What immunity do the King and Governor-General have in Australia?
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- Опубліковано 11 лют 2025
- Following a previous video about the immunity of the President of the United States, this video considers the immunity of the King and the Governor-General in Australia. (A later video will address the immunity of the Prime Minister and other ministers.)
This video first looks at the immunity of the King in the United Kingdom, which has feudal origins in the maxim that the 'King can do no wrong'. It addresses the common law immunity of the King from civil and criminal suit, and notes that this common law immunity would also most likely have become part of the common law of Australia.
It then addresses the position of vice-regal officers - the Governor-General and the State Governors. When vice-regal officers act upon ministerial advice, the legal responsibility for those acts is held by ministers. The video then addresses whether any immunity applies to the private actions or any official acts of vice-regal officers that are done for an improper purpose. It discusses the Canadian case concerning a former Lieutenant-Governor of Quebec who was prosecuted for the misuse of official allowances.
I see Anne has stolen the crown jewels, again.
Yes, indeed. Got to show it once in a while.
@@constitutionalclarion1901 A lovely ornament to honour the late Queen's accession day.
Love these videos, constitutional law has been my favourite law subject to study so far.
Excellent. Glad you are enjoying it.
Ahh. By 'lost' the comment, I meant UA-cam emailed it to me, then I could not find it amongst the comments - it could still be there. While 'civics' are taught in school, I hope teachers are showing some of your videos in class, particularly senior years, and I hope they check the UA-cam transcript against your delivery and hand extracts or the whole thing to students. You present with great clarity.
What about a Governor-General that used their powers to give the head of government in Australia a number of ministerial portfolios in secret, without the ministers of those portfolios being informed?
@@garyfindlay5503but such a thing could never happen!
@@cesargodoy2920 Yes, it is hard to believe that it actually happened. I still don't understand why the governor-general (or his constitutional advisors) didn't caution or warn the PM that it didn't sound like such a good idea.
@@cesargodoy2920 Why do you doubt it? Is what was widely reported unreliable?
@petersinclair3997 I was being sarcastic since it did happen and was quite a big deal
I read during John Kerr’s time, that he could be dismissed at any time by a phone call to London.
No. The Palace always required written advice, and sometimes that it be accompanied by someone authorised to give it (eg a Minister). This normally gave a day or two for political events to sort themselves out. Usually, by the time the person bearing the letter of advice landed in London, the vice-regal officer would have resigned or the issue otherwise resolved through political means.
@ Thank you for the reply.
no one can deny how interesting the topic is republican or monarchist.
Thanks for the video professor Twomey! and the pin who is the real star.
Thanks. Glad you liked both the video and my Crown brooch.
Love the brooch! 😊
Thanks!
Very very interesting topic. Can't wait for part 3.
Thanks. Yes, Part 3 is the most interesting (and practical!)
Another great video. Thank you as always.
You are most welcome.
Really interesting video Professor. One quick question - I'v3 noticed in Sydney that the Governor's (or perhaps the Governor General's) car has the emblem of the crown in lieu of number plates. This is in contrast to the Comm Cars and cars that drive the heads of governments around. I've always been curious as to the legal aspects of this. Are you aware of the legal basis of this?
No, I'm afraid I don't know how they got their snazzy licence plate. If I remember, I'll ask next time I come across a relevant person who might know.
Wonderful, thank you 😊
I don't know why but I believe it is normal for all of His Majesty's Governors. I have seen the car of the Lt. Governor of Gibraltar which also has an emblem of the crown in lieu of number plates.
The NSW Police Commissioner has special plate. Decades ago, I saw Com cars dropping of politicians at the Martin Place cenotaph, for a ceremony, and driving off. However, the Police Commissioner’s car remained stopped in a no parking zone. Wished I had a camera. Would have made a good picture of the week for, “Darryl and Ozzie”. I did say a long time ago. 😊
@@Ben-xe8ps Yes this is the standard throughout the commonwealth. Governors-General in the Caribbean also use crown number plates
Is there anything interesting to know about the collar pin? 😀
I bought it online from the Westminster Abbey shop for my commentary on the Coronation, but it didn't arrive in time (as it was out of stock!) So now I use it whenever I give talks or do videos on regal matters.
Was the late Queen immune from her fashion choices? Presumably, there as well she was greatly constrained by precedent and tradition. And as to the pin, the late Queen also used her choice from her extensive brooch collection as a signal: How far could she go with that? Was there a "Will no one rid me of" brooch?
@@constitutionalclarion1901 it makes quite the regal impression! Great video as always, videos like this give me reassurance that people are at least thinking about times of crisis or issues we lay would think of as unseen.
There was certainly a lot of speculation about what the Queen meant by her use of various brooches. But that may have gone well beyond what anyone intended.
Lady Hale received lots of comments on the meaning of her 'spider' brooch when the Miller (No 2) judgment was handed down - but she said it was a random choice that morning.
@ Elizabeth's clothing was a real "the curtains are blue" moment
I vaguely remember about a supposed scandal in Victoria where a former Governor, Sir Brian Murray had to resign after apparently accepting a free flight for he and his wife to the US from Continental Airlines.
Ahh, yes. I know all about that one. Indeed, I'm doing a new chapter on it for the second edition of my Chameleon Crown book, as I have new primary material about it. But that never got to litigation, so no immunity was claimed.
I think I recall hearing about that too in the context that he resigned so it did not require going to the courts so no ruling was ever made on it.
Always thought that NO one is above the law.
No one is. It is just that the crimes of a monarch are dealt with in a different manner. i.e. by Parliament. Granted that would only be for serious crimes, but the chances of the King shoplifting or speeding are vanishingly small.
Only the ones who write the laws, and those who fund the ones who write the laws
Appropriate broach for this address !
Hey! Great video, as always. I was just wondering what your stance is on the Australian Commonwealth and the Monarchy as a whole. Both personally and professionally.
Thanks Anne. Really appreciate your insight. Germany has a lot of Federal authority - Deutsche Bahn has run the railways to great effect, but in the Angela Merkel years it was starved of funds while experiencing high costs. So your insight is supported by what happened in a developed nation with powerful states. France and Italy have far stronger national governments relative to the regions - the railways are national and better run. Generally, this is a result of the railway acting as prime contractor and hiring specialist contractors to the work elements. Workflow is being managed nationally. It is a key national capability that will forever constrain Australia to very many inefficiencies and bodes very badly for NSW.
Warren Hastings is one famous case of a Governor-General who was impeached, but GGs in India were not Viceroys until 1858.
In Australia, if a Governor was regarded as behaving badly, they were traditionally 'recalled' - meaning they were called back to the United Kingdom and relieved of their vice-regal office. That ceased to be relevant, once vice-regal officers came to be Australians. Now they are elbowed into resigning, if necessary.
I absolutely love your videos - and your books. Listening to your expertise is enlightening. I have something of a constitutional question regarding prorogation in specifically the Caribbean Commonwealth realms which I would deeply appreciate if you had the time to answer.
The Constitution of Grenada states in Section 52 that “The Governor-General may at any time prorogue or dissolve Parliament.” Subsection 4 consequently states that “In the exercise of his powers to dissolve Parliament, the Governor-General shall act in accordance with the advice of the Prime Minister”. This seems to entail that the Governor-General has no discretion whatsoever to reject a PMs advice to dissolve Parliament. Am I correct?
An interesting point I find is that Subsection 4 only mentions dissolution, not prorogation. In contrast for example section 62 of the Constitution of Jamaica has the exact same formulation regarding the Governor-General’s power of dissolution and prorogation, but subsection 5 states “In the exercise of his powers under this section the Governor-General shall act in accordance with the advice of the Prime Minister”. This appears to mean that in Jamaica the Governor-General has no ability to reject advice regarding either dissolution or prorogation.
Looking at these different formulations, it appears to me that in Grenada the Governor-General cannot refuse advice to dissolve Parliament, but can refuse advice to prorogue parliament. But this appears complicated by Section 62 of the Grenada Constitution, which states that “In the exercise of his functions the Governor-General shall act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet except in cases where he is required by this Constitution or any other law to act in accordance with the advice of any person or authority other than the Cabinet or in his own deliberate judgment.” Does this provision then negate the fact that prorogation is excluded from being exercised “on the advice of the Prime Minister” in subsection 4 of section 52, and mean the Governor-General is bound to accept advice to prorogue as well?
If I haven’t been entirely clear about my question please do ask about anything you wish for me to clear up
Thanks. That's an interesting question. I haven't had time to look at the Constitution of Grenada independently, so this answer is just based upon what you have described. If there were a legal dispute about it, it would be a matter for a court in engaging in statutory interpretation to reconcile the two provisions. My guess is that a court would say that while s 52 specifies that it is the Prime Minister alone who advises in relation to dissolution, s 62 would permit another Minister, acting with the authority of Cabinet, or the Cabinet itself, to advise in relation to prorogation. I don't think the Governor-General would be regarded as having personal discretion in relation to prorogation unless the Constitution stated that he or she could exercise deliberate judgment on the matter.
@ Thank you very much for your prompt response. No there is not any provision stating that the Governor-General can exercise deliberate judgement on the matter. It is interesting that it seems prorogation in this case would then rather be a power of the cabinet as a whole to determine, not just the PM. Hypothetically then one could potentially imagine a situation where the Governor-General could reject a PM’s advice to prorogue if they believe they are acting against the wishes of their cabinet? (Say if the PM wants a prorogation to stop an internal party revolt?)
You raise the issue of a court determining the matter, but Section 108 of the constitution states that “Where by this Constitution the Governor-General is required to perform any function in accordance with the advice of the Cabinet, the Prime Minister or any other Minister or the Leader of the Opposition, the question whether the Governor-General has received or acted in accordance with such advice shall not be enquired into in any court of law.”
This would mean that advice to the Governor-General is non-justiciable, significantly complicating that matter. Now, such an act would be incredibly unorthodox and would almost certainly lead to a Governor-General’s dismissal if it does not precipitate the removal of the Prime Minister, but would this not theoretically give the Governor-General the ability to refuse advice by simply pretending they have never received it or just refusing to act on it regardless? Seeing as it cannot be enquired into in any court, there would be no legal recourse to address such a situation. If that is the case I suppose Section 108 is designed to allow the Governor-General to exercise reserve powers to refuse advice in critical circumstances, even if the text of the constitution would mandate that they comply with said advice
There is a distinction between a court determining the extent of the powers of the Governor-General on the one hand, and enquiring into whether the Governor-General has received or acted upon advice. Even if the latter is non-justiciable, it does not mean that the Governor-General can breach the law. The Governor-General is still subject to an obligation to obey the Constitution. It is a duty of imperfect obligation.
@ Interesting, thank you very much. Of course it is highly hypothetical and I recognise that you can hardly grant a concrete answer to a hypothetical such as this, but what do you believe would be the most likely outcome then in a situation where say the Prime Minister advises the Governor-General to prorogue parliament to stop a vote of no confidence which they are certain to lose, and the Governor-General simply refuses to prorogue Parliament? Would there be any recourse beyond the Prime Minister appealing to the King to have the Governor-General dismissed?
What would most likely happen is that the Governor-General would simply delay acting while considering the advice. There is no obligation to act immediately. During the delay, a vote of no confidence in the Prime Minister would happen and the situation would resolve itself. (The same would happen regarding advice for the removal of the Governor-General. The Palace would act slowly, in the hope that the situation resolved itself politically, as it did in Tuvalu.)
Thank you!
You're welcome!
The example of King Charles I is not a good one, since he was tried under an "Act" passed by the Commons alone, without the advice and consent of the Lords or the assent of the Crown. It was thus an act of naked power, devoid of legality.
Yes - the validity of the court was pretty dubious (and I go into that in the written paper from which this video is drawn). But what's interesting was that the reasoning set out in the charges against the King, concerning public trust and the requirement that powers be exercised for their proper purpose in the public interest, is very similar to the reasoning that you will find today in the cases concerning ministerial misconduct. That's why I mentioned it.
Your mention about the monarch's immunity in the context of diplomatic immunity raises some further interesting issues. Australia is a party to the Rome Statute of the International Criminal Court. The Rome Statute provides in Article 27 that the immunity of a person under national or international law shall not prevent the application of jurisdiction; this was held in the Al-Bashir case to require states to execute an ICC arrest warrant regardless of any national or international immunity. Therefore, in the unlikely event that the monarch were in Australia when wanted by the ICC, the Australian authorities would have a duty under international law to arrest the monarch for extradition to the Hague. How would Australian federal law and the Commonwealth Constitution address this duty?
Great question. This is even more interestingly so in light of the fact that the Prime Minister of Israel Benjamin Netanyahu according to the ICC or ICJ (I forget which body) has an arrest warrant against him necessitating that countries ought to arrest Netanyahu and deport him should he step foot onto their land.
It would depend upon how domestic law deals with the international law obligations. International law does not take effect as part of domestic law (other than in incidental ways, such as choices made in statutory interpretation) unless that law is implemented by statute (see Teoh's case). So you would have to look at relevant statutes to see how it would play out.
@@misterbean5010 It's the ICC that has issued the warrant against Netanyahu. The ICJ deals with disputes between national governments, not criminal actions against individuals. Due to the warrant, Netanyahu will not set foot in any country that is a party to the Rome Statute. (While most European countries are parties, most Middle Eastern countries are not, and the United States, where he has visited multiple times, is not a party.)
I’d like to know how the King’s privy council is used in the Australian context and if this is used for passing laws such as those squeezed through parliament on the last day of parliament last December.
There is no 'King's privy council' in the Australian context.
Britain has a King's privy council though. It's essentially a group of advisors to King Charles. They don't hand out advice to the Australian parliament though.
The privy council is partly the house of Lords and the house of commons @@Madeline77-e7j
Not like they would be held accountable for anything...
Thanks.
You're most welcome.
I wonder how the monarch is able to obtain insurance cover for driving if he doesn’t have a licence?
insurance is only for poor people
Self-insured
Not sure about Charles but Queen Elizabeth II clearly didn’t have a driver’s license.
Is it possible to use italics for cases and legislation? My OCD is blowing up. 😊
It drives me nuts too, so I empathize. I use Microsoft clip champ to do the editing, and as far as I can see, no italics are allowed. But if anyone knows how to do them, do let me know.
@@constitutionalclarion1901 If you enclose a bit of text with underscores it will be rendered in italics, like _this_ . And enclosing text with asterisks gives boldface, like *this* . But it misbehaves if there is a character other than a space or carriage return before the first or after the latter underscore or asterisk, like _this_. Which makes correct punctuation difficult, as you see.
Thanks so much! I'll give it a try.
is a governor a "subject of the king" as you stated at 11:11 or an "Australian Citizen" or both or has this changed over the years due to convention
?
The High Court has interpreted the references in the Constitution to 'subject of the Queen' as now meaning Australian citizens.
@@constitutionalclarion1901 does this mean section 44 should now read a citizen or a citizen and section 117 should read an Australian citizen, I prefer science it can be updated and make sense
@@shellyaus Changing the constitution and updating it would be nice, but in practice, going through the motions of a referendum is just impractical. Not to mention that any new language would not have had the benefits of past interpretations of the Courts, and therefore even has the potential to raise further uncertainty. Of course in this case I suspect such uncertainties would be minimal.
@ nice, practice, motions, uncertainty and minimal ? I prefer facts, tested, proven and fully documented
@@shellyaus I used to do research on constructed logical systems where you have a set of axioms and we mathematically derive properties by arguing solely using these axioms. We use the formal system to argue properties about computation.
Therefore I sympathize and know the values of a rigid and logically consistent system. However, as it currently stands, our system of governance, and the law, simply is incompatible with that notion. Mathematicians and scientists make simplifying assumptions in their models. But such liberties cannot be afforded to the law. Take the examples you provided. How could the framers of the constitution phrased section 44 and 117 so that it could have withstood the political changes that were willed by the decision makers(which hopefully reflected the will of the people). In addition, take statutory interpretation as an example. It’s close to impossible, outside of very restrictive settings, to formalize 100% the meaning of a statute. I am sure legislators try their best to make it as logically consistent as possible, but it’s just not always possible. As a suggestion actually, I would encourage you to read into efforts to use programming language, and associated tools, to formalize legislations. There was a few paper by Lawsky that I remembered were quite nice. Some keywords to search for on Google scholar may include “default logic” “Catala”, but it’s been awhile so my memory has somewhat faded.
I’d like to ask if the “received wisdom” (for want of a better term) has changed on this in the last 30-50 years. I think I mean “tolerance for the concept amongst our leaders”. Because, if we go back further such as 1910, the reverance or deference to authority was at a high water mark. Two world wars does a lot to make people think about the structure of a society. I could barely get an answer, as a school student in the 1980s, to what De Groot wanted when he wielded a sword at the Sydney Harbour Bridge grand opening. Times change, but so do our attitudes to past times.
The constitution is paramount … as is a king’s power … up until it is tested by the consent of the people. (That consent feels worryingly fragile, and I hope it’s just middle age … middle age urging me to step up and be responsible). Amazing to hear the example of “shooting a premier” when we know full well what modern parallel question this is implicitly referencing. But would the people put up with it? Quite possibly not.
Tellingly, our system of constitutional monarchy keeps racking up good reviews, such as on this video’s questions. I was studying constitutional law when the amazing 1998 constitutional conventions were happening. Naturally, being under the age of 30, I quite enjoyed the thought of adopting an Irish or French presidential model - and am still swayed by my own argument of “make the system reflect the reality”. But years later seeing a billionaire fall asleep in boredom in the House of Representatives changed my mind. What I’m still not sure about is the reliance on “seemliness” and convention, as opposed to written safeguards, checks & balances. They both have their limits. But should we have a more codified constitution just in case?
Maybe the answer is more conversations with our community, about how to run things. Like this, we’re doing it here.
I agree that underlying attitudes have changed over time, but there is still a surprising amount of deference to monarchy, probably based upon the fact that it's what people have grown up with and therefore feel comfortable with.
While there is an argument for the Constitution being more explicit, so it can be more easily understood by the people, I'm still wary about this because I've seen too many cases where very explicit and detailed Constitutions have failed to cope with unanticipated crises. The benefit of convention is that it is more flexible, allowing practical solutions to problems while still upholding fundamental constitutional principles.
As i recall the holding in the Regicides trial of 1660, was the king can do no wrong, means that a king who commits treason (the legal theory of 1649) was not valid.
Thus the 1660 finding was the law cannot be altered by Parliament when it refers to the Crown.
Parliament is now treated as sovereign and can amend any law, including one concerning the Crown.
I thought part of Magna Carta was the king was subject to the law of the land?
Magna Carta has a very limited application in Australia today: ua-cam.com/video/0iYt7ObIqno/v-deo.html. There were centuries of struggles about the extent to which the law limits the powers of the monarch - see the claims of the Stuart Kings, Cromwell's republic and the Glorious Revolution. This has been a contested issue for a very long time.
Nowadays the monarch agrees to rule in accordance with the law (and in the Magna Carta King John agreed to rule in accordance with a set of conventions agreed with the barons). It's not the same thing as being subject to the jurisdiction of the courts, which were definitely in John's time and technically even now organs of the monarch's authority. That would be asking the monarch to take action against themself, which is contradictory.
Around the 9:20 minute of your video you mention Section 5 of the "Crown Proceedings Act 1988 (NSW)".
Just a question about this. Sue vs Hill 1999 listed five meanings of the Commonwealth Crown, and presumably the Crown in right of NSW (NSW Crown) shares most of those meanings, except perhaps an international personality.
I assume that the NSW Crown is likewise the polity of NSW, the Government of NSW, as well as referring to the monarch Him or Herself.
Is this Act only relevant if a legal person within the NSW polity tries to sue the Crown as the monarch Him or Herself only?
Or does the meaning of the NSW Crown in this Act include the "State of New South Wales" in any matter whatsoever?
Is there another Act that refers to the State and Government of NSW if someone wanted to sue the Government on any matter unrelated to the monarch?
The context of your video was about immunity of the monarch Himself, so I assume you discuss the Crown Proceedings Act 1988 (NSW) in relation to your main topic.
The question is really whether the Crown in right of NSW is defined by this Act to be essentially equivalent to the State of NSW, or whether this Act only refers to the person of the monarch as the Crown?
My understanding is that it is intended to mean the much broader Crown - including the executive government. It is certainly not just confined to the monarch, as there would be little point in that.
Anne, I would really love to hear your thoughts on vertical fiscal imbalance and how Commonwealth powers can be used to reduce the imbalance. This is because the Australian colonies, states and Commonwealth governments have demonstrated that government debt is by far the most efficient mechanism to finance community infrastructure with funding from a mix of taxes and user fees. This was proven in the context the government was hiring the private sector to build what the government specified.
Obviously, the Commonwealth can just give more money to the states without strings (like the states gave income tax permanently to the Commonwealth in 1946 without strings), but politicians need strings to achieve the objectives for which they were elected.
The credit ratings of the states (expert opinions followed by many market participants) on capacity to repay loans (bonds + interest)), relates to projections of income and expenditure into the future.
This is why private tolls are so bad - the tolls are not part of the state's future revenues (also, they are accompanied by many major restrictions on the transport networks the state can provide - the NSW transport network is highly inefficient and a poor environmental performer - people come before urban and natural environment for the Coalition and Labor and The Greens - very few people technically understand how to do both yet the environment is critical for all living things.
Also the private sector values and income stream in private hands at far less than in government hands. Eg where Transurban must pay $6 interest for every $100 borrowed, the NSW must pay only $3. Transurban's differential to the NSW government at all interest rates is 3% to 4% despite the Tolls it collects being regarded as very secure income.
The Commonwealth taxes are not seen as standing behind state debt despite the Loan Council.
The Commonwealth only does land use planning in territories. Transport (means of access) exists to support land use.
The Commonwealth HSR project study, Newcastle to Olympic Park, was buried on delivery (except for a few media leaks) - it appears only loosely related to state plans, achieving very little for NSW. It costs a lot of money that could easily fund completion of the Commonwealth NBN Fibre-to-the-Premises (FTTP) network into every urban residential and business premises in Australia. The NBN has been a Labor objective for several decades. Also HSR, but few in Australia have learnt the lessons of France, Italy and China that inform how to deploy high speed 'rail' in Australia. We follow the advice of Poms who can't see beyond the England model. You may have seen some of my letters in newspapers.
Does the Commonwealth have power, apart from money, to participate in state land use planning???
VFI is something that certainly concerns me, as it undermines the effectiveness of the federal system. But as I'm not an economist, I don't want to wade into it beyond the depths of my knowledge.
While some might see advantages in the Commonwealth directing how public money should be spent, my personal experience working in government was that such direction was usually administratively costly and counter-productive when it came to efficiency, effectiveness and accountability.
(In Theory) When in Australia, due to the doctrine of a divisible crown, would The King be not only acting but only solely be King of Australia and not his other realms and territories? Therefore making the acts listed at 8:44 not applicable?
I doubt anyone can answer that question. It's the problem of one person holding many different (and potentially conflicting) offices. While it is certainly arguable that when in Australia the King is only 'King of Australia', the practical reality is that he also holds functions as the head of state of other nations, and a massive diplomatic ruckus would arise if Australia acted in a way that impeded him from fulfilling his other roles.
Who was the queen of Australia?
@@kathyjova98Elizabeth II and before her Victoria. If you mean Queen Regnant.
@@harrysmall8705 Without being too much of a pedant, technically, and legally, Elizabeth II is the only person so far to have held the title of ‘Queen of Australia’. The title was created under the Royal Style and Titles Act (1973). Before then, her official title in Australia had been set by Australian Commonwealth parliament under the Royal Style and Titles Act (1953): ‘Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith'. Queen Victoria had no Australian form of title.
@ You are right. I stand corrected.
The Queen drove a car, I think only on her own property, I don’t know if she drove on public roads when queen.
I've always thought the term 'vice-regal' was inappropriate and likely to muddy both public understanding and the individual holding the role of a governor, whether just that or with the 'general' or 'lieutenant' before or after it. I suspect it's in response to the political need for Commonwealth realms to assert independence. Here in the UK the nearest thing we have is the office of Lord-Lieutenant who does have a minor role in the appointment of magistrates but other than that the role is entirely representational and never seen as a viceroy & only ever as a lieutenant.
In the UK, the King exercises the relevant power, so there is no need for vice-regal officers. In Australia, it's the Governor-General, for example, who appoints the Prime Minister, prorogues and dissolves Parliament, assents to bills, etc. Hence, it is a substantial role.
@ianport2185 I agree: 'vice-regal' is at least in origin the adjective corresponding to the noun viceroy (and was habitually used in that sense in places where there were viceroys, notably India). Therefore, if the various types of governor in Canada, Australia, etc. are not viceroys it is very confusing to talk about them having vice-regal offices or powers. However, perhaps there's a subtle distinction the court was making between having vice-regal powers and being a viceroy?
Love the broach too, but lost the comment about it.
I'm sorry if your comment went missing. I checked the 'held' box, in case it got put there, but it's not. UA-cam wiped out a couple of my own responses recently, which I thought were quite witty and completely inoffensive. I still don't know why. I think its AI programming is getting worse, rather than better.
A bill to remove the monarch’s immunity (in the UK) would have to be assented to by the monarch. It is hard to think that a monarch, having prompted such a bill in the first place, would feel bound by the convention to grant that assent. But perhaps by then the situation would be so far gone that the monarch’s future role would already be in severe jeopardy.
I expect as King of Australia (or GG in his stead) the bill would be assented to. The King would still have immunity in Australia as a head of state of the rest of his realms. In the UK it would be much more difficult as R v R would be impossible to achieve. You would in effect have to split the King into two parts, one an individual and one a head of state. How could you punish one without punishing the other.
Something similar has happened before - Magna Carta!
@@radman8321 Assuming that the monarch of Australia if recognized by and subject to the law of Australia, it seems hard to fathom that the monarch’s liability could be thwarted by the sovereign immunity accorded to the monarch’s other legal personalities, although perhaps the law is drafted specifically to refer to the natural person of the monarch
@@radman8321 Charles is the King of the corporation and nothing else.
@kathyjova98 the corporation of the City of London?
I've always wondered why Australia isn't a Kingdom like the United Kingdom. We have a monarch but we are a commonwealth. I watched your video on why they chose not to call it a dominion but I wondered why it wasn't called The Kingdom of Australia or New Zealand or Canada etc.. I was wondering if you knew why ?
The Commonwealth of Australia was a colony in 1901 - so it would not have been regarded as a 'kingdom'. It only achieved independence from the United Kingdom much later.
@@constitutionalclarion1901 I thought the Commonwealth was granted Dominion status since its inception, with the individual states having colony status up to that point.
The word 'Dominion' came into fashion in the early 20th century, but it didn't change the colonial status of Australia, which could still not enter into political treaties, declare war, or appoint diplomatic representatives or advise the monarch directly about Australian matters. Those changes occurred through the Imperial conferences of the 1920s (which recognized the 'equal' status of the Dominions with the UK, and allowed them to enter into treaties and to advise the monarch in relation to matters such as the appointment of the Governor-General) and the Statute of Westminster in 1931.
@@constitutionalclarion1901 Thanks for the clarification. I'm always learning here. Thank you for taking the time to do all these videos.
@@constitutionalclarion1901 Perhaps, Kingdom can conjoin to the concept of Estate going back to William and I carried forward from 1066 to 1901? The Duke of Normandy conquered England and held domain over the Land. Jump forward to 1901, Victoria holds domain over Australia? Subjects’ title to land isn’t really absolute. Regular folk can only hold estate in land.
Could yiu please explain what the definition of private capacity is please? .does this mean when not under contract?
I think it means acting as an individual, e.g. the Prime Minister buys a house, rather than as an agent of something e.g. the Prime Minister advising the Governor-General to disolve parliament.
@@robouteguilliman3618
ACTS INTERPRETATION ACT 1901 - SECT 2C References to persons
ACTS INTERPRETATION ACT 1901 - SECT 2C
References to persons
(1) In any Act, expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no - one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual.
Blacks Law Dictionary 7th Edition
inclusio unius est exclusio alterius. See EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS.
Latin legal maxim that makes the point that where a statute, contract or other legal document includes a list of items falling into a category, the inclusion of certain items on that list should be presumed to mean that any excluded items are intentionally outside the definition.
A person is a body politic, corporate, individual
@@craigconstable9407 Black's law dictionary isn't binding. Dictionaries in Australian law are found in the _Acts Interpretation Act 1901_ or contained in a schedule of an act, regulation, rule, or other statutory instrument.
I pledge my loyalty & Obedience to the CROWN…
and acknowledge the only Person who secured His Immunity in the Commonwealth and that is the KING… head of state for the Commonwealth of Australia not the Governor General that was appointed by the Government of the DAY in order to deter political tyranny the power to appoint the Governor General should always be and returned back to the Monarch HIS MAJESTY the King CRIII #britishroyalfamily
The Governor-General is appointed by the monarch. See s 2 of the Commonwealth Constitution and the Governor-General's commission.
Thank you very Madam Constitutional Clarion you are such an inspiration! 😊
Does impeachment exist in Australian law?
There's no provision for impeachment in the Constitution. This is because Prime Ministers are Members of Parliament and responsible to the lower House. The House can vote no confidence in the Prime Minister to force his or her resignation (or dismissal by the Governor-General, if resignation is not forthcoming). In practice, it is the Prime Minister's party that will despatch him or her as leader, with the same result.
Since the monarch is the King of Australia, Canada, etc., would they not also have diplomatic immunity within the UK, even if sovereign immunity were removed? Or would that not work because they are obviously actually British first and foremost, and not foreign?
I suspect it might be dependent on which hat they would wear?
No because (I think) diplomatic immunity needs to be recognized and also registered. So they might be able to get it but they don't have it automatically. Also it can be revoked if the reps country agrees.
Heads of state also do not tend to have "diplomatic immunity" like other officials. it is not unusual in history for countries to simply ignore breaches of law by heads of state out of "diplomatic convenience". Saying that, breaching the law in another country usually results in a request that the head of state leave the country in question at earliest convenience to avoid possible unrest among the general population as those breaches are usually much more publicly noticeable than those by the average official.
i seem to remember that the show 'Yes, Prime Minister' had an episode where the Prime minister breaches a law in the middle east and it was sort of paved over quietly... which is probably reasonably accurate for most leaders of government and heads of state.
It's a good question. I did contemplate investigating it, but decided it would take too long. It would depend upon the UK legislation. See also the Pinochet case regarding immunity for foreign heads of state.
But in any case, if the UK Parliament was going to legislate to remove the King's immunity, one would imagine that the same legislation would remove any diplomatic immunity. The real issue is the political one - how much of a fuss would other countries make? If the UK put the King in prison, it would not make much practical difference in Australia, because the King has a very limited role (mostly approving the appointment of a GG) and it could be done by Councillors of State in his absence. But if Australia put the King in prison in Australia, it would have a huge impact on the UK and cause a massive diplomatic dispute, because the King's role is fully integrated into the system of government in the UK.
@@constitutionalclarion1901 I thought the Councillors of State were a purely British office and nothing to do with the King/Queen of Australia. Wouldn't we need to pass our own laws giving a Councillor of State (or a Regent) the ability to act on behalf of an Australian Monarch?
Of course when Charles I was tried and executed, it was unconstitutional. The Bill that created the High Court of Justice never passed in the House of Lords (the Commons had unilaterally declared its Supremacy), and of course that Bill was never given Royal Assent. That was a case of "Might makes Right", not the legal order working as it is meant to.
When the Monarchy was restored, there was a broad amnesty for people who had fought in the Civil War etc., but that explicitly did not apply to those who had been directly involved in the unlawful killing of the King. Many of the people involved had died already, but that didn't stop the new King's Government from exhuming their corpses and ceremonially executing them. Oliver Cromwell's head was displayed on top of the Palace of Westminster for about 2 decades afterwards.
It is obviously highly unlikely that the King could break any Australian laws whilst visiting but I wonder, if he did break Australian law to a very serious level, could he be deported out of Australia in the same way as they do foreign diplomats? Is the King of Australia considered to be a foreigner when he visits us or is he considered to be a resident or a national?
The King of Australia is not a citizen, a resident, a national, a permanent resident, tax resident, a local. Also not a non-citizen, non-resident, a foreigner, etc.
@@somluck2813 So can he be deported from Australia or not?
@@somluck2813 Does Charles III have a formal nationality? Of, course I know he was born in England.
No matter how you explain this its a can of worms
Heres a question for the constitutional lady 😂😅😅
Did the governor general lose the right to enforce,mandate and legislate on behalf of the crown or British government
Under the 1986 or 1987 privy council law making it illegal or a criminal offence to do so
I'm sorry, but your question makes no sense. The GG never had the power to legislate. It is Parliament that passes legislation. Parliament is comprised of the two Houses, who pass the bills, plus the Governor-General who provides assent. The Governor-General has no power on his or her own to legislate. None of this has anything to do with laws about appeals to the judicial committee of the Privy Council.
@constitutionalclarion1901 I know the parliament passes laws my bad 😅😅😅 what I meant to
Say was the governor general cant enforce privy council rule on behalf of England or dismiss some one on behalf of England or the crown if asked by England after the privy council law of 86 or 87
Sorry for being a pain in the arse 😇
I'm afraid I still don't understand. The Governor-General never had anything to do with enforcing Privy Council decisions. I think you are confusing two things. First, there is the Privy Council in the UK that is comprised of Ministers who advise the monarch about UK matters (which is the UK equivalent of our Federal Executive Council). Second, there is the Judicial Committee of the Privy Council which was the final court of appeal in relation to some (but not all) judicial matters in Australia. Through various statutes, including the Australia Acts 1986, the appellate jurisdiction of the Judicial Committee of the Privy Council has been restricted or ended. The last remaining formal jurisdiction is in s74 of the Commonwealth Constitution, but an appeal under this provision can only be brought if the High Court certifies that it is a question that ought to be determined by the Privy Council. The High Court has said that it will never give such a certificate again, so that route is now a dead letter.
None of this has anything to do with the Governor-General.
@@constitutionalclarion1901 thanks for clearing that up so it's the Australia act 1986 that ended the Australian courts of law
Ability to appeal to British privy council
Putting an end to the power of United kingdom in Australian courts
I think I get it now 😅😅😅👍
@@keza3250 The Australia Act 1986 brought the states into line with the Commonwealth. At the Commonwealth level Australia was already independent (see Westminster Act). But not at the state level, until the introduction of the Australia Act 1986.
Elon and Trump listen to this kind of sovereign power and salivating with envy..🤤🤤😁..
The US has a proper constitution that has been trampled by previous governments, the same thing happened in Australia.
@@kathyjova98 The only method by which the Commonwealth Constitution can be altered is by referendum, so the responsibility of any changes to it lie directly with the Australian people.
@auspseudolaw hmmmm.. I think I need permission from the crown 👑 to have a referendum..😁 and every referendum needs to be analysed and approved by the house of lords 🙌..
the unelected bunch of birthright bureaucrats..😁...hmmmm.. I guess I am still salivating for that birthright the descendent of God himself..🤣.
Why are your comments filled to the brim with crazies?
UA-cam is where the crazy’s get their “legal educations”
I’d assume their algorithms have found a video on similar topic for them to watch based on their viewing histories
Unfortunately/fortunately for them they’ve found a video from an actual expert
the King Question -Charles I (1st) was tried and Beheaded in 1650.I read that King is Liblie to the law.
If you watch the video, you will see that the execution of King Charles I is mentioned.
Impeachment and conviction is the remedy for a President committing high crimes or misdemeanors.
But impeachment is a political process that removes the President from their political office. It does not provide a criminal punishment for the commission of a crime. These are two quite different things, as the majority judgment in Trump v United States makes quite clear, if you read it.
Can the now Qld Governor, once its CMO, be held accountable the for terrorising parents in this state by warning sending their children to school will result in harm, or a fear of 'killing grandma'?...Is her public confession to Coercing the public using mis-information via Statecraft an actionable offence?
I'm not aware of any criminal offence involved in warning about the spread of disease.
@@constitutionalclarion1901 Effectively lying to the public as to its lethality to, as she admitted, scare parents into unnecessary action (which ended in harming kids) seems like an act of Terror
Its a strange world we're living in. I personally don't think any immunity should exist unless there is a very good practical reason and limits on such immunity. I remember when there was some worry the queen would prevent princs andrew from facing the courts in the US (though of course thats diplomacy immunity).
In practice I think the brand and status of people likely affects even judges perceptions anyway. After all we're all human. I personally think for instance the case involving Cardinal pell would have put many catholic judges in a difficult position, as when your taught to respect a church hierarchy that ends with a supreme emperor under god (the pope) from a young age, its going to colour your judgement.
Thats just my opinion though.
Thankyou again for your excellent educational content.
You're welcome. What's interesting is that if you read what judges say in the sentencing appeals for these types of cases (including the ministerial ones, which I will come to next time), they stress that those who have been given great responsibility need to be really virtuous in its exercise. So they give harsher sentences, as a form of deterrence, than they would for an ordinary person.
This was done in relation to Thibault. The judge said that the presumption of integrity attaching to the office of Lieutenant-Governor allowed her to benefit from money to which she was not entitled. For this reason a custodial sentence was imposed 'with the objective of denunciation and general deterrence'.
ACT OF SETTLEMENT 1701 : " THE KING / QUEEN DOES N O T HAVE THE POWER TO CHOOSE HIS OR HER SUCCESSOR ON A WHIM...THAT A MONARCH´S
HEIR MUST BE HIS OR HER DIRECT SUCCESSOR " The Act of Settlement is part of the constitution, so it is part of the Australian; Canadian etc... constitutions.
Who is in charge of controlling and enforcing this law ? What for making laws, if no one can / will enforce them ?!
First, that's not a quote from the Act of Settlement. Second, the Act of Settlement is not part of the Commonwealth Constitution. It is a statute. Parts of it, however, were received as Australian law. It is that law (which is now Australian law), which determines who the monarch is. When changes were made to the rules of succession to the throne back in 2015 to remove the priority of males over females, the change was made by an Australian law (the Succession to the Crown Act 2015 (Cth) - www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/num_act/sttca2015269/) enacted pursuant to s 51(xxxviii) of the Constitution. Note s 10, which amends the application of the Act of Settlement with respect to Australia.
You didn't say 'no one is above the law'....so now common law crime must be legal. !
I'm afraid I don't know what you mean.
7:54 so clearly someone should impeach the crown for dereliction of duty to the people of the commonwealth of australia
It's entirely fair to argue that Australia should be a Republic and there are very reasonable arguments for doing so, but to argue that the Crown has somehow been derelict in its duty, prescribed and constrained in and by the constitution, is legally questionable. This channel is full of examples of the Monarch's vice-regal representatives doing their jobs (wrongly or rightly) in Australia.
I'm afraid I've no idea what you are concerned about. In any case you cannot 'impeach the crown', as it doesn't make sense.
Do you mean the monarch should be charged with 'dereliction of duty' because they rarely visit Australia? That's not their fault. As far as I know, the monarch only comes to Australia when invited.
Note Ms Windsor's gutless cop out in 1975.
Apparently the Monarch's appointed representative is not accountable to the monarch. In other words, the GG is completely and totally unaccountable.
The Constitution confers certain powers on the Governor-General, rather than the monarch. They include the power to appoint (and hence dismiss) a Prime Minister. These powers are not held by the monarch and cannot be reversed by the monarch. The monarch acts upon the advice of the Prime Minister in relation to the appointment and removal of the Governor-General. Any action to be taken against the Governor-General, therefore, would have had to be as a result of prime ministerial advice.
@@constitutionalclarion1901 Ministerial advice? Where was the ministerial advice in 1975?
@@constitutionalclarion1901 The monarch can in fact over rule the GG. I suggest you read S59.
And regarding ministerial appointment the monarch can instruct the GG as they chose, who is obliged to maintain the monarch's 'pleasure'.
@@kenwaugh7 S59 is limited to legislation that was given assent to in the previous 12 months. The last time a Monarch attempted to influence the Appointment of a Governor General they lost out to the Australian PM of the day. They've never tried since.
@@kenwaugh7 The monarch cannot overrule the Australian governor-general, even under s.59. That's not what s.59 of the Australian Constitution means.
Not that s.59 makes any sense, which is why it's considered obsolete. Why would the PM advise the King of Australia to disallow a law his government had probably worked hard to get through both houses of parliament?