Hello Professor, The use of the words manor and form and how they relate to a referendum is new to me. I didn't know of state constitutions: so thank you. 🌏🇦🇺
Thank you very much for this. Highly nostalgic- took me right back to UQ 1966 lectures by Dr Darryl Lumb. Thing have moved on since then but it is pleasing that this topic is still providing grist for the academic mill.
Ah another thing I thought was quite nice is how the states seem quite sovereign and how reading the term constitution as having regards to the representative character of the state parliament in turn places a very strong protection for the people's rights in determining their government. Gives me a lot of confidence.
No - there really was a notable occasion where a judge got it wrong, and it is well accepted that this was the case. It's a technical area, and sometimes even judges stuff things up.
Enjoy your videos greatly. Are there ebooks on the KISS principle of the Australian Constitution that a lay person can understand. Being from the ACT, do they have a constitution, or is the Act that created it, referred to as the constitution.
The ACT's Constitution is effectively the self-government Act enacted by the Commonwealth Parliament. In terms of simple books on the Constitution, you could try Joseph and Castan's 'Federal Constitutional Law: A Contemporary View' 6th ed, 2024. I believe there is an e-book version of it.
I'd love to hear opinions on how the Queensland constitution shakes out with respect to: 1. Re-introducing an upper house, or 2. Implementing a proportional representation system in the existing Legislative Assembly. Could either of those be done with legislation or is a referendum required? Constitution Act Amendment, Act 1934, section 3, appears to me to correctly doubly entrench to prevent #1. However I can't find any such protection against overriding Chapter 2, Part 1, 13 (1 member for each electoral district. Each member of the Legislative Assembly is to represent 1 of the electoral districts) and other relevant sections through mere legislation. But it's a big tome, maybe I've missed something. Queensland and the Northern Territory stand alone as the only state and territory jurisdiction with no proportional representation system at all! The ACT joins them in being the only 3 with a unicameral legislature.
Yes, you would need a referendum to reintroduce an upper House in Queensland. I haven't looked at the issue re proportional representation in Queensland. All I can say, is that sometimes there are odd entrenched bits hidden in places, which cause trouble. In the NSW Constitution there is an entrenched schedule which deals with the counting of votes and has caused no end of difficulties.
Some modern British constitutional law, such as the Scotland Acts and Wales Acts, have forms of entrenchment but they are not doubly entrenched. I wish we had a single document for a constitution, that was entrenched and could be picked up in a book shop by any citizen, but we don’t. If Parliament wants to abolish the Scottish Parliament they can either do the right thing (according to act of Parliament and prior convention) and hold a referendum of the Scottish people, or they can repeal their own entrenching provision and then do it.
Hi Anne! This prompted me to take a deeper dive into the Australia Acts. I noticed in s 15(1) that the Commonwealth can ammend the Act with the consent of all state parliaments. Theoretically, could the (validly) entrenched provisions in state constitutions be overriden and ammended without a state referendum/parliamentary supermajority if all states and the Commonwealth passed an ammendment to the Australia Act?
Yes, the manner and form requirements could be overridden by a change to the Australia Acts. There was some discussion as to whether to do that re the republic back in 1999, but it was rejected.
First Question: Regarding abdication of legislative power: do we know if courts are likely to treat % of MPs differently to % of electors? I've found the nexus requirement in the Commonwealth constitution interesting, since it implicitly allows for 75% of lower house MPs to override upper house MPs, after some involvement of the electors, if a joint sitting occurs. In effect this places 75% of the house of reps + dissolving parliament as a senate veto override, which is a fairly high bar (eg 2/3rd supermajorities seem to be the most common), but this threshold is lowered by partial consent of the senate. For instance NSW has 12 LGA regions, which vary considerably in population. If NSW tried to entrench with the requirement of a double-majority through state-wide electors and electors within each Local Government Area region, would this likely be seen as too difficult to fulfill? It also feels a tad notable that in the conflict between houses, it's representative democracy that's implemented by default with the voters involved in a *somewhat* consultative manner, rather than having a default where the legislation to be passed is put directly to the voters as a referendum (that wouldn't touch the constitution). If this path were taken then the implicit weighting of the two houses would most likely be broken since the referendum would need to implicitly incorporate some other form of weighting like simple majority or double majority, or to keep the same balance as the nexus requirement via weighting by number of total federal MPs per voter. Second Question: Is there enough substance in the topic of comparative law and international precedence to warrant a video (it seems you've got quite a backlog of topics already however)? I'm under the impression that in some sense all common law countries form a single superjurisdiction, since judges read the decisions foreign (but suitably similar) courts arrive at. On one level it feels *very slightly* like an affront to nationalism, since it feels like any country is interlinked with others. On another level it makes a lot of sense, since we all have access to the same platonic realm of reason, logic and philosophy. I recently read Reform of Australian Jurisdiction and Judgements Law by International Treaty: The Lugano Option (Garnett, in Law and Government in Australia, Groves, Federation Press), which brings up the benefits of harmonising laws and their interpretation. Does the system of common law in Australia recognise the notion of a "united intellectual community" or the idea of "common law (British?) civilisation"? One point in favour of it might be that to be eligible as a high court judge in Hong Kong, you must be an experienced legal practioner in another common law jurisdiction (and it seems quite a few experienced judges head over there). An interpretation counter to this is just that it's a sensible policy for a small island seeking talented governance, and continuing connection to the common law world would allay concerns of the international business community. I'm not sure how stare decisis works, but it feels just like convention in the UK parliament: nothing binding, just something nice that adds stability (good for business) and increases legitimacy of the institution (itself good for stability). In Vitalik Buterin's "The Most Important Scarce Resource is Legitimacy", he lists six theories of legitimacy. Both precedent (in the courts) and convention (in the UK parliament) satisfy at least three of them (legitimacy by continuity, process and performance). In a similar sense I can see how precedent in other jurisdictions is almost as good as precedent at home, since it fulfills a similar function in terms of legitimacy and higher-order coordination. After all, legal decisions in other countries can inform ideas about how the law operates (perhaps adjusted for closeness in language and legal system, eg Loiusiana or Quebec discounted). These expectations apply to regular people and lawyers too, both of which have an interest in maintaining the legitimacy of the courts (and I'd guess the legitimacy of all common law courts and even all nation states are interconnected by a larger consensus on statehood, justice, impartiality, etc). It still feels odd however that Westminster can no longer pass laws for Australia, it's courts could still affect the reasoning of our justices. I could easily be under the wrong impression here. I haven't a clue how common this misconception would be. So the question (which might be on rather poor foundations) is roughly "to what extent can and should courts in Australia use precedent and consider reasoning in other countries, and what are the conceptual implications of this when it comes to sovereignty". As always, great video, and thanks for responding to comments (even if you don't respond to mine, I find the other ones interesting too)
On the question of what percentage of required votes would amount to abdication, rather than a 'manner and form', no one knows, because there is no authority on the point. But if you look at the current Constitution of Fiji, to amend it you need to get a vote of three quarters of all members of the Fiji Parliament and three-quarters of 'all registered voters'. To me, this seems to be an abdication, rather than a true manner and form requirement, because it is virtually impossible to achieve. Fortunately, no one has ever tried anything that extreme in Australia. As for judges being influenced by decisions in other common law countries, I don't see it as undermining Australia's legal system in any way. Judges might read those judgments, but will only be influenced if the reasoning is compelling and relevant. As each country has a different Constitution and different statutes, many common law judgments from other countries would simply not fit in with our existing legal matrix of common law and statute, and would therefore be ignored. Australian judges are also prepared to depart from common law positions in other countries, if they disagree with their reasoning. It's just useful sometimes, to see how other people deal with similar issues, as it can give insight and can expand one's understanding.
Very well presented. So would manner and form be expected in NSW and WA via their prospective Constitutions in order to fulfill an obligation under section 51(xxxviii) of the Commonwealth Constitution? And would that spoil the fulfillment of section 51(xxxviii) if those 2 States had not satisfied the manner and form , where there is a requirement that each State needs to fulfill the request to the UK Parliament?
Not sure quite what you mean here. As manner and form is now controlled by the Australia Acts, it can also be altered and suspended by amendments to those Acts.
@@constitutionalclarion1901 Section 7A of the NSW Constitution requires approval from the electors before the powers of the legislator can be altered, and with respect to the Western Australia Constitution sections 2 and 73 also require approval from the electors with respect to the manner and form of those Constitutions and there obligation to fulfil a request to the Commonwealth to fulfil section 51(xxxviii). The Australia Act section 2(2) and 6 change the legislative powers of the States.
No, I'm afraid you've got the wrong end of the stick here. Such arguments have been run in the courts and failed - see, eg, Kelly v Campbell [2002] FCA 1125 and Sharples v Arnison [2002] 2 Qd R 444. You are misreading the scope and effect of the entrenching provisions as well as the effect of the Australia Acts (Request) Acts. If you want a full explanation - see pages 367-370 of my book on the Australia Acts.
@@constitutionalclarion1901 Thanks for the reply and I will look out for the book. I have read the cases cited but they do not go to the sections of the respective Constitutions of the States of NSW and WA as the court cases and other comments refer to the powers of the Governor. I was altering you to the obligation to the legislator conducting a vote from the Elector regarding the change of legislative power as defined in sections 2 ,6 and 15(1)of the Australia Act. I eagerly await your reply Professor.
First, neither s 7A (NSW) nor s 2 (WA) actually requires a referendum in relation to the conferral of any additional legislative power on the State. For example, while section 7A(1)(a) refers to the alteration of the powers of the Legislative Council - this is just its powers as a House (eg re privilege, ordering the production of documents, holding inquiries etc) - not the legislative power of the Parliament, which is dealt with separately in s 5 and not entrenched. Section 2 of the WA Constitution Act 1889 provides that the WA Parliament has power to make laws for the peace, order and good government of WA. This is a plenary power. Removing a limitation on that plenary power does not alter the plenary nature of the power and does not require a referendum. Second, the request legislation did not itself alter any powers of the State Parliaments - as those court cases recognised. It only requested Commonwealth legislation. Third, s 6 of the Australia Acts did not alter the powers of State Parliaments. It replicated previously existing constraints on those powers imposed by s 5 of the Colonial Laws Validity Act. Section 2(2) of the Australia Acts allows the States to repeal/amend certain British laws that previously applied by paramount force. In doing so, it released the States from an externally applied constraint on their existing plenary powers. Finally, even if a State did require a referendum to make its request law (which it doesn't), the UK law validly applied, as its enactment was not dependent upon any State request.
Looking forward to part two! Will you be dealing with Trethowan’s case? I can’t help but feel it must be wrong in so far as it allows a state parliament to entrench something without first putting it through the entrenching method (eg, requiring a referendum without first putting that requirement to a referendum).
Yes - I have a problem with that too. The forthcoming video does deal a little with that issue, but mainly through some comparison with New Zealand, rather than going back to Trethowan (which is frankly too confusing to explain here).
So does this mean that a state government could change their system of government (i.e. the relationship between their three branches of government) without a referendum? For instance, could a state establish a directorial system of government with a multi-member council elected by parliament and subject to parliamentary confidence collectively serving as head of government of the state? I'd imagine the answer would probably be yes, provided this change didn't change anything about the office of governor that had been properly entrenched into the state constitution.
Former high court judge Robert French gave a speech in USA (recommend) about ten years ago. He spoke about case law, his understanding was states can’t destroy their supreme courts because state supreme courts are in commonwealth constitution. He also spoke about case law of NSW and SA legislation attempting to get their judges to do stuff that was not judicial. Justice French’s view of the case law and jurisprudence was because of separation of powers judges can’t do stuff that isn’t fully judicial in nature. In vic premier bolte got a magistrate in to ask if he was going to sentence someone to die, he got accusations of interfering with justice from the press. I reckon/have read the culture back then was a lot like the old house of Lords and their law lords, ie political and judicial questions mixed, separation of powers in the states wasn’t entrenched yet. My understanding is each state is different in that regard, where separation of powers is at. Apologises if to ruff of a presentation of information. Thought it was a great question. Kind regards cal, Melbourne
If a State were to make major changes to its system of government, it would depend very much on whether this breached any implication flowing from the Commonwealth Constitution. As one of the other commentators has said, the courts have held that a State could not abolish its Supreme Court, or require judges to act in a way that removes their decisional independence. But this is because the Commonwealth Constitution provides for a judicial system of appeals from State courts to the High Court, and for the State courts to exercise federal jurisdiction. There is not the same explicit integrated hierarchy in relation to the other arms of government, so it is less clear what, if any, implications might apply.
I’ve been looking everywhere to find any info on the constitutionality of a federal climate trigger for coal and gas projects. My understanding is that because federal environmental laws are grounded in foreign relations powers and there is no treaty obligation to phase out the production of fossil fuels it is deferred to states. I would love to know. Thanks
I haven't looked at all the relevant material, but as you say, I think a lot of it is based on treaty and other international commitments, and some of the law is based upon cooperation with the States. As this is an extremely litigious area, I suspect that great care has gone into ensuring that provisions are tied closely to constitutional heads of power, or someone would have already challenged.
A wonderful explanation of state constitutions! I wish my degree had discussed state constitutions more! I reckon I did four public law courses and state constitutions only came up in the context of discussing the providence of CLVA and AA. In my professional life, I've run into state constitutional interpretation as much if not moreso than Commonwealth constitutional interpretation. Has the definition of "constitution" in the AA been tested? In the Victorian example, I've not been convinced that either the electoral process' nor the representation rates' entrenchment couldn't be removed by a simple majority vote since neither go to a narrow definition of constitution.
Unfortunately, there is very little jurisprudence on manner and form, and what we have is often not very good, or quite old. So there is no real guidance on how the courts would interpret provisions today - unless they follow my book on the Australia Acts!
This was a wonderful walk down law school memory lane! Is there any academic writing on the effectiveness of the (purported) entrenchment s 85 of the Constitution Act 1975 (Vic)?
I'm surprised that anyone feels nostalgia for manner and form, but there you go. I've always thought that s 85 was very problematic, but I can't think of anything directly on point, off the top of my head. My next video will deal with even more doubtful aspects of the Victorian Constitution, so look out for it.
In one of the chaotic participatory democracy constitutions of ancient Athens, they entrenched laws by adding a clause to some laws saying there was the death penalty for a citizen suggesting repeal or amendment. The system was not long lived.
Thank you for a clear explanation. While it all makes perfect sense how s. 6 works, isn't it a bit worrying that any parliament has the power to make a law about itself that a future parliament cannot undo in the same way? I would think a better principle is that referenda are only needed to amend something previously agreed by the people through a referendum, or in other words, if a parliament wants to include a manner and form provision, it should follow that manner and form in the making of that initial requirement. Otherwise its just a downward spiral of one parliament making the next parliament subordinate. Or maybe we no longer need parliaments if technology could allow everybody to vote on every Bill.
I agree that a manner and form constraint should only be introduced by using the same method that it imposes on future reform. (Eg if you want to entrench certain provisions by requiring that a referendum be passed to change them, then you can only achieve this to begin with by passing a referendum). Justice Gummow once floated this idea, but it is so far not legally required in Australia. It's also important that only certain constitutional-type matters be entrenched - not partisan policy positions. I'll address this in the next video.
A very interesting discussion, which it seems unfortunately confirms what I've been lead to believe about the prospects of removing the random sampling provision from the election of the NSW Legislative Council.
Leaving aside the federal constitution, could each state parliament unilaterally decide to declare the state to be a Republic and replace governors with Presidents? If so, would that require a referendum?
A State cannot break its links with the monarch without an amendment being made to s 7 of the Australia Acts (which would either require request legislation from each State plus Commonwealth legislation under s 15(1) of the Australia Acts or a Commonwealth referendum under s 15(3)). Once that obstacle is overcome, then some States would require a referendum to remove the monarch from their State Constitution, while others (eg Tasmania) would not. It depends upon which constitutional provisions have been validly entrenched in a State, and what method of entrenchment (eg special majority or referendum) is imposed.
Hello clarion, So are you saying in relation to the constitution a referendum used to decide on becoming sovereign as a republic, which I take would be one change that was constitutionally entrenched, would be one that if the people won in favour of becoming a republic that the monarch would simply step out of Australia saying the people have spoken or would the constitutional powers the monarchs have at hand like land ownership or the like be a tool used to legally take control of situation in courts and void the use of repugnance and the use the referendum option. I realise you are saying repugnance in relation to state constitutional matters here but on a commonwealth level wouldnt repugance be used to put the people in power over the monarchs in deciding to drop them for a republic “truely independent sovereign”state.? Thanks
Sorry, but I don't understand the question. The repugnancy doctrine ended for the Commonwealth with the adoption of the Statute of Westminster 1931 (with retrospective effect back to the beginning of WWII) and in 1986 with respect to the States. For a republic, you would need a referendum at the Commonwealth level that changed the Commonwealth Constitution. Most States would also need a referendum, because of entrenched provisions that refer to the Crown/royal/Queen in their Constitutions. But the monarch isn't entrenched in all of them. Section 7 of the Australia Acts 1986 would also need to be amended, as it provides that the State Governor is the representative of the monarch.
@@constitutionalclarion1901 Hi Anne, What would happen if a referendum to change the Commonwealth into a republic was passed, but one or more states refused (politically) to remove the Crown in right of their state and assert they want to remain as a constitutional monarchy (at the state level). The model for the 1999 referendum and the current Choice model only apply to the federal tier of government. Would it result in two head of state - even if a referendum for a republic had been passed?
Yes. In 1999 it was proposed to let States retain the monarch as part of their constitutional system, even though Australia was a republic at the national level. The political assumption was that if the republic was so popular as to succeed in a national referendum (including in a majority of States) this would pressure the States to go ahead with the change anyway. Moreover, it was also assumed that the monarch would tell any recalcitrant States that he/she did not want to continue on as monarch of a sub-national government in a republic, and that they should act to end the farce. But because the republic referendum did not succeed, we never found it.
@@constitutionalclarion1901 Thank you for your reply. That approach would probably have worked 25 years ago. I think it is somewhat reckless to go to a referendum with only half a solution for converting the Australian Federation from a constitutional monarchy to a republic. Many people would be surprised to find out that a successful referendum on a republic (with an ARM model) will fail to convert Australia into a republic - and that further steps need to be taken at the state level. The model is poorly designed. We could design a model where we replace the monarch only with an Australian as head of state, and keep the seven representatives of the head of state in a republic - and bring all the Federation along in the transition. I think a similar approach today would see the Federation split in two if the referendum would be successful with the ARM Choice Model. The Eastern states would fall in line under a federal republic, much as expected for 1999. The west will be a different story. Your video about the succession referendum of 1933 was interesting! There was a Phd written at at Macquarie Uni in the last few years about possibilities for Western Australia to secede from the Federation. The vast mineral wealth, critical minerals, and possible geological sites for a permanent nuclear waste repository, has some of the AUKUS partners salivating as they eagerly circle with their submarine packs. No doubt they will assert the right of a state to self determination if they want to remain a monarchy - and as good global citizens they will preserve the peace, prevent a civil war, for all Australians to live in freedom and prosperity. It might also be a profitable deal. I think we can put together a better model if we try to democratise the Crown of Australia. The path is different. But it may be a possibility that will keep the Federation intact.
Quite interesting. Most state constitutions require appropriation bills be recommended by the Governor before a house of parliament can consider them. This seems very much a manner and form constraint. Not a particularly onerous one though, after all the governor's assent is required for a bill to have effect anyway. Also it's mostly about how to pass new acts rather than amending those already in the books. Nevertheless after watching this video that feels like a manner and form constraint not supported by Australia Acts. Is there some other principle at play here?
The requirement for the Governor to give advance approval to appropriations is ordinarily an internal procedural matter that is enforced by the Houses, but not enforceable by the courts. Failure to comply does not invalidate the law.
This goes right over the top of my head. But, it seems a sitting State government with consent of sitting State government Ministers and elected members of both houses of Parliament can change Law without the consent of the people via a referendum. So that means all reference to "The Crown" can be removed and replaced with "The State". have I got that correct ?
It cannot change law if it is validly entrenched without being consistent to the manner and form required by the entrenching provisions. On the face of it I don't see any reason the states couldn't assuming there's no entrenchment, I think dismantling the relationship the crown has to legal authority in the states would be much more complex than that, and that the crown would still be the source of power in the states.
Let's face it. Any government that tried to introduce such a massive change as this 'back door republicanism' would only do so if it did NOT have the support of the majority of the people on the subject. That shows a high level of contempt for the common masses and is in many ways an authoritarian move. So unless they also managed to suspend elections and democracy they would be thrown out at the next election, as even those with republican sympathies would disapprove of such dodgy behavior.
@@Dave_Sisson 'The Crown' is a word with different meanings, depending on the context. Replacing the word 'Crown' with e.g. 'the people of NSW' wouldn't make that state a republic, separate from the rest of the Commonwealth of Australia - backdoor republic or otherwise. In reality, it is the people of NSW's state. Although even if the word 'Crown' could be replaced with 'the people of the state of ...', I doubt the majority would agree anyway.
A state parliament could make the law you describe because such a law would not change the constitution, powers and procedure of the relevant State Parliament (so long as it is, as in most states, the Governor and not the monarch who forms one of the arms of parliament).
This is quite an interesting and complex issue. The short answer is that yes - States can and have changed some references to 'Crown' in their legislation, and done so by the enactment of ordinary legislation. However, if the word is in the Constitution, in a validly entrenched provision, then there is a problem. At the time of the 1999 republic referendum, each State was left to sort out its own constitution change, if the referendum succeeded at the federal level. Some States (eg Tasmania) could have removed the Crown/monarchy from their Constitution by ordinary legislation. Others (eg WA) required a referendum, because the monarch (or his or her representative) were entrenched as a constituent part of the Parliament, and others, such as NSW were in an uncertain position. This was because while the monarch was not directly entrenched, there were entrenched provisions that referred to 'royal assent', and the view was taken at the time that a referendum ought to be held to remove them. Since the enactment of the Australia Acts 1986, a State could not unilaterally remove its link to the monarch, as there would need to be an amendment to s 7 of the Australia Acts.
The Marguet case is interesting in that the government of the day wanted to give voters more democracy, by reducing malapportionment in the Legislative Council, but the Supreme Court and HCA said nup. Not for you, people of WA. When a majority is beholden to a minority, that's a dictatorship.
Most democracies restrict the powers of majorities by entrenching bills of rights. While one can certainly argue that there are good reasons not to do so, I don't think it's right to say that every country with an entrenched bill of rights is a dictatorship. As for the courts in the Marquet case, their job is to apply the law. They can't just override the law because they would prefer a different outcome. If that were so, then we would have no rule of law - just the rule of whoever happened to be the judge that day, and there would be no stability. As my next video will explore, there are real problems with entrenching laws on politically partisan issues just to stop the other side changing them when they come into power.
Broadly speaking, only where the Commonwealth Constitution gives the Commonwealth Parliament power over a certain thing (e.g. posts and telegraphs or defence or foreign affairs) AND the Commonwealth Parliament has actually passed laws to do with that power. There are certain exceptions and around those exceptions it can get tricky, but if you want a quick list of the Commonwealth Parliament's powers look at s. 51 of the Commonwealth Constitution.
You misunderstand The "Office of Kingship" and the Statute of Westminster Preamble .... Parliamentary Sovereignty gives Parliament no more power than the King had at Magna Carta... .There is, therefore, continuity in the post- Glorious Revolution constitution, where the king’s ministers and servants are accountable for their exercise of powers that were previously the king’s129 - they are no more above the law than the king was himself130. The justices’ reasoning in Miller I - «Otherwise, ministers would be changing (or infringing) the law, which, as just explained, they cannot do»131 - is reminiscent of many of Coke’s reported submissions in court and of his own writings: «the disinheritance of the subject, […] the King by prerogative cannot do; for the King (as it is said in our books) cannot do any wrong»132 and «le Roy fairoit tort qu’il ne poit faire» [the king would do wrong, which he cannot do]133 Rule of Law, Parliamentary Sovereignty and Executive Accountability in English Legal Thinking: The Recent Revival of The King Can Do No Wrong by Professor Marie France-Fortin has 19 published articles on The King and the Crown including this in; 43 Journal of Constitutional History (autum 2022.) The constitutional triad composed of (1) the king’s personal immunity, (2) his ministers’ political accountability before Parliament, and (3) his ministers’ and servants’ legal liability before the courts, was most recently illustrated by two cases of the United Kingdom Supreme Court, Miller I and Miller II . In Miller I, the Supreme Court dealt with the prerogative power to withdraw from treaties and found that the United Kingdom’s withdrawal from the European Union could not be effectuated by the executive alone. In Miller II, the Supreme Court found that the Prime Minister’s advice to the Queen to prorogue Parliament was unreasonable and therefore unlawful, with the effect that the prorogation flowing from that advice was null and of no effect.
Hello Professor,
The use of the words manor and form and how they relate to a referendum is new to me. I didn't know of state constitutions: so thank you.
🌏🇦🇺
Yes, it's not well known - but it's good to educate people about it.
Thanks. I may indeed go back and watch again.
Thank you! State Constitutions are more fascinating than I'd realised. I look forward to future Clarions, discussing more on this topic.
The next one is now up.
YES! I have been waiting for this very niche interest of mine to be made into a video! So interesting as always.
Thanks. It certainly is a niche interest - although maybe I can grow the size of the niche just a little bit.
Yes, yes, yes and double yes, I’m so excited to watch this.
I'm please to oblige.
Thank you very much for this. Highly nostalgic- took me right back to UQ 1966 lectures by Dr Darryl Lumb. Thing have moved on since then but it is pleasing that this topic is still providing grist for the academic mill.
Thanks. Darryl Lumb did terrific work on State Constitutions, so he is still much appreciated.
@@constitutionalclarion1901I have never forgotten ‘double entrenchment’.
Thanks. My constitutional law lecturer covered this is great detail .But that was many years ago, and most of it had vanished from my awareness.
Glad to provide the refresher.
Ah another thing I thought was quite nice is how the states seem quite sovereign and how reading the term constitution as having regards to the representative character of the state parliament in turn places a very strong protection for the people's rights in determining their government. Gives me a lot of confidence.
This is great to know, don't think I'll ever have a practical application for this new found knowledge.
You never know - knowledge can come in handy when you least expect it.
I love how you casually say, "judges get this part wrong." I'm sure they'll disagree 😊
No - there really was a notable occasion where a judge got it wrong, and it is well accepted that this was the case. It's a technical area, and sometimes even judges stuff things up.
Enjoy your videos greatly.
Are there ebooks on the KISS principle of the Australian Constitution that a lay person can understand.
Being from the ACT, do they have a constitution, or is the Act that created it, referred to as the constitution.
The ACT's Constitution is effectively the self-government Act enacted by the Commonwealth Parliament.
In terms of simple books on the Constitution, you could try Joseph and Castan's 'Federal Constitutional Law: A Contemporary View' 6th ed, 2024. I believe there is an e-book version of it.
I'd love to hear opinions on how the Queensland constitution shakes out with respect to:
1. Re-introducing an upper house, or
2. Implementing a proportional representation system in the existing Legislative Assembly.
Could either of those be done with legislation or is a referendum required?
Constitution Act Amendment, Act 1934, section 3, appears to me to correctly doubly entrench to prevent #1.
However I can't find any such protection against overriding Chapter 2, Part 1, 13 (1 member for each electoral district.
Each member of the Legislative Assembly is to represent 1 of the electoral districts) and other relevant sections through mere legislation. But it's a big tome, maybe I've missed something.
Queensland and the Northern Territory stand alone as the only state and territory jurisdiction with no proportional representation system at all! The ACT joins them in being the only 3 with a unicameral legislature.
Yes, you would need a referendum to reintroduce an upper House in Queensland. I haven't looked at the issue re proportional representation in Queensland. All I can say, is that sometimes there are odd entrenched bits hidden in places, which cause trouble. In the NSW Constitution there is an entrenched schedule which deals with the counting of votes and has caused no end of difficulties.
Some modern British constitutional law, such as the Scotland Acts and Wales Acts, have forms of entrenchment but they are not doubly entrenched.
I wish we had a single document for a constitution, that was entrenched and could be picked up in a book shop by any citizen, but we don’t.
If Parliament wants to abolish the Scottish Parliament they can either do the right thing (according to act of Parliament and prior convention) and hold a referendum of the Scottish people, or they can repeal their own entrenching provision and then do it.
Hi Anne! This prompted me to take a deeper dive into the Australia Acts. I noticed in s 15(1) that the Commonwealth can ammend the Act with the consent of all state parliaments. Theoretically, could the (validly) entrenched provisions in state constitutions be overriden and ammended without a state referendum/parliamentary supermajority if all states and the Commonwealth passed an ammendment to the Australia Act?
Yes, the manner and form requirements could be overridden by a change to the Australia Acts. There was some discussion as to whether to do that re the republic back in 1999, but it was rejected.
Great video as always!
Thanks.
First Question:
Regarding abdication of legislative power: do we know if courts are likely to treat % of MPs differently to % of electors? I've found the nexus requirement in the Commonwealth constitution interesting, since it implicitly allows for 75% of lower house MPs to override upper house MPs, after some involvement of the electors, if a joint sitting occurs. In effect this places 75% of the house of reps + dissolving parliament as a senate veto override, which is a fairly high bar (eg 2/3rd supermajorities seem to be the most common), but this threshold is lowered by partial consent of the senate. For instance NSW has 12 LGA regions, which vary considerably in population. If NSW tried to entrench with the requirement of a double-majority through state-wide electors and electors within each Local Government Area region, would this likely be seen as too difficult to fulfill?
It also feels a tad notable that in the conflict between houses, it's representative democracy that's implemented by default with the voters involved in a *somewhat* consultative manner, rather than having a default where the legislation to be passed is put directly to the voters as a referendum (that wouldn't touch the constitution). If this path were taken then the implicit weighting of the two houses would most likely be broken since the referendum would need to implicitly incorporate some other form of weighting like simple majority or double majority, or to keep the same balance as the nexus requirement via weighting by number of total federal MPs per voter.
Second Question:
Is there enough substance in the topic of comparative law and international precedence to warrant a video (it seems you've got quite a backlog of topics already however)?
I'm under the impression that in some sense all common law countries form a single superjurisdiction, since judges read the decisions foreign (but suitably similar) courts arrive at. On one level it feels *very slightly* like an affront to nationalism, since it feels like any country is interlinked with others. On another level it makes a lot of sense, since we all have access to the same platonic realm of reason, logic and philosophy.
I recently read Reform of Australian Jurisdiction and Judgements Law by International Treaty: The Lugano Option (Garnett, in Law and Government in Australia, Groves, Federation Press), which brings up the benefits of harmonising laws and their interpretation. Does the system of common law in Australia recognise the notion of a "united intellectual community" or the idea of "common law (British?) civilisation"? One point in favour of it might be that to be eligible as a high court judge in Hong Kong, you must be an experienced legal practioner in another common law jurisdiction (and it seems quite a few experienced judges head over there). An interpretation counter to this is just that it's a sensible policy for a small island seeking talented governance, and continuing connection to the common law world would allay concerns of the international business community.
I'm not sure how stare decisis works, but it feels just like convention in the UK parliament: nothing binding, just something nice that adds stability (good for business) and increases legitimacy of the institution (itself good for stability). In Vitalik Buterin's "The Most Important Scarce Resource is Legitimacy", he lists six theories of legitimacy. Both precedent (in the courts) and convention (in the UK parliament) satisfy at least three of them (legitimacy by continuity, process and performance). In a similar sense I can see how precedent in other jurisdictions is almost as good as precedent at home, since it fulfills a similar function in terms of legitimacy and higher-order coordination. After all, legal decisions in other countries can inform ideas about how the law operates (perhaps adjusted for closeness in language and legal system, eg Loiusiana or Quebec discounted). These expectations apply to regular people and lawyers too, both of which have an interest in maintaining the legitimacy of the courts (and I'd guess the legitimacy of all common law courts and even all nation states are interconnected by a larger consensus on statehood, justice, impartiality, etc). It still feels odd however that Westminster can no longer pass laws for Australia, it's courts could still affect the reasoning of our justices. I could easily be under the wrong impression here. I haven't a clue how common this misconception would be.
So the question (which might be on rather poor foundations) is roughly "to what extent can and should courts in Australia use precedent and consider reasoning in other countries, and what are the conceptual implications of this when it comes to sovereignty".
As always, great video, and thanks for responding to comments (even if you don't respond to mine, I find the other ones interesting too)
On the question of what percentage of required votes would amount to abdication, rather than a 'manner and form', no one knows, because there is no authority on the point. But if you look at the current Constitution of Fiji, to amend it you need to get a vote of three quarters of all members of the Fiji Parliament and three-quarters of 'all registered voters'. To me, this seems to be an abdication, rather than a true manner and form requirement, because it is virtually impossible to achieve. Fortunately, no one has ever tried anything that extreme in Australia.
As for judges being influenced by decisions in other common law countries, I don't see it as undermining Australia's legal system in any way. Judges might read those judgments, but will only be influenced if the reasoning is compelling and relevant. As each country has a different Constitution and different statutes, many common law judgments from other countries would simply not fit in with our existing legal matrix of common law and statute, and would therefore be ignored. Australian judges are also prepared to depart from common law positions in other countries, if they disagree with their reasoning. It's just useful sometimes, to see how other people deal with similar issues, as it can give insight and can expand one's understanding.
Very well presented. So would manner and form be expected in NSW and WA via their prospective Constitutions in order to fulfill an obligation under section 51(xxxviii) of the Commonwealth Constitution? And would that spoil the fulfillment of section 51(xxxviii) if those 2 States had not satisfied the manner and form , where there is a requirement that each State needs to fulfill the request to the UK Parliament?
Not sure quite what you mean here. As manner and form is now controlled by the Australia Acts, it can also be altered and suspended by amendments to those Acts.
@@constitutionalclarion1901 Section 7A of the NSW Constitution requires approval from the electors before the powers of the legislator can be altered, and with respect to the Western Australia Constitution sections 2 and 73 also require approval from the electors with respect to the manner and form of those Constitutions and there obligation to fulfil a request to the Commonwealth to fulfil section 51(xxxviii). The Australia Act section 2(2) and 6 change the legislative powers of the States.
No, I'm afraid you've got the wrong end of the stick here. Such arguments have been run in the courts and failed - see, eg, Kelly v Campbell [2002] FCA 1125 and Sharples v Arnison [2002] 2 Qd R 444. You are misreading the scope and effect of the entrenching provisions as well as the effect of the Australia Acts (Request) Acts. If you want a full explanation - see pages 367-370 of my book on the Australia Acts.
@@constitutionalclarion1901 Thanks for the reply and I will look out for the book. I have read the cases cited but they do not go to the sections of the respective Constitutions of the States of NSW and WA as the court cases and other comments refer to the powers of the Governor. I was altering you to the obligation to the legislator conducting a vote from the Elector regarding the change of legislative power as defined in sections 2 ,6 and 15(1)of the Australia Act. I eagerly await your reply Professor.
First, neither s 7A (NSW) nor s 2 (WA) actually requires a referendum in relation to the conferral of any additional legislative power on the State. For example, while section 7A(1)(a) refers to the alteration of the powers of the Legislative Council - this is just its powers as a House (eg re privilege, ordering the production of documents, holding inquiries etc) - not the legislative power of the Parliament, which is dealt with separately in s 5 and not entrenched.
Section 2 of the WA Constitution Act 1889 provides that the WA Parliament has power to make laws for the peace, order and good government of WA. This is a plenary power. Removing a limitation on that plenary power does not alter the plenary nature of the power and does not require a referendum.
Second, the request legislation did not itself alter any powers of the State Parliaments - as those court cases recognised. It only requested Commonwealth legislation.
Third, s 6 of the Australia Acts did not alter the powers of State Parliaments. It replicated previously existing constraints on those powers imposed by s 5 of the Colonial Laws Validity Act.
Section 2(2) of the Australia Acts allows the States to repeal/amend certain British laws that previously applied by paramount force. In doing so, it released the States from an externally applied constraint on their existing plenary powers.
Finally, even if a State did require a referendum to make its request law (which it doesn't), the UK law validly applied, as its enactment was not dependent upon any State request.
Looking forward to part two! Will you be dealing with Trethowan’s case? I can’t help but feel it must be wrong in so far as it allows a state parliament to entrench something without first putting it through the entrenching method (eg, requiring a referendum without first putting that requirement to a referendum).
Yes - I have a problem with that too. The forthcoming video does deal a little with that issue, but mainly through some comparison with New Zealand, rather than going back to Trethowan (which is frankly too confusing to explain here).
So does this mean that a state government could change their system of government (i.e. the relationship between their three branches of government) without a referendum? For instance, could a state establish a directorial system of government with a multi-member council elected by parliament and subject to parliamentary confidence collectively serving as head of government of the state? I'd imagine the answer would probably be yes, provided this change didn't change anything about the office of governor that had been properly entrenched into the state constitution.
Former high court judge Robert French gave a speech in USA (recommend) about ten years ago.
He spoke about case law, his understanding was states can’t destroy their supreme courts because state supreme courts are in commonwealth constitution. He also spoke about case law of NSW and SA legislation attempting to get their judges to do stuff that was not judicial. Justice French’s view of the case law and jurisprudence was because of separation of powers judges can’t do stuff that isn’t fully judicial in nature.
In vic premier bolte got a magistrate in to ask if he was going to sentence someone to die, he got accusations of interfering with justice from the press.
I reckon/have read the culture back then was a lot like the old house of Lords and their law lords, ie political and judicial questions mixed, separation of powers in the states wasn’t entrenched yet. My understanding is each state is different in that regard, where separation of powers is at.
Apologises if to ruff of a presentation of information.
Thought it was a great question.
Kind regards cal, Melbourne
If a State were to make major changes to its system of government, it would depend very much on whether this breached any implication flowing from the Commonwealth Constitution. As one of the other commentators has said, the courts have held that a State could not abolish its Supreme Court, or require judges to act in a way that removes their decisional independence. But this is because the Commonwealth Constitution provides for a judicial system of appeals from State courts to the High Court, and for the State courts to exercise federal jurisdiction. There is not the same explicit integrated hierarchy in relation to the other arms of government, so it is less clear what, if any, implications might apply.
I’ve been looking everywhere to find any info on the constitutionality of a federal climate trigger for coal and gas projects. My understanding is that because federal environmental laws are grounded in foreign relations powers and there is no treaty obligation to phase out the production of fossil fuels it is deferred to states. I would love to know. Thanks
I haven't looked at all the relevant material, but as you say, I think a lot of it is based on treaty and other international commitments, and some of the law is based upon cooperation with the States.
As this is an extremely litigious area, I suspect that great care has gone into ensuring that provisions are tied closely to constitutional heads of power, or someone would have already challenged.
A wonderful explanation of state constitutions! I wish my degree had discussed state constitutions more! I reckon I did four public law courses and state constitutions only came up in the context of discussing the providence of CLVA and AA. In my professional life, I've run into state constitutional interpretation as much if not moreso than Commonwealth constitutional interpretation. Has the definition of "constitution" in the AA been tested? In the Victorian example, I've not been convinced that either the electoral process' nor the representation rates' entrenchment couldn't be removed by a simple majority vote since neither go to a narrow definition of constitution.
Unfortunately, there is very little jurisprudence on manner and form, and what we have is often not very good, or quite old. So there is no real guidance on how the courts would interpret provisions today - unless they follow my book on the Australia Acts!
This was a wonderful walk down law school memory lane! Is there any academic writing on the effectiveness of the (purported) entrenchment s 85 of the Constitution Act 1975 (Vic)?
I'm surprised that anyone feels nostalgia for manner and form, but there you go. I've always thought that s 85 was very problematic, but I can't think of anything directly on point, off the top of my head.
My next video will deal with even more doubtful aspects of the Victorian Constitution, so look out for it.
In one of the chaotic participatory democracy constitutions of ancient Athens, they entrenched laws by adding a clause to some laws saying there was the death penalty for a citizen suggesting repeal or amendment.
The system was not long lived.
Oh dear!
will there be an exam at the end of the videos?
Absolutely not - because then I would have to mark it!
Thank you for a clear explanation. While it all makes perfect sense how s. 6 works, isn't it a bit worrying that any parliament has the power to make a law about itself that a future parliament cannot undo in the same way? I would think a better principle is that referenda are only needed to amend something previously agreed by the people through a referendum, or in other words, if a parliament wants to include a manner and form provision, it should follow that manner and form in the making of that initial requirement. Otherwise its just a downward spiral of one parliament making the next parliament subordinate. Or maybe we no longer need parliaments if technology could allow everybody to vote on every Bill.
I agree that a manner and form constraint should only be introduced by using the same method that it imposes on future reform. (Eg if you want to entrench certain provisions by requiring that a referendum be passed to change them, then you can only achieve this to begin with by passing a referendum). Justice Gummow once floated this idea, but it is so far not legally required in Australia.
It's also important that only certain constitutional-type matters be entrenched - not partisan policy positions. I'll address this in the next video.
A very interesting discussion, which it seems unfortunately confirms what I've been lead to believe about the prospects of removing the random sampling provision from the election of the NSW Legislative Council.
Yep, I think NSW is stuck with it - given it was approved at a referendum!
Leaving aside the federal constitution, could each state parliament unilaterally decide to declare the state to be a Republic and replace governors with Presidents? If so, would that require a referendum?
A State cannot break its links with the monarch without an amendment being made to s 7 of the Australia Acts (which would either require request legislation from each State plus Commonwealth legislation under s 15(1) of the Australia Acts or a Commonwealth referendum under s 15(3)).
Once that obstacle is overcome, then some States would require a referendum to remove the monarch from their State Constitution, while others (eg Tasmania) would not. It depends upon which constitutional provisions have been validly entrenched in a State, and what method of entrenchment (eg special majority or referendum) is imposed.
Hello clarion, So are you saying in relation to the constitution a referendum used to decide on becoming sovereign as a republic, which I take would be one change that was constitutionally entrenched, would be one that if the people won in favour of becoming a republic that the monarch would simply step out of Australia saying the people have spoken or would the constitutional powers the monarchs have at hand like land ownership or the like be a tool used to legally take control of situation in courts and void the use of repugnance and the use the referendum option. I realise you are saying repugnance in relation to state constitutional matters here but on a commonwealth level wouldnt repugance be used to put the people in power over the monarchs in deciding to drop them for a republic “truely independent sovereign”state.? Thanks
Sorry, but I don't understand the question. The repugnancy doctrine ended for the Commonwealth with the adoption of the Statute of Westminster 1931 (with retrospective effect back to the beginning of WWII) and in 1986 with respect to the States.
For a republic, you would need a referendum at the Commonwealth level that changed the Commonwealth Constitution. Most States would also need a referendum, because of entrenched provisions that refer to the Crown/royal/Queen in their Constitutions. But the monarch isn't entrenched in all of them. Section 7 of the Australia Acts 1986 would also need to be amended, as it provides that the State Governor is the representative of the monarch.
@@constitutionalclarion1901 Hi Anne,
What would happen if a referendum to change the Commonwealth into a republic was passed, but one or more states refused (politically) to remove the Crown in right of their state and assert they want to remain as a constitutional monarchy (at the state level). The model for the 1999 referendum and the current Choice model only apply to the federal tier of government. Would it result in two head of state - even if a referendum for a republic had been passed?
Yes. In 1999 it was proposed to let States retain the monarch as part of their constitutional system, even though Australia was a republic at the national level. The political assumption was that if the republic was so popular as to succeed in a national referendum (including in a majority of States) this would pressure the States to go ahead with the change anyway. Moreover, it was also assumed that the monarch would tell any recalcitrant States that he/she did not want to continue on as monarch of a sub-national government in a republic, and that they should act to end the farce. But because the republic referendum did not succeed, we never found it.
@@constitutionalclarion1901
Thank you for your reply. That approach would probably have worked 25 years ago.
I think it is somewhat reckless to go to a referendum with only half a solution for converting the Australian Federation from a constitutional monarchy to a republic. Many people would be surprised to find out that a successful referendum on a republic (with an ARM model) will fail to convert Australia into a republic - and that further steps need to be taken at the state level. The model is poorly designed. We could design a model where we replace the monarch only with an Australian as head of state, and keep the seven representatives of the head of state in a republic - and bring all the Federation along in the transition.
I think a similar approach today would see the Federation split in two if the referendum would be successful with the ARM Choice Model. The Eastern states would fall in line under a federal republic, much as expected for 1999.
The west will be a different story. Your video about the succession referendum of 1933 was interesting! There was a Phd written at at Macquarie Uni in the last few years about possibilities for Western Australia to secede from the Federation. The vast mineral wealth, critical minerals, and possible geological sites for a permanent nuclear waste repository, has some of the AUKUS partners salivating as they eagerly circle with their submarine packs. No doubt they will assert the right of a state to self determination if they want to remain a monarchy - and as good global citizens they will preserve the peace, prevent a civil war, for all Australians to live in freedom and prosperity. It might also be a profitable deal.
I think we can put together a better model if we try to democratise the Crown of Australia. The path is different. But it may be a possibility that will keep the Federation intact.
Quite interesting.
Most state constitutions require appropriation bills be recommended by the Governor before a house of parliament can consider them. This seems very much a manner and form constraint. Not a particularly onerous one though, after all the governor's assent is required for a bill to have effect anyway. Also it's mostly about how to pass new acts rather than amending those already in the books.
Nevertheless after watching this video that feels like a manner and form constraint not supported by Australia Acts. Is there some other principle at play here?
The requirement for the Governor to give advance approval to appropriations is ordinarily an internal procedural matter that is enforced by the Houses, but not enforceable by the courts. Failure to comply does not invalidate the law.
This goes right over the top of my head. But, it seems a sitting State government with consent of sitting State government Ministers and elected members of both houses of Parliament can change Law without the consent of the people via a referendum. So that means all reference to "The Crown" can be removed and replaced with "The State". have I got that correct ?
It cannot change law if it is validly entrenched without being consistent to the manner and form required by the entrenching provisions. On the face of it I don't see any reason the states couldn't assuming there's no entrenchment, I think dismantling the relationship the crown has to legal authority in the states would be much more complex than that, and that the crown would still be the source of power in the states.
Let's face it. Any government that tried to introduce such a massive change as this 'back door republicanism' would only do so if it did NOT have the support of the majority of the people on the subject. That shows a high level of contempt for the common masses and is in many ways an authoritarian move. So unless they also managed to suspend elections and democracy they would be thrown out at the next election, as even those with republican sympathies would disapprove of such dodgy behavior.
@@Dave_Sisson 'The Crown' is a word with different meanings, depending on the context. Replacing the word 'Crown' with e.g. 'the people of NSW' wouldn't make that state a republic, separate from the rest of the Commonwealth of Australia - backdoor republic or otherwise. In reality, it is the people of NSW's state. Although even if the word 'Crown' could be replaced with 'the people of the state of ...', I doubt the majority would agree anyway.
A state parliament could make the law you describe because such a law would not change the constitution, powers and procedure of the relevant State Parliament (so long as it is, as in most states, the Governor and not the monarch who forms one of the arms of parliament).
This is quite an interesting and complex issue. The short answer is that yes - States can and have changed some references to 'Crown' in their legislation, and done so by the enactment of ordinary legislation.
However, if the word is in the Constitution, in a validly entrenched provision, then there is a problem. At the time of the 1999 republic referendum, each State was left to sort out its own constitution change, if the referendum succeeded at the federal level. Some States (eg Tasmania) could have removed the Crown/monarchy from their Constitution by ordinary legislation. Others (eg WA) required a referendum, because the monarch (or his or her representative) were entrenched as a constituent part of the Parliament, and others, such as NSW were in an uncertain position. This was because while the monarch was not directly entrenched, there were entrenched provisions that referred to 'royal assent', and the view was taken at the time that a referendum ought to be held to remove them.
Since the enactment of the Australia Acts 1986, a State could not unilaterally remove its link to the monarch, as there would need to be an amendment to s 7 of the Australia Acts.
Hmm!
The Marguet case is interesting in that the government of the day wanted to give voters more democracy, by reducing malapportionment in the Legislative Council, but the Supreme Court and HCA said nup. Not for you, people of WA. When a majority is beholden to a minority, that's a dictatorship.
Most democracies restrict the powers of majorities by entrenching bills of rights. While one can certainly argue that there are good reasons not to do so, I don't think it's right to say that every country with an entrenched bill of rights is a dictatorship.
As for the courts in the Marquet case, their job is to apply the law. They can't just override the law because they would prefer a different outcome. If that were so, then we would have no rule of law - just the rule of whoever happened to be the judge that day, and there would be no stability.
As my next video will explore, there are real problems with entrenching laws on politically partisan issues just to stop the other side changing them when they come into power.
Now, now. One must not give ideas to the Tasmanians.
I assume state constitutions are overridden by commonwealth constitution?
Broadly speaking, only where the Commonwealth Constitution gives the Commonwealth Parliament power over a certain thing (e.g. posts and telegraphs or defence or foreign affairs) AND the Commonwealth Parliament has actually passed laws to do with that power. There are certain exceptions and around those exceptions it can get tricky, but if you want a quick list of the Commonwealth Parliament's powers look at s. 51 of the Commonwealth Constitution.
You misunderstand The "Office of Kingship" and the Statute of Westminster Preamble ....
Parliamentary Sovereignty gives Parliament no more power than the King had at Magna Carta...
.There is, therefore, continuity in the post-
Glorious Revolution constitution, where
the king’s ministers and servants are
accountable for their exercise of powers
that were previously the king’s129 - they
are no more above the law than the king
was himself130. The justices’ reasoning
in Miller I - «Otherwise, ministers would
be changing (or infringing) the law,
which, as just explained, they cannot
do»131 - is reminiscent of many of Coke’s
reported submissions in court and of
his own writings: «the disinheritance of
the subject, […] the King by prerogative
cannot do; for the King (as it is said in our
books) cannot do any wrong»132 and «le
Roy fairoit tort qu’il ne poit faire» [the king would do wrong, which he cannot do]133
Rule of Law, Parliamentary Sovereignty and
Executive Accountability in English Legal
Thinking: The Recent Revival of The King Can Do
No Wrong by Professor Marie France-Fortin has 19 published articles on The King and the Crown including this in;
43 Journal of Constitutional History (autum 2022.)
The constitutional triad composed of
(1) the king’s personal immunity, (2) his
ministers’ political accountability before
Parliament, and (3) his ministers’ and
servants’ legal liability before the courts,
was most recently illustrated by two cases of
the United Kingdom Supreme Court, Miller
I and Miller II
. In Miller I, the Supreme
Court dealt with the prerogative power to
withdraw from treaties and found that the
United Kingdom’s withdrawal from the
European Union could not be effectuated by the executive alone. In Miller II, the Supreme
Court found that the Prime Minister’s
advice to the Queen to prorogue Parliament
was unreasonable and therefore unlawful,
with the effect that the prorogation flowing
from that advice was null and of no effect.