LAWS1205 Study Guide - Final Guide: Northern Land Council, Maay Language, Money Bill
Week 7
Prerogative: a right reserved exclusively by a particular person or group (especially a
hereditary or official right)
Sunday, 9 April 2017
16:34
Constitution CHII ss61-70
Australian Capital Territory (Self-Government) Act 1988 Cth ss25, 36--48
Constitution s53, 56, 61, 62, 64,75
Executive power: CHAPTER II, Cons 81 and 83
Australia Acts s 7(2)
The Crown
Before 1688, monarchs of England had royal prerogative in makings law
After revolution of 1688, Parliament emerged as the domain institution of government
The King or Queen, by constitutional convention, monarchs must on the advice of
their ministers
Executive power is said to be exercised in the name of " the Crown"= " the
State"
Town Investment v Department of the Environment: [1978] AC:
1. the crown symbolises the powers of the government where were formerly
wielded by the wearer of the crown, the term Crown is therefore used in constitutional
law to denote the collection of such of those powers as remain extant (the royal
prerogative), -the executive government
2. The Queen: the person who by right of succession is entitled to wear the
crown
3. Her Majesty, in constitutional legal usage, personifies the power of the crown
Bank of NSW v Commonwealth CLR:
1. The constitution treats the Commonwealth and the states as organisations or
institutions of government possessing distinct individuality, conceived as politically
organised bodies having mutual legal relations and are amenable to the jurisdiction of
courts exercising federal jurisdiction
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (engineers case)
CLR:
Ministers for Works (WA) v Gulson:
1. Concerned with the application of the old presumption that in the absence of
clear indication to the contrary, statues should be construed as no intended to bind the
crown.
2. Rich J argued using indivisibility, because a Cth regulation did not bind the
Crown in right of the Cth, it followed that it also did not bind the Crown in right of WA
Bradken Consolidated Ltd v Broken Hill CLR:
1. Whatever answer was given to the question of construction should apply to the
Crown at every level. The underlying presumption itself was reformulated in Bropho v
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WA where majority rejected the "inflexible and stringent ' presumption that statues do
not bind the Crown,
The Governor-General
Queen is represented by its Governor in each state
Cth is represented by the Governor General
Instructions to the GG from the monarch are dealt in the Letters Patent Relating to
the office of Governor General of the Cth of Aus
Governor-General elected through constitutional conventions that the Monarch act on
the advice of Her Majesty's ministers in the Dominion concerned
GG cannot survive without the support of the public, one main reason is GG's tenure
lies on the hand of the PM, who may be forced by the public to dismiss the GG
FAI Insurance Winneke: responsibility is to administer the executive government,
and do so with integrity and political partiality
There are exceptions to the convention that GG should act only on advice, such as the
reserve power, which the GG can exercise in the absence of advice.
There are two groups of situations in which it seems accepted, the GG maay dismiss a
PM
a. No-confidence motion: if the Lower House passes a simple motion of no
confidence in the PM, the convention is he or she must resign, terminating the
appointments of all other ministers or advise the GG to dissolve Parliament
b. Where the gov is persisting in illegal or unconstitutional conduct: if it is clear
that the government has persisted in breaching a fundametnal constitutional
provision , the government has ignored calls from the GG to desist from this
conduct and the contravention is not justiciable.
a.i. This happened in 1932 NSW when NSW was in a dire financial
position and the Labour Premier Mr Lang cease making interest payments
on the state's debts. The federal government then tried to seize State's
revenue to discharge interest liability, but the state government in order to
evade this scheme, the state government issued circulars to refrain its
officers from payment to Government. These were in direct conflicts with
the Federal regulations. Mr Lang refused to withdraw the circular and later
dismissed
b. Prime Minister cannot obtain supply: a refusal by the lower house to pass a
supply bill would be regarded as an expression of no confidence in the
Government. Different story when supply is refused by the upper House
a.i. Gough Whitlam's Labour Government was dismissed by GG Sir John
Kerr in 1975 on the ground it had not been table to obtain Appropriation bill.
a.ii. There were controverisies on this dismissal
a.iii. But ti was seen as a necessity to resolve a deadlock which was
threatening the economic fabric of the nation
a.iv. Others argued it was wrong because the government continued to
enjoy the confidence of the House of Representations, the confidence of the
Senate was never having been regarded under the principles of responsible
government.
Conventions underpin the day-to-day operation of the Australian Constitution, The
GG is given powers in the Constitutions, but the powers stipulated are largely illusory
due to the conventions basing on the doctrine of responsible government
Republic debate
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