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3 April 2022

Although the British monarch may only have been the theoretical head of state of Australia, with the monarch’s powers divested to the Governor-General, the Crown is still of great importance to the executive government. In this article, we will build on the discussion of the Crown in The Australian Government #2, exploring what exactly ‘the Crown’ means. In The Australian Government #2, I explained that even though the Constitution refers to the Queen, covering clause 2 explains that the Constitution applies to all heirs and successors of Queen Victoria, who was Queen at the time that the Constitution was passed by the British Parliament. This is partly why, throughout this series, I have used the term ‘the Crown’ to refer to the monarchy, but in this article, we will see that ‘the Crown’ is an accepted term in constitutional law. To do this, we need to discuss case law, mainly from the High Court of Australia, which hears constitutional law matters, as ‘the Crown’ is not referred to in the Constitution. And no discussion of the Crown would be complete without considering the notion of the ‘one and indivisible Crown.’

Lord Simon of Glaisdale, a member of the House of Lords in England, which could hear appeals of various court cases, said that although the crown itself is “under guard at the Tower of London,” it is symbolic of the powers vested in the wearer of the crown as a person.1 This reflects an understanding of the Crown as an “abstraction,”2 rather than as a physical object. Originally, the monarchy had absolute power; instead of the powers of the government being separated into the executive, legislature, and judiciary, the monarch possessed all three. However, eventually the legislative and judicial powers were siphoned off and given to the British Parliament and courts. The monarchy primarily retained its executive power. And it is for this reason that the executive branch of the Australian government is referred to as ‘the Crown in right of the Commonwealth,’ which has been followed in all of the states too.

The Crown as the executive government possesses all the executive powers of the government that are necessary, according to Section 61, for “the execution and maintenance of this Constitution, and … the laws of the Commonwealth. This includes the capacity to enter into contracts and spend money. This approach seeks to portray the Crown “as a juristic person,”3 meaning that it has all the powers of a legal entity. However, the language used in the Constitution refers to ‘the Commonwealth,’ rather than ‘the Crown.’

If the Crown refers to the monarch, the powers of the monarch vested in the Governor-General and the rest of the executive, and the government, as represented by the executive as “body politic,” and if each of the six states, plus the Northern Territory and the Australian Capital Territory, and the federal government are separate “bodies politic,” then, according to constitutional law professor and lawyer Anne Twomey, defining the Crown can be “deeply ambiguous.”4 The relationship between the executive branches of the state and federal governments, including the extent intergovernmental immunity, will be revisited at a later point. I agree with Twomey that the many meanings of the Crown make this very complex, so building upon the phrase ‘the Crown in right of the Commonwealth,’ from this point forward I will be referring to the monarchy as ‘the Crown,’ but when a reference to the monarchy is important in the broader context of the Executive, I shall refer to the ‘Crown in right of the Commonwealth.’

It is important to address the independence of the Executive branch, specifically in relation to how the Executive branch is affected by legislation. This is important, because the monarchy has historically been seen as being above the law. When King Charles I was tried for treason, it was very difficult to make legal arguments for the king committing treason, given that treason involved an offence against the king, and laws often existed to enforce the ‘king’s peace.’ Therefore, there is a question about the extent to which legislation can affect the Crown in right of the Commonwealth, because Parliament is granted some legislative power of the Executive in the Constitution.

In Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (‘Engineers Case‘), which I consider to be one of the most important constitutional law cases in Australia, the court outlined the approach at the time, which was the notion of a unified and indivisible Crown. According to the majority of Chief Justice Knox and Justices Isaacs, Rich, and Starke,

“But it is plain that, in view of the two features of common and indivisible sovereignty and responsible government, no more profound error could be made than to endeavour to find our way through our own Constitution by the borrowed light of the decisions, and sometimes the dicta, that American institutions and circumstances have drawn from the distinguished tribunals of that country.”

(1920) 28 CLR 129, 148

It is very clear from this statement that the Australian approach was the opposite of the US approach to the states and federal government, with all Australian jurisdictions united through the Crown, even to the point of being united with other Commonwealth nations under the Crown. In contrast, in the USA each state was seen as a separate sovereign ‘body politic’ to the federal government. The Australian approach meant that, in Minister for Works (WA) v Gulson (1944) 69 CLR 338, Justices Rich and Williams said that if a law passed by the Australian Parliament did not apply to the Commonwealth Executive, it could not apply to a State Executive. If it did not bind the Crown in right of the Commonwealth, it could not bind the Crown in right of Western Australia, or any other state. And it was presumed that, unless a law explicitly stated that it applied to the Crown in right of the Commonwealth, it did not apply to the Executive.5

However, following the Royal Titles Act 1953 (Imp) and Royal Style and Titles Act 1973 (Cth), as explored in the previous article, Queen Elizabeth II became the sovereign ruler of Australia independently of her status as the Queen of Britain. This fractured the notion of an indivisible Crown, and so by the end of the decade, the High Court said in Bradken Consolidated Ltd v Broken Hill Co Pty Ltd (1979) 145 CLR 107 that there was no presumption, so the court instead said that it was important to consider the true meaning of the legislation, which is lawyer-speak for considering the objective intention of the law. The court clarified how they would be approach this issue in Bropho v Western Australia, where the majority of Chief Justice Mason and Justices Deane, Dawson, Toohey, Gaudron and McHugh referred to “the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question … arises,”6 as being necessary to consider in determining whether the provisions were intended to apply to the Executive. And, according to Bradken, if a law applies to the Federal Executive, it applies to the Executives of all the States. This means that the Crown is no longer immune to the laws of Parliament.

When we refer to the Crown, we do not refer to the physical object, but rather to the monarch, the powers of the monarch that are given to the Executive branch, and the government as a body politic, then the discussion can become very confusing. The Constitution avoids this confusion by referring to ‘the Commonwealth.’ Similarly, the High Court of Australia in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 preferred avoiding such archaic language. Therefore, when I refer to the Crown I will only be referring to the monarch and their powers. Nonetheless, a discussion of the notion of the Crown is essential for understanding the dynamics of the Executive branch of the Australian government, and the relationship between the Executive and Legislative branches of the government, which, as we will explore further, are not as separate as those in the countries like the USA. The governments of the States and the Commonwealth of Australia are less independent from one another than in the US system, which will be discussed in detail in later articles, but also applies to the applicability of laws to the various State and Commonwealth Executives.

This has been one of the more complex articles from this series so far, and I spent hours trying to understand how best to explore this topic, because there is no simple answer. Once I’ve established the basics of the three branches of the Australian government, I will be doing a Q&A on the ALN YouTube channel to address any questions you may have about the series so far, and I will also do an accompanying article to answer questions that are more in-depth. If you have any questions for me, feel free to email them to our ‘aussies4liberty@gmail.com,’ or leave them in the comments of this article, and I will try to get to as many as I can in the Q&As.

References:

  1. Town Investments Ltd v Department of the Environment [1978] AC 359, 379.
  2. Dixon v London Small Arms Co (1876) 1 App Cas 632, 652, cited by Gleeson CJ, Gummow and Hayne JJ in Sue v Hilll (1999) 199 CLR 462, 498.
  3. Ibid.
  4. Twomey, A 2008, ‘Responsible Government and the Divisibility of the Crown,’ Public Law, p. 747-748.
  5. Williams, G, Brennan, S & Lynch, A 2018, Blackshield and Williams Australian Constitutional Law and Theory – Commentary and Materials, 7th edn, The Federation Press, Alexandria, NSW, p. 435.
  6. (1990) 171 CLR 1, 23.

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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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