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Lincoln, the crown succession and the republic

By Jocelynne Scutt - posted Wednesday, 13 February 2013

In January 2013 a change to British succession law was announced, aiming to end discrimination against girl children. If Kate Middleton and William Windsor's expected infant is a girl, the child will be first in line to succeed her father. In speaking of this change, Deputy Prime Minister Nick Clegg commented that existing succession rules 'reflect old prejudices and old fears' having 'no place in modern Britain and certainly not in our monarchy'. Modern Britain does not, he said, 'support laws discriminating on either religious or gender grounds'.

Yet the change does not deal conclusively with the religious question. The new law would end the bar requiring an heir to forfeit entitlement to the throne when marrying a Roman Catholic, yet does not address the issue of children born into such a marriage. Children of Roman Catholics are required by that church to be raised as Roman Catholics, yet the bar against a Roman Catholic's succeeding to the throne remains. Charles Windsor is reportedly concerned as to the consequences for his great grandchildren should 'his grandchild marry a Catholic'.

Although Commonwealth countries have been consulted on the change, it ought have no relevance to Australia in the future. Surely long before any Windsor grandchild marries, much less produces great grandchildren for Charles, Australia will have thrown off the monarchy and be well into a succession of presidents.


Yet the change highlights once more the way contemporary Australia is bound, at present, to a foreign regime under a Constitution itself being a law of the UK Parliament. Insofar as head of state is concerned, just as his mother is not 'one of us', Charles Windsor is most assuredly not 'one of us'. Nor are any of his progeny, present, prospective or putative.

Further, whatever the practice, Australia has been committed for decades not only to the principle of non-sex/gender discrimination, but through comprehensive anti-sex/gender discrimination laws existing since the mid-late 1970s (SA in 1975, NSW and Victoria in 1977), 1980s and 1990s (federally, 1984 and in states and territories variously, with Tasmania in 1994). Laws on religious discrimination are more problematic, with religious exemptions and exceptions denying or limiting coverage of sex/gender discrimination laws where religion and religious institutions are in issue. Still, laws covering discrimination on the basis of religious belief and activity have been introduced throughout Australia, albeit more recently than those covering sex/gender.

In 1999, when the referendum on Australia as a republic took place, these laws were in place, affirming the dissonance between the antiquated monarchical system 'over there' and the reality of Australia as a nation 'here and now'. The debate leading up to the referendum and the outcome emphasised the distance between the country where Australia's head of state is born and lives, and the Commonwealth of Australia, which the British crown purports to rule. Albeit some of those hailing Australia's 'no' vote on the republic claimed this was evidence of a majority adherence to retaining a foreign head of state, the reality was quite different.

Even the Australian Monarchist League (AML) acknowledges this. To the question: 'Why was the 1999 Australian referendum for a republic unsuccessful?' its website makes no reference at all to the monarchy, nor to any of its current members. Rather, according to the AML, the referendum was unsuccessful 'because the majority of the Australian electorate rejected the political arguments in favour of a republic'. People were 'frightened that constitutional change would impact upon their freedoms … enjoyed since Federation in 1901'.

The AML's answer goes on to refer to the question of appointment versus election of the president, ending with a reference to concerns 'that so many politicians and big-businesses were supporting a republic', and questioning 'why they were so relentless in eliminating a system that had served the people, but not their own interests, so well'.

Some Australians, being committed monarchists, did oppose the republic for that reason and said so, through the ballot. However, reflecting upon the 'republic or not' vote, it is evident that the majority of those voting 'no' did so for one or all of three principal reasons:

  • Endorsing democracy, in a vote for the president, not a system with president as Parliament's choice;
  • Wanting 'one of us' in reality, rather than 'one of us' being one of the elite;
  • Wanting a fair and just resolution of Australia's founding by invasion, in other words, a confirmation of Indigenous Australian rights.

The negative response by those in power to the wish of the huge majority of Australians to vote for a president was illuminating. On their part, there appeared to be a fear of loss of power and control over the process, rather than a welcoming of Australians' commitment to the democratic process. Why not support this wish, rather than find all manner of 'reasons' to resist and reject it? What other explanation than apprehension at their own and their parliamentary successors' forfeiture of the 'right' to choose Australia's head of state.

The position of the Australian Capital Territory was interesting in itself. The ACT voted resoundingly 'yes' to the republic – endorsing the appointment of a president by the Australian Parliament. This was interpreted as indicative of superiority on the part of Canberra voters (at least, this was their analysis), yet might be seen as more indicative of a lack of democratic fervour. This would be consistent with the original position of Canberrans in their reluctance to have their own 'voted for' domestic assembly.

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About the Author

Dr Jocelynne A. Scutt is a Barrister and Human Rights Lawyer in Mellbourne and Sydney. Her web site is here. She is also chair of Women Worldwide Advancing Freedom and Dignity.

She is also Visiting Fellow, Lucy Cavendish College, University of Cambridge.

Other articles by this Author

All articles by Jocelynne Scutt

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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