By J. B. HARPER, M.A., LL.M.

Transcription

1 THE CROWN AS THE SOURCE OF LEGAL POWERS IN AUSTRALIA A By J. B. HARPER, M.A., LL.M. COMP ARISON of the Constitutions of Victoria and of the Commonwealth shows how an adherence to the American precedent has resulted in some striking differences in the formal position assigned to the Crown under each. In Victoria, as in England, the classic doctrine of the common law that the King is the formal source of all powers-legislative, executive and judicial-remains substantially unchanged. Thus, though there is a tendency to speak of the legislative power as residing in Parliament, this is not accurate either of England or Victoria. In both countries the power of legislation resides formally in the King. "Every Act of Parliament bears on its very front the mark of its original. It is 'enacted by the Queen's Most Excellent Majesty.' It is in the Crown and not in the body which the law assigns as the assistants and advisers of the Crown that our Constitution places this right.' '1 Hearn's coinment, though made in respect of the English Constitution, is literally true of the Victorian Constitution.2 Under both Constitutions, of course, the legislative a,'uthority is only exercisable in Parliament. But it is in the Crown that the power itself resides. In marked contrast to this is the Commonwealth Constitution, the first section of which declares that "the legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate and a House of Representatives. " Similar considerations apply with respect to th~ judicial power. The administration of justice has from earliest times been regarded as the pre-eminent function of the Crown. "It. is f.or this end," says Bracton, "that the King has boon created and elected, that he may do justice to all," and Hearn, after quoting this passage, proceeds, "It is therefore from the Crown that all jurisdictions in the kingdom emanate."3 It is true that the Crown cannot now, of itself and without the sanction of a Statute, create any new court. Thus the Act 13 and 14 Victoria, Chapter 59, which erects Victoria as a separate Colony, expressly provides (Clause XXVIII) that. it shall be lawful for the Queen, by Letters Patent under the Great Seal, to erect and appoint a Supreme Court of Victoria.4 Nevert.heless, it. would seem that the formal source of the judicial power in Victoria, as in England, remains vested in the King. In the Commonwealth, by contrast, the judicial power is expressly vested in the High Court and in such other courts as the Parliament creates, or in such other courts as it invests with federal jurisdiction.5 1. Rearn, The Government of EnDunul, 2nd Edition, p vide The Constitution Act, Section Ream, 011. cit., p No such Letters Patent were in fact issued and the Supreme Court was subsequently established by local Act (15 Victoria, No. 10). 5. The Constitution. Section

2 CROWN AS SOURCE OF LEGAL POWERS IN AUSTRALIA 311 These differences may be of small practical importanc~. Those in regard to the executive power are, however, of greater consequence. By the doctrine of the Common Law, all executive power resides formally in the King, and all executive action proceeds from him. The Victorian Constitution leaves untouched the Common Law doctrine. In the Commonwealth the executive power, like the legislative and judicial powers, is put on a statutory basis. The King, it is true, remains the formal repository of the power; but in two respects the section so vesting the power in him suggests limitations on it. In the first place, the power vested is to be "exercisable by the Governor-General," and it is possible that these words have the legal effect of preventing the Sovereign from exercising the power in person. Secondly, it provides that the power "extends to the execution and maintenance of this Constitution and the laws of the Commonwealth." The reason for the introduction of such words is, of course, to be found in the federal nature of the Constitution, and is clearly expressed by lsaacs J. in the Wool Tops cases in the following words: "But when the Federal Constitution of Australia was fashioned, the new constitutional unit thereby created had to occupy (besides its own special territories) the same territory as the constituent States, and, so to speak, was superimposed upon them geographically. Two conditions had, therefore, to be satisfied. First, the constitutional domain of the new unit had to be delimited and distinguished from the respective constitutional domains of the States, and, next, that could not be done simply in terms of territory. It was found by applying to the territory certain powers--powers differently phrased with respect to the three branches of government. As to the executive power, it was delimited by attaching to the notion of territory, which is always connoted, the words 'extends to the maintenance of this Constitution, and of the laws of the Commonwealth.' " It is submitted, therefore, that these words fix the limits of power granted by the Constitution, at any rate to this extent-that executive action outside the execution and maintenance of the Constitution and of the laws of the Commonwealth is not within "the executive power of the Commonwealth." It is fur:her submitted that, having regard to the whole instrument in which they occur, these words do not, on their face, suggest special difficulties of interpretation. Prima facie, "this Constitution" would mean that which is headed "The Constitution" in Section 9 of the Constitution Act, and "the laws of the Commonwealth" would mean the laws made by the Parliament. If, however, the words are given their prima facie meaning, it at once becomes apparent that there are important fields outside the area delimited by the Constitution, in which, nevertheless, executive action by the central government is expedient-and in which the central government does customarily act. 6. The Commonwealth v. Colonial Combing, Spinning & Weaving Co. Ltd. [1922], 31 C.L.R. at 439. C

3 312 RES JUDICATAE Instances of such executive action by the central government can be found in respect both of external and of internal affairs. The making of a treaty with a foreign power, for example, is an executive act not normally authorized in advance by legislation. Suppose the King, acting on the advice of his Commonwealth Ministers, but without the authority of Commonwealth legislation, enters into a treaty on behalf of Australia. Whilst the Constitution provides that the legislative power of the Commonwealth extends to external affairs and that the judicial power of the Commonwealth extends to matters "arising under any treaty," it nowhere provides for the making of treaties. Giving the words of Section 51 their prima facie meaning, then, the making of a treaty cannot, unless by reason of the particular circumstances, be said to be in the execution or maintenance either of the Constitution, or, in the absence of Commonwealth legislation, of the laws of the Commonwealth. Or again, suppose it becomes desirable to grant a charter of incorporation to a national society whose activities extend over the whole of Australia and are not specially connected with anyone State. Since incorporation through the agency of any particular State is clearly inappropriate the King, on the advice of his Commonwealth Ministers, grants a charter of incorporation to the Society.7 This is an executive act. Is it within the executive power of the Commonwealth f The Constitution itself nowhere deals with the incorporation of companies so as to bring such incorporation within the executive power of the Commonwealth. Nor has the Parliament any general legislative power to create corporations,s though it may be able to create a corporation by legislation incidental to the exercise of its power to legislate on some other subject.9 In the absence of legislation, therefore, it would seem clear that such executive action cannot be brought within the words of Section 61 of the Constitution. On what legal basis, then, can such action be supported f Professor K. H. Bailey, in a paper entitled" Australia and the International Labour Conventions,' '10 has discussed the question in relation to the treaty power of the Commonwealth. He points out that in the Wool Tops case11 two explanations were advanced. Both of them are dependent on giving an extended meaning to the words of Section 61. The first is that the expression "the laws of the Commonwealth" includes the rules of the Common Law relating to the Royal Prerogative. Knox C.J. and Duffy J. and s'emble, also Isaacs J., reject this view, and the context and the use of the same expression in other places in the Constitution certainly point to its meaning only the laws made by the Parliament of the Commonwealth. The other view, which commended itself to Isaacs J. is, in short, that 7. Recent instances of such action are to be found in the Charters of incorporation granted to the Institute of Chartered Accountants in Australia (1928) and the Australian Chemical Institute (1932). 8. Huddart Parker & Co. Pty. Ltd. 'V. Moorehead [1908], 8 C.L.R. 3' c./. The Australian Broadcasting Commission incorporated by the Australian Broadcasting Commission Act 1932, Section Proceedings of "The Australian and New Zealand Society of International Law," Volume I, at p. 106 et seq. 11. [1922] 31 C.L.R. 421.

4 CROWN AS SOURCE OF LEGAL POWERS IN AUSTRALIA 313 the word "Constitution" in Section 61 includes some (but apparently not all) of the Common Law as exercised by the King's Government in England. Whilst this view is attractive, it appears to be open to several objections. In the first place (as already mentioned), it is opposed to the meaning which a reading of the Constitution Act as a whole would suggest to be the true meaning. It is noticeable in this connection that lsaacs J., with whom the view found favour in the Wool Tops case,u misquotes the terms used as being "maintenance of the Constitution,' '12 and in several places in the same judgment, in dealing with the interpretation of the Section, appears to proceed on the basis that the expression in question is "the Constitution," whereas the expression used in Section 61 is not "the Constitution," but "this Constitution" a small but (having regard to the Constitution Act as a whole) a very significant.difference. Moreover, Knox C.J. and Duffy J., in the Wool Tops case use expressions which appear to be opposed to the view.13 Another difficulty which its acceptance would raise is that it is counter to the view that some executive acts must still be performed by the King in person14 -since any power which comes within "the executive power of the Commonwealth" is exercisable by the Governor-General. Finally, taking the two instances referred to previously-the making of a treaty and the grant of a Charter of Incorporation-it is difficult to see how, except by reason of the particular circumstances of the case, either could be regarded as belonging to the maintenance or execution of the Constitution even if the Constitution did not have a distinct meaning as part of a written document but was, for example, identical with the English Oonstitution. One is forced to the conclusion, therefore, that in neither of the instances quoted is the action taken within the "executive power of the Commonwealth" and, consequently, that if such action is to be supported on any legal basis, it must be sought outside the Constitution. It does not follow from that conclusion, however, that the Common Law is not still available to the King as a source of power in respect of Australia. On the contrary, it is submitted that the legal basis is to be found in the residuary Common Law powers of the King in relation to the executive government of Australia. The reasoning on which this conclusion rests is briefly as follows: (a) that, on the acquisition of Australia, all executive powers in respect of the whole of the territory so acquired vested in the Crown; (b) that, except insofar as that power is qualified or taken away by competent legislation, it still remains in respect of the whole territorial area so acquired; 11. [1922] 31 C.L.R., [1922] 31 C.L.R. at [1922] 81 C.L.R. at cf. Keith, COfIBtitutionaJ. Law of the British Dominion (1933), PP

5 314 RES JUDICATAE (c) that substantially that power was not affected by the establishment of the several States and the setting up of constitutions therein; (d) that the setting up of the Commonwealth as a new constitutional unit under a Constitution which makes express provision for the executive power thereof does not, except to the extent to which it is thus put on a statutory basis, affect or deprive the King of the executive powers previously residing in him in respect of the whole territorial area of Australia; (e) that there is in law no objection to his exercising those residuary powers in matters affecting Australia as a whole on the advice of the same ministers as advise the Governor General in the exercise of the executive powers vested in the King by the Constitution itself. The legal basis of the executive powers of the Crown in Australia has been discussed by Griffith C.J. in R. v. Kidma,n. 15 "It is clear law," he says, "that in the case of British Colonies acquired by settlement the colonists carry their law with them so far as it is applicable to the altered conditions." This, he continues, "undoubtedly included all the Common Law relating to the rights and prerogatives of the Sovereign in his capacity of head of the Realm." It may perhaps be open to doubt, especially having regard to Australia's origin as a penal settlement, whether the origin of the executive powers of the Crown in Australia is properly to be attributed to the law carried with them by the early settlers, or, rather, whether the mere act of acquisition did not, by the law of England, vest full executive powers in the Crown independently of any settlement. On either view, however, it seems clear that full powers of executive government over the whole territorial area of Australia were originally vested in the King. The division of Australia into States and the granting of Constitutions in respect of them did not affect the legal basis of the executive power thus vested in the King. In legal form Constitutions so set up were "legislative" Constitutions, i.e., they set up local legislatures with power to make laws for the peace, order and good government of the newly defined area. They did not set up a local executive and the legal source of executive power remained undifferentiated in the King. It is true that, as a matter of constitutional convention, the executive power in respect of the newly defined areas was, in most matters, exercised on the advice of Ministers responsible to the respective local legislature. But as a matter of formal law, the doctrine that the Crown is indivisible remained unaffected. If, following the precedent of the States, the Commonwealth Constitution had set up a federal legislature only, there can be little doubt that the executive powers originally vested in the King in respect of the whole geographical area of Australia would have been sufficient to enable him to establish and carry on a federal 15. [1915] 20 C.L.R. at 435.

6 CROWN AS SOURCE OF LEGAL POWERS IN AUSTRALIA 315 government without need of statutory authority. The doctrine of responsible government would have required that his administrative powers in respect of the new constitutional unit be exercised through Ministers responsible to the legislature of that unit. But the legal source of those powers would be the Common Law, and the validity of executive action in exercise of them would be unaffected by any considerations as to the advice on which such action was taken. The effect of Section 61, it is submitted, is not to deprive the King of the plenitude of executive power originally vested in him in respect of the whole geographical area of Australia, but, So far as such powers extend to the execution and maintenance of the Constitution and of the laws of the Commonwealth, to put them on a statutory basis. Beyond that they remain as before. By constitutional convention those powers cannot be exercised except on the advice of responsible Ministers. Further, those which come within the scope of Section 61 must, as a matter of law, be exercised in accordance with the provisions of the Constitution relating to the Executive Government of the Commonwealth.16 But it should be no objection to executive action outside the scope of that Section but in respect, nevertheless, of matters affecting Australia as a whole that it is taken on the advice of the same Ministers, and generally in the same manner, as if it were within the scope of Section 61. It is, of course, possible for the executive powers vested in the King by Common Law to be diminished or affected by legislation of a competent legislature. Taking the two instances mentioned above as examples, the Commonwealth Parliament could, no doubt, in exercise of its power to make laws in respect of external affairs, regulate by statute the power of the King to make treaties in respect of the Commonwealth of Australia. By means of such a statute the power could thus be brought within Section 61, and the making of treaties would then fall within the "executive power of the Commonwealth," and would be exercisable by the Governor General. Until such legislation is enacted, the treaty-making power in respect of Australia can, it is submitted, only be supported as part of the m:ccutive powers of the King. General powers of incorporati{)n of companies, on the other hand, could never be brought within "the executive power of the Commonwealth," because, as mentioned above, the Parliament of the Commonwealth has no general power to make laws in respect of the incorporation of companies. The Parliaments of the States, however, have such power, and the effect of a State law prohibiting within the State the recognition or the activities of a body incorporated by the King on the advice of his Commonwealth Ministers would provide an interesting field for speculation. See Joseph v. The Colonial TreasuTer [1918], 25 C.L.R. 32.