A Protestant Monarchy
The Act of Settlement 1700 was passed to settle the succession to the English and Irish crowns to Protestants only… “…all and every person and persons who shall or may take or inherit the said crown.”
The next Protestant in line to the throne was the Electress Sophia of Hanover, a granddaughter of James VI of Scotland and I of England, and it was proclaimed that after her the crowns would descend only to her non-Roman Catholic heirs. Under the Act of Settlement: “…whosoever shall hereafter come to the possession of this crown…” was forbidden from becoming a Roman Catholic, or marrying one, or else they were disqualified from inheriting the throne. The act also placed limits on both the power of the monarch with respect to the Parliament of England, and decreed that no foreigner or Roman Catholic could: “…hold any office or place of trust, either civil or military, or to have any grant of lands, tenements or hereditaments from the Crown…”
As well as being part of the law of the United Kingdom, the Act of Settlement was received into the laws of all the countries and territories over which the British monarch reigned. It remains, after more than two centuries, as one of the main constitutional laws governing the succession, not only to the throne of the United Kingdom, but to those of the 16 Commonwealth realms and the relevant jurisdictions within those realms. It cannot be altered in any realm except by that realm’s own parliament and, by convention, only with the consent of all the other realms, as it touches on the succession to the shared Crown. The second paragraph of the Statute of Westminster Adoption Act 1942 states:
“…in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.”
Today, the provisions in the Act of Settlement that relate to the church of Rome applies only to the monarch themselves and their heirs and successors. This is because the Act primarily deals with the monarch’s position as Supreme Governor of the Church of England, where the title given to King Henry VIII, “Defender of the Faith” is fundamental. As Supreme Governor of the Church of England, the monarch is still forbidden from “holding communion with the church of Rome.” according to these 1700 provisions. Much of the Oath taken by Elizabeth II at her Coronation likewise applies to her position of Supreme Governor of the Church of England, which doesn’t apply in Australia because neither the Queen, the Governor General, or any state Governor have any religious role in Australia. There has never been an established church in Australia, either before or after Federation.
The Roman Catholic Relief Act was passed by the UK Parliament in 1829, which overturned the requirement that all Ministers of State must be Protestant “…and all their Officers and Ministers ought to serve them respectively according to the same.” Here in Australia, the Roman Catholic Relief Act 1830 was adopted into legislature in all the colonies, including the following in Queensland:
“Whereas by an Act of Parliament passed in the 10th year of the reign of His present Majesty intituted ‘An Act for the relief of His Majesty’s Roman Catholic Subjects’ all His Majesty’s subjects professing the Roman Catholic religion are relieved from all civil and military disabilities with certain specified exceptions and it is expedient to remove any doubt which may exist as to the application of the said Act to this colony.
1 Adopting the British Act of Parliament for the relief of Roman Catholics
That the said Act of Parliament extends to and is in force and the same is hereby declared to extend to and be in full force in the State in the same manner in all respects as if the said Act had contained a positive clause to such effect.”
This enactment was included in the subsequent enactments in Queensland, as it primarily affected the Oaths Act 1867:
“In every case where but for the passing of this Act it would be necessary for any person to take the oaths commonly called the oaths of allegiance supremacy and abjuration or any of them or the oath prescribed by the Act of Parliament commonly called the Roman Catholic Relief Act 1830 or to make the declaration prescribed by the Act of Parliament passed in the ninth year of the reign of King George IV chapter 17 and whensoever it shall be necessary for any person to take the oath of allegiance it shall be sufficient for such person to take in lieu of the said several oaths and declaration the following oath of allegiance—‘I A.B. do sincerely promise and swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, as lawful Sovereign of the United Kingdom, Australia, and her other Realms and Territories, and to Her Heirs and Successors, according to law.’; anything in the said Acts of Parliament or in any other statute Act or law notwithstanding.
Soon after, the Church of England also lost its legal privileges in the Colony of New South Wales by the Church Act of 1836, which established legal equality for Anglicans, Catholics and Presbyterians and was later extended to Methodists. The separation of church and state in this regard was later enshrined in section 116 of the Commonwealth Constitution:
“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.”
Some of the recent theories surrounding the Act of Settlement 1700 sort of imply that the Commonwealth should “impose religious observance” and that there should be a “religious test” for public office or trust, which is quite obviously unconstitutional.
Although it must be noted that section 116 only applies to the Commonwealth, not the States. The first draft, approved by the Melbourne Convention of 1891, would have prohibited the states from passing laws prohibiting the free exercise of religion, but the amendment was defeated. It was feared the provision would impede the states’ legislative powers, so section 116 passed and did not mention the states. In Kruger v Commonwealth  HCA 27 the court found that section 116 “…does no more than effect a restriction or limitation on the legislative power of the Commonwealth. It is not, in form, a constitutional guarantee of the rights of individuals… It makes no sense to speak of a constitutional right to religious freedom in a context in which the Constitution clearly postulates that the States may enact laws in derogation of that right.”
The British Nationality Act 1981 made naturalised citizens the equal of those native born, overturning the requirement that only those native born to England can sit as a Member of either House of Parliament. “anyone else born out of the kingdoms of England, Scotland or Ireland or the dominions thereunto belonging.” This requirement is echoed in section 44 of the Commonwealth Constitution in relation to foreign citizenship.
Following the Royal Style and Titles Act 1953, further amendments in the Royal Style and Titles Act 1973 removed “Defender of the Faith” from her Australian Title, in formal recognition of the differences between the monarchs role in the UK, compared to her role in Australia.
The Perth Agreement
After the Perth Agreement in 2011, legislation passed throughout the Commonwealth realms amended the Act of Settlement 1700. The purpose of the Succession to the Crown Act 2015, was to:
“…change the law relating to the effect of gender and marriage on royal succession, consistently with changes made to that law in the United Kingdom, so that the Sovereign of Australia is the same person as the Sovereign of the United Kingdom.”
When legislating for the Perth Agreement, the Australian governments took the approach of the states requesting, and referring power to, the federal government to enact the legislation on behalf of the states under section 51(xxxviii) of the constitution. The Commonwealth Heads of States agreed to changes to various points like:
- (1) male descendants take precedence over females in the line of succession,
- (2) the disqualification of those married to Roman Catholics;
- (3) the limitations on the number of individuals in line to the throne requiring permission from the sovereign to marry.
However, the ban on Catholics and other non-Protestants becoming sovereign, and the requirement for the sovereign to be in communion with the Church of England remained.
Anne Twomey explores the constitutional perspective in “Changing the Rules of Succession to the Throne”.