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Ancient laws reign in new land

By George Williams - posted Wednesday, 16 February 2005

Most people do not need to consult a constitutional lawyer when they decide to marry. For Charles and Camilla, the situation is different. Their decision is governed by ancient laws that form part of the legal fabric of the United Kingdom. Our continuing ties to the monarchy mean that these laws are also part of our legal system.

The Act of Settlement of 1701 says that no person who may inherit the Crown "shall marry a papist", that is, a catholic. While Camilla's first husband was a Catholic, she remained an Anglican and so this does not prevent their marriage.

The 1772 Royal Marriages Act must also be consulted. Today, most people no longer see the need to ask their parents for permission to marry. For Charles this is a legal requirement. The Act says that his marriage is "null and void" unless he gains the consent of his mother, the Queen. She has given her approval so this hurdle has also been cleared.


Some people think that the law prevents Charles from marrying a divorcee. After all, Edward VIII abdicated the throne in 1936 after choosing to wed the divorced Mrs Simpson. However, he did so because of negative public reaction and not because of the law. It is fair to say that public opinion has since moved on.

The law is not Charles' only consideration. He must also think about the impact his marriage will have on other nations. After all, he is first in line to succeed Queen Elizabeth II as the Head of the Commonwealth as well as the King of Australia. As the person at the top of our system of government under the Australian Constitution, he will also be our Head of State. Of course, republicans would like to change this.

The marriage of Charles and Camilla coincides with support for the republic being at a low ebb. A recent Newspoll found that only 46 per cent of the population favours Australia becoming a republic, the lowest result since the failed 1999 referendum. Monarchists have hailed the outcome as showing that the republic issue is "dead", while republicans have argued the result is no more than "a blip on the radar".

Neither are correct. The poll is significant in demonstrating real problems for republicans, but the issue is far from dead. Indeed, the low level of support was to be expected. Community support for such a reform requires popular knowledge and ongoing political and media debate. Since the 1999 referendum there has been no possibility of change under Prime Minister John Howard. Given this, and despite a favourable Senate committee report last year and ongoing sniping between republicans and monarchists, there has been little public discussion.

Nonetheless, the republic has not slipped entirely from the agenda. The idea retains strong underlying community support and a well-organised core of passionate and committed advocates, as well as an equally committed opposition. Kim Beazley is also a strong supporter and has started his second term as opposition leader by expressing his commitment to change.

This newest royal marriage will also reinvigorate interest in the debate. It will again lead Australians to question whether we should retain our links to the monarchy. Is the fact that our future king cannot marry a catholic consistent with our commitment to religious freedom and tolerance? How does our belief in the equality of men and women stand in light of the fact that the female children of our monarch can only rule where there is no male heir? Of course, there is also the question of whether it is appropriate in Australia today to have any position, let alone one of such privilege and economic and other power, being determined by birth rather than merit.


These questions are answered today in Australia by ancient British laws. The rules can be changed by the United Kingdom, but this would also require Australia and the other nations that retain the British Monarchy to do the same. Such changes make sense and are surely overdue given the constitutional problems that can arise even today from a royal marriage. But, as republicans will say, if we are going to change the office why not remove it altogether?

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First published in the Courier-Mail on February 12, 2005.

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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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