Cheryl Saunders on the Crown

Readers may be interested in Cheryl Saunders, “The Concept of the Crown“:

This article deals with the weight that is borne by the concept of the Crown in the public law of common law jurisdictions in the absence of a developed theory of the state. I argue that the concept of the Crown has evolved differently in different jurisdictions, in the wake of independence, in the course of the divergence of common law legal systems, under a range of influences that include constitutional context. I seek to sustain the claim by particular reference to Australia, where the terms of the Constitution, as interpreted and applied by the High Court, have made the concept of the Crown progressively less relevant to legal analysis. The point was demonstrated most recently by the decisions in the ‘School Chaplains cases’, amplifying the meaning of the ‘executive power of the Commonwealth’ in s 61 of the Constitution. Elsewhere in the common law world, including the United Kingdom itself, the scope of executive power continues to be informed by the concept of the Crown. In Australia, however, shaped by the federal constitutional context, the scope of Commonwealth executive power relies on the Crown only to the extent that s 61 includes some power ‘in the nature of the prerogative’. The themes of the article are topical and significant in their own right. They have particular relevance, however, in a symposium to honour the life and work of Sir Zelman Cowen, who occupied the position of the representative of the Crown in Australia with extraordinary distinction.

The principal difficulty is that this category of executive power is conceptually incoherent, as it has evolved and is presently invoked. The borderline between powers of this kind and prerogative power is by no means clear; public inquiries might, for example, be consigned to either. The actions that have been held or assumed to fall within this category of power are extraordinarily disparate: apart from forming contracts and conveying property, for example, they also include wiretapping telephones, compiling lists of persons unsuitable to work with children, consulting with local government officials, and adopting guidelines. In one helpful recent intervention, Adam Perry has drawn attention to the distinction between ‘legal’ executive powers, such as contract, which are derived from the operation of the common law, and powers without legal effect including, for example, consultation, that ‘stem from wide social recognition’. Insofar as this distinction perpetuates the notion that the former can be equated to and therefore justified by the powers exercisable by ordinary persons at common law it does not entirely resolve the problem of the scope of inherent executive power, however. Realistically, powers to act either with or without legal effect are not comparable to those of an ordinary person when exercised by a government, both because of considerations that arise from their public nature and because of the resources at executive command. If this is right, it remains necessary to examine the scope of inherent executive power and to identify a plausible explanation for it.

Thirdly, while the Commonwealth executive has some inherent authority of a more ‘ordinary’ kind, this is neither defined by nor sourced in a conception of the Crown. On the contrary, arguments by the Commonwealth to this effect were explicitly rejected in Williams v Commonwealth [No 1] in terms that  drew attention  to  the  qualitative distinctions  between an  exercise of public and private power, including the expenditure of public and private moneys, and to the dangers of ‘anthropomorphism writ large’. An attempt to reopen these questions failed in Williams v Commonwealth [No 2]. In any event, the executive does not have legal  personality for this purpose; rather, legal personality inheres in the polity of the   ‘Commonwealth’,  which acts through its various branches in the manner provided by the Constitution.

Australian developments have been driven by Australian circumstances, including the terms  of the Constitution, the nature  of the cases that  have arisen before the Court and the legal and political culture within which the Constitution operates. As suggested at the outset, comparable factors are likely to have prompted a degree of divergence across member states of the Commonwealth of Nations as well. In Canada, for example, emphasis on the extent to which the constitution is unwritten appears to have preserved a concept of the Crown as a more vigorous constitutional principle, which nevertheless has been shaped by a variety of forces, including the relationship with Indigenous peoples  and recent adventurous  usages of the prerogative power to prorogue.

The divergence of Commonwealth legal systems in relation even to matters once  held  firmly in  common,  of which the  concept  of the  Crown  is an example, does not deny the relevance of transnational Commonwealth constitutional experience. On the contrary, reflection on different approaches offers a new source of insight into the rationale for existing principles and practices and new options for resolving similar problems. As the Australian debate unfolds, there should be considerable interest in what happens elsewhere in relation to such critical questions as the legal effect of appropriation statutes, the extent to which it is possible to quarantine ‘ordinary’ government  ontracts  from  those  that  require  legislative support  and  the democratisation   of executive powers in the nature  of the prerogative. The implication  of  divergence,  however,   is  that  this  exercise  now  demands application of the techniques of comparative law to a greater extent than has been recognised before.

This content has been updated on August 26, 2015 at 15:16.