.” The Premier of New South Wales even declared upon Second Reading of the bill:

The bill provides for the New South Wales Parliament to request and consent to the Commonwealth Parliament’s enactment of legislation to change succession rules throughout Australia. All other States have agreed to make a similar request to the Commonwealth Parliament.

In Australia, the royal succession falls under the head of power of the Commonwealth Parliament as per section 51. Unlike in Canada, it does not require a constitutional amendment, because the Australian Constitution does not place “the office of the Queen of Australia” under an amending formula. However, section 51(38) does amount to an extraordinary procedure that enjoys a quasi-constitutional entrenchment. The six state parliaments of Queensland, New South Wales, Victoria, Tasmania, South Australia, and Western Australia have delegated their powers to the Commonwealth Parliament; as the New South Welsh law makes clear:

This Act may be expressly or impliedly repealed or amended only be an Act passed at the request or with the concurrence of the Parliaments of all the States.

The Australian procedure under s.51(38) thus requires the unanimous consent of the parliaments of all six states and the Commonwealth Parliament. Despite having the strongest republican movement of the four most senior Realms and having undertaken a referendum on becoming a republic in 1999, the Australian governments have managed to agree to a procedure remarkably similar to Canada’s constitutional amending procedure under s.41(a) of the Constitution Act, 1982, which requires resolutions from the federal House of Commons and Senate, and from all 10 provincial assemblies.

New Zealand

As of 2 July 2013, the Royal Succession Bill has passed First Reading in the Parliament of New Zealand. As a unitary state with a unicameral parliament, New Zealand will no doubt soon pass its law altering the rules of succession to the Crown of New Zealand as per the Perth Agreement of 2011. In contrast to the two federal Realms, New Zealand makes for a rather dull affair.

Canada

Given that Australia will hold its federal elections sometime in our fall and their spring, probably in September 2013, and that the other state parliaments still need to pass their requesting statutes under s.51(38), the Commonwealth Parliament probably would not enact its law altering the royal succession in and over Australia until late 2013, or possibly not until 2014. The Parliament of New Zealand has also yet to pass its law on royal succession. In addition, the British law, the unconstitutional Canadian law, the Australian bills, and the New Zealand bill all included clauses that all their respective governments to promulgate the enabling provisions of the acts into force by proclamation, so that all countries can implement their alterations to the succession to their Crowns simultaneously. This process conforms to the precedents for altering the Royal Style and Titles in 1948 and 1953.

However, the status of the bills in our Australian sister realms only further highlights the absurdity of Canada’s approach. In March 2013, Minister Nicholson and departmental officials implored the Senate Committee on Legal and Constitutional Affairs to expedite the Canadian succession bill onto Third Reading as quickly as possible. As Joe Wild, the Assistant Secretary to the Cabinet, indicated, the Government of Canada “did not want [Canada] to be last” and “did not want to be the reason for holding up the United Kingdom and its being able to move forward with its provisions.” However, Wild also acknowledged that the Government of Canada would wait for Australia and New Zealand.

The Government of Canada could have used the last year to consult with the provinces in preparation for an amendment under s.41(a), especially given that Australia and New Zealand haven’t yet passed their laws.

The primary sources show that in 1937, the Government of Canada believed that succession formed part of Canadian law, just as in 2013, the Governments of Australia and New Zealand understand that succession forms part of their countries’ respective bodies of law. The Government of Canada maintained that position in 1947-1948 and 1952-1953 after enacting alterations to the Royal Style and Titles. But for whatever reason, the Government of Canada never affirmed its long-held position in 1982 by adopting an Imperial Laws Application Act to replace the Colonial Laws Validity Act, as Australia and New Zealand had done in the 20^th century. Perhaps Canada never passed equivalent legislation because, according to Justice Barry Strayer (who served as an Assistant Deputy Minister in the Department of Justice and a main architect of Patriation), section 52(2) of the Constitution Act, 1982 “maintain[ed] the continuity of our system” by “reaffirming the constitutional supremacy principle” that before 1982 resided in section 7(1) of the Statute of Westminster and section 2 of the Colonial Laws Validity Act.[2] Strayer explained that section 2 of the Colonial Laws Validity Act, 1865 (a British statute) ensured that an Imperial law (passed at Westminster) would supersede a colonial law to the extent that they conflicted with one another. Until 1982, the British North America Acts served as Canada’s written constitution and existed as Imperial laws. Section 7(1) of the Statute of Westminster “saved” the British North America Acts and made them supreme over all federal and provincial Canadian statutes. Since Canada repealed section 4 and section 7(1) of the Statute of Westminster in 1982, and then made that amended act part of Canada’s constitution, the Constitution Act, 1982 needed to ensure the continuity of the principle of constitutional supremacy through section 52(2).

At some point in the late 20th century, the Department of Justice of Canada lost significant institutional memory and contradicted the position that it held from at least 1937 to 1953: that succession to the Crown of Canada forms part of Canadian law.

Similar Posts:

• Succession to the Crown
• Succeeding to the Canadian Throne
• Why Altering the Succession Requires a Constitutional Amendment
• The Monarchist League of Canada’s Flip-Flop on Succession
• Why the Harper Government’s Succession Bill Is Unconstitutional
• Succession Falls Under “Office of Queen”
• Professors of Law Motard & Taillon Challenge Canada’s Succession Law
• Andre Binette and Rob Nicholson on Motard & Taillon’s Challenge to the Succession Law
• Anne Twomey on Succession to the Crown & Good Evidence of the Personal Union
• Prime Minister King and the Government of Canada’s Position on Succession in 1937