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Royal Succession Bill (Consistent) [2013] NZBORARp 3 (8 February 2013)

Last Updated: 26 March 2019

Royal Succession Bill

8 February 2013 ATTORNEY-GENERAL

Royal Succession Bill (PCO 15690/2.10) — Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/175

1. I have examined the Royal Succession Bill (PCO 15690/2.10) for consistency with the New Zealand Bill of Rights Act 1990 (Bill of Rights Act). I have concluded that it is not inconsistent with that Act.
   
2. The Royal Succession Bill (Bill) implements three changes to the rules of Royal succession as agreed between the 16 Realms of which the Queen is Head of State. The changes:
   

2.1 Make sex irrelevant to the succession of those born after 1pm on 29 October 2011 (New Zealand time). 1 This effectively abolishes the doctrine of male-preference primogeniture (precedence of younger brothers and their descendents over older sisters and their descendents) in favour of gender-neutral primogeniture, in the line of succession;

2.2 Remove the exclusion of those who marry a Roman Catholic from the line of succession and possession of the Crown; 2 and

2.3 Limit the requirement to obtain the Sovereign’s consent to marry to the first six in the line of succession. 3

3. A shared, hereditary monarchy is a core feature of our constitutional arrangements. The rules that govern succession are historically and politically complex. They are inapt for detailed Bill of Rights Act scrutiny. 4
   
1. Clause 5.
   
2. Clauses 6-7 and 10-11.
   
3. Clauses 8 and 12.
   
4. This point is forcefully made in O’Donohue v Canada (2003) 109 CRR (2d) 1 (Ont SC), affirmed (2005) 137 ACWS (3d) 1131 (Ont CA). In the Supreme Court, Rouleau J applied the principle that the Charter could not be used to amend or trump another part of the constitution, and further held “[o]ne cannot accept the monarch but reject the legitimacy or legality of the rules by which this monarch is selected”. See also R (Barclay) v Lord Chancellor and Secretary of State for Justice [2009] UKSC 9, [2010] 1 AC 464, where the UK Supreme Court emphasised that a European Convention challenge to anomalous electoral laws in the Bailiwick of Guernsey

4. In any event, the changes proposed by the Bill are principally remedial in effect: removing or reducing differential treatment based on gender, religious belief and family status. To the extent that the Bill preserves some differential treatment, due to the timing of the changes and the ongoing requirement for some to obtain consent to marry; 5 any limit on the right to be free from discrimination 6 would be justified in the unique context of the Bill.
   
5. In accordance with Crown Law protocol, this advice has been peer reviewed by Austin Powell, Crown Counsel.
   

Yours sincerely Crown Law Jane Foster Crown Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Royal Succession Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.

had to be considered “in the round in light of historical and political factors relevant to” the particular place, at [56], [72], [79] and [116]. While, if one were starting from scratch, there could be few who would think the electoral laws satisfactory, it did not follow that the Convention was breached: at [69]-[70].

5. The requirement of Sovereign consent to marry is not unique in the context of a hereditary monarchy, where choice of marriage partner may affect suitability. See, for example, Bernadotte v Sweden ECtHR App no 69688/01, 3 June 2004.
   
6. The prohibited grounds of discrimination under s 19 of the Bill of Rights Act include sex, religious belief, and family status (which includes being married to a particular person): Human Rights Act 1993, s 21(a), (c) and (l). The Bill of Rights Act also protects the right to freedom of religion in s 13. Discrimination arises if there is difference in treatment on the basis of one of the prohibited grounds of discrimination between two comparably situated groups causing material disadvantage: Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [55] and [109]; McAlister v Air New Zealand Ltd [2009] NZSC 78; [2010] 1 NZLR 153 (SC) at [51] per Tipping J and [105] per McGrath J.