The future of the Federation: Constitutionally weak and foreign

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Under recent changes to Australian laws, including those of all the Australian states, along with the 15 nations that share her as monarch, the Queen will now need to consent to less of her relatives' marriages

Forget the GST, nothing shows up the broken nature of our Federation than moves by the 15 nations that share the Queen as head of state trying to change the order of succession to the British throne, writes Sarah Brasch.

TREASURER JOE HOCKEY fears for the future of the Federation — but only because of a stoush with WA over the GST carve-up. This is merely the predictable political posturing between the Commonwealth and the States over money — an annual event. Perhaps the Treasurer is easily frightened?

If Hockey really wants to spook himself, he should be looking at the Constitutional state of the Federation, because it is not in good shape.

Nothing has shown up the wretched state of our governance arrangements more than the decision by the UK and the 15 other Queen’s realms – of which Australia is one – to change the order of succession to the British throne, who is also our head of state.

We all know the details, because it has gripped our imaginations for the last couple of years. The heir’s daughters will get their rightful turn in birth order rather than being relegated to the back of the queue after their brothers, as Princess Anne was.

The changes also mean the heir can now marry a practising Catholic and still ascend the throne. However, she or he must be an Anglican ''in communion'' with the Church of England, so the faith discrimination was not entirely removed.

And finally, only the six people directly in line to the throne, in birth order, have to have the monarch’s permission to marry (example in image above right). 

Anyway, these are the "updated" wait-in-line rules for the British monarchy that we are determined to lash ourselves to.

Not changing is the rule that to inherit the throne – and thereby become Australian head of state – you must be descended from Sophia, Electress of Hanover. How Australian is that?

In this prime minister’s reign, we pander and obseque to it by welcoming the seventh royal visit since late 2011 – even if it is only number four in line, on the cusp of being number five – naughty Prince Harry for the second time in 18 months. It is reassuring to know we can keep “the spares” occupied at the Palace’s request.

The British law came into effect at midnight (GMT) on 26 March this year — three years and five months after the original CHOGM decision in late 2011.

To get this last step into place, all the realms had to make changes to laws attached to their constitutions – however long ago that happened – governing succession to the UK throne, rules for royal marriages and the like.

Which realm do you think was the biggest laggard? Australia — by a mile, of course. All the others – even the tiddlers like St Kitts and Nevis that were helped out by New Zealand – had their part of the task finished by December 2013.

Not us. We have just now reached the finishing line. Britain had to wait a very long time for Australia to get its act together in order to remove a couple of discriminatory elements from its succession laws.

Of course, once the first junior Cambridge turned out to be a boy, the water came off the boil rather quickly. If he had been a girl, things might have been a lot more interesting in a bunsen-burner sort of way.

Over here, when the thing finally got to COAG, in December 2012, then Premier Campbell Newman made a fuss and blustered that he would have none of an omnibus Commonwealth law covering all States. Queensland, he declared, had a direct line to the Crown courtesy of its Constitution and would legislate separately. And so it came to pass in May 2013.

Tucked into the bowels of the bill was a request for the Commonwealth to legislate on behalf of the States. That was the solution. Each state had to go first and amend its own constitution before the national Parliament could act using an obscure clause in the Federal Constitution.

The Commonwealth, wrong-footed, was tight-lipped as this move was slipped quietly through COAG in April 2013. Other than in Queensland, nothing much happened as a fateful June approached.

On the national stage at around that time, Labor was pretty distracted about whether to keep PM Gillard on, so not much attention was being paid to the progress of very technical legislation through state houses affecting state constitutions.

Things ambled along into 2014. South Australia had an election mid-year so that held things up. The Northern Territory decided to get in on the act, even though it did not need to being neither a constitution nor a relationship with the Crown other than through the Governor-General. The ACT was smarter – or had better lawyers – and passed.

But the slowest of all was Western Australia — for no reason other than that its law did not make it into State Parliament. No one seems to know why. The WA Act finally staggered through on 24 February this year with the Governor giving royal assent on 3 March.

On 5 March, the Commonwealth acted with astonishing alacrity and tabled the nationally-applying bill.

Same stuff for the seventh time with a dash of genuine confection from the tabling Minister, former WA Treasurer Christian Porter, on behalf of the Prime Minister:

“This modernisation of the laws of succession ensures the continuing relevance of the monarchy to Australia and her people and reflects the commitment that all Australians have to equality and to nondiscrimination [sic]. We are proud today to be changing the laws of royal succession to reflect modern Australian values.”

One can only speculate what is in the porcelain tea-cups in our national Parliament House...

Debate in the Federal Parliament was adjourned. Using a headline that could only be described as a giant leap of imagination, Sky News reported that the ''monarchy was being modernised''.

The Federal bill resurfaced into law on 19 March, with the Governor-General giving royal assent for the seventh time. Fortunately, Australia’s national Constitution did not need to be amended.

However, this deprived us of the delicious prospect of a NO! vote spurred on by those determined and well-funded NO! committees who "just say no" to any change to the Constitution no matter how sensible. What a shame. It would have been a great spectacle watching them – those dedicated monarchists – wrestling with this one.

The whole meandering, fought-over, micro-detail process is hardly what could be described as efficient or suiting a 21st century federation that can move quickly, lightly and responsively.

How much time and effort was wasted legislating this change seven times? It all adds up in the end. (Ratifying international treaties, be they those of the United Nations or the International Labour Organisation, follows the same path.)

This particular stuff is all so ancient and arcane, NSW even had to give effect to amendments to the Treason Act of 1351 still applying in the State. After this change, it is now treason in NSW to imagine the death of a monarch’s female heir, as well as her or his male heir. We may not see too many prosecutions in our most populous State on this count?

Also, all the thousands of people including some who may be Australian and who required the monarch’s permission to marry, but did not know it, are now legally married but, as a penalty, cannot assume the throne. Win some and lose some.....

We could do with some deregulation zeal here, if Assistant Treasurer Josh Fydenberg has spare time.

Better still, we could update our hopelessly unwieldy Federal Constitution. It is no longer fit for purpose and fixing it is more than long overdue.

Best of all, we should make ourselves a Republic – no Crown – freeing us from someone else’s succession laws for their head of state and their throne.

At least Australia did not go the risky route that the Canadians took, by not involving their nine provinces (equivalent to our states) in an attempt to avoid having to change their Constitution.

Some Canadians were highly miffed and are taking the national Government to court. This could take some time to resolve.

Professor Anne Twomey from the University of Sydney has been following the lengthy legal machinations, describing them as ''a mammoth effort''.

If successful, the Canadians will have to start all over again, leaving Britain’s law in place but Canada’s succession laws as they were before CHOGM 2011 — no first-born queens with brothers for them until their legislation is re-fixed.

Australia fell over the line in the end, but a huge amount of time and unproductive effort was needed in six States and the Commonwealth to get there.

Was it worth it? We all know the commonsense answer to that question.

Sarah Brasch is the National Convenor of Women for an Australian Republic. You can follow Sarah on Twitter @ozfemrepublic.

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