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“…the concept of the Crown is…deeply ambiguous.”
The ambiguity surrounding the concept of the Crown stems from the very many functions that it has been required to perform. One tends to forget that it is merely a type of hat, as Maitland and Lord Simon have observed, so bound up in the symbolism of that headgear has the word become. So important was this symbolism that Oliver Cromwell ordered that the regalia should be totally broken. This symbolism, in its turn, metamorphosed from representing the person of the king or queen to the artificial person of a corporate body, though it was not clear whether the Crown was a corporation sole or corporation aggregate. This corporate manifestation was needed to explain how it was that government continued without being dependent on the person of the sovereign. The Crown was the government occupying a role not dissimilar to the Holy Trinity, being the executive, judicial and legislative arms of government in one. Each of these arms to this day, both in England and Australia, does things in the name of the sovereign.
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References
1 Cornford, T, “Legal Remedies Against the Crown and its Officers” in M Sunkin and S Payne (eds), The Nature of the Crown (1999) at 233CrossRefGoogle Scholar.
2 Maitland, F W, The Constitutional History of England (HAL Fisher ed 1980) at 418Google Scholar. See also Town Investments Ltd v Department of the Environment [1978] AC 359 at 397 where Lord Simon referred to the crown as “a piece of jewelled headgear under guard at the Tower of London”. In Sue v Hill (1999) 163 ALR 648 at 671 Gleeson CJ, Gummow and Hayne JJ referred to the Crown as part of the “regalia” of the Sovereign.
3 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 152 per Knox CJ, Isaacs, Rich and Starke JJ.
4 An exception to this statement arguably is the High Court of Australia. Murphy J pointed out in Johnstone v Commonwealth (1979) 143 CLR 398 at 406 that the judicial power under the Constitution is, unlike the legislative and executive powers, not vested in the Queen.
5 Loughlin, M, “The State, the Crown and the Law” in Sunkin, M and Payne, S (eds), above n 1 at 57-58Google Scholar (footnote omitted).
6 General Smuts, , Proceedings and Papers of the Imperial War Conference (1917)Google Scholar Cmnd 8566 at 47 quoted by M Loughlin, ibid at 36.
7 Commonwealth v Western Australia (1999) 160 ALR 638 at 665. See also State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 282-283 per McHugh and Gummow JJ.
8 Sydney Morning Herald 10 November 1999 Opinion at 23.
9 (1999) 163 ALR 648 at 671 per Gleeson CJ, Gummow and Hayne JJ.
10 Maitland, F W, “The Crown as Corporation” (1901) 17 LQR 131 at 144Google Scholar.
11 Moore, W Harrison, “The Crown as Corporation” (1904) 20 LQR 351 at 354Google Scholar.
12 Ibid at 355.
13 R v Rogers ;Ex parte Lewis (1878) 4 VLR (L) 334 at 368.
14 Finn, P, Law and Government in Colonial Australia (1987) at 5Google Scholar. Finn also noted the use of “government” instead of “Crown” in early claims against the government legislation in both Queensland and New South Wales.
15 M Loughlin, above n 5 at 58-59.
16 M Sunkin and S Payne (eds), above n 1.
17 M Loughlin, above n 5 at 37.
18 The concept of the state has been forced onto the United Kingdom by its joining the European Community: see Craig, P, “The European Community, the Crown and the State” in Sunkin, M and Payne, S (eds), above n 1 ch 12Google Scholar.
19 For the historical explanation of why Norfolk Island has the status of a body politic, see Commonwealth Parliament, House of Representatives Standing Committee on Legal and Constitutional Affairs, Islands in the Sun. The Legal Regimes of Australia's External Territories and the Jerois Bay Territory (1991) ch 7. See also Benvick Ltd v Gray (1976) 133 CLR 603.
20 A suggestion made as early as 1904 by W Harrison Moore, above n 11 at 362.
21 Jin, Shepherdson Jellyn Pty Ltd v Horwath & Horwath (Qld) Pty Ltd (1993) ATPR 41-284Google Scholar.
22 W Harrison Moore, above n 11 at 360 noted that the Property for Public Purposes Acquisition Act 1901 (Cth) s 50 provided that the Commonwealth was “deemed to be a corporation sole by the name of the Commonwealth of Australia”. This confusion does not appear to have occurred again.
23 Minister for Works for Western Australia v Gulson (1944) 69 CLR 338 at 350-351 per Latham CJ. See also Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 at 122 per Gibbs ACJ, at 128 per Stephen} and at 135-136 per Mason and Jacobs JJ.
24 See Acts Interpretation Act 1901 (Cth), s 22(1)(a).
25 Zines, L, Commentary in HV Evatt, The Royal Prerogative (1987) at C22Google Scholar.
26 The United Kingdom Law Commission recommended that the title of cases should be “simply” described as “In the matter of an application for judicial review: ex parte Applicant, R v Respondent” thus retaining the double Latin! See The Law Commission Administrative Law: Judicial Review and Statutory Appeals (Law Com No 226, 1994) para 8.4.
27 Town Investments Ltd v Department of the Environment [1978] AC 359. Lord Diplock provided a historical account of the difficulties with the legal entity problem where there was “no consistency in the description of the capacity in which the persons so designated” entered into contracts (at 381).
28 Case 213/89, R v Secretary of State for Transport, ex parte Factortame Ltd [1990] ECR 1-2433; Case 221/89 R v Secretary of State for Transport, ex parte Factortame Ltd [1992] QB 680; Case 46/93 and 48/93 R v Secretary of State for Transport, ex parte Factortame Ltd [1996] QB 404, 506.
29 P Craig, above n 18 at 320-322. The United Kingdom is required to pay damages after the last round of the Factortame litigation in the House of Lords: R v Secretary of State for Transport, ex parte Factortame Ltd [1999] 4 All ER 906.
30 Town Investments Ltd v Department of the Environment [1978] AC 359 at 400 per Lord Simon; Maitland, F W, “The Crown as a Corporation” in Collected Papers, vol III (HAL Fisher ed 1911) at 259Google Scholar cited by M Loughlin, above n 5 at 62.
31 M v Home Office [1994] 1 AC 377 at 424 per Lord Woolf.
32 M v Home Office [1992] QB 270 at 300 per Lord Donaldson MR. Arguably this is to take the statement out of its context, namely, discussion of public law and, in particular, whether the Crown could be guilty of contempt of court.
33 Town Investments Ltd v Department of Environment [1978] AC 359.
34 A third question also had to be answered: were the premises occupied for the purposes of a “business”. This question is not of importance to the immediate discussion.
35 [1976] 1 WLR 1126.
36 [1978] AC 359 at 380.
37 Ibid at 381.
38 Ibid at 382-383.
39 W Wade, “The Crown, Ministers and Officials: Legal Status and Liability” in M Sunkin and S Payne (eds), above n 1 at 23-26.
40 Ibid at 26.
41 (1999) 166 ALR 258.
42 Fauna Conservation Act 1974 (Qld), s 71(2) provided that: “Fauna so seized and detained shall, without further or other authority, be forfeited to Her Majesty, unless all royalty payable thereon is paid within one month of its seizure and detention.'' One of the puzzles the Court had to deal with (at para [26]) was that the fauna forfeited to Her Majesty already belonged to the Crown!
43 The Case of Swans (1592) Co Rep 15b; 77 ER 435. It is clear that Australian black swans are not at risk of royal seizure because the case refers only to white swans.
44 Of course, the High Court majority made it clear in Yanner that the notion of property was a limited one and that the legislation provided for control by the government over fauna rather than some notion of beneficial ownership.
45 Acts Interpretation Act 1901 (Cth), s 16 (emphasis added).
46 Trade Practices Act 1974 (Cth), s 2A.
47 Case 213/89, R v Secretary of State for Transport, ex parte Factortame Ltd [1990] ECR 1-2433; Case 221/89 R v Secretary of State for Transport, ex parte Factortame Ltd [1992] QB 680; Factortame Ltd v Secretary of State for Transport [1990] AC 85; Factortame Ltd v Secretary of State for Transport (No 2) [1991] 1 AC 603; Case 46/93 and 48/93 R v Secretary of State for Transport, ex parte Factortame Ltd [1996] QB 404, 506; R v Secretary of State for Transport, ex parte Factortame Ltd [1999] 4 All ER 906 (HL).
48 Wade, H WR, Constitutional Fundamentals (1980) at 47-51Google Scholar.
49 See, for example, M Loughlin, above n 5 at 68-69.
50 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409-410.
51 Wheeler, F, “Judicial Review of Prerogative Power” (1992) 14 Syd LR 432 at 443-448Google Scholar; Harris, B V, “The 'Third' Source of Authority for Government Action” (1992) 109 LQR 626Google Scholar.
52 L Zines, above n 25 at C6-C7.
53 Ibid.
54 Evatt, H V, The Royal Prerogative (1987) at 30-31Google Scholar.
55 See discussion below of a possible category of non-prerogative executive powers, of which the power to enter into contracts is an example.
56 Bropho v Western Australia (1990) 171 CLR 1 at 15 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ. See also from the English perspective A Tomkins, “Crown Privileges” in M Sunkin and S Payne (eds), above n 1 at 173.
57 A Tomkins, ibid at 171-172.
58 It was wrongly assumed that the whalebones necessary for the queen's corsetry were found in the tail whereas in fact they are in the head. See Blackstone's Commentaries on the Laws of England, vol 1, book I, ch VIII noted by A Tomkins above n 56 at 172.
59 The Economist 25 January 1992 referred to ibid at 177.
60 I have argued that the use of the word “prerogatives” was insufficient to achieve what was intended. For example, as discussed below, Crown immunity from statute is not a prerogative. See Parliament of the Commonwealth of Australia, “Advisory report on: Constitution Alteration (Establishment of Republic) 1999 Presidential Nominations Committee Bill 1999” (August 1999) para 4.69.
61 Crown Prerogatives (Parliamentary Control) Bill 1999.
62 Barton v The Queen (1980) 147 CLR 75. Even this statement may not be entirely settled, it being said that the prerogatives simply exist, independently of the common law. The courts must simply take judicial notice of them. They are axiomatic. See S Payne, “The Royal Prerogative” in M Sunkin and S Payne (eds), above n 1 at 86-87. But cf Sir Coke, Edward in the Case of Proclamations (1611) 12Google Scholar Co Rep 74 at 76; 77 ER 1352 at 1354 “the King hath no prerogative, but that which the law of the land allows him.''
63 R v Criminal Injuries Compensation Board; ex parte Lain [1967] 2 QB 864; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 at 218-221 per Mason J; FA! Insurances Ltd v Winnecke (1982) 151 CLR 342; Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218; Victoria v Master Builders' Association of Victoria (1994) 7 VAR 278. For a full account up to 1992 see F Wheeler, above n 51. It is to be noted that Australia lags behind the United Kingdom on this issue in that the High Court has not definitively pronounced on whether non-statutory powers are amenable to judicial review. It would, however, ;;be quite extraordinary if the High Court were not to follow the English approach. See L Zines, above n 25 at C31.
64 Hanratty v Lord Butler (1971) 115(1) Sol Jo 386. Not reviewable despite the fact that the prerogative affects the private right of a person.
65 On the question of the extent to which decisions concerning the armed forces are open to judicial review, see P Rowe, “The Crown and Accountability for the Armed Forces” in M Sunkin and S Payne, above n 1 ch 10.
66 T Cornford, above n 1 at 235.
67 M Loughlin, above n 5 at 60.
68 A Tomkins, above n 56 at 176.
69 M Loughlin, above n 5 at 75.
70 P Finn, above n 14, ch 6 and Finn, P, “Claims Against the Government Legislation” in P Finn (ed), Essays on Law and Government Vol 2: The Citizen and the State in the Courts (1996)Google Scholar.
71 (1997) 191 CLR471 at545-549.
72 P Finn, above n 14 at 155.
73 Ibid at 157.
74 (1997) 191 CLR 471. See Seddon, N, “The Commonwealth v Mewett (1997) 191 CLR 471: Common Law Actions, Commonwealth Immunity and Federal Jurisdiction” (1999) 27 F LRev 165Google Scholar.
75 (1994) 179 CLR 297.
76 In Scotland the Crown Suits (Scotland) Act 1857 provided for suits against the Crown in the name of the Lord Advocate.
77 In particulars 21(2). See T Cornford, above n 1 at 246-250.
78 Crown Proceedings Act 1947 (UK), s 21(1). A declaration can be made instead.
79 Seddon, N, Government Contracts: Federal, State and Local (2nd ed 1999) paras 4.33-4.34Google Scholar.
80 The incoherence of the position is captured by the following remark by Lord Woolf in M v Home Office [1994] 1 AC 377 at 407. “Although in reality the distinction between the Crown and an officer of the Crown is of no practical significance in judicial review proceedings, in the theory which clouds this subject the distinction is of the greatest importance.”
81 M v Home Office [1992] QB 270 (Court of Appeal) and [1994] 1 AC 377 (House of Lords).
82 M v Home Office [1994] 1 AC 377 at 395.
83 What this meant was the Crown was not bound by the burdens or obligations of legislation. It could, however, enjoy the benefits or rights given by legislation. See Hogg, P, Liability of the Crown (2nd ed 1989) at 214-216Google Scholar and McGraw-Hinds v Smith (1979) 144 CLR 633.
84 Ibid at 205.
85 Ibid at 202 where Hogg notes that in the sixteenth century case Willian v Berkley (1561) 1 Plow 223; 75 ER 339 the view was expressed that the king was not at liberty to ignore legislation. It was not until 1946 in Province of Bombay v Municipal Corporation of Bombay [1947] AC 58 that the rule of statutory interpretation was settled.
86 A Tomkins, above n 56 at 176.
87 Crown Proceedings Act 1988 (NSW), s 5(2); Crown Proceedings Act 1980 (Qld), s 9(2); Crown Proceedings Act 1958 (Vic), s 25.
88 Crown Proceedings Act 1992 (ACT) s 5(1); Crown Proceedings Act 1993 (NT), s 5(1); Crown Proceedings Act 1992 (SA), s 5(1); Crown Proceedings Act 1993 (Tas), s 5(1).
89 Maguire v Simpson (1977) 139 CLR 362; Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR254.
90 See N Seddon, above n 79, ch 4.
91 (1990) 171 CLR 1. Prior to this case the necessary implication was found if the purpose of the statute would be “wholly frustrated” if the Crown were not bound: Province of Bombay v Municipal Corporation of Bombay [1947] AC 58 at 63. Contrast the formulation in Bradken Consolidated Ltd v Broken Hill Proprietary Ltd (1979) 145 CLR 107 at 116 where the necessary implication may be found “if it is manifest from the very terms of the statute that it was the intention of the legislature that the Crown should be bound”.
92 N Seddon, above n 79, paras 4.6-4.8.
93 Ibid paras 4.9-4.10. See also Seddon, N, “Crown Immunity and Private Bodies” (1999) 10 PLR 263Google Scholar.
94 A similar issue has arisen in the United Kingdom with claims to public interest immunity being made by private bodies. See D v NSPCC [1978] AC 171 and discussion by A Tomkins, above n 56 at 192-193.
95 Re Residential Tenancies Tribunal of New South Wales and Henderson; ex parte Defence Housing Authority (1997) 190 CLR 410; Commonwealth v Western Australia (1999) 160 ALR 638.
96 (1986) 161 CLR 254 at 265-266 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ.
97 Commonwealth v Mewett (1997) 191 CLR 471 at 556-557 per Gummow and Kirby JJ.
98 State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1997) 189 CLR 253 (State statutory corporation bound by another State's stamp duties legislation); Re Residential Tenancies Tribunal of New South Wales and Henderson; ex parte Defence Housing Authority (1997) 190 CLR 410 (Commonwealth statutory corporation bound by State residential tenancies legislation).
99 Jellyn Pty Ltd v Horwath & Horwath (Qld) Pty Ltd (1993) ATPR 41-284.
100 Ventana Pty Ltd v Federal Airports Corporation (1997) 147 ALR 200.
101 Interpretation Act 1967 (ACT), s 7(1); Acts Interpretation Act 1915 (SA), s 20. These provisions bind the respective governments of both the enacting polity and, so far as the legislative power allows, the governments of other polities. These provisions do not bind their own governments to the laws of other polities. The Crown proceedings legislation achieves this, where applicable.
102 The Parliament of the Commonwealth, Senate Standing Committee on Legal and Constitutional Affairs, The Doctrine of the Shield of the Crown (1992). This report was principally focused on Crown bodies, in particular government business enterprises, rather than the executive government.
103 Re Residential Tenancies Tribunal of New South Wales and Henderson; ex parte Defence Housing Authority (1997) 190 CLR 410.
104 Australian Financial Review 3 December 1999 at 27.