Is the Queen of England ineligible to be Queen of Australia and our absent Head of State under s116 of the Constitution? Len Liddelow asks the question.
Is the Queen of England ineligible to be Queen of Australia and our absent Head of State under Section 116 of the Australian Constitution?
Section 116 of our Constitution is as follows:
“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”
According to Professor George Williams in his book Human Rights under the Australian Constitution, section 116 embodies four distinct guarantees. It is this fourth guarantee (or branch) “and no religious test shall be required as a qualification for any office or public trust under the Commonwealth” that comes under scrutiny.
In order for Princess Elizabeth to ascend to the throne and become not only Queen of England but also Queen of Australia, she was required by English Statute to take the Coronation Oath. This oath required her to swear to uphold the doctrine, worship and discipline of the Church of England. This was not only a test but also a qualification placed upon her in order for her to proceed on to become the Queen of the United Kingdom and thereby Queen of Australia and our Head of State.
This test and qualification is in direct contravention to the fourth guarantee, or branch, in section 116. Whilst this test was not applied by the Commonwealth of Australia itself, it could be successfully argued that the Commonwealth knew this test had to be applied; therefore it condones the test, accepts the results and in effect becomes a party to the test itself.
Many may argue here that it was not intended for the Queen to be subject to this section or that she is above any regulatory effect of our Constitution. However, the Queen is an integral and essential part of our Constitution — Chapter 1, Part 1, states that our Federal Parliament consists of the Queen, Senate and the House of Representatives. There is no doubt the provisions of section 116 apply to all elected members, so why should it not also apply to the Queen. She is not specifically exempt. Our Parliament can only legislate on powers enumerated in the Constitution.
If we accept the argument that powers not granted to the Parliament in the Constitution are powers denied to the Parliament, then why not accept the argument that exemptions not granted to the Queen in the Constitution are exemptions denied to the Queen.
It is to be hoped that pointing out this obvious conflict between the freedom of religion provision for public office under the Australian Constitution and our Head of State’s requirement to be the Supreme Governor of the Church of England and observe the Anglican Communion will prompt some serious input and debate by Constitutional scholars and experts on this matter.
