The Concept of the Crown

25 Pages Posted: 17 Jul 2015

See all articles by Cheryl Saunders

Cheryl Saunders

University of Melbourne - Law School

Date Written: July 16, 2015

Abstract

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.

Keywords: constitutional law, Australia

JEL Classification: K10, K39

Suggested Citation

Saunders, Cheryl Anne, The Concept of the Crown (July 16, 2015). Melbourne University Law Review, Vol. 38, No. 3, 2015, U of Melbourne Legal Studies Research Paper No. 709, Available at SSRN: https://ssrn.com/abstract=2631854

Cheryl Anne Saunders (Contact Author)

University of Melbourne - Law School ( email )

Centre for Comparative Constitutional Studies 723 Swanston Street (2nd Floor)
Parkville, Victoria 3010
Australia
61 3 8344 0753 (Phone)
61 3 8344 9374 (Fax)

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