The Role of Religion in the Law of Royal Succession in Canada and Australia
Queen's Law Journal, Vol. 43, No. 1, 2018, pp. 53-84
32 Pages Posted: 22 Jan 2018
Date Written: January 15, 2018
It is sometimes assumed that Commonwealth nations share the same law of succession, including the religious tests that govern succession to the British Crown. This assumption has led some to argue that the laws of succession in Commonwealth countries such as Canada and Australia are immune to constitutional challenges in order to reconcile these religious tests with the constitutional guarantees of religious freedom in those countries. Through a comparative examination of the laws of succession and constitutional protections of religious liberty in Canada and Australia, the author of this article challenges these propositions and argues that each country has a distinct law of succession that is subject to different constitutional scrutiny within their respective regimes.
Beginning with a discussion of the religious tests that govern British royal succession, the author lays out the conﬂict these create with religious protections in sections 2(a) and 15(1) of the Canadian Charter of Rights and Freedoms and section 116 of the Australian Constitution. The author then reviews the laws of succession of Canada and Australia and the relationship between these laws and that of the UK. From this review, the author argues that there is a single rule in the Canadian law of succession, the rule of symmetry, which requires the Canadian monarch to be the same as the British one. Conversely, the author argues that Australia adopted the British law of succession into Australian law via its constitution.
The author thus concludes that while the UK’s religious tests impact succession to the Crown of Canada, they are not subject to constitutional challenge there because they are not part of Canadian law. In contrast, those same tests are subject to challenge in Australia and are likely invalid there because they became subject to the Australian Constitution when they became part of Australian law.
Keywords: religious freedom, religious test, crown, royal succession, charter of rights and freedom, section 116, Australia, Canada, monarch, queen
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