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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-05-22 Daily Xml
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Bills

Succession to the Crown (Request) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 8 May 2014.)

The Hon. S.G. WADE (16:15): I rise to support the Succession to the Crown (Request) Bill 2014. At the Commonwealth Heads of Government Meeting in Perth on 28 October 2011, the leaders of the 16 realms of the British commonwealth which have the Queen as their sovereign agreed to apply uniform changes to the rules of succession in each of their jurisdictions. The Council of Australian Governments subsequently agreed to introduce the reforms through a request and consent scheme, relying on section 51 (xxxviii) of the Australian Constitution, which provides:

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 other realms of the British commonwealth have passed their succession laws and all other states of the Commonwealth of Australia have passed their request and consent bills. Through this government's tardiness this parliament is the last parliament to pass this law, other than the commonwealth parliament which, of course, is waiting for this bill from this parliament.

That fact was noted in the House of Lords. On 26 February 2014 in answer to a question the Advocate-General for Scotland said that at that time South Australia was the only state yet to introduce legislation. The Labor peer Baroness Hayter of Kentish Town in response said:

If I understand it, it is only Australia for which we now wait. We just hope that before the Duke and Duchess of Cambridge get to Australia, it may have done the necessary.

It was not to be. The bill is only with us now. This bill requests the Parliament of the Commonwealth of Australia to enact an act to change the law relating to royal succession and royal marriages. The bill does not allow the commonwealth to change the rules of succession in the future without further consultation.

The bill will ensure that the sovereign of Australia is the same person as the sovereign of the United Kingdom. The bill will allow the passage of commonwealth legislation to reform the royal succession and royal marriages to remove the following three bars. First, males will no longer be given precedence over females in the line of succession. Secondly, the marriage of a descendant of King George II will no longer be void if made without the monarch's permission. Thirdly, those in line of succession will no longer be barred from marrying a person of the Roman Catholic faith.

The current bar about marriage to a Catholic is, in my view, sectarian and discriminatory. A British monarch, however, is already quite free to marry someone of any other faith other than a member of the Catholic community of Christianity. Even with the passage of these reforms the British monarchy will still require that the British monarch, and therefore our monarch, must maintain the principles of Protestant supremacy. First, the monarch must be in communion with the Church of England. Secondly, the monarch must swear to preserve the established Church of England, an Anglican church, and the Church of Scotland, a Presbyterian church. Thirdly, the monarch must swear to uphold the Protestant succession.

The monarch of Britain, and therefore the monarch of Australia, cannot be a member of another faith. A Roman Catholic is specifically excluded from succession to the throne. I respect that these laws are rooted in the history and culture of England. The bar on the monarch marrying a Catholic or personally being one has been British law since the passing of the Act of Settlement in 1701. The act aimed to prevent the descendants of the Catholic king, King James II, from ascending to the throne. James was deposed in the 1688 Glorious Revolution by supporters of the Protestant William and Mary, Mary being the eldest Protestant daughter of James II and married to William of Orange, who later became William III. The act was part of asserting the Protestant supremacy in England over 300 years ago.

Personally, I am disappointed that these discriminatory elements of the monarchy will remain. We are rightly offended that the monarchy discriminates on the basis of sex; why should we tolerate discrimination on the basis of religion? The president of the Catholic Bishops' Conference of England and Wales, Archbishop Vincent Nichols of Westminster, said that he welcomed the proposed reform as eliminating a point of unjust discrimination against Catholics. Cardinal Keith P. O'Brien of St Andrews in Edinburgh has previously labelled the act as discriminatory and offensive. He is quoted as saying that he is pleased to note that the process of change, which he hopes will lead to repeal of the act, has started.

Scotland's first minister, Alex Salmond, also welcomed the lifting of the marriage ban, but said it was deeply disappointing that Catholics were still unable to ascend the throne. He said:

It surely would have been possible to find a mechanism which would have protected the status of the Church of England without keeping in place an unjustifiable barrier on the grounds of religion in terms of the monarchy.

Of course, Mr Salmond is right: it would be possible to protect the status of the Church of England without maintaining a religious test on the monarch. We know that it is possible because it is being done. The Church of Scotland, a church in the Presbyterian tradition, has been recognised as the national church of Scotland since 1690, but it is not established. The Kirk is not state controlled and neither the state nor the Westminster parliaments are involved in Kirk appointments. The Queen is not the supreme governor of the Church of Scotland as she is the Church of England. The sovereign does have the right to attend the General Assembly, but she does not take part in its deliberations. However, the oath of accession still includes a promise 'to maintain and preserve the Protestant religion and Presbyterian church government'.

Likewise, there is no established church in Wales or Northern Ireland. In fact, there is no established church in any commonwealth country of which the Queen is monarch. In this regard, this Legislative Council and the state of South Australia led the British colonies in separating church and state. South Australia's pioneers were solid in their commitment to build a Christian society in this colony, but for many of them, financial support from government for religious purposes compromised the respective roles of the state and the church and would, in effect, undermine the building of a Christian society.

The act which established the colony of South Australia in 1836 made provision for the appointment of chaplains, although this clause was repealed in 1838. In 1846, Governor Robe pushed for religion to be aided out of the local revenues of South Australia. In response, the League for the Preservation of Religious Freedom became active and in 1849 published its manifesto. Signed by 19 nonconformist churchmen, it read in part:

The evils involved in the principle of state support to religion have been sufficiently obvious to most, if not all, of you in the Mother Country. It has impeded the spread of Christian principle by requiring mere outward observations as though they were essential and all-important. It has corrupted religion by making it formal, and weakened the state by compelling it to persecute, and wherever carried out to its legitimate consequences it has proved an effectual bar to the advance of the community in any of the paths of social or material progress. Judged by its fruit, it is condemned by the voices of experience from the first moment of its adoption to the present time.

The issue of state aid to religion was the central issue in the first democratic election in South Australia of 1851. Opponents to state aid were well supported at the polls and in late 1851 the Legislative Council defeated Governor Robe's state support to religion act by a majority of three. In that act, South Australia became the first British colony to achieve the separation of church and state.

Through the constitutional developments of the 1850s, the colonists repeatedly fought for a full-blooded importation of British institutions, including fighting for the right to establish this bicameral parliament. It is noteworthy that the one British institution that they fought against was an established church and, in that, South Australia led the colonies. Now, no part of the British commonwealth has an established church outside the United Kingdom.

British institutions are well regarded and commonly replicated around the world (Westminster parliaments, common law and legal systems) but established churches have not found favour anywhere in the British commonwealth beyond the United Kingdom; yet, through the monarchy, the established Church of England results in our Australian head of state not having the freedom of religion that his or her subjects do.

In the Australian context where sectarian division has been such a blight in our nation, I think that it is unhelpful that the head of state of contemporary Australia is defined in religiously discriminatory terms. I respect that these laws are rooted in the history and culture of Australia but, in my view, they are not appropriate to contemporary Australia. Today, I indicate my support for the passage of the bill.

The Hon. T.A. FRANKS (16:26): As the speaker before me (Hon. Stephen Wade) and, indeed, the minister have indicated, this bill comes before us as a result of the decision and announcement made in October 2011 at CHOGM in Perth. At that time, the UK Prime Minister, David Cameron, announced that the 16 commonwealth countries where the Queen is head of state had agreed to give female royals the same rights of succession as their brothers. Prime Minister Cameron stated at the time, put simply, 'If the Duke and Duchess of Cambridge were to have a little girl, that girl would one day be Queen.'

Under the ancient rules of male primogeniture, first-born royal daughters in direct line to the throne were leapfrogged by their younger male siblings. The principle was once commonplace in western societies and, indeed, some other societies but is now, I believe, rightly criticised and widely viewed as outdated and discriminatory. Indeed, the current law of male primogeniture has only allowed our current monarch, Queen Elizabeth II, to be Queen because she did not have any brothers.

These long-needed moves towards constitutional change gathered pace in the wake of the Duke and Duchess's wedding in April 2011, in anticipation that they would have a child and an heir, the anticipation in particular being to ensure that the firstborn would be the heir regardless of their sex. The changes take effect as of 28 October 2011, the date on which the commonwealth summit was held and the countries agreed to the plans.

In the 15 other countries where the Queen is head of state, the rules must also be changed. That change is needed to be legislated for in the commonwealth nations of the UK, New Zealand, Canada, Jamaica, Antigua and Barbuda, the Bahamas, Barbados, Grenada, Belize, Saint Kitts and Nevis, Saint Lucia, the Solomon Islands, Tuvalu, Saint Vincent and the Grenadines, Papua New Guinea and, now, Australia, the final state being South Australia.

I must comment at this point, and certainly the Hon. Stephen Wade was quite right to raise, that we are very late to the party in promoting and passing this bill which takes a step further in equality for women. Of course, we have a very proud history in this state of having been the first place to grant suffrage to women, yet I think we rest far too often on the laurels of our history or our 'her-story' in terms of the promotion of equal rights and, in general, human rights, and far too often we are lagging behind other jurisdictions in the area of equality these days.

However, the changes mean that, for all descendants of the Prince of Wales, younger sons will no longer take precedence over an elder daughter in the line of succession. There is no rewriting of history here, however, and 'history' is the word I use advisedly, not 'her-story'. For example, the current generation of royals will not be affected. It will not be retrospective, meaning, for example, that the Princess Royal will now not jump ahead of her younger brothers the Duke of York and the Earl of Wessex.

Our current monarch, Queen Elizabeth II, as I say, was only able to become queen because she did not have any brothers. The Princess Royal, Anne, will not jump the queue, if you like, with regard to the implications of this particular legislative change. I believe that, fortunately, times do change and I am pleased that we are now finally playing our part in changing these times. Prince William and Kate's child has moved into third place in line to the throne, but will be the very first royal progeny not to be subject to the centuries-old law of primogeniture which puts male heirs ahead of females.

The other point I would wish to make, and I guess the word primogeniture leads to this assumption, is that often in this debate and certainly in the government's speech there has been references to the term gender rather than sex. What I would like to point out is that sex refers to the biological differences; gender is the characteristics the society delineates and in this case as masculine or feminine, so sex would have been the more appropriate term to use when we were talking about boys or girls.

No matter what sex this royal heir had been, had we proclaimed 'It's a boy' or 'It's a girl', that would have made no difference on the impact of where it now stands in terms of the royal line of succession. It has been feared, however, that there could have been a constitutional crisis had the royal couple had a baby girl before the law was changed. I think the bill we have before us reflects the attitudes of a modern society and certainly I will support any areas where we see women and men being treated equally.

I also note that this bill, in terms of the laws across the commonwealth, applies an ancient and unused rule where descendants of George II are supposed to gain the consent of the monarch to marry. I understand that from here on in that will only apply to the first six people in the line of succession, so I do ask the minister for clarification of whether or not Princess Beatrice will have to ask the monarch if she can marry, but Princess Eugenie will not.

Members of the royal family who marry a Roman Catholic will also be able to now succeed to the Crown and certainly, again, the removal of discrimination upon the grounds of religion is somewhat welcome. Of course, I assume that it only does apply to Catholicism and not any other religion. That law in terms of Catholicism was brought in following the Glorious Revolution when a Dutch invasion helped overthrow a papist king so that a Catholic could never sit on what is termed our throne again.

The commonwealth leaders also agreed to overturn the 1701 Act of Settlement which means that only Protestant heirs of the Electress Sophia of Hanover, granddaughter of James I, could become king or queen. It was also agreed that the barrier with regard to marrying a Catholic would be removed, and I echo the words of the Hon. Stephen Wade in welcoming the removal of those particular bits of discrimination.

The rule will not be backdated, however, and it will be many years before another female heir will be close to the throne. The rule, had it been enforced before in British history, does throw up some interesting propositions, particularly for those who like to read royal magazines, New Idea, Women's Weekly and the like. We could have had a very different royal family had this rule been brought in a long time ago. Constitutional experts say that in 1509 Margaret Tudor would have taken the throne instead of Henry VIII and, as a result, Elizabeth I would never have been queen. It also might have meant that Queen Victoria would have been succeeded by her daughter Princess Victoria, the Princess Royal, in 1901 and not King Edward VII. When she died just a few months later, her son Kaiser Wilhelm II would have ascended the throne, something, I understand, which may have prevented the First World War. It is also said that the Queen of England would have been at that time the completely unknown Princess Marie Cecile of Prussia.

The Hon. I.K. Hunter: One of my favourites!

The Hon. T.A. FRANKS: Indeed, one of your favourites, the Hon. Ian Hunter. It could have been a very different world had this law been brought in some centuries ago, but it is certainly a world that I welcome where, regardless of a child being a boy or a girl, they are treated equally.

As I previously stated, we are the last jurisdiction, and we were the first in terms of women's suffrage. I would hope that in the future we will be better. With those words, I commend the motion to the chamber, but I also ask whether or not there is still a difference in treatment between princesses Beatrice and Eugenie.

The Hon. G.A. KANDELAARS (16:35): I rise today to speak to the Succession to the Crown (Request) Bill 2014, which requests and consents to the commonwealth parliament's enactment of legislation to change succession rules throughout Australia. It is very timely; it comes but weeks after we saw Their Royal Highnesses The Duke and Duchess of Cambridge being greeted in Elizabeth by thousands of South Australians, as well as His Excellency the Governor, Kevin Scarce, and our esteemed Deputy Premier and Attorney-General, the Hon. John Rau.

Although their royal highnesses did not bring His Royal Highness Prince George of Cambridge with them on their visit to Adelaide, it is interesting to note that, without the changes identified in this bill, should His Royal Highness marry a Roman Catholic, he would be disqualified from succession. Similarly, without the changes identified, if His Royal Highness Prince George had an older sister, he would have overtaken her in the line of succession. This is obviously out of touch with 21st century realities. Of course, Her Majesty The Queen is not only Queen of Australia; she is also the sovereign to 15 other commonwealth realms.

At the Commonwealth Heads of Government meeting in Perth in 2011, the leaders of the 16 realms agreed to apply uniform changes to the rules of succession in each of their jurisdictions. Australia's former prime minister consulted with premiers and chief ministers before committing to the changes. At the time, the Premier signalled in-principle support on behalf of the South Australian government.

After the Perth decision, the Council of Australian Governments (COAG) agreed to introduce the reforms by a cooperative request and consent scheme, relying on section 51 of the Australian Constitution. I understand that the other states have agreed and passed legislation to make similar requests to the commonwealth parliament.

A request and consent bill such as this bill does not allow the commonwealth to change the rules of succession for Australia's sovereign in the future without consultation. The commonwealth is only allowed to enact a bill that the state parliaments have agreed. The draft commonwealth bill is included in schedule 1 of the South Australian bill. South Australia needs to enact the legislation so that the commonwealth can proceed with legislation so as to ensure that succession does not depend on gender and to end the disqualification arising from marrying a Catholic.

This is a simple bill. It is not a bill likely to create headlines or fanfare; however, it is critically important to ensure that South Australia and, indeed, Australia remain in step with the rest of the commonwealth. Passage of the commonwealth legislation will ensure that the sovereign of Australia is the same person as the sovereign of the United Kingdom.

The 16 commonwealth realms which share the same royal family, including Britain, Australia, Canada, New Zealand and Jamaica, must all pass an identical law before the changes can come into effect, unless the United Kingdom legislation covers it for all. I understand that every commonwealth realm has now passed the law except for Australia. I commend the bill to the house.

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:40): I understand there are no further second reading contributions on this bill, and I thank those members who have contributed to the second reading. This is quite a simple bill, its main object being to facilitate the law relating to the effect of the gender and marriage of royal succession being changed not only uniformly across Australia but also consistently with changes made to the law in the United Kingdom.

In relation to a question the Hon. Tammy Franks asked, I have been advised that, yes, she is correct: only those persons who are one of the first six persons in line to succession to the Crown need to obtain consent from Her Majesty. With those words, I commend the bill to the house and look forward to dealing expeditiously with the committee stage.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:43): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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