Ryan William Haddrick LLB Jamescook, LLM Qldut, Graddiplegprac ANU
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The Queen’s Ministers of State for the Commonwealth: The Relationship between the Prerogatives of the Crown and the Executive Power of the Commonwealth Ryan William Haddrick LLB JamesCook, LLM QldUT, GradDipLegPrac ANU A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2017 T.C. Beirne School of Law i ii ABSTRACT The orthodox view is that the prerogatives of the Crown are textually incorporated, or sourced, in the language of s 61 of the Australian Constitution. This work challenges that assumption by examining the text, structure and history of ss 2, 61 and 64 of the Constitution. In particular, the inclusion of the words “under the Crown” and “shall be the Queen’s Ministers of State for the Commonwealth” in the preamble and s 64 respectively are, it is argued, textual indicators (and devices) that the prerogative is textually recognised or affirmed by those provisions, and ought to be seen as emanating from the Crown, and recognised by common law – and not as emanating from s 61 of the Constitution. Having argued that the executive power of the Commonwealth (that is, s 61) is not the textual source, or recognition, of the prerogatives of the Crown, this dissertation then posits a theory as to how s 61 should be construed. True to its Montesquieuian heritage, it is argued that the executive power of the Commonwealth ought to be understood in a functionalist sense. The evidence considered to support these propositions is the text, structure and history of the constitutional provisions. In particular, this dissertation examines the historical concept of the prerogatives of the Crown; the way that body of constitutional doctrine became part of the Australian constitutional landscape; and how the prerogative was understood to operate in pre-Federation Imperial and colonial case law. The Debates of the Constitutional Conventions of the 1890s are closely examined to ascertain how the framers sought to affirm the operation of the prerogative, and what interpretative assistance the Debates might give in the construction of ss 2, 61 and 64 of the Constitution. A particular focus is placed upon the decision of the Full Court of the Supreme Court of Victoria in Toy v Musgrove (1888) 14 VLR 349, as the reasoning in that widely reported case figures prominently in the framers’ deliberations; and it is therefore of significant interpretative assistance. iii This dissertation offers a theory about the way the prerogative was textually affirmed in the Constitution, and what the consequence of that recognition is for the construction of the executive power of the Commonwealth. iv DECLARATION BY AUTHOR This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis. I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my research higher degree candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award. I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 unless a period of embargo has been approved by the Dean of the Graduate School. I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis. v PUBLICATIONS DURING CANDIDATURE No Publications PUBLICATIONS INCLUDED IN THE THESIS No Publications CONTRIBUTIONS BY OTHERS TO THE THESIS No Contribution By Others STATEMENT OF PARTS OF THE THESIS SUBMITTED TO QUALIFY FOR THE AWARD OF ANOTHER DEGREE None vi ACKNOWLEDGEMENTS This dissertation has been more than five years in the making, and could not have been completed without the support of a number of people. First and foremost, I record my gratitude and sincere appreciation to my principal academic supervisor, Professor Nicholas Aroney, Professor of Constitutional Law at the University of Queensland’s T C Beirne School of Law. I am very grateful for Professor Aroney’s patience and guidance in assisting me to complete this body of research over a number of years. I am particularly grateful for his encouragement of me to refine my thinking about constitutional interpretation, and encouraging me to think about, and structure my research around, the framework of the various tools of constitutional interpretation, and for introducing me to a number of constitutional authors I was not previously familiar with. I am also grateful for Professor Aroney’s encouragement to undertake my research with the degree of depth, rigour and analysis required to do justice to the subject-matter. I am also grateful to my associate academic supervisors, Professor James Allan, and Professor Anthony Cassimatis, for their guidance and assistance. I record my appreciation to the Honourable Justice P A Keane AC of the High Court of Australia, who kindly read the near-complete manuscript and reviewed the dissertation. I also record my appreciation to Ms Katherine Store who also kindly read and gave me detailed advice on the manuscript. Whilst I am appreciative of the suggestions and criticisms of those who have read the manuscript, any errors are solely mine, and should not be attributed to those who read or reviewed the manuscript at its various stages of completion. Naturally, I also record my appreciation to my family for their support and encouragement in undertaking this research over a number of years – thank you to Lawrie, Helen, Mathew, Nicole, Michelle and Andrew. vii Finally, I record my appreciation to Natalie who has been my partner in this long journey. I would not have been able to establish myself at the Queensland Bar and undertake the work associated with researching and writing this dissertation without Natalie’s forbearance, support, understanding, and encouragement. R W HADDRICK Chambers Brisbane 9 May 2017 viii KEY WORDS executive power of the commonwealth; executive power; prerogative; royal prerogative; prerogatives of the crown; judicial review of the executive power; non-statutory executive power; toy v musgrove; federation conventions. AUSTRALIAN AND NEW ZEALAND STANDARD RESEARCH CLASSIFICATIONS (ANZSRC) ANZSRC code: 180108, Constitutional Law, 90% ANZSRC code: 180103, Administrative Law, 10% FIELDS OF RESEARCH (FOR) CLASSIFICATION FoR code: 1801, Law, 100% ix DEDICATION This work is dedicated to the memory of The Reverend William Edward Vivian Haddrick and Myra Nell Haddrick and to the memory of Audrey Winifred Eyres This work is also dedicated to Samuel Ronald Eyres OAM x CONTENTS Abstract .............................................................................................................................. ii Declaration by Author ....................................................................................................... iv Additional Declarations ..................................................................................................... v Acknowledgements ............................................................................................................ vi Key Words ........................................................................................................................ viii Dedication ......................................................................................................................... ix Contents .............................................................................................................................. x Table of Abbreviations ..................................................................................................... xiii Glossary ........................................................................................................................... xiv Preface ............................................................................................................................ xvii A Note on the Text ............................................................................................................ xxi CHAPTER 1 - INTRODUCTION .................................................................................. 1 I The Purpose ............................................................................................................. 1 II The Impugned Orthodoxy ....................................................................................... 7 III The Core Argument Introduced ............................................................................. 11 IV The Use of the Word “Prerogative” ...................................................................... 14 V The Use of the Words “Executive Power” ...........................................................