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House of Assembly - Fifty-Third Parliament, First Session (53-1)
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Bills

Succession to the Crown (Request) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 June 2014.)

The SPEAKER: The member for Morialta has something to say about the succession.

Mr GARDNER (Morialta) (11:02): I look forward to the opportunity, sir. I am not the lead speaker but, for fear of giving the Speaker the opportunity to spend the next 20 minutes talking about the Stuarts' rightful claim to the throne of England, I shall take the opportunity to instead make some comments myself.

The Commonwealth Heads of Government Meeting in Perth on 28 October 2011 saw the leaders of the 16 realms of the British commonwealth which have the Queen as sovereign agree to apply uniform changes to the rules of succession in each of their jurisdictions. The Council of Australian Governments then agreed to introduce the reforms by a request and consent scheme, and all other states of Australia have indeed passed their request and the consent bills. South Australia, as in so many things, I fear, has been lagging behind in this issue that is so very important to our constitutional arrangements.

Today, we have the Succession to the Crown (Request) Bill 2014. The bill requests the parliament of the commonwealth to enact under section 51(xxxviii) of the Constitution of the Commonwealth an act to change the law relating to royal succession and royal marriages. Such a bill does not allow the commonwealth to change the rules of succession for Australia's sovereign in the future without further consultation. The bill also makes consequential amendments to the Treason Act 1351, passed by the Parliament of England, as this applies to South Australia, to remove references to the 'eldest son and heir' and replace them with references to the 'eldest child and heir'.

The passage of the commonwealth legislation will change the law relating to the effect of gender and marriage on the royal succession, consistent with changes made to that law in the United Kingdom. This is to ensure that the sovereign of Australia is the same person as the sovereign of the United Kingdom.

Given that South Australia was the first place in the world to give women the opportunity to stand for parliament in 1894, and that we were the second place to give them the right to vote, it does shame us slightly that we are so far behind in passing this important legislation that would, in fact, give women the same opportunity as men to serve as our head of state.

This bill will allow the passage of such commonwealth legislation to reform the royal succession to remove the following bars: men will no longer be given precedence over women in the line of succession; it will remove the current bar on those in line of succession from marrying a person of the Roman Catholic faith; and a marriage of a descendant of King George II that was not made with the monarch's permission is void. I make no comment on the third item.

The British monarch is already quite free to marry someone of any faith other than a member of the Catholic community of Christianity, so the second part is deeply important. There are some elements of the arrangements that are still sectarian, and they are noted. Obviously that is not an ideal situation but, nevertheless, the Liberal party will, of course, support this measure which is important to our constitutional arrangements.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:05): I rise to speak on the Succession to the Crown (Request) Bill 2014 and indicate that the opposition will be supporting this bill fulsomely. It is, as has been outlined by our whip, the member for Morialta, a bill that comes to us as a result of the Commonwealth Heads of Government Meeting in 2011. It is important to note that at the time, when Her Majesty was present, that this was on the agenda and warmly received in Australia. At the time, the Prime Minister of the United Kingdom, David Cameron, made a number of comments, in particular the following:

Let me be clear, the monarch must be in communion with the Church of England because he or she is the head of that church…

He went on further to say:

…but it is simply wrong that they should be denied the chance to marry a Catholic if they wish to do so. After all, they are already quite free to marry someone of any other faith.

I think it is fair to say that the succession and removal of the discrimination against gender were almost overshadowed not only by media coverage but by the commentary that followed from the decision to relax the rules to allow marriage—but not, as I say, overshadowing the gender issue.

The decision to ultimately come together and ensure that there be reforms in our own Constitution and legislation, to be followed by each of our states at the Council of Australian Governments that subsequently convened, is obviously in recognition of this important step. However, I think it is also important to note that Cardinal Keith O'Brien of St Andrews and Edinburgh, Scotland, made statements about the aspect of the monarchy having the capacity to marry a Catholic but not allowed to be one, when he said:

I welcome the statement from the Prime Minister indicating that his government, together with all of the Commonwealth heads of government, intend to reform the act of settlement.

Cardinal O'Brien had previously been quite outspoken on this matter, describing the continuance of it to be discriminatory and offensive. Accordingly, he noted with pleasure the announcements that had been made and also acknowledged Scotland's first minister, Alex Salmond, who welcomed the lifting of the marriage banns.

It is probably fair to say that, in Britain, this issue was more alive in the debates because of the longstanding rivalry and changes, of course, in those who are in charge of the British monarchy. In particular, the rivalry between England and Scotland was most evident. I am sure that most members of this chamber will be familiar with the history and significance of the rivalry between the Roman Catholic faith and the ultimate birth of the Church of England. Its grip on the British monarchy is legendary.

It is a bloody history—there is no question about that—and on more than one occasion Scotland became the place of seclusion and protection, principally for monarchs of the Roman Catholic faith whose lives were at risk. Mary Queen of Scots is probably the most famous example of a British monarch, or a person who considered themselves as a member of a family entitled to have the 'Queen of England' status, where we saw extraordinary rivalry. I think it is fair to say that it remained common in the continued rivalry between Britain and France, and members will be familiar with the enormous number of battles that occurred between countries led by these different faiths. As I said, it has been a bloody history and I think that all civilised Britons and members of the commonwealth are pleased to see this advance. It is also a day that we celebrate the recognition, although it has been somewhat overlooked in the debates around this as a result of the Church of England and Roman Catholic rivalry, if I can put it as kindly as that; however, we do need to consider it.

South Australia has been established as an independent colony and state. As is well known, we joined with other colonies to establish, through the constitution of the commonwealth, the Commonwealth of Australia. That remains today as part of our tiers of government and parliament and with it, its own legal/judicial appendages historically leading all the way to the Privy Council and culminating in final decisions by the High Court of Australia. We have had an interesting history in the development of our governance and the independent judiciary, but, along with that, we have maintained our connection with the British monarchy. We have had the benefit and protection to enhance our own legal and parliamentary systems by having the King or Queen of England within our governance and that has served Australia well.

I think that is an important point to remember by those who might still chant, rather dismissively, the need to be even considering this, namely, those who oppose a continuation of the involvement of the Queen and/or King in our Australian structure and advocate for a republic, and I am indeed one of them. I was a strong supporter, and remain so, that ultimately Australia should become a republic.

It is not a debate today about the merits of that progression, but I do make the point and I remain respectful of it that the Queen of England, Elizabeth II, is not only the Queen of England, but since our own legislation and the passage of the Australia Act we as an independent country in the 1980s confirmed her as the Queen of Australia. We recognise her with a separate sovereign title as Queen of Australia. We asked her to accept that. She did. We passed the law to secure it and, in my view, we should continue to respect that, particularly as she has undertaken that responsibility.

I have always been an advocate of the view that, at whatever time Australia decides that it might mature into a republic, we should not sack the Queen. She has been appointed by us (which has been confirmed in our own legislation more recently) and she has served us well, and for as long as she wishes to remain our monarch, I do not think we should interfere with her. Upon her retirement, whether that be upon her death or her voluntary leaving of the throne, then and only then, should there be consideration of the implementation of any successful model to follow.

Not everyone shares that view, but I can remember during the debate that, whilst I was a great advocate of the view that if we loved Her Majesty then we should let her go—and I am still of that view—I have enough respect for her and the extraordinary contribution she has made to our country and to South Australia through her Governor-General and/or Governor respectively and, therefore, having appointed her in that way, I do not think we should demur from it.

However, this means that, as part of the family of the commonwealth Australia and its states that have independent links with the monarchy through their Governor, we need to make provision for this to occur, which is exactly what we are doing. It will formally request the commonwealth to amend section 51 of the constitution to change the law relating to the royal succession and the royal marriages, and that is something that we fully support on our side of the parliament. However, I just wish to address one of the consequential amendments that is proposed to the Treason Act 1351.

There is an interesting provision for the way that we have included the Treason Act. In some ways, it is the lazy way into our criminal law system. Most people understand what treason is. It is obviously to provide for the monarch or members of his or her family protection from being under threat. I think, under previous legislation, even the mistresses of a monarch and their families are protected. They seem to attract no protection or entitlement to inheritance as illegitimate children of a monarch but, in looking through some of the early treason acts, they have some protection.

Dare I say it, the lazy way, at first blush, of bringing treason law into our criminal law system has been by way of an addendum to the Criminal Law Consolidation Act. We have not rewritten it. There is provision in the principal act (the Criminal Law Consolidation Act) for the offence of treason; however, to describe it, it has annexed the original act from 1351 and then some subsequent treason acts from subsequent centuries, which were passed and then repealed.

My understanding at present is that the original act (the Treason Act of 1351) still remains as part of our criminal law in South Australia. This is lazy because we do not attempt to reword it, in modern language, into the principal act: we just annex it.

One of the arguments that has been presented for doing it this way is that it is a very complex act, it is a very unusual piece of legislation and, sometimes, if you attempt to summarise something to provide some modern descriptors, you lose key pieces of text which may or may not affect its application. It is one of the arguments which is sometimes used against codifying a common law right or entitlement; that is, if you try to translate centuries of accrued protection under common-law development, and try to summarise it into a statute, you may inadvertently exclude some of the protections or defences that may go with it, or, in fact, the capacity to effectively implement it. So, what is otherwise really a lazy way of doing it is attractive in some instances, and that is the way in which the Treason Act of 1351 has come into our system.

Why is this important? Because, obviously, it provides for an offence against the monarchy and various representatives of the family or consorts, and because of the reference in it to who their heirs and successors are. In particular, the provisions of the Treason Act state:

Whereas divers Opinions have been before this Time in what Case Treason shall be said, and in what not; The King, at the Request of the Lords and of the Commons, hath made a Declaration in the Manner as hereafter followeth; that is to say, When a Man doth compass or imagine the Death of our Lord the King, or of our Lady his Queen, or of their eldest Son and Heir; or if a Man do violate the King's Companion, or the King's eldest Daughter unmarried, or the Wife of the King's Eldest Son and Heir; or if a Man do levy War against our Lord the King in his Realm, or be adherent to the King's Enemies in his Realm, giving to them Aid and Comfort, in the Realm, or elsewhere, and thereof be probably attainted of open Deed by the People of their Condition…

It goes on to make provision for other justices, chancellors and so on who can also have some cloth of protection under this legislation. Importantly, throughout, the act makes provision for the 'eldest Son and Heir'. Interestingly—and this is something that perhaps the Attorney can indicate—this bill makes provision for the removal of the eldest son and heir reference to be replaced with references to 'oldest child and their heir'. What is interesting is that there appears to be no similar provision for recognition of the King being converted to the monarch, or the reigning monarch, at any one time. So the Treason Act 1351 remains as an appendage, it remains with the words 'the King' and others to have protection, as I have indicated.

We know that other legislation provides that where there is reference to 'he', it can include 'she'. We have other legislation which makes provision for the King or the Queen to be the sovereign either way without tampering with the original act. I find that a little unusual and I would like some explanation from the Attorney as to why we are going down this course for the actual changing of the words in the act as distinct from a reference to the eldest son and heir being converted to the oldest child or their heir.

There may be some new reason why we are doing that or it may be that I have misunderstood the bill, but it seems to me that if we are going to tamper with the language of the old act, then quite frankly we should be putting it all into modern form in the principal act, and that may need to come at some other time. But I make the point that if we are going to simply adopt this and keep it still as part of our legislative regime, having passed the Treason Act from 1817—and I think there was another one from 1795—and then repeal their application as I read the act, then we should be tidying up the application of the 1351 legislation.

It is interesting and I suppose you, Mr Speaker, would have some pleasure in reading this legislation. The language is unquestionably beautiful. However, it is sometimes difficult for the current readers to appreciate or even understand. You look with shock, Mr Speaker, but I can remember you delivering a second reading contribution in Latin at the time of changing legislation here to remove references to Latin in the preambles of our legislation.

You seemed to be suggesting there was some protest to this modernisation of acts. I did point out that you were the Attorney-General so you did not have to do it if you did not want to. Nevertheless, in your little stamping toddler-style of protest, you read it out in Latin and at your own hand did fall the beautiful Latin preambles we had in our legislation. I know that you will appreciate the significance of the beautiful language in this legislation. It does require quite a bit of effort to work out what it actually means when you read it because, having identified all the people who get protection under this bill who have been judged for treason, it says things like:

And if per case any man of this realm ride armed covertly or secretly with men of arms against any other, to slay him, or rob him, or take him, or retain him, till he hath made fine or ransom for to have his deliverance, it is not the mind of the king nor his council, that in such case it shall be judged treason, but shall be judged felony or trespass, according to the laws of the land of old time used, and according as the case requireth. And if, in such case, or other like, before this time any justices have judged treason, and for this cause, the lands and tenements have comen into the king's hands as forfeit, the chief lords of the fee shall have the escheats of the tenements holden of them, whether that the same tenements be in the king's hands, or in others, by gift or in other manner, saving always to our lord the king the year, and the waste, and the forfeitures of chattels, which pertain to him in the cases above named; and that the writs of scire facias be granted in such case against the land-tenants without other original, and without allowing any protection in the said suit; and that of the lands which be in the king's hands, writs be granted to the sheriff of the counties where the lands be, to deliver them out of the king's hands without delay.

I hope nobody shows this to the Treasurer, because I fear he will be trying to enact some provision of this act. I suppose he has to marry a princess to try to get some protection for himself but, in any event, I fear what would be imposed on people who might in any way cross him. I think probably to even ask a question in question time could actually incite the provisions of this act, and that would be a worrying moment.

In any event, I make the point that it is legislation which has been time-honoured. Obviously, it is one of the few pieces of legislation which actually remain part of our criminal law, in this case, that applies to us all, so we should be mindful of it when Her Majesty, or members of her family or her appointed officers, are under threat in any way.

I have previously had the honour of being involved in consideration of what we would do at a constitutional level, with former minister Conlon (both of us in a previous life), in the event that there was to be a successful federal republican vote and the office of Governor-General changed and the connection to the Queen in those circumstances severed. We considered what we should do in South Australia and the options we would have in respect of the relationship we have with our own Governor, which is independent and legitimised independently of the relationship between the Queen and Governor-General of the Commonwealth of Australia.

We have our own direct connection with the Queen via the Governor. The Governor is appointed in an entirely separate manner and, whatever the commonwealth did, did not necessarily put any obligation on South Australia to give up our Governor. It is certainly one of the things that could have been continued and of course still does today. We could decide to continue it either in its current form or in others.

We have special rules that we apply in South Australia, and our own Governor has a number of responsibilities and privileges that do not all vest in the state's constitution. One I have often reminded successive governors in South Australia of is their responsibility to be the keeper of the royal fish. From time to time I have mentioned to incoming governors what their responsibility is. This is whale, sturgeon and dolphin, which are—

An honourable member: Carp.

Ms CHAPMAN: Not carp, no. They do not get a guernsey, and I do not think Her Majesty wants them. These fish have very special significance. They have a link in England's history, of course, with Her Majesty. Quite frankly, I would be interested to see if there is any challenge at some time as to which should prevail: the rules which provide for the obligation of the Governor as the keeper of the royal fish, or the South Australian fisheries act. Which should have the ultimate right of protection?

It is quite handy, I am sure, to be able to drop out—it is a bit like name-dropping. If you are the governor, you are out fishing and the fishing inspector comes along, I suppose you could always say, 'Listen, I am the keeper of the royal fish. You can't pick me up.' I make the point that we have a strong relationship with Her Majesty via our Governor. He or she is the representative and plays a very important role in our political and civilian life in this state.

I for one would be concerned about severing that relationship by not having a head of state. Whether it takes another form in the future, we will see, but we in South Australia are clearly entitled to keep that relationship as long as we will, whatever they decide to do in Canberra. In any event, I make the point that sometimes when we do tighten up legislation, try to rewrite it, try to simplify it, we can make mistakes and, usually by inadvertent omission, lose some protection of someone who should otherwise have the benefit of it, and we need to be mindful of that.

At the federal level, as I have said, the questions of both gender and marriage, when that legislation is passed, will provide for changes to the royal succession. My understanding is that England has already passed this legislation. They have already celebrated the right of girls to be recognised. I assume it is still firstborn. No-one seems to have breached the debate so far about whether it should have to be the firstborn.

Mr Gardner: It should be the most meritorious.

Ms CHAPMAN: That could be a debate for another day. Our inheritance laws and a number of other things give recognition to the firstborn throughout history. Now we have a more even-handed approach under our inheritance laws to the provision of entitlement to claim in the states, for example. We still have some other titles—not in South Australia, but obviously in England, not just at the monarchy level—but the hereditary titles for barons of the land give some pre-eminence to the firstborn, and the firstborn male still seems to take a fair bit of precedence.

It is hard to be a duke, I suppose, if you are a female, but one would assume that the duchess role, which is currently provided to the spouse of the duke, will have a significance in its own right similar to the Queen of England as a monarch in her own right and not just the queen by virtue of being married to the monarch.

The consequence of this legislation, it appears, will not affect the current lineage entitlement to the throne. For however long we remain in the relationship with the queen or king of Australia/England, this will remain significant to us. As I understand it, because Prince Charles is the eldest, issues of retrospectivity will be irrelevant. He will be the next heir to the throne, irrespective of whether he is a male or female, because he is the first born—

Ms Redmond interjecting:

Ms CHAPMAN: —and his firstborn, as the member for Heysen points out, is also a male child, and his firstborn is also a male child. The actual application of this legislation seems to be some generations away, and it may not even be in your lifetime, Mr Speaker, or mine that we will see the firstborn in the English monarchy ascend to the throne; but it will be an important day in the recognition of gender equality, I think, for it to be recognised and for that day to occur.

It would probably be only in a circumstance of the tragic and untimely early death of the current heirs to the throne that that situation would otherwise arise. If young George, who I think is fourth or fifth in line to the throne, was suddenly thrust into prominence and he was to marry and have a child, a firstborn female, then we may see it, but it seems unlikely. It is important that it is there and that we have an opportunity to recognise it.

I will just go back to the issue of being able to marry anyone of another faith. There is no question that the law developed for the British monarchy to allow someone to be a member of any other faith, except Roman Catholic, within the Christian family was absurd—absolutely and utterly absurd. We know the history, we know the rivalry, we know the bloody battles over the throne, the imposition of one faith or another, the burning of bibles, and the shocking wars as a result, but it had clearly reached an absurd situation where someone could marry someone of any other faith but not marry amongst the Catholic community.

I would hope that it is a sign of some level of respect for the independence of and opportunity to recognise other Christian traditions. I think in a rather unique way we have ended up with this development in England whereby the monarch, as explained, because they are also the head of the Church of England, must still remain in communion with the Church of England, to swear to preserve the established Church of England as Anglican and the established Church of Scotland as Presbyterian, and swear to uphold the Protestant succession.

So, we needed to ensure that, whilst this quirky development of history has provided for the protection of the Presbyterian faith in Scotland (otherwise we might have seen the secession of Scotland a lot earlier, I suppose), in any event it is way past time I think that we ensure that the capacity for people to make a personal commitment to someone of another Christian tradition, in particular the Roman Catholic faith, is now settled. I think that is a joyous occasion, and I think that for as long as there remains a commitment to the Church of England, which the monarch has the privilege of being the head of, obviously we are going to see this commitment to it, and it is going to remain in our law, but we should not in any way impede those personal partners for members of the monarchy.

If one reflects on the tragedy of when laws act to exclude others—before my time but just in this last century—let me refer to the circumstances where there was a demonising of a member of the British monarchy who chose to have a personal relationship with another, namely, of course, the abdication of the throne by the Queen's uncle and her father then taking the throne. The pillorying of the King when he chose to announce his intention to marry a divorcee from the United States and not of the Church of England faith was an outrage, and today it just simply would not be accepted, but it brought about a crisis in England at the time. Doubtless, there were lawyers running everywhere and there were constitutional advisers, and prime ministers and everyone else were sent into a fit of pique to immediately halt or try to resolve what would occur if an heir to the throne was going to disobey the rules of the nation.

So, it must have been heady days to live through that. Certainly, when I have asked others who remember it or remember being in England at the time, it is hard to imagine how anyone in the world avoided the media coverage, and even still today stories are written about the abdication of the King of England to marry the woman he loved and to pursue a personal and private life with her. It is a lot, obviously, to give up. It sent a country into turmoil, and it will be written about for a long time to come. This is hopefully the end of some of the traumas that have surrounded the monarchy and the people of Britain, and they now have some relief, and we as a member of the commonwealth family, who enjoy the privilege of having Her Majesty and the royal family serve us, are indebted to them, I think.

It was pleasing to see that most recently when the grandson of the current monarch, Prince William, and his wife visited South Australia they were warmly received by South Australians. Members of the government obviously were present and I think that all South Australians should appreciate the government's assistance in making sure that that trip was a success and safe.

These things are expensive, but they are important and indicative of the value, respect and recognition South Australians have for Her Majesty and, in this instance, shown during the visit of her grandson and the duchess. I commend the passage of the bill and look forward to listening to the contribution of others on the debate.

Ms REDMOND (Heysen) (11:50): I feel somewhat inadequate after that learned dissertation by our new shadow attorney-general but, as a member of Her Majesty's Loyal Opposition, I want to make a few comments on this bill. It seems to me an odd thing that, for a start, we are the last state, apparently, to be putting into place the request, which is the essence of this bill, the Succession to the Crown (Request) Bill, because neither this state, of its own volition, nor the commonwealth, without our request, can change the matters we are dealing with. So, the mechanism is that we request the commonwealth to amend section 51(xxxviii) of the constitution to make certain changes.

As has already been pointed out, primarily the change brought about by this request in due course will be that the matter of succession by a female will be placed on an equal footing with that of the male. That, of course, is something about which I have spoken on many occasions in this chamber, not in the royal succession sense but in the gender equality sense. So, obviously, I am very much in favour of the change that is being proposed. I do note, Mr Speaker, that you and I might have a similar view about the way that it is to be achieved because they are going to remove references to 'eldest son and heir' and replace them with references to 'eldest child and their heir'. Technically, if one is pedantic, it would be 'and his heir' rather than 'their heir'.

The SPEAKER: Indeed. It's a question of number.

Ms REDMOND: However, that is the change to be made, and the effect of it is something that I do support, that is, that we do have a change that will enable equality of succession regardless of gender. As I said, it is strange to me that it is almost three years ago that the 16 realms of the British commonwealth got together in Perth and agreed to make these changes.

Apparently, even in the UK the changes have been made and, technically, at the moment, were we not to put this through, we could have a different person succeeding to the monarchy from what would occur in the UK but for the happy circumstance referred to by the member for Bragg (the shadow attorney-general) that is, that it happens that all the relevant successors at the moment—all the relevant first-born children—are indeed male in any event. I think that is something to be welcomed, even though it has been somewhat slow in arriving.

The real reason I want to make a few comments on this bill is that it seems to me that the bill does not go far enough, inasmuch as it then touches upon the issue of the involvement of the monarch as the head of the Church of England and the prohibition that has existed up until now which prevents that monarch from marrying a person particularly of the Catholic faith. Indeed, it has long seemed to me that it is inappropriate for there to be references in our constitution to faith. I have no objection to beginning each day in this chamber with a prayer because I think, whether a believer or a non-believer, it is useful for us to remind ourselves at the commencement of each day in this place that we are here to serve the people of the state, and the effect of the prayer is that we do just that.

Bearing in mind that in this state, of all places, this was, to quote the book of the title, the Paradise of Dissent. Back when this colony was first being established, when the debates were occurring back in the 1820s—so almost 200 years ago—the difficulty from which people were trying to escape was that you had to be a member of the Church of England to progress in the Public Service in the United Kingdom.

The reason the City of Adelaide is the city of churches is not that we have so many churches but that we have such a variety of churches. People from all faiths came to this particular colony, this wonderful utopian vision for the future, where people could have absolute freedom of religion. We had Unitarians and Quakers and all sorts of people who came to this colony and thus established the city of churches because we were a paradise for the dissenters who did not want to be bound to the Church of England. Yet, for all this time, we have had a situation where our monarch, by statutory requirement of our constitution, federally and, in essence, state, has to be a member of the Church of England.

When I say that this legislation does not go far enough, what I mean is that, in my view, given that we have a philosophy in this country of the separation of church and state, that there is no state-controlled religion, that there is no basis upon which we connect church and state in this area, either at federal or state level, it seems to me that we should be passing legislation which goes further than we are doing at the moment. What this bill will do is remove the requirement that the monarch cannot marry a person of the Roman Catholic faith, but it still means that there is a requirement that the person who takes the monarchy will still be in communication with the Church of England, swear to preserve the established Church of England (or the Anglican Church) and the established Church of Scotland (or the Presbyterian Church) and swear to uphold the Protestant succession.

I am what you would call an incrementalist in terms of change. I think that, not always but most of the time, change is best achieved incrementally because those who are afraid of change find that, with a small change, the world has not fallen down, the sky has not fallen, and they cope with that. You can then move on to the next bit of change and the next bit of change, and gradually you will achieve a better outcome than if you try to introduce a massive change and then there is a groundswell of people who are frightened by it and want to move back in the other direction.

So, I am incrementalist in terms of change, but I really think that 200 years is about long enough. Incrementalism can go too far, in my view. As I said, I think that we should be looking more towards a future where not only does the gender of the person who is becoming the monarch not matter but it does not matter what their religion might be because there is a complete separation of church and state in any event.

I declare that I am a republican. I have been a republican since I was about 12 years old, when I began to contemplate the fact that I did not think that anybody should get any job by reason of their birth, and I have held that view ever since. That said, I am a great admirer of Queen Elizabeth; I think she has done an absolutely magnificent job. When we had the referendum, I wished that the referendum had got up. It was worded in a way that it was almost sure not to get up.

I believe that what we should have had was just a simple question that said: should we become a republic? If that question were answered in the affirmative, which it almost overwhelmingly would have been, we should have said to Her Majesty, 'Your Majesty, we're very happy with the job you've done and the job you're doing, but when you go, we go,' and we would have had many years to come to a conclusion about precisely what model we should adopt and how we should move to that republican phase.

I think the member for Bragg (the deputy leader and shadow attorney) may have mentioned the fact that you would not necessarily do away with having a governor or anything like that by virtue of a move to a republican model, as I wish we had. That said, this bill is primarily about two issues: the gender for succession, and I absolutely endorse what is happening there albeit, as the shadow attorney-general pointed out, it is really not going to be relevant, in all probability, during our lifetimes. The point I do want to make, on the issue of religious requirements for the monarch, is that I think it is time that we removed any reference to that. Therefore, I would have supported a move to go even further than what is proposed by this bill, had it been put to us, but, that said, I do support the bill.

The Hon. S.C. MULLIGHAN (Lee—Minister for Transport and Infrastructure, Minister Assisting the Minister for Planning, Minister Assisting the Minister for Housing and Urban Development) (12:01): I thank honourable members for their contributions, particularly the deputy leader. I have to say that I find each day in this chamber more and more enlightening, but few more so than this morning and her contribution, so I deeply appreciate that. I think, with members' assent, we will move into committee.

Bill read a second time.

Committee Stage

In committee.

The Hon. T.R. KENYON: Madam Chair, I draw attention to the state of the house.

A quorum having been formed:

Clauses 1 to 7 passed.

Schedule 1.

Ms CHAPMAN: I refer to proposed part 3—Marriage and succession to the Crown, and clause 7—Removal of disqualification arising from marriage to a Roman Catholic. The reference here obviously deals with relaxation of the rules to no longer disqualify someone succeeding to the Crown if they choose to marry a person of the Roman Catholic faith. My question is: how is that to be defined? Is it a self-disclosure, do you have to be baptised, or do you have to be deemed? Obviously we have different rules as to how these apply, and, because this is a missive going to the commonwealth giving our intent, I would like some clarification on that.

The Hon. J.R. RAU: I thank the honourable member for her question. As I read the thing, we should probably start with the Act of Settlement and work forward. I am not saying that in an entirely frivolous fashion; if you look at the provisions here it refers to people as 'Papists', presumably, at the time, as opposed to people who were Protestants of some description. I think the short answer is that it is someone who claims to be in some way connected with the Roman Catholic Church, whether by reason of formal confirmation or the adoption of that faith as their professed faith.

My second point is that it is, in any event, probably academic, because this is actually removing a barrier that existed for these people; it was only a problem inasmuch as it presented a barrier. Now that the barrier is removed, it is academic whether one is a Roman Catholic (however that might be defined) or whether one is not. The prescription was simply that you carved out these group of people who were, in the language of the time, Papists; they were prohibited partners. This seeks to remove the prohibition on Papists being an acceptable partner. Given that is the case, and from the perspective of the legislation (once it is amended), I guess everyone is the same. They are just a person, and not classified as Papist or otherwise.

The last point I will make is that, as I understand it, this is a format which has been recommended across the commonwealth to be adopted pretty well universally. Therefore, for us to decide to unilaterally have a slightly different point of view about how we do this might inadvertently create other complexities.

Ms CHAPMAN: During the debates we have canvassed this question, about it being as a result of the COAG agreement and the general sympathetic approach of all those participating to ensure that we hasten the passage of this bill, with our blessing. However, whilst we are removing it for the purposes of marriage, as the Attorney would be aware—and I am sure he has listened carefully to the debates on this matter—with the passage of the commonwealth legislation one will be entitled to marry a Catholic but cannot be one to be a monarch. So the bar of being a Roman Catholic is still relevant to the whole issue in relation to succession to the monarchy.

We are still left with that problem, not specifically for marriage, but we are left with it because you are barred from it. It may be that you will need to get some advice from England as to how this is going to apply, but it seems to me that we need to know whether, in fact, you have to be a self-proclaimed one, whether you are to be determined by some person or body to be one, or whether you are prohibited from staying as a monarchist if you avow to become one or actually become one. I assume it gives some disqualifying feature that you would have to abdicate if you became one. These are all things that are going to be pertinent to the continued succession.

We have had some general discussion this morning in this debate about the unlikelihood of there being a female heir in our lifetime who actually aspires to the throne as a result of being the first born, but there is every likelihood that we could see any member of the monarchy—our monarchy too—being the current Queen of Australia under the Australia Act. If Prince Charles, Prince William or Prince George were to change their mind and not just marry a Catholic but become one, I think we need to know, so perhaps you could have some letters patent or something sent from the palace to let us know what is going on and how that is going to work.

The Hon. J.R. RAU: This is a fascinating topic actually because, if I recall my history correctly, we had the issue with Henry XIII who I think it is fair to say was a controversial chap, then one of his daughters, Mary, who was a member of the Roman Catholic faith took over—'Bloody Mary' I think she was known as more affectionately later on—and she occupied the office for a while and was busily setting about making life uncomfortable for her little sister who was by a different mother, of course. Her little sister actually outlived her and became queen. Her little sister was Protestant and she was queen for a very long time, but then eventually when she moved on, not having produced any offspring, we had to go to some sort of remote heir.

The point is that we then wind up with Charles I who was Protestant. Charles I came to a bit of a sticky end. We then have the long parliament and Oliver Cromwell doing all of his stuff and that was all very Protestant. Then they decided that James VI of Scotland should come down and become king because he was a Protestant and then unfortunately, if I recall correctly, he did not last long enough.

Ms Redmond: I didn't know you were that old.

The Hon. J.R. RAU: Pardon?

Ms Redmond: 1648—I didn't know you were that old.

The CHAIR: Order! I am having enough trouble following this.

The Hon. J.R. RAU: Anyway, he dropped off the twig and then we have James II. Now, James II was a Catholic and there was an issue about whether he continued on in the role, and so at that time we have this provision about the Elector of Hanover and Sophia and all these people and that is how we get to where we are now, so everyone has to trace themselves back through this lineage.

I think there are two separate questions here. One is the question of discrimination in respect of a potential heir to the throne or, indeed, a person sixth in line for the throne, marrying a person of the Catholic faith or a papist, as the legislation describes them. That prohibition is to be removed by this and we are following the British model in doing so.

The question of the succession to the Crown itself is a quite different matter (which I think might be covered by the Regency Act) and one needs to remember that the king or queen of England, aside from being king or queen of England, king or queen of Australia, or whatever, is also the head of the Anglican Church and it might be a little difficult if the head of the Anglican Church were a member of the Roman Catholic Church. It is a bit like being a member of the Labor Party and the Liberal Party. I think it might be complicated.

I think the question the honourable member raises is one which actually moves from the temporal to the spiritual and I think, from what I can see of the British legislation, they have not bothered to try to tackle that one because that would be a whole new matter all of itself. I think the gist of it appears to be that you can marry whomever you wish, provided they are otherwise acceptable to the monarch of the day, but this does nothing to enable a person of the Catholic faith to become the monarch.

Ms CHAPMAN: I understand that; I am asking about what happens.

The Hon. J.R. RAU: What happens? I assume what would happen is that children of a marriage between the monarch and a person who was a Catholic would have to determine what faith they wish to embrace, and if they embraced the Protestant faith (or the Anglican Church) it would matter not a jot whether they were a male or a female; all that would matter was who was the eldest.

If they decided to choose to be a member of the Roman Catholic Church, then they would have to contend with a completely different piece of legislation, and they would have to assess whether or not they preferred to be a member of that church or whether they preferred to be whatever in line they were for the monarchy.

Ms CHAPMAN: The clarification I am seeking is whether, because you are prohibited from becoming a monarch if you are of the Roman Catholic faith, the question of the definition of Roman Catholic is still relevant; that is, not to the abolition of the provision of their barring to marriage but on the right to the monarchy. Obviously because monarchs will now be able to marry a Catholic and these issues will arise, there is going to be the question of whether or not someone is a Roman Catholic.

It may be that, for example, someone who might want to apply for the job to be the monarch is 40 years of age, has spent the past 40 years going to every Roman Catholic celebration and church service that is available to them, has gone through every baptismal and confirmation ceremony that applies, and then says, as their parent is about to drop off the perch, 'I am Church of England.' I raise it because it just seems to me that we are going to have this situation whereby, while the king or queen remains head of the Anglican Church, they must continue to support the lineage as a Protestant, etc. Once we have opened up their right to marry a Catholic, it does attract this question of how it is going to work, so I just make that point.

It may be that somebody in England has not turned their mind to that yet, probably because Prince George is too young to have a girlfriend, Prince William has done the right thing and married an Anglican and Prince Charles has sort of had a bob each way. I hope that does not impose some breach of the standing orders for criticism of the Queen, but, he seems to have, at least in his second marriage, someone who is espousing to be a member of the Anglican faith. So, we do not have an imminent crisis, but we need to sort it out for as long as we have the king or queen as the monarch of Australia.

The Hon. J.R. RAU: I will do my best to get to the bottom of this, and if we have to write to the Palace, Westminster or somebody to do it, so be it, that is what we will—

Ms Redmond: I'll go!

The Hon. J.R. RAU: The member for Heysen wishes to go personally as an emissary, and that is fine. I must say that I do not believe that particular problem would be something which is completely new. As I understand it, at various times in British history there have been people who, to all intents and purposes, presented as being one thing and were in fact another, which is why a lot of those old buildings have got these little things behind bookcases where you used to be able to go in and have a quiet pray and do your stuff without anyone knowing; so, that has forever been the case. I think the Duke of Norfolk, or one of them, was the only one who had ever held the line as far as the old regime was concerned, but anyway, that is another story. But, yes, we will look into it. The good news is that we are not in any imminent risk of this becoming a clear and present danger.

Schedule passed.

Schedule 2.

Ms CHAPMAN: I have reread the provision, Attorney, during the course of your erudite responses to my earlier questions. It is possible that the questions I raised in the debate on this matter are clear, but I would like you to make it crystal clear. This is the provision relating to the consequential amendments to amend the Treason Act 1351 passed by the Parliament of England. 'The act has effect as if—' followed by (a) and (b) which remove the male heir and supplant it with the eldest child.

I raised in the course of the debates—which I am sure you will remember; you would have been listening carefully—that we have legislation that does not tamper with original legislation. We have laws, for example, that provide for 'him' to be read as 'him or her' in legislation and, rather than actually rewriting the act, for it to be so interpreted in the future. Our Acts Interpretation Act provisions, most famously, actually, for this chamber, were as a result of the lady sitting up there in Versace blue—Joyce Steele, the first female member of this house.

I should acknowledge her in this contribution because she and Dr Jessie Cooper were the first two women for the Liberal Country League elected to the Parliament of South Australia in 1959. She went on to build the first Magill Training Centre, which was then the children's prison out at Magill, and all sorts of things. I am not going to go into her history but I just make the point, though, that as a result, Frank Chapman—who I hasten to add is no relation of mine—then challenged the legitimacy and the entitlement for Joyce Steele and Dr Cooper to enter the parliament because the constitution, he advocated, should be read as 'he' meaning 'he and only he' and not to include 'he or she'.

In fact, as a result of that litigation after the 1959 election and the challenge in the Supreme Court—and I think the Hon. Don Dunstan actually was counsel for the case advocating that it should include 'she'—the final decision prevailed, enabling the interpretation to be as 'he or she' when we read the word 'he' in the constitution, so instead of being barred from the parliament, that was allowed.

To make it abundantly clear, Sir Thomas Playford, the then premier of South Australia who also adorns our walls here—the longest-serving premier in the state for 26 of his 27 years, I think—moved amendments to the constitution. I think it was he who formally moved them, but it may have been his attorney of the day, and that ensured that in the future there would be no question about women's entitlement to enter the parliament and that they were legally able to do so under our constitution as validly endorsed, and then elected, members.

That was to put at rest forevermore the challenge for women coming into the parliament. The member for Heysen, I think, mentioned in her contribution the importance of this chamber in recognising women's right, the first in the world to stand for parliament, and the second in the world only by a few months for women to have the—

The CHAIR: Wyoming.

Ms CHAPMAN: Wyoming. Yes, Madam Chairman, you are absolutely right—

Ms Redmond: There's a few.

Ms CHAPMAN: Yes, that's right; New Zealand was the first, I think. As indicated there was a second.

Ms Redmond interjecting:

Ms CHAPMAN: I don't think that quite really counted, actually. In any event, they had the right to vote, obviously. But along with the legacy of this state, which was the first place in Australia to give the right to vote, to have a secret ballot for local councils and all of the other wonderful things that we have been pioneering, the importance of recognition of women in the house is paramount in these debates.

The significant aspect I want to raise is that I would not like to see, as I said in the debates, the destruction of the language of the Treason Act as it currently sits, perched in our Criminal Law Consolidation Act as an addendum, but that it is intact and that we have the translations with it in another language. There is no question that it is a testament to the extraordinarily beautiful and diverse language that we have had in the past. I think it would be a shame for it to be adulterated in any way.

As I read this schedule—and I would just like your confirmation on this—although it says amendment of the Treason Act, it is actually a reference, as we have in other legislation, for an interpretation, and the effect is that of a reference and not that it will be the victim of a great red pen going through it and having brutal, boring modern language inserted.

The Hon. J.R. RAU: Yes. I am delighted to confirm that the original language of this absolutely magnificent piece of history will be retained; it is only that the meaning of it will be changed. During the honourable member's remarks I have been reflecting on the fact that the legislation states:

…When a Man doth compass or imagine the Death of our Lord the King, or of our Lady his Queen—

Ms Chapman: I've read that.

The Hon. J.R. RAU: I know, but here is where it gets interesting, because I think you might have inadvertently or deliberately exposed a very interesting point. It goes on to state 'or of their eldest Son'—and now we read 'eldest Son' to mean 'eldest child and heir'—and here is where it gets interesting—

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, indeed. It goes on to state:

….or if a Man do violate the King's Companion—

What does that mean—

or the King's eldest Daughter unmarried, or the Wife of the King's Eldest Son and Heir.

It might be that the affront of violation does not uniformly result in a treason charge, and that is something we should ponder. However, I do not think we need to worry too much about that today.

Schedule passed.

Preamble and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (12:28): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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