Australian Journal of Law and Society, Vol. 14, 1998-1999
23 Pages Posted: 23 Aug 2003
In the various realms of the Crown, and particularly in Canada and Australia, there has been a separation of the person of the monarch from the concept of the Crown. The Crown has been depersonalised (even "de-monarchised"). This growing separation between Crown and monarchy is of practical importance, for the Crown as theoretical principle still integrates the polity.
Nor should the Crown as a symbol be allowed to cloud the truth that the Crown is an integral part of a practical form of government, and as such has a direct and substantive part to play. Monarchy is a distinct form of government, and one which has certain differences from, and perhaps, advantages over some other systems. As Smith put it, "hard-headed calculation" and not "conventional loyalty" explained the choice of the monarchical principle by the Fathers of Canadian Confederation.
The transplantation of the Crown abroad has led to some technical and practical difficulties. The belief that New Zealand is a de facto republic has arisen as a consequence of our history, the visible absence of the Sovereign. There were, and are, similarities and differences between the role of the Crown in the United Kingdom, and in the realms. The Sovereign has a place in local life that is quite different from that in the United Kingdom.
The Sovereign may be absent, but the Crown is ever-present. Although there is an almost complete delegation of the royal prerogative to the Governor-General, and the Queen retains but a minimal involvement in the New Zealand constitution, the important symbolic role of the Crown remains. Almost inevitably, the concept of the Crown has undergone an evolution until the point has been reached that the Crown is arguably more significant that the person of the Sovereign.
There is therefore a dichotomy of legal theory and political reality. The constitutional grundnorm is based upon the concept of the Crown. Yet there has been a growing separation between Crown and monarch, or rather a redefinition of the Crown in such a way that the Governor-General is almost as full a personification of the Crown as the Sovereign is. The Governor-General has become a de facto a viceroy, empowered to exercise a general delegation of the royal prerogatives, and entrusted by the Sovereign with complete responsibility for the government of New Zealand.
With the exception of the honours prerogative, which has remained in the hands of the Sovereign, largely for symbolic reasons, the royal prerogatives are now all exercised by the Governor-General on behalf of the Sovereign.
Difficulties remain however with regard to legislation affecting the unity of the Crown. The concept of the divisibility of the Crown has yet to be fully developed. Some anomalies remain, and it is clear that the Queen remains, at least in some respects, legally the one person throughout her realms. What effect this has upon the legitimacy of the Crown in New Zealand has, as yet, received little analysis outside the writings of dedicated republicans.
Keywords: royal prerogative, honours, prerogative, Crown, monarchy
JEL Classification: K39
Suggested Citation: Suggested Citation
Cox, Noel, The Dichotomy of Legal Theory and Political Reality: The Honours Prerogative and Imperial Unity. Australian Journal of Law and Society, Vol. 14, 1998-1999. Available at SSRN: https://ssrn.com/abstract=420752 or http://dx.doi.org/10.2139/ssrn.420752