|
|
62B Executive power - abolition of the Crown's prerogative |
 |
|
|
Proposed Constitution |
|
On commencement of this section, in respect of the Crown in right of the Commonwealth:
(i) The prerogative powers and any reserve powers formerly vested in the Queen or the Governor-General are abolished;
(ii) All proprietary interests formerly vested in the Queen or the Governor-General shall, subject to any law to the contrary, vest in the Commonwealth Government; and
(iii) All other prerogative rights, immunities and capacities formerly vested in the Queen or the Governor-General are abolished;
provided that such abolition does not affect any powers, rights, immunities or capacities which are conferred by this Constitution expressly or by necessary implication.
< Previous section Next section > |
All Changes Displayed |
|
On commencement of this section, in respect of the Crown in right of the Commonwealth:
(i) The prerogative powers and any reserve powers formerly vested in the Queen or the Governor-General are abolished;
(ii) All proprietary interests formerly vested in the Queen or the Governor-General shall, subject to any law to the contrary, vest in the Commonwealth Government; and
(iii) All other prerogative rights, immunities and capacities formerly vested in the Queen or the Governor-General are abolished;
provided that such abolition does not affect any powers, rights, immunities or capacities which are conferred by this Constitution expressly or by necessary implication. |
Drafting Notes |
|
Subsection (i): prerogative powers
62B.1 The proposed section abolishes any residual prerogative powers currently held by the Crown, as far as those powers are a feature of the Commonwealth Constitution. Although the States will be required by proposed s.110A to abolish the monarchy, it is up to each State to decide whether to retain, discard or amend powers formerly exercised by the Crown.
62B.2 Prerogative powers are those powers which the common law recognises are validly exercised by the Crown alone. The Case of Proclamations (1611) 77 ER 1352 is taken as having decided that the Crown’s prerogative can be abolished or amended by statute. The Stuart Kings of the 1600s perhaps saw things differently, but after a civil war, the execution of Charles I and a revolution, the Stuarts departed, and the Bill of Rights (1688) Will and Mar Sess 2 decisively established the rule. The Bill of Rights abolished multiple powers which the deposed King James II had purported to exercise, including the “levying Money for or to the Use of the Crowne by pretence of Prerogative without Grant of Parlyament”. Further, where a matter within the prerogative is provided for by statute, the prerogative becomes merged in the statute: De Keyser's Royal Hotel Ltd v The King (1919) 2 Ch., 197, at pp. 216-217. These rules have been acknowledged in many High Court cases; for example Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1; Barton v Commonwealth (1974) 3 ALR 70. The current extent of the royal prerogative is unclear. The confusion is not of recent origin. The opening chapter to Justice Evatt’s doctoral thesis in 1924, The Royal Prerogative, (1987 Law Book Company) cites many authorities which refer to the confusion. More recently the prerogative has been eroded by judicial decisions as much as by legislation. Several of the most important executive powers regarded at one time as prerogatives were written in to our Constitution as express powers. After the Advancing Democracy model is adopted a few more will become express powers, and all will be unrelated to the monarchy. These powers include:
▸ The power to summon and dissolve Parliament;
▸ The power to govern
▸ The power to control the military
▸ The foreign affairs powers, and
▸ Miscellaneous powers, such as the right to coin money.
The powers will continue, but they will not be vested in the monarchy and the source of authority for their exercise will be the Constitution, not the Crown.
62B.3 The other powers - which were once or are now prerogatives but will not be expressly written in to the Constitution - are examined below, with consideration of two issues:
▸ With prerogatives amended or affected by statute, would the abolition of the Crown remove the constitutional basis for the legislation?
▸ With prerogatives as yet unaffected by statute, should any be retained by their express inclusion in the Constitution?
Generally the conclusion reached is that none of the powers need be expressly included in section 62A, as they are either:
▸ Already implicit in the subsections of 62A;
▸ Capable of being the subject of legislation if Parliament considers they should be retained; or
▸ Redundant, and therefore deserving of abolition.
62B.4 Mercy: The prerogative of mercy is the last remaining power the Crown has in relation to the administration of justice. The Crown has the right to pardon offenders. This power will be lost by the abolition of the monarchy. However, it will be open to the Commonwealth Parliament, either before or after the Advancing Democracy model takes effect, to legislate to confer on the executive the power to pardon offenders on such terms as seem appropriate. Every Act creating an offence is already based on a subject of legislative power in s.51, and the power to pardon will arise from the same basis. Pardoning offenders is as related to the subject matter of the law as the offence itself.
62B.5 Inquiries: The Commonwealth has traditionally conducted inquiries known as ‘royal commissions’. There has been judicial disagreement as to whether the power to inquire was a royal prerogative, or whether it was just an example of the Crown exercising a right held by everyone to make inquiries on a matter. The competing judicial opinions on the source of the power are summarised in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 41 ALR 71. The judgments in that case confirm there is no doubt the Commonwealth has power to establish inquiries; even inquiries into whether an individual has committed a criminal offence, so long as the commissioner is not empowered to make a binding determination of guilt or innocence: see Gibbs CJ at 41 ALR 81-84, Stephen J at 94, Mason J at 113, Aickin J at 138-139, Wilson J at 141-143 and Brennan J at 161-163. The same judgments confirm that the Crown’s executive power does not extend beyond a mere inquiry and report. A long line of authority referred to in the case confirms that powers to compel witnesses to testify on oath or produce documents are not executive powers. This means that even if the power was prerogative in nature, the powers which make such commissions effective in fact come from legislation. After the Advancing Democracy model is adopted, the source of the Government’s power to conduct commissions of inquiry will be the power to research and conduct an inquiry in s.62A(viii). Executive power will not extend to compelling testimony or the production of documents, but legislation to that effect will continue in force pursuant to the incidental power in s.51(xxxix).
62B.6 Honours: The conferring of honours is a prerogative power. According to the Annual Report of the Office of the Governor-General for 2010, the Order of Australia was established by letters patent signed by Her Majesty on 14th February 1975. The order, as presently constituted, would cease to exist on abolition of the monarchy. However, the conferring of honours for service to Australia would fall within the executive power proposed in s.62A(vi) - the power to engage in activities for the benefit of the nation where in the circumstances the States lack the practical power to engage in those activities (by analogy with the reasoning in Davis v Commonwealth of Australia (1988) 166 CLR 79, 82 ALR 633). It would be a simple matter to re-constitute the order by an executive act, or by legislation if that were preferred.
62B.7 The care of those who lack legal capacity: Originally an aspect of the prerogative was the sovereign's feudal obligation as parens patriae - the parent of the country - to protect the person and property of his subjects, particularly those unable to look after themselves, such as children and the mentally incompetent. The history of the jurisdiction given by La Forest J of the Supreme Court of Canada in E. v Eve [1986] 2 S.C.R. 388 shows the prerogative was delegated to the courts some time in the 1540s, then delegated to the Chancery Court around 1660. Delegations can of course be withdrawn, but it is doubtful whether Commonwealth’s powers ever depended on a mere delegation. Such powers as the Commonwealth currently exercises over children and the mentally incompetent are exercised pursuant to legislation based on the divorce power in s.51(xxii), the immigration power in s.51(xxvii) and the territories power in s.122. Abolition of the prerogatives will have no effect on the exercise of powers pursuant to this legislation.
Subsection (i) - reserve powers
62B.8 Section 62B(i) also abolishes any “reserve powers” of the Crown. The Constitution does not refer to any powers as “reserve” powers. Nor is there complete agreement on the criteria by which one should judge whether a power is or is not a reserve power. Suggested criteria are referred to in Notes 68.2 to 68.6 above. The main reason why some of the written powers of the Crown in the Constitution are regarded as reserve powers is that they mirror the prerogative powers once exercised by the Kings and Queens of England. This is how those powers are described in an official version of the Constitution issued by the Attorney-General and Australian Government Solicitor and currently available for download via www.comlaw.gov.au:
“There is a small number of matters in relation to which the Governor-General is not required to act in accordance with Ministerial advice. The powers which the Governor-General has in this respect are known as ‘reserve powers’. There are probably only four: the powers to appoint and to dismiss a Prime Minister and to force a dissolution of the Parliament or to refuse to dissolve the Parliament. In exercising a reserve power, the Governor-General ordinarily acts in accordance with established and generally accepted rules of practice known as ‘conventions’.”
Every reserve power is an affront to democracy, as it enables an unelected Governor-General to go against the wishes of the majority of the House of Representatives. Note however the words “probably only four”. What do they mean probably? They mean that under our farcical Constitution, no-one is really sure as to the extent of the Governor-General’s power. A key aim of the Advancing Democracy model is to remove not just the monarchy, but all remnants of Crown power, and the clarify the extent of the remaining powers.
Subsection (ii) - proprietary interests
62B.9 The main purpose of s.62B(ii) is to transfer assets held in the name of the Crown to the Government. To the extent to which assets of the Australian Government are technically owned by the Queen or Governor-General they will become vested in the Commonwealth Government automatically. The words “subject to any legislation to the contrary” have been included to provide flexibility. The intention is for the referendum to be submitted to the people at or prior to the 2013 election, but not take effect until 25th April 2015. Within that period the Commonwealth Parliament can work out which property is affected by this clause and make the appropriate arrangements.
62B.10 Proprietary interests vested in the Crown include not just known assets but ownership of gold and silver, the “royal metals”, and any treasure which might be found on or under land, whether the Crown owns the land or not: Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1. Whether in Australia this prerogative is vested in the Crown in right of the States or the Crown in right of the Commonwealth, still seems to be undecided. Two High Court cases have been decided on an assumption that immediately prior to Federation the Crown’s prerogative rights were vested in the colonies which became the States: see Cadia Holdings Pty Ltd v New South Wales [2010] HCA 27; (2010) 269 ALR 204 at [87] - [89] per Gummow, Hayne, Heydon and Crennan JJ. That case noted reasons why it might be argued that following Federation the prerogative over ‘royal metals’ might have been transferred to the Commonwealth, but also a comment by Evatt J in Commissioner of Taxation v E O Farley Ltd (In Liq) and Cmr of Taxation for New South Wales (1940) 63 CLR at 322 that "as a general rule" prerogatives which partook of the nature of proprietary rights and which before federation had been exercisable by the executive governments of the colonies were exercisable by the executives of the various states. (French CJ made similar comments at [30] - [34]). State mining legislation seems to proceed on the assumption that the States are entitled to the royal metals. Proposed s.62B(ii) does not attempt to resolve whatever Commonwealth / State controversy there may be on this issue. Any rights to gold and silver previously owned by the Crown in right of the Commonwealth will pass directly to the Commonwealth. In the Territories, the effect on mineral ownership is likely to be minimal. The Australian Capital Territory (Planning and Land Management) Act 1988 permits the Minister administering the Act to divide ACT land into National Land and Territory Land: ss.28, 29. Section 31A(2) provides that so long as land is Territory Land, all rights of the Commonwealth to minerals within it are vested in the Territory. Under the Northern Territory (Self-Government) Act 1978, s.69(4) transferred all the Commonwealth’s rights to minerals in territory to the Territory, except for substances covered by the Atomic Energy Act. The position in relation to Australia’s other territories has not been checked.
62B.11 Evatt’s thesis on the royal prerogative referred to in Note 62B.2 above makes a passing reference (at p.237) to another quaint right - the ownership of ‘royal fish’, that is, whale and sturgeon. Whether any such rights are still vested in the Crown in right of the Commonwealth has not been checked, but if they are, ownership will pass to the Commonwealth.
Subsection (iii) - other prerogative rights, immunities and capacities
62B.12 Powers over Crown land: Among the miscellaneous prerogative rights of the Crown was that recognised in Johnston v Kent (1975) 5 ALR 201. The case concerned the proposal to build the telecommunications tower which now sits on top of Black Mountain in Canberra. Objections were raised to the tower on various grounds, but those grounds (including lack of planning approval) had evaporated by the time the case reached the High Court. This left the sole ground of objection being the lack of statutory authority to build the tower, given that it would include a restaurant and tourist facilities which would help pay for the construction. The Court held that there was no statutory power, but power was available under the Crown prerogative in relation to the Territories. Barwick CJ said (McTiernan, Stephen JJ & Jacobs agreeing): “Consequently, whatever the position in other parts of Australia, the Executive, unless its power is relevantly reduced by statute, may, in my opinion, do in the Territory upon or with respect to land in the Territory anything which remains within the prerogative of the Crown. ........... There can be no objection, in my opinion, to the Commonwealth, in the absence of any statutory provisions, establishing parks, gardens, sports grounds, tourist facilities and the like upon land it possesses in Canberra. But, of course, funds to be expended on any such activity must be the subject of due appropriation according to law (s 83 of the Constitution). Such a conclusion would cover the erection in the present circumstances of a restaurant and viewing facilities, assuming that there is no relevant statutory impairment of the prerogative.” This executive power will not be expressly preserved by the Advancing Democracy proposal. It may be that in future comparable proposals will fall within the proposed executive powers to administer the Government - s.62A(iii) - or the powers of a natural person - s.62A(ix). However, if this prerogative to open restaurants in the Territories is not so preserved, it will be no great loss. The Parliament may confer the power by legislation if it chooses.
62B.13 The priority of debts due to the Crown: The prerogative included not just powers, but various rights and immunities, such as the Crown’s right to be paid its debts first in priority to payments due to others. The right was described in Commissioner of Taxation v E O Farley Ltd (In Liq) and Cmr of Taxation for New South Wales (1940) 63 CLR 278 by Rich J: “ "The King's debt, and his prerogative to be preferred before other creditors arises from the regard the law hath to the publick good beyond any private interest" -- Bacon's Abridgment (7th ed ), Vol III., p 514. This preference extends by virtue of the prerogative, both to debts due to the Commonwealth and those due to a State, unless excluded or abridged by legislation.” Justice Dixon said: “The prerogative which gives Crown debts priority over those due to a subject is in this way carried into the executive authority of the Commonwealth. It follows that in an administration of assets in a State of the Commonwealth, apart from statute, debts due to a subject rank behind debts due to either the Commonwealth or the State.” The preference really only matters in the administration of deceased estates, which is a State matter, and when a debtor is unable to pay all his or her debts, in which event the Crown preference lead to other creditors not being paid. The prerogative was taken over by legislation. For many years, the bankruptcy and corporate insolvency laws expressly provided for debts to the Commonwealth to be paid in priority to other creditors. This preference has been removed in recent years: see Bankruptcy Act 1966, s.109, and Corporations Act 2001, s.556. If Parliament ever wanted to revive the effect of the preference in the future, it could do so through legislation made under the corporations power in s.51(xx) or the bankruptcy power in s.51(xvii).
62B.14 Immunity from legislation: The Crown once had a limited immunity from legislation unless the legislation stated that it was to apply to the Crown. However in Bropho v State of Western Australia (1990) 93 ALR 207 Per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 213: “The rule that legislative provisions worded in general terms are prima facie inapplicable to the Crown is a rule of statutory construction which identifies a presumption to be applied in ascertaining the relevant legislative intent. It is not a prerogative right or power of the Crown.” Accordingly the presumption of immunity would not be affected by the Advancing Democracy proposal.
62B.15 The Crown’s immunity from suit: Originally the common law developed propositions that the sovereign could do no wrong and could not be sued in his own courts. In Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471 all seven High Court judges held that this immunity had been revoked as far as the Commonwealth was concerned. The majority, Brennan CJ, Gaudron, Gummow & Kirby JJ, held that the Constitution itself negated the rule. Gummow & Kirby JJ, with whom Brennan CJ agreed, said that Chapter III of the Constitution, concerning the Judicature, is to be considered in the light of the tradition already established by 1900 in the Australian colonies which had all legislated to permit claims against the Crown. Doctrines of executive immunity from England could not be simply carried over into a federal system in which judicial power played an essential role. Chapter III established courts which could not be regarded as the King’s courts. Further, the operation of the Constitution gave rise to at least four types of potential claims which could not have occurred in England:
▸ Claims in tort and contract between a State and the Commonwealth;
▸ Claims by a State or the Commonwealth that the other had breached a constitutional requirement;
▸ Injunctive relief against officers of the Commonwealth under s.75(v); and
▸ Claims by citizens that the Commonwealth had breached constitutional requirements or guarantees.
None was consistent with the immunity rule. Accordingly s.75 operates to deny the common law rule of Crown immunity. Nevertheless it remains open for the Commonwealth to legislate for specific immunities, through the combined powers in s.51(xxxix) and 78. The other majority judge, Gaudron J, did not deal with the issue in any detail. She merely concluded her statement with: “... s 51(xxxix) of the Constitution permits the Commonwealth to legislate so as to prevent any liability arising for acts done in the exercise of its executive powers. But absent legislation of that kind, liability attaches to the Commonwealth under the general law and the Constitution applies to deny immunity from suit.” The minority judges, Dawson, Toohey & McHugh JJ, preferred the view that the immunity was removed by sections of Judiciary Act rather than the Constitution. The Advancing Democracy model will make no change to any immunities the Commonwealth now claims.
62B.16 The proviso: Once powers which were once prerogative in nature are written into the Constitution they draw their continued force from the Constitution itself and not the abolished royal prerogative. However, since it will not be beyond the opportunism of later generations of lawyers to draw implications which were never intended, the proviso has been included to make untenable any later argument that the abolition of the royal prerogatives has somehow affected how powers referred to in the Constitution should be interpreted. |
Proposed Constitution |
|
On commencement of this section, in respect of the Crown in right of the Commonwealth:
(i) The prerogative powers and any reserve powers formerly vested in the Queen or the Governor-General are abolished;
(ii) All proprietary interests formerly vested in the Queen or the Governor-General shall, subject to any law to the contrary, vest in the Commonwealth Government; and
(iii) All other prerogative rights, immunities and capacities formerly vested in the Queen or the Governor-General are abolished;
provided that such abolition does not affect any powers, rights, immunities or capacities which are conferred by this Constitution expressly or by necessary implication.
< Previous section Next section > |
All Changes Displayed |
|
On commencement of this section, in respect of the Crown in right of the Commonwealth:
(i) The prerogative powers and any reserve powers formerly vested in the Queen or the Governor-General are abolished;
(ii) All proprietary interests formerly vested in the Queen or the Governor-General shall, subject to any law to the contrary, vest in the Commonwealth Government; and
(iii) All other prerogative rights, immunities and capacities formerly vested in the Queen or the Governor-General are abolished;
provided that such abolition does not affect any powers, rights, immunities or capacities which are conferred by this Constitution expressly or by necessary implication. |
Drafting Notes |
|
Subsection (i): prerogative powers
62B.1 The proposed section abolishes any residual prerogative powers currently held by the Crown, as far as those powers are a feature of the Commonwealth Constitution. Although the States will be required by proposed s.110A to abolish the monarchy, it is up to each State to decide whether to retain, discard or amend powers formerly exercised by the Crown.
62B.2 Prerogative powers are those powers which the common law recognises are validly exercised by the Crown alone. The Case of Proclamations (1611) 77 ER 1352 is taken as having decided that the Crown’s prerogative can be abolished or amended by statute. The Stuart Kings of the 1600s perhaps saw things differently, but after a civil war, the execution of Charles I and a revolution, the Stuarts departed, and the Bill of Rights (1688) Will and Mar Sess 2 decisively established the rule. The Bill of Rights abolished multiple powers which the deposed King James II had purported to exercise, including the “levying Money for or to the Use of the Crowne by pretence of Prerogative without Grant of Parlyament”. Further, where a matter within the prerogative is provided for by statute, the prerogative becomes merged in the statute: De Keyser's Royal Hotel Ltd v The King (1919) 2 Ch., 197, at pp. 216-217. These rules have been acknowledged in many High Court cases; for example Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1; Barton v Commonwealth (1974) 3 ALR 70. The current extent of the royal prerogative is unclear. The confusion is not of recent origin. The opening chapter to Justice Evatt’s doctoral thesis in 1924, The Royal Prerogative, (1987 Law Book Company) cites many authorities which refer to the confusion. More recently the prerogative has been eroded by judicial decisions as much as by legislation. Several of the most important executive powers regarded at one time as prerogatives were written in to our Constitution as express powers. After the Advancing Democracy model is adopted a few more will become express powers, and all will be unrelated to the monarchy. These powers include:
▸ The power to summon and dissolve Parliament;
▸ The power to govern
▸ The power to control the military
▸ The foreign affairs powers, and
▸ Miscellaneous powers, such as the right to coin money.
The powers will continue, but they will not be vested in the monarchy and the source of authority for their exercise will be the Constitution, not the Crown.
62B.3 The other powers - which were once or are now prerogatives but will not be expressly written in to the Constitution - are examined below, with consideration of two issues:
▸ With prerogatives amended or affected by statute, would the abolition of the Crown remove the constitutional basis for the legislation?
▸ With prerogatives as yet unaffected by statute, should any be retained by their express inclusion in the Constitution?
Generally the conclusion reached is that none of the powers need be expressly included in section 62A, as they are either:
▸ Already implicit in the subsections of 62A;
▸ Capable of being the subject of legislation if Parliament considers they should be retained; or
▸ Redundant, and therefore deserving of abolition.
62B.4 Mercy: The prerogative of mercy is the last remaining power the Crown has in relation to the administration of justice. The Crown has the right to pardon offenders. This power will be lost by the abolition of the monarchy. However, it will be open to the Commonwealth Parliament, either before or after the Advancing Democracy model takes effect, to legislate to confer on the executive the power to pardon offenders on such terms as seem appropriate. Every Act creating an offence is already based on a subject of legislative power in s.51, and the power to pardon will arise from the same basis. Pardoning offenders is as related to the subject matter of the law as the offence itself.
62B.5 Inquiries: The Commonwealth has traditionally conducted inquiries known as ‘royal commissions’. There has been judicial disagreement as to whether the power to inquire was a royal prerogative, or whether it was just an example of the Crown exercising a right held by everyone to make inquiries on a matter. The competing judicial opinions on the source of the power are summarised in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 41 ALR 71. The judgments in that case confirm there is no doubt the Commonwealth has power to establish inquiries; even inquiries into whether an individual has committed a criminal offence, so long as the commissioner is not empowered to make a binding determination of guilt or innocence: see Gibbs CJ at 41 ALR 81-84, Stephen J at 94, Mason J at 113, Aickin J at 138-139, Wilson J at 141-143 and Brennan J at 161-163. The same judgments confirm that the Crown’s executive power does not extend beyond a mere inquiry and report. A long line of authority referred to in the case confirms that powers to compel witnesses to testify on oath or produce documents are not executive powers. This means that even if the power was prerogative in nature, the powers which make such commissions effective in fact come from legislation. After the Advancing Democracy model is adopted, the source of the Government’s power to conduct commissions of inquiry will be the power to research and conduct an inquiry in s.62A(viii). Executive power will not extend to compelling testimony or the production of documents, but legislation to that effect will continue in force pursuant to the incidental power in s.51(xxxix).
62B.6 Honours: The conferring of honours is a prerogative power. According to the Annual Report of the Office of the Governor-General for 2010, the Order of Australia was established by letters patent signed by Her Majesty on 14th February 1975. The order, as presently constituted, would cease to exist on abolition of the monarchy. However, the conferring of honours for service to Australia would fall within the executive power proposed in s.62A(vi) - the power to engage in activities for the benefit of the nation where in the circumstances the States lack the practical power to engage in those activities (by analogy with the reasoning in Davis v Commonwealth of Australia (1988) 166 CLR 79, 82 ALR 633). It would be a simple matter to re-constitute the order by an executive act, or by legislation if that were preferred.
62B.7 The care of those who lack legal capacity: Originally an aspect of the prerogative was the sovereign's feudal obligation as parens patriae - the parent of the country - to protect the person and property of his subjects, particularly those unable to look after themselves, such as children and the mentally incompetent. The history of the jurisdiction given by La Forest J of the Supreme Court of Canada in E. v Eve [1986] 2 S.C.R. 388 shows the prerogative was delegated to the courts some time in the 1540s, then delegated to the Chancery Court around 1660. Delegations can of course be withdrawn, but it is doubtful whether Commonwealth’s powers ever depended on a mere delegation. Such powers as the Commonwealth currently exercises over children and the mentally incompetent are exercised pursuant to legislation based on the divorce power in s.51(xxii), the immigration power in s.51(xxvii) and the territories power in s.122. Abolition of the prerogatives will have no effect on the exercise of powers pursuant to this legislation.
Subsection (i) - reserve powers
62B.8 Section 62B(i) also abolishes any “reserve powers” of the Crown. The Constitution does not refer to any powers as “reserve” powers. Nor is there complete agreement on the criteria by which one should judge whether a power is or is not a reserve power. Suggested criteria are referred to in Notes 68.2 to 68.6 above. The main reason why some of the written powers of the Crown in the Constitution are regarded as reserve powers is that they mirror the prerogative powers once exercised by the Kings and Queens of England. This is how those powers are described in an official version of the Constitution issued by the Attorney-General and Australian Government Solicitor and currently available for download via www.comlaw.gov.au:
“There is a small number of matters in relation to which the Governor-General is not required to act in accordance with Ministerial advice. The powers which the Governor-General has in this respect are known as ‘reserve powers’. There are probably only four: the powers to appoint and to dismiss a Prime Minister and to force a dissolution of the Parliament or to refuse to dissolve the Parliament. In exercising a reserve power, the Governor-General ordinarily acts in accordance with established and generally accepted rules of practice known as ‘conventions’.”
Every reserve power is an affront to democracy, as it enables an unelected Governor-General to go against the wishes of the majority of the House of Representatives. Note however the words “probably only four”. What do they mean probably? They mean that under our farcical Constitution, no-one is really sure as to the extent of the Governor-General’s power. A key aim of the Advancing Democracy model is to remove not just the monarchy, but all remnants of Crown power, and the clarify the extent of the remaining powers.
Subsection (ii) - proprietary interests
62B.9 The main purpose of s.62B(ii) is to transfer assets held in the name of the Crown to the Government. To the extent to which assets of the Australian Government are technically owned by the Queen or Governor-General they will become vested in the Commonwealth Government automatically. The words “subject to any legislation to the contrary” have been included to provide flexibility. The intention is for the referendum to be submitted to the people at or prior to the 2013 election, but not take effect until 25th April 2015. Within that period the Commonwealth Parliament can work out which property is affected by this clause and make the appropriate arrangements.
62B.10 Proprietary interests vested in the Crown include not just known assets but ownership of gold and silver, the “royal metals”, and any treasure which might be found on or under land, whether the Crown owns the land or not: Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1. Whether in Australia this prerogative is vested in the Crown in right of the States or the Crown in right of the Commonwealth, still seems to be undecided. Two High Court cases have been decided on an assumption that immediately prior to Federation the Crown’s prerogative rights were vested in the colonies which became the States: see Cadia Holdings Pty Ltd v New South Wales [2010] HCA 27; (2010) 269 ALR 204 at [87] - [89] per Gummow, Hayne, Heydon and Crennan JJ. That case noted reasons why it might be argued that following Federation the prerogative over ‘royal metals’ might have been transferred to the Commonwealth, but also a comment by Evatt J in Commissioner of Taxation v E O Farley Ltd (In Liq) and Cmr of Taxation for New South Wales (1940) 63 CLR at 322 that "as a general rule" prerogatives which partook of the nature of proprietary rights and which before federation had been exercisable by the executive governments of the colonies were exercisable by the executives of the various states. (French CJ made similar comments at [30] - [34]). State mining legislation seems to proceed on the assumption that the States are entitled to the royal metals. Proposed s.62B(ii) does not attempt to resolve whatever Commonwealth / State controversy there may be on this issue. Any rights to gold and silver previously owned by the Crown in right of the Commonwealth will pass directly to the Commonwealth. In the Territories, the effect on mineral ownership is likely to be minimal. The Australian Capital Territory (Planning and Land Management) Act 1988 permits the Minister administering the Act to divide ACT land into National Land and Territory Land: ss.28, 29. Section 31A(2) provides that so long as land is Territory Land, all rights of the Commonwealth to minerals within it are vested in the Territory. Under the Northern Territory (Self-Government) Act 1978, s.69(4) transferred all the Commonwealth’s rights to minerals in territory to the Territory, except for substances covered by the Atomic Energy Act. The position in relation to Australia’s other territories has not been checked.
62B.11 Evatt’s thesis on the royal prerogative referred to in Note 62B.2 above makes a passing reference (at p.237) to another quaint right - the ownership of ‘royal fish’, that is, whale and sturgeon. Whether any such rights are still vested in the Crown in right of the Commonwealth has not been checked, but if they are, ownership will pass to the Commonwealth.
Subsection (iii) - other prerogative rights, immunities and capacities
62B.12 Powers over Crown land: Among the miscellaneous prerogative rights of the Crown was that recognised in Johnston v Kent (1975) 5 ALR 201. The case concerned the proposal to build the telecommunications tower which now sits on top of Black Mountain in Canberra. Objections were raised to the tower on various grounds, but those grounds (including lack of planning approval) had evaporated by the time the case reached the High Court. This left the sole ground of objection being the lack of statutory authority to build the tower, given that it would include a restaurant and tourist facilities which would help pay for the construction. The Court held that there was no statutory power, but power was available under the Crown prerogative in relation to the Territories. Barwick CJ said (McTiernan, Stephen JJ & Jacobs agreeing): “Consequently, whatever the position in other parts of Australia, the Executive, unless its power is relevantly reduced by statute, may, in my opinion, do in the Territory upon or with respect to land in the Territory anything which remains within the prerogative of the Crown. ........... There can be no objection, in my opinion, to the Commonwealth, in the absence of any statutory provisions, establishing parks, gardens, sports grounds, tourist facilities and the like upon land it possesses in Canberra. But, of course, funds to be expended on any such activity must be the subject of due appropriation according to law (s 83 of the Constitution). Such a conclusion would cover the erection in the present circumstances of a restaurant and viewing facilities, assuming that there is no relevant statutory impairment of the prerogative.” This executive power will not be expressly preserved by the Advancing Democracy proposal. It may be that in future comparable proposals will fall within the proposed executive powers to administer the Government - s.62A(iii) - or the powers of a natural person - s.62A(ix). However, if this prerogative to open restaurants in the Territories is not so preserved, it will be no great loss. The Parliament may confer the power by legislation if it chooses.
62B.13 The priority of debts due to the Crown: The prerogative included not just powers, but various rights and immunities, such as the Crown’s right to be paid its debts first in priority to payments due to others. The right was described in Commissioner of Taxation v E O Farley Ltd (In Liq) and Cmr of Taxation for New South Wales (1940) 63 CLR 278 by Rich J: “ "The King's debt, and his prerogative to be preferred before other creditors arises from the regard the law hath to the publick good beyond any private interest" -- Bacon's Abridgment (7th ed ), Vol III., p 514. This preference extends by virtue of the prerogative, both to debts due to the Commonwealth and those due to a State, unless excluded or abridged by legislation.” Justice Dixon said: “The prerogative which gives Crown debts priority over those due to a subject is in this way carried into the executive authority of the Commonwealth. It follows that in an administration of assets in a State of the Commonwealth, apart from statute, debts due to a subject rank behind debts due to either the Commonwealth or the State.” The preference really only matters in the administration of deceased estates, which is a State matter, and when a debtor is unable to pay all his or her debts, in which event the Crown preference lead to other creditors not being paid. The prerogative was taken over by legislation. For many years, the bankruptcy and corporate insolvency laws expressly provided for debts to the Commonwealth to be paid in priority to other creditors. This preference has been removed in recent years: see Bankruptcy Act 1966, s.109, and Corporations Act 2001, s.556. If Parliament ever wanted to revive the effect of the preference in the future, it could do so through legislation made under the corporations power in s.51(xx) or the bankruptcy power in s.51(xvii).
62B.14 Immunity from legislation: The Crown once had a limited immunity from legislation unless the legislation stated that it was to apply to the Crown. However in Bropho v State of Western Australia (1990) 93 ALR 207 Per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 213: “The rule that legislative provisions worded in general terms are prima facie inapplicable to the Crown is a rule of statutory construction which identifies a presumption to be applied in ascertaining the relevant legislative intent. It is not a prerogative right or power of the Crown.” Accordingly the presumption of immunity would not be affected by the Advancing Democracy proposal.
62B.15 The Crown’s immunity from suit: Originally the common law developed propositions that the sovereign could do no wrong and could not be sued in his own courts. In Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471 all seven High Court judges held that this immunity had been revoked as far as the Commonwealth was concerned. The majority, Brennan CJ, Gaudron, Gummow & Kirby JJ, held that the Constitution itself negated the rule. Gummow & Kirby JJ, with whom Brennan CJ agreed, said that Chapter III of the Constitution, concerning the Judicature, is to be considered in the light of the tradition already established by 1900 in the Australian colonies which had all legislated to permit claims against the Crown. Doctrines of executive immunity from England could not be simply carried over into a federal system in which judicial power played an essential role. Chapter III established courts which could not be regarded as the King’s courts. Further, the operation of the Constitution gave rise to at least four types of potential claims which could not have occurred in England:
▸ Claims in tort and contract between a State and the Commonwealth;
▸ Claims by a State or the Commonwealth that the other had breached a constitutional requirement;
▸ Injunctive relief against officers of the Commonwealth under s.75(v); and
▸ Claims by citizens that the Commonwealth had breached constitutional requirements or guarantees.
None was consistent with the immunity rule. Accordingly s.75 operates to deny the common law rule of Crown immunity. Nevertheless it remains open for the Commonwealth to legislate for specific immunities, through the combined powers in s.51(xxxix) and 78. The other majority judge, Gaudron J, did not deal with the issue in any detail. She merely concluded her statement with: “... s 51(xxxix) of the Constitution permits the Commonwealth to legislate so as to prevent any liability arising for acts done in the exercise of its executive powers. But absent legislation of that kind, liability attaches to the Commonwealth under the general law and the Constitution applies to deny immunity from suit.” The minority judges, Dawson, Toohey & McHugh JJ, preferred the view that the immunity was removed by sections of Judiciary Act rather than the Constitution. The Advancing Democracy model will make no change to any immunities the Commonwealth now claims.
62B.16 The proviso: Once powers which were once prerogative in nature are written into the Constitution they draw their continued force from the Constitution itself and not the abolished royal prerogative. However, since it will not be beyond the opportunism of later generations of lawyers to draw implications which were never intended, the proviso has been included to make untenable any later argument that the abolition of the royal prerogatives has somehow affected how powers referred to in the Constitution should be interpreted. |
|
|
|
|
|
|
|
|