It is well known that various religious tests govern succession to the Crown of the United Kingdom. Only Protestants may inherit the Crown. But the Australian Constitution expressly forbids religious tests for holding public office and the position of Queen of Australia is a public office. So does this mean that the rules for becoming King or Queen in Australia are different to the rules in the UK? In a new article in the Queen’s Law Journal looking at the law of royal succession in Australia and Canada and how that law interacts with constitutional guarantees of religious freedom, I argue the answer is yes.
The religious tests governing the royal succession
In the UK, a mix of common law (derived from feudal laws about inheriting land) and legislation governs the law of royal succession (that is, who becomes the next monarch). The principal legal rule is that the first born child (nowadays, regardless of sex) inherits the crown.
There are also rules about religion. Catholics are disqualified from being monarch: the monarch cannot be a Catholic or become a Catholic. The monarch must also be a Protestant and join in communion with the Church of England, which is not the same thing as necessarily being an Anglican (a few of the Georges were Lutherans). New monarchs must also swear a coronation oath promising to maintain the laws of the Christian God and the true profession of the gospel. Failure to swear the oaths forfeits the Crown.
It might be assumed that because Australia (currently) shares the same monarch as the UK (namely, Elizabeth II) the rules of royal succession must be the same in both countries. This is not true.
A separate Queen of Australia
When Australia became a country at Federation in 1901, there was no such position as Queen of Australia. There was one Crown throughout the entire British Empire. Because there was no separate position of Queen of Australia, there were no Australian rules about royal succession.
This changed over time. From the Statute of Westminster 1931, and certainly from the Australia Act 1986, a separate Australian Crown came into existence and so too did a separate position of Queen of Australia. Elizabeth II is Queen of both countries, but the positions of Queen of the UK and Queen of Australia are two distinct offices.
The existence of a separate position of Queen of Australia means there must be Australian rules to govern the Australian royal succession. Covering clause 2 of the Australian Constitution says that “The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.” The effect of this clause is that at the point in time that a separate Australian Crown came into existence the rules of royal succession were effectively copied and pasted into Australian law: they became separate Australian rules.
But Australian legal rules are subject to the demands of the Australian Constitution.
The Australian Constitution prohibits religious discrimination for holding public office
Section 116 of the Australian Constitution says that “no religious test shall be required for any office or public trust under the Commonwealth.” Any law that purports to impose such a selection criterion is unconstitutional and void. Whether section 116 invalidates the religious rules of royal succession depends upon whether the position of Queen of Australia is “under the Commonwealth”.
There is no clear case law telling us what the words “under the Commonwealth” mean. My legal scholarship has argued that “the Commonwealth” is best understood as meaning the federal level government. I have also argued that “under” refers to a familial relationship of progeny or origins such that a position owes its existence to the Commonwealth.
The position of Queen of Australia has a clear familial relationship with the federal level government in the sense that the position is a member of the group of institutions that make up the federal level of government.
The Australian monarch’s position is an office or public trust under the Commonwealth and therefore the prohibition on religious tests attaches to it. There can be no religious rules governing succession to the Australian Crown as there are governing succession to the British Crown.
So when the British rules of royal succession were effectively copied and pasted into Australian law, the rules involving religious discrimination were left behind and did not become part of Australian law.
Historical precedent for different monarchs
There is nothing necessarily novel about the possibility of one Commonwealth realm having a different monarch to other Commonwealth realms.
Edward VIII’s abdication took effect on different days in different Commonwealth realms. As Anne Twomey has explained:
In South Africa, the Duke of York succeeded to the throne upon Edward VIII signing the Instrument of Abdication on 10 December 1936. In the United Kingdom, Canada, Australia and New Zealand, the succession occurred on 11 December, when the relevant legislation was passed by the Westminster Parliament and came into force in those countries. In the Irish Free State, the change did not occur until 12 December 1936, when Irish legislation was passed and came into effect. Thus, from 10–12 December 1936 the divisibility of the Crown extended as far as different Kings.
In other words, there is historical precedent for different monarchs reigning in different Commonwealth realms.
Australia could have a Catholic or a Muslim king
The religious freedom provision of the Australian Constitution means that Australia could have a Catholic or a Muslim king. Having rules of royal succession that involve religious discrimination is unconstitutional in Australia.
But there won’t be a Catholic or Muslim King of Australia any time soon. The principal rule of royal succession is that the first born child of the monarch inherits the Crown. That would be Prince Charles, who is Anglican. His first born, Prince William, is also an Anglican.
Unless Prince George grows up to be a Catholic or Muslim (assuming Australia isn’t a republic by then!) Australia will continue to have a Protestant monarch for some time yet.
Luke Beck is Associate Professor of Constitutional Law at Monash University, Australia.
(Suggested citation: L. Beck, ‘Australia’s Next King Could be Muslim or Catholic’, U.K. Const. L. Blog (19th Jan. 2018) (available at https://ukconstitutionallaw.org/))