Messing with the royals is a crime

25 July 2013

What gift shall we send to the newborn prince? A knitted kangaroo is now unlikely, but it would be hard to beat the gift of the NSW parliament, which was a change to the Treason Act of 1351. What more could a boy want?

Yes, the Treason Act 1351, enacted at the time of Edward III, is really part of the law of NSW. It is so old that the original version was written in medieval French rather than English. In translation it states, among other things, that it is high treason to "compass or imagine" the death of the king or the queen or their eldest son and heir, or to violate the king's wife or his eldest daughter if she is unmarried, or the wife of the king's son and heir.

To "imagine", in this sense, is not just to think about something happening (otherwise all those officials planning for the Queen's funeral would be in a spot of bother) but to plot or plan it.

The reason for the change is that the British government decided the rules of succession to the throne should change so that if a daughter was born to the Duke and Duchess of Cambridge, she would be third in line to the throne and not displaced by a younger brother.

Although the urgency of such a change has abated with the birth of a male heir, the desire to retain uniform succession laws will necessitate the completion of new succession laws in Australia and the other countries that have the Queen as their sovereign.

Because of Australia's federal system, this is being achieved by each state enacting a law that formally requests the commonwealth parliament to change the law of succession to the Australian crown.

In the wash-up, other laws have been changed too, including the Treason Act.

This means that if one imagines the death of the king's eldest daughter, if she is his eldest child and heir, it will now also be high treason.

Further, the wife of the king's eldest son has been demoted so that her violation is treason only if her husband is the heir - not if he has an older sister. It will remain treason to violate the king's eldest daughter if she is unmarried. Male heirs, it seems, can be violated without risk of treason.

The NSW parliament did not directly enact these changes. Instead, it simply adopted the changes that the British have made to their Treason Act 1351. This was presumably because the politicians would have been rather embarrassed to debate the merits of the law and the constitutional significance of "violation". It might have given rise to the question of why on earth we have such a law at all in NSW. Surely Britain's laws are sufficient to deal with anyone who plots to kill the sovereign or their heir?

In NSW, under section 12 of the Crimes Act, you also can be imprisoned for 25 years for imagining or intending to deprive or depose the Queen or her heirs from the imperial crown or that of any of her dominions. This extends to writing, publishing or speaking about removing the monarch or terminating the crown by becoming a republic.

The Guardian newspaper in Britain once sought a declaration from the House of Lords that it would not be prosecuted under the equivalent British law for publishing articles advocating a republic. Lord Scott impatiently noted that it is "plain as a pikestaff to the claimants and everyone else that no one who advocates the peaceful abolition of the monarchy and its replacement by a republican form of government is at any risk of prosecution".

Otherwise, every school debating team that addressed the issue of a republic - or at least the affirmative side - could end up being prosecuted for treason.

This shows how ridiculous these laws are when even the courts won't take them seriously. Perhaps the best gift we could give to the young prince would be to get rid of these treason laws and treat him as a human being rather than a political object.

Anne Twomey is a professor of constitutional law in Sydney Law School.

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