Succession to the Crown (Request) Act 2014

The central concept is the request mechanism under section 51(xxxviii) of the Australian Constitution. That provision allows the Commonwealth Parliament to make laws 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". The preamble to Schedule 1 of the SA Act recites that for the purposes of that paragraph, the Parliaments of all the States have requested the Commonwealth to enact the Act in the terms set out. This mechanism was used because the subject matter of royal succession and royal marriages was not otherwise within Commonwealth legislative power, and uniform national legislation was needed to implement the 2011 Perth Agreement among the realms of which the Queen is Sovereign.

The concept of "succession to the Crown" in this legislation is tied to the automatic operation of British constitutional statutes that had been received into Australian law at various times. The Bill of Rights 1689 and the Act of Settlement 1701 are part of the law of the Commonwealth, the States and the Territories by virtue of their reception as imperial statutes. Their provisions relating to succession and marriage to Roman Catholics are modified by this Act. The concept also involves the Royal Marriages Act 1772, which required descendants of George II (except the issue of princesses marrying into foreign families) to obtain the monarch's consent before marrying, on pain of the marriage being void. This Act is repealed so far as it applies in Australia.

The concept of disqualification is key. Historically, a person who married a Roman Catholic was disqualified from succeeding to the Crown. That disqualification is removed by Part 3 of the Commonwealth Act, both for future and existing marriages. A new disqualification is introduced by section 8 of the Commonwealth Act, which refers to the UK Succession to the Crown Act 2013 subsection 3(3). That UK provision disqualifies a person who is one of the first six persons in line to the Crown at the time of marriage and who marries without the consent of the Sovereign, unless the marriage is to a person who is not a Roman Catholic and the marriage is not subject to the Royal Marriages Act 1772. Because the Royal Marriages Act 1772 is repealed, the consent requirement effectively only applies to marriages to persons of any faith, but the disqualification only attaches if the person is within the first six in line.

The concept of "Crown" in the Commonwealth Act is defined in section 5 as meaning the Crown in all of its capacities. This includes the Crown in right of the Commonwealth, each State and each Territory. The Act applies to all capacities, ensuring uniform application.

The concept of "that the Sovereign of Australia is the same person as the Sovereign of the United Kingdom" is addressed in section 3 of both Acts as the object. Section 4 of both Acts provides that the relationship between the Sovereign and the State (or Commonwealth, States and Territories) is not affected. This means that the changes do not alter the constitutional status of the Crown or the fact that Australia and the United Kingdom share a monarch as a matter of law.

The SA Act also introduces an interpretive concept: references in any State law to provisions of the Bill of Rights or Act of Settlement relating to succession are to be read as including references to the SA Act and the Commonwealth Act. This ensures that the new legislation is read as part of the same legal framework.

The primary class of persons affected are those who are in the line of succession to the Crown and their descendants. For persons born after 28 October 2011, gender no longer gives them or their descendants precedence over others. This directly affects the order of succession for any child born to a member of the royal family after that date. Female heirs before that date are not affected; the change is prospective only in terms of date of birth.

Persons who have married a Roman Catholic are no longer disqualified from succeeding to the Crown. This applies to marriages that occurred before the commencement of the Act if the person is still alive at commencement, and to marriages after commencement. This removes a disqualification that previously applied to persons such as those who had married a Roman Catholic and were consequently excluded from the succession.

Persons who are within the first six persons in line to the Crown at the time of marriage and who marry without the Sovereign's consent are now disqualified by section 8 of the Commonwealth Act, by reference to the UK Act. This is a new disqualification that replaces the old Royal Marriages Act regime. It applies to marriages after commencement, but the disqualification arises from the fact of marriage without consent, not from the faith of the spouse. The only persons affected are those in the first six positions at the time of marriage; those further down the line can marry without consent and without disqualification.

Persons whose marriages were void under the Royal Marriages Act 1772 are potentially affected by the validation provision in Schedule 1 Part 2 item 9 of the Commonwealth Act. The validation treats the marriage as never having been void for all purposes except succession to the Crown. This affects property rights, legitimacy, inheritance and other legal consequences of marriage. The validation is subject to conditions: neither party was in the first six in line at the time of marriage, no consent was sought under section 1 or notice under section 2 of the 1772 Act, it was reasonable for the person not to have been aware the Act applied, and no person acted on the basis the marriage was void before commencement. Those who meet the conditions gain retroactive validation but cannot rely on it for succession rights.

The legal profession, including solicitors and barristers dealing with constitutional law, property law and family law, are affected to the extent they need to advise clients on the status of royal marriages and succession rights. Journalists and historians may need to understand the changes for accurate reporting.

The Crown itself is affected: the succession rules are altered, but the relationship with the Sovereign is not changed. The States, the Commonwealth and the Territories are all affected because the legislation operates as part of their laws through the s51(xxxviii) mechanism and the interpretive provision in the SA Act. The Treason Act 1351 is amended to refer to "eldest child and heir" instead of "eldest son and heir", which affects the definition of treason by compassing the death of the heir to the Crown.

The legislation primarily creates rights of succession and removes disqualifications; it does not impose duties on private individuals. There is no obligation for any person to do or refrain from doing anything. The key rights are:

A right not to be excluded from succession by reason of gender. A female person born after 28 October 2011 has the same precedence as a male person of the same relative age. This right is held by the person and their descendants. It is not a right that can be waived or transferred; it operates automatically under the rules of primogeniture as modified.

A right not to be disqualified from succession by reason of marrying a Roman Catholic. This right applies to persons who have married a Roman Catholic before or after commencement, provided the person is alive at commencement. The right removes a previous disqualification, but does not create a right to marry a Roman Catholic; marriage is still governed by other laws.

A limited right to have a marriage validated that was previously void under the Royal Marriages Act 1772. This right is conditional as described above. The validation operates retrospectively for all purposes except succession to the Crown. This means that for property, inheritance, legitimacy and other matters, the marriage is treated as valid from the start. The right is not available if any person acted on the basis the marriage was void before commencement, which is a condition that may be difficult to ascertain.

A right of the Sovereign to give or withhold consent to marriage of a person within the first six in line to the Crown. While this is not stated directly, the UK Act's subsection 3(3) is incorporated by reference, and that UK provision implies that the Sovereign may give consent. If consent is given, the person is not disqualified. The Sovereign also has the right to refuse consent, which triggers disqualification if the person marries anyway.

No duty is imposed on the Commonwealth or States to take any further action, except that the Commonwealth Act is enacted at the request of the States. The SA Act does not require the Commonwealth to act, but merely requests. Once enacted, the Commonwealth Act cannot be repealed or amended except by an Act passed at the request or with the concurrence of the Parliaments of all the States (section 12 of the Commonwealth Act). This imposes a procedural limitation on the Commonwealth's legislative power, but it is a self imposed entrenchment.

The interpretive provision in section 7 of the SA Act imposes a duty on courts and interpreters of State law to read references to the Bill of Rights and Act of Settlement as including the SA Act and the Commonwealth Act. This is a mandatory rule of construction.

The legislation does not create any criminal offences or civil penalties. There are no penalty provisions, fines, imprisonment, or enforcement mechanisms. The only sanction for breach of the succession rules is that a person may be disqualified from succeeding to the Crown. That disqualification is automatic and does not require court proceedings; it arises by operation of law upon the occurrence of the relevant event (marriage without consent while within the first six in line). Enforcement of the disqualification is essentially a matter for the Crown and the legal system if a succession dispute arises. If a person who is disqualified attempts to succeed, the issue would be justiciable in a court of appropriate jurisdiction, likely the High Court of Australia under its original jurisdiction in matters arising under the Constitution or involving the Commonwealth. However, the Act does not create a right of action for anyone to challenge a succession.

The only potential penalty-like consequence is the loss of right to succeed, which is a civil consequence, not a penalty. The legislation does not provide for any enforcement agency. There is no regulator, no requirement to report marriages, and no monitoring body. The Royal Marriages Act 1772 previously had criminal penalties for certain offences (not detailed in the text), but it is repealed. The validation provision in Schedule 1 Part 2 item 9 does not impose any penalty on anyone; it is a remedial provision.

If a person falsely claimed that they were not disqualified, or that a marriage was validated, the usual laws of fraud and perjury would apply, but they are not created by this Act.

The amendment to the Treason Act 1351 does not create new penalties. Treason is already an offence under Commonwealth and State law. The amendment merely updates the definition of who is the heir for the purposes of compassing the death of the heir. The penalty for treason remains unchanged (life imprisonment under Commonwealth law). The change to "eldest child and heir" means that the offence can be committed in relation to a female heir as well as a male heir.

Given the nature of the subject matter, it is unlikely that there will be any enforcement actions directly under this Act. Succession to the Crown is a matter that arises rarely and usually with broad political consensus. The absence of penalties and enforcement mechanisms is consistent with the Act's character as a request and a set of rules for the operation of constitutional conventions and statutes.

The Act interacts with a complex web of imperial, Commonwealth and State statutes. The most significant interactions are with the Bill of Rights 1689 and the Act of Settlement 1701. Both statutes had provisions disqualifying persons who marry a papist from succeeding to the Crown, and the Act of Settlement required the Sovereign to be in communion with the Church of England. The Bill of Rights also contained a provision against the Crown marrying a papist. The Commonwealth Act (Schedule 1) directly amends these Acts so far as they are part of the law of the Commonwealth, a State or a Territory. The amendments remove "or marry a papist" and similar language. The SA Act's section 7 provides that references in State law to those provisions are to be read as including references to the SA Act and the Commonwealth Act, ensuring the amendments are applied broadly.

The Royal Marriages Act 1772 is repealed by Schedule 1 Part 2 of the Commonwealth Act. That repeal operates so far as the 1772 Act is part of the law of the Commonwealth, a State or a Territory. The repeal is subject to a saving and validation provision for marriages that were void under it. This interaction is complex: the repeal does not affect marriages already void unless the validation conditions are met. The validation provision does not apply for succession purposes, so the Royal Marriages Act 1772 remains relevant for succession to the Crown in relation to marriages entered into before repeal? No, the validation specifically says it applies for all purposes except succession. But if a marriage was void under the 1772 Act, the validation treats it as never void for all other purposes. For succession, the marriage remains void. That means that the children of such a marriage are not legitimate for the purposes of succession. This is a deliberate policy: the Act preserves the succession rules as they were for pre repeal marriages, but provides civil validity.

The Union with Scotland Act 1706, Union with England Act 1707, Union with Ireland Act 1800 and Act of Union (Ireland) 1800 all contain provisions relating to succession. Section 11 of the Commonwealth Act provides that these Acts are subject to the Commonwealth Act. This means that any provisions in those Acts that conflict with the new succession rules are overridden. The new rules prevail.

The Treason Act 1351 is amended by Schedule 2 of the SA Act (which takes effect as a consequential amendment). That Act defines high treason as encompassing compassing the death of the king or his "eldest son and heir". The amendment changes the first reference to "eldest child and heir" and the second reference to "eldest son if the heir". This means that if the heir is a daughter, the treason provision extends to her as well, but if there is a son who is not the heir (because a daughter is the heir by virtue of the gender neutral rule), the second part only applies to the eldest son if he is the heir. This is a technical amendment to align treason law with the new succession rules.

The Commonwealth Act also interacts with the Constitution. Section 51(xxxviii) is the source of power. The request from all States is necessary. The SA Act is one such request. The Commonwealth Act is enacted at the request of all States, so it is valid Commonwealth law. Additionally, section 12 of the Commonwealth Act provides that it may be expressly or impliedly repealed or amended only by an Act passed at the request or with the concurrence of the Parliaments of all the States. This is a unusual entrenchment that may interact with constitutional principles of parliamentary sovereignty. It is a self imposed limitation, but whether it binds future parliaments is debatable under constitutional law. At minimum, it creates a political expectation that the Act will not be changed unilaterally.

The Act also interacts with the common law of succession to the Crown. The common law rules of primogeniture are modified by statute. The Act does not codify all succession rules; it only changes specific aspects: gender and marriage discrimination. The rest of the common law remains.

The SA Succession to the Crown (Request) Act 2014 was assented to on 26 June 2014. It commenced on that date for most provisions, except sections 6, 7 and Schedule 2, which commenced on 26 March 2015, which was the date the Commonwealth Succession to the Crown Act 2014 commenced. The SA Act is a short, single purpose Act that has not been amended since its enactment. Its legislative history is minimal: it was passed by the South Australian Parliament in response to the agreement reached at the Commonwealth Heads of Government Meeting in Perth on 28 October 2011. All Australian states passed similar request Acts around the same time.

The Commonwealth Act that it requested, the Succession to the Crown Act 2014 (Cth), was enacted on 24 March 2015 and commenced on 26 March 2015. The Commonwealth Act has not been amended subsequently. Section 12 of that Act provides that it may be repealed or amended only by an Act passed at the request or with the concurrence of the Parliaments of all the States. As of the current date, no such request has been made, so the Act remains in its original form.

The SA Act itself does not have an amendment history. It has only been amended by itself at commencement (the delayed commencement of sections 6, 7 and Schedule 2 was provided for in the Act). There are no amending Acts.

The legislative history notes in the SA Act indicate that for further information, the Index of South Australian Statutes or www.legislation.sa.gov.au should be consulted. Given the nature of the Act, it is unlikely to be amended unless there is a further change to the law of succession in the United Kingdom that requires a uniform Australian response. If such a change occurred, a new request Act from all states would be needed, and then the Commonwealth would need to amend the 2014 Act under the section 12 procedure. This is a high bar, making amendment politically difficult.

The Act's legislative history reflects its origin in the 2011 Perth Agreement, which was agreed to by representatives of the realms. The UK enacted its Succession to the Crown Act 2013 in 2013. Other realms enacted their own legislation. Australia used the s51(xxxviii) mechanism to achieve uniformity. No other Australian state Act has been amended; they are all similar.

The consequential amendment to the Treason Act 1351 is part of the SA Act's Schedule 2, which came into effect on 26 March 2015. That amendment is now part of the law of South Australia and potentially other states by adoption. The amendment itself has not been changed.

There is no reported litigation under the Succession to the Crown (Request) Act 2014 (SA) or the Commonwealth Succession to the Crown Act 2014. No cases have been brought challenging the validity of the Act, its interpretation, or the application of its provisions. This is unsurprising given the subject matter: succession to the Crown is a rare event, and the changes made by the Act are prospective and broadly accepted. The only potential litigation might arise from a dispute over succession involving the gender or marriage provisions, but no such dispute has occurred.

The constitutional validity of using section 51(xxxviii) for this purpose could theoretically be challenged. The power requires a request from the Parliaments of all the States directly concerned. All states passed request Acts, so that condition is met. The power also refers to "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". At federation, the UK Parliament could legislate for the colonies on royal succession. The Commonwealth could not. So the power is apt. There is a possible argument that the UK Parliament no longer has that power for Australia after the Australia Acts 1986, but section 51(xxxviii) is not limited to powers that the UK Parliament can exercise at the time of legislation; it refers to powers that could be exercised only by the UK Parliament at the establishment of the Constitution. This is a historical test, and it is satisfied. No challenge has been brought.

There is no litigation regarding the validation of marriages under Schedule 1 Part 2 item 9. The conditions are factual, and if a dispute arose, a court could determine whether the conditions were met. However, no such dispute has been reported. The provision is narrow: it only applies to marriages where no one acted on the basis the marriage was void before commencement. If anyone did act, the marriage is not validated. This could lead to litigation if, for example, a member of the royal family sought a declaration that a marriage was valid for succession purposes, but the validation explicitly excludes succession.

The amendment to the Treason Act 1351 has not been litigated. The definition of "eldest child and heir" could be relevant in a treason prosecution, but none has occurred.

The absence of litigation history does not mean the Act is irrelevant; it means that its operation has been uncontroversial. It is a largely mechanical piece of legislation that adjusted the law to reflect social changes and international agreement. In the event of a future succession, the provisions could be tested, but as of now, there is no case law interpreting the Act.

Several features of the legislation could catch legal practitioners off guard.

First, the disqualification under section 8 of the Commonwealth Act is dynamic in a limited sense: it refers to the UK Succession to the Crown Act 2013 "as in force at the commencement of this section". This means the disqualification provision is fixed at the date of commencement (26 March 2015). If the UK later amends its section 3(3), the Australian provision will not automatically incorporate the amendment. This creates a potential divergence: a person disqualified in the UK after a future amendment might not be disqualified in Australia, or vice versa. Practitioners advising on succession must check the UK Act as at March 2015, not the current version.

Second, the validation of marriages under Schedule 1 Part 2 item 9 does not apply for succession purposes. This means that a marriage that was void under the Royal Marriages Act 1772 and validated for all other purposes still leaves the issue of that marriage unable to inherit the Crown. The children of such a marriage are not in the line of succession. This could be a trap for anyone who assumes that validation restores all rights. The Act explicitly carves out succession. This is stated in item 9(2): "Subitem (1) applies for all purposes except those relating to succession to the Crown."

Third, the validation condition in item 9(1)(d) that "no person acted, before the commencement of this item, on the basis that the marriage was void" is potentially ambiguous. What constitutes "acted"? If a person made a will, transferred property, or made a decision based on the assumption the marriage was void, that might preclude validation. The condition requires that no person acted on that basis. This could include third parties, not just the parties to the marriage. If, for example, a property was transferred to a child of the supposed void marriage on the assumption the marriage was void, that might count as acting. The condition is an all or nothing test for the marriage: if any person acted, the marriage is not validated even if the parties themselves never acted.

Fourth, the interpretive provision in section 7 of the SA Act is easily overlooked. It provides that references in any State law to the Bill of Rights or Act of Settlement relating to succession are to be read as including references to the SA Act and the Commonwealth Act. This means that a statute that says "as provided in the Act of Settlement" now includes the new Acts. But it is limited to provisions relating to succession. Lawyers need to check whether any State law references those imperial statutes and adjust advice accordingly.

Fifth, the entrenchment provision in section 12 of the Commonwealth Act is unusual. It says the Act may be repealed or amended only by an Act passed at the request or with the concurrence of the Parliaments of all the States. This is a procedural restriction on Commonwealth legislative power. While the Commonwealth Parliament cannot bind its successors, the section may have political or interpretive effect. Courts might require clear words to repeal it, or might treat it as a manner and form requirement under the Australia Acts. As a practical matter, any amendment is politically very difficult, so the Act is effectively frozen unless all states agree.

Sixth, the object section (section 3 of both Acts) states the aim is that the Sovereign of Australia is the same person as the Sovereign of the United Kingdom. This is not a legal requirement; it is an object. The Act does not compel that outcome it merely changes the rules to be consistent. If the UK changed its rules in a way that diverged, the Australian rules might produce a different successor. Because the Act references the UK Act only at commencement, divergence is possible.

Seventh, the amendment to the Treason Act 1351 changes only the first reference to "eldest son and heir" to "eldest child and heir". The second reference becomes "eldest son if the heir". This means that if the heir is a daughter, the first part protects her, but the second part only applies to the eldest son if he is the heir. So if the heir is a daughter, the eldest son is not covered by the second part unless he is actually the heir (which he is not). This is a technical point but could be important in a treason prosecution.

Compliance with the Succession to the Crown (Request) Act 2014 and the resulting Commonwealth Act is largely passive. No person or entity is required to take any affirmative steps. However, legal practitioners advising clients on matters related to the Crown, succession, marriage of royal family members, or the interpretation of imperial statutes should take the following practical steps.

First, when advising on the line of succession, practitioners must apply the gender neutral rule for persons born after 28 October 2011 (UK time). Date of birth is critical. For persons born on or before that date, the old primogeniture rules (male preference) continue to apply. This distinction requires careful calculation of births in relation to the agreed date. The UK time is specified, so practitioners need to adjust for time zones. Since royalty are usually in the UK, this is straightforward, but if a birth occurs in Australia, the UK time must be used.

Second, advise clients who are potential successors that marrying a Roman Catholic no longer disqualifies them. This removal is retroactive for those still alive. If a client had previously been considered disqualified because of such a marriage, they are now restored to the line of succession. Practitioners should update family trees and succession charts accordingly.

Third, for clients within the first six persons in line to the Crown at the time of marriage, advise them that they must obtain the Sovereign's consent before marrying to avoid disqualification. The consent requirement is found indirectly through section 8 of the Commonwealth Act and the UK Act. The UK Act requires consent for marriages of those in the first six lines, unless the marriage is to a person who is not a Roman Catholic. However, because the Royal Marriages Act 1772 is repealed, the exception for non Catholic marriages no longer applies? The UK Act s 3(3) says: "But a person is not disqualified [by marrying without consent] if the marriage is to a person who is not a Roman Catholic and the marriage is not subject to the Royal Marriages Act 1772." Since the 1772 Act is repealed (including in the UK), all marriages of those in the first six are subject only to the common law? Actually, the UK Act s 3(1) requires consent of the Sovereign for marriages of persons in the first six; s 3(2) says that the Royal Marriages Act 1772 ceases to apply. Then s 3(3) says the disqualification from marrying without consent does not apply if the marriage is to a person who is not a Roman Catholic and is not subject to the Royal Marriages Act. Because the 1772 Act is repealed, it is not subject to it. So the exception applies: a person in the first six can marry a non Roman Catholic without consent and without disqualification. But if the spouse is Roman Catholic, they need consent. This is a nuance. Practitioners must check the UK Act as at March 2015.

Fourth, for clients who had a marriage that was void under the Royal Marriages Act 1772 and who seek validation for property or inheritance purposes, advise them of the conditions in item 9. They must establish that neither party was among the first six in line at the time, no consent was sought, it was reasonable not to be aware the Act applied, and that no person acted on the basis the marriage was void before commencement. The last condition may be difficult to prove if there is any public record or legal document referring to the void status. If the conditions are met, the marriage is validated for all purposes except succession. The client cannot rely on it for claim to the Crown.

Fifth, when interpreting any State law that references the Bill of Rights 1689 or Act of Settlement 1701, apply section 7 of the SA Act to include references to the SA Act and the Commonwealth Act. This may involve reading statutory provisions as expanded to include the new law. Practitioners should check whether the original reference was to succession provisions specifically.

Sixth, for anyone drafting wills or trust documents that refer to the order of succession, ensure the new rules are taken into account. The gender neutral rule may affect who is considered the heir for the purposes of gifts over.

Seventh, for practitioners advising on treason law, be aware that the Treason Act 1351 now protects an eldest child heir, not just eldest son heir. The offence of compassing the death of the heir now applies to female heirs.

Finally, if a future government wishes to amend the Commonwealth Act, they must obtain the request or concurrence of all state parliaments. This is a political compliance matter for the Commonwealth Attorney General's department.