The Crown
| Author | Nick Seddon |
| DOI | 10.22145/flr.28.2.5 |
| Published date | 01 June 2000 |
| Date | 01 June 2000 |
| Subject Matter | Article |
THE
CROWN
Nick
Seddon
II
•••
the
concept
of
the
Crown
is
...
deeply
ambiguous.
111
INTRODUCTION
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,2 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 acorporate body,
though
it
was
not
clear
whether
the
Crown
was
acorporation 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
arole
not
dissimilar to
the
Holy Trinity, being the executive, judicial
and
legislative
arms
of
government
in
one.3Each of these arms to this day, both in
England
and
Australia, does things
in
the
name
of the sovereign.4
In
formal
terms,
it
is
the
Queen's
fiat
which
makes
laws,
it
is
her
sentence
which
condemns
and
it
is
her
judgments
which
determine
the
rights
and
liabilities
of
her
subjects.
The
Queen,
as
head
of
the
executive,
appoints
her
ministers;
these
ministers
are
the
Queen's
servants
and
certainly
do
not
stand
in
any
legal
relation
to
Parliament.
Further,
this
Parliament,
which
assembles
in
the
Royal Palace
at
Westminster,
is
summoned,
prorogued
and
dissolved
by
the
Queen.
Justice is
said
to
emanate
from
Her
Majesty. All
jurisdiction
is exercised
in
her
name,
and
all
judges
derive
their
authority
from
her
commission.
Every
breach
of
the
peace
is a
transgression
against
the
Queen.
She
1
2
3
4
T
Cornford,
"Legal
Remedies
Against
the
Crown
and
its Officers"
in
M
Sunkin
and
S
Payne
(eds), The Nature
of
the Crown (1999)
at
233.
F W
Maitland,
The Constitutional History
of
England (HAL Fisher
ed
1980)
at
418. See also
Town Investments Ltd vDepartment
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 vHill (1999) 163 ALR 648
at
671
Gleeson
CJ,
Gummow
and
Hayne
JJ
referred
to
the
Crown
as
part
of
the
"regalia" of
the
Sovereign.
Amalgamated Society
of
Engineers vAdelaide Steamship
Co
Ltd (1920) 28 CLR 129
at
152
per
Knox CJ, Isaacs, Rich
and
Starke
JJ.
An
exception
to this
statement
arguably
is
the
High
Court
of
Australia.
Murphy
J
pointed
out
in
Johnstone vCommonwealth (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.
246
Federal
Law
Review Volume 28
alone
has
authority to prosecute criminals;
when
sentence is passed,
she
alone
can
remit
the
punishment.
And
as the fountain of honour, the
Queen
maintains
the
power
of
dispensing honours
and
dignities.5
Then,
the
Crown
came
to
represent
not
just
asymbolic focal
point
for
the
concept
of
the
state-"the
key
of
the
constitutional
arch"6-but,
as well,
the
powers
that
could
be
exercised
in
its name.
The
prerogatives
and
immunities
exercised
and
enjoyed
by
the
Crown
became
all
important
and
the
boundaries
and
limits of those
powers
are
still
very
much
the
subject
of
debate
and
judicial
determination
today.
In
this
essay
I
intend
to
examine
how
the
concept
of
the
Crown
has
been
treated
and
what
its
modern
role, if any, is
in
Australia. I
will
draw
on
material
from
the
United
Kingdom
by
way
of
comparison.
It
will
be
seen
that
the
concept
of
the
Crown
is
not
just
deeply
ambiguous
but
also
deeply
troubling.
It
is
probably
the
case
that
the
troubling
aspect
is
more
of
a
problem
in
England
than
it
is
in
Australia.
To
the
ordinary
Australian
the
use
of
the
expression "the Crown"
seems
quaint
and
inappropriate
to
describe
government
and
its powers. Its
usage
today
is generally
confined
to
legal matters:
it
appears
in
the
Constitution
and
is
common
in
legislation;
it
appears
in
judgments,
usually
in
connection
with
the
applicability of legislation
to
a
government
entity.
In
most
contexts its
use
appears
to
be
unnecessary
because
the
concept
or
idea
to
be
conveyed
can
equally
be
conveyed
without
mention
of
the
Crown.
For
example, legislation
could
just
as
effectively
provide
"This
Act
binds
the
Commonwealth"
instead
of
"This
Act
binds
the
Crown
in
right
of
the
Commonwealth"
and,
indeed,
as
Gummow
J
has
pointed
out,
in
the
Constitution
the
various
polities
are
referred
to
without
reference to
the
Crown.
7Adiscussion
of
Crown
immunity
could
be
as
effectively
couched
(and
far less mysteriously)
in
terms
of
government
immunity.
Crown
lands
could
as
easily
be
referred
to
as
government
lands
or, preferably State
or
Territory
government
lands.
Some
of
the
confusion
over
native
title
would
be
eliminated
if
it
was
made
clear
that
government
land
affected,
unhelpfully
called
"Crown
land", is actually State
or
Territory
government
land
in
almost
all cases.
More
difficulty
would
be
experienced
in
shedding
the
trappings
of
the
Crown
in
the
criminal
law,
where
the
accused
in
indictable matters is still formally
prosecuted
by
the
sovereign
in
the
abbreviated
Latin
form
of
"R".
The
same
problem
exists
in
prerogative
writ
cases,
where
"R"
is
supposedly
in
contention
with
either
a
persona
designata
or
an
individual
public servant,
when
the
reality is
that
acitizen is challenging
the
government.
How
would
one
explain
this to arecently
arrived
migrant
or
visitor
to
Australia?
WHAT
IS
THE
CROWN?
Though
Australia
has
not
yet
thrown
off
the
symbolism
of
the
Crown,
its
presence
in
areas
of
our
governmental
systems is relatively confined.
True
it
is
that
the
Crown
and
5
6
7
MLoughlin, "The State, the
Crown
and
the Law"
in
MSunkin
and
SPayne (eds), above n 1
at
57-58 (footnote omitted).
GeneralSmuts,
Proceedings
and
Papers
of
the
Imperial
War
Conference
(1917)
Cmnd
8566
at
47
quoted
by
MLoughlin, ibid
at
36.
Commonwealth vWestern 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.
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