Academic journal article Melbourne University Law Review

The Concept of the Crown

Academic journal article Melbourne University Law Review

The Concept of the Crown

Article excerpt

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.

CONTENTS

  I Introduction
 II Origins in the United Kingdom
III Adaptation in the Commonwealth
 IV The Crown in Australia
  V Conclusions

I INTRODUCTION

One application of comparative constitutional law is to examine how a particular constitutional phenomenon that has evolved in one context adapts when it is transferred, by whatever means, to others. Usually, the adaptation retains traces of the original that may endure for a long time, in an illustration of path dependency. Typically, however, the constitutional phenomenon in question also changes in multiple ways, inadvertently or through deliberate action, in response to the new context of which it is part.

The purpose of this paper is to carry out this exercise in relation to the concept of the Crown as it evolved in the United Kingdom and was disseminated throughout the British Empire, through imitation and imposition. For obvious reasons, the Crown featured in arrangements for the self-government of polities that were subject to the tutelage of the Empire. Familiarity, inertia and, sometimes, realpolitik gave it continuing influence in these polities, even after independence was achieved. It seems likely that, even now, long after decolonisation, the concept of the Crown has left its mark on the constitutional arrangements of most member states of the Commonwealth of Nations, including those that have since become republics. (1) There would be merit in teasing out the extent to which this is so in a larger, collaborative project.

The ambit of this paper is more limited, however. Its primary focus is the adaptation of the concept of the Crown in the context of Australia, with particular reference to the important contemporary constitutional question of the scope of executive power. While the paper also touches on some of the factors that caused the concept of the Crown to evolve in different ways throughout the Commonwealth once it left its original setting, it does so primarily to assist to explain the divergence of Australian experience. Despite this relatively limited framework, however, the study offers several insights that are useful for broader comparative purposes. First, it provides a case study on how and why there may be different understandings of an apparently similar constitutional concept in relatively similar states. Secondly, it demonstrates the practical utility of comparative constitutional law in assisting to analyse and resolve complex constitutional problems at a time of change. …

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