Fri Sep 9

What are the legal and constitutional consequences for Australia of Queen Elizabeth II's death?

Written by Anne Twomey, Professor of Constitutional Law, University of Sydney

The death of Queen Elizabeth II has prompted many people, perhaps for the first time, to wonder: what happens now, legally?

In fact, there are clear rules around succession and how it plays out in Australia. Because Queen Elizabeth has lived a long time, there has been a lot of planning for the transition to the new king.

Death of the Queen - the legal and constitutional consequences for Australia. By Anne Twomey.

The change is automatic

Legally, there does not need to be anything done in Australia to result in the change from queen to king. That happens automatically as soon as a monarch dies. When Queen Elizabeth II died, Charles immediately became king of Australia.

This is because the rules of succession in relation to the crown of Australia, while controlled by Australia and part of Australian law, are kept consistent with the British rules.

Most activity will be ceremonial and symbolic

There will be proclamations made in both the United Kingdom and Australia. The governor-general will read a proclamation at parliament house in Canberra. But that’s a ceremonial matter. It does not have any legal effect in changing the monarch.

There will be a national memorial service for the queen, flags will fly at half-mast, there will be gun salutes and other public ceremonies to mark this momentous change. Churches will hold ceremonies and the public will be invited to sign books of condolence. There is a whole history of tradition around royal mourning.

The prime minister will be heading to the UK for the queen’s funeral. ABC via AP

But because we haven’t had a change of monarch for so long, the traditions from the past will probably look different to those we use today. In the past, people might have worn black, donned black armbands, or put up portraits of the queen draped in black and purple crepe.

It is more likely today we would see people laying flowers and signing remembrance books. The laying of flowers, however, is not a particularly environmentally sound practice. It just leaves a pile of soggy, rotting foliage. A better way of remembering Queen Elizabeth would be to plant a tree. The queen planted many trees in ceremonies during visits to all her realms, including Australia. The new king, we know, is a keen environmentalist and a tree-lover. So planting a tree, #royaltree, would be a more appropriate sign of remembrance and respect.

What about the Australian parliament?

Australia’s parliament, which was due to sit next week, will instead break for 15 days.

This is not a legal requirement; it is a matter of choice and a sign of respect. The prime minister will be heading to the UK for the queen’s funeral, so it is also a matter of practicality as he will be out of the country.

There is no legal requirement for federal members of parliament to re-swear their oaths. They have already sworn an oath to Queen Elizabeth II and “her heirs and successors according to law”, so that will continue to apply to the queen’s heir and successor, King Charles. But the Houses could choose to have their members take new oaths, as a matter of symbolism.

Continuity is key

Some people may try to use the queen’s death to argue that there are legal consequences to the change which affect legal proceedings, the validity of laws or the powers of office holders. They relish arguing about seals and oaths in an attempt to use these technicalities to escape from the application of the law or avoid having to pay tax.

However, there are numerous laws that make it very clear that the death of the monarch (which in legal terms is known as the “demise of the crown”) does not disrupt legal proceedings, invalidate laws or require officials to re-take an oath in order to exercise legal powers.

For example, in NSW section 12(4B)^[2] of the Constitution Act says that members of parliament do not have to re-swear their oath. Section 49A ^[3] says that the holding of any office under the Crown is not affected by the death of the monarch and it is not necessary for the office holder to take a new oath. Section 8 ^[4] of the Crown Proceedings Act 1988 of NSW says that legal proceedings are not affected by the demise of the Crown.

Passports, official seals and currency which mention the queen will all remain valid. The system of change from one monarch to the next is legally seamless, leaving it a matter for the people how they decide to mark the change in a ceremonial and symbolic manner.