THE KING

Greymouth Evening Star, 11 August 1936, Page 4

THE KING

AND DOMINION GOVERNORS.

“The King and His Dominion Governors” is the title of a book by M • Justice Evatt, of the High Gou t (writes W. J. V. Windeyer, in the “Sydney Morning Herald”). It is a valuable contribution to the literature of constitution law. That, n } de would be expected because ot its author’s high reputation for legal scholarship and for a courageously i dependent analysis of legal principles. But the questions which are discussed are not in any narrow sense legal questions. They are rather lu aUei of constitutional practice wluc.h events have shown can luive a vital significance for even’ subject of tli Crown. In more peaceful times when parliamentary history seems, at all events in retrospect, to have flowed more smoothly than it does to-day, when existing institutions seemed to have an assured stability and the traditional order of economic and social relationships was not so fiercely challenged, the legal prerogatives of the Crown were often assumed to haie ceased altogether to depend on the personal discretion of the Sovereign. The King never refused his assent io Acts which Parliament had passed; he seemed to dissolve Parliament ana to create peers when he was advised. This was taken to be the meaning oi responsible Government. Actually, as Mr. Justice Evatt points out, responsible government •in relation to the prerogatives of the Crown, in itsel , means only that the Crown cannot act in a fashion which no one will support. The King must either accept his Ministers’ advice or seek . other Ministers who will take the responsibility for his rejection of that advice. But all, or nearly all. the older writers asserted that the Sovereign still retained a legal right to exercise a personal discretion, an emergency power which might still in a propel case justify his intervention in the remote contingency of a constitutional crisis. Events proved that the contingency was not remote, and the history of the last 30 years Ims provided a continuity of great emergencies and a number of constitutional crises.

THE KING STILL COUNTS. Professor Bailey, of Melbourne, in an interesting introduction to thq. book, speaks of the superficiality ot the accepted notion that the King has ceased to play any independent part in politics. Mr. Justice Evatt’s concern is not, however, with the indirect influence of the Sovereign upon politics, but with his direct intervention when he is called upon to exercise or withhold the exercise of one of the prerogatives related to the working of the parliamentary system, “the reserve poivers.” He critically examines the opinions of constitutional authorities in the light of an analysis of a number of occurrences, which raise the question of the manner in which the Crown should, in accordance with constitutional usage, employ the reserve powers. Sometimes the question arose for the King himself; sometimes for his representatives in the dominions. The position of Governor-General and, in most respects, that of the Governor of an Australian State, is now in regard to these prerogatives, the same as that of the King in the United Kingdom. Some of the instances discussed, namely the events which led to the Parliament Act of 1911, and Sir Dudley de Chair’s refusal to make additional appointments to the Upper House here in 1926, and the granting of a double dissolution of the Com-

monwealth Parliament in 1914, relati to deadlocks between the two Houses The two former raise the question o: swamping, which is now of little im portance, but the discussion of whicl has permanent importance in regarc to the extent of the reserve powers in general. Other topics considered are the power of dissolving Parliament and o: dismissing Ministers. Both have pro voked much discussion by constitu tional writers and much bitterness ii political partisans. The proper rules are by no means clear. The lega. power is vested in the Crown. Wher it may properly be exercised depends on usage and convention. It is, there fore, scarcely possible to say confi dently of any case when the Crown has intervened that its intervention was or was not correct, for the onlj standard of correctness in each epi sode is its consistency with episodes of a similar character, none of which in themselves lay down any principle in law. Certainly dogmatic asssir tions in plenty may be found in the textbooks, but, as Mr. Justice Evatt says and demonstrates, support, for almost any view can be found in the “authorities.” Moreover, the comments of some writers often appear to be dictated by prejudice. Professor Keith, in particular, who gained so well deserved a reputation for his learning on dominion constitutional history, has, in his later writings, thought it proper to deliver judgments as inconsistent as they are assured. Mr. Justice Evatt is himself more cautious in the conclusions which he draws from a codeless mass of precedent and wilderness of single instances. Readers will not always agree with him, but they cannot fail to observe that the. conclusions are arrived at by logical and searching analysis, and that the careful documentation of the book slioavs great research, and substantiates most statements of fact. The refusal of Lord Byng to grant a dissolution to Mr. King, the dispute between Lord Strickland and Mr. Holman, the dismissal of Mr. Lang by Sir Philip Game, tjjese and many other cases lead to the conclusion that the conventions which govern the discretion of the Crown are vague and undefined, and that the territory is one of anarchy and not of law. The author’s thesis is that this position is dangerous, and may lead to the Crown being embroiled in political conflicts.

RESERVE POWERS.

The author says that the view’that the King automatically acts in all matters in accordance with the advice of his Ministers “rests entirely upon assertion.” He believes that the reserve powers are still on occasions properly exercisable and that the Sovereign or his representative may have to exercise a real discretion. He thinks, thereforej that the principles which should guide him should be defined and made clear by Statute. No one can fail to see the force of these contentions. Evejryone will not assent to them for the elasticity which exists in the conventions of the

Constitution has many admirers. The desirability of tying to a formula a reserve power designed to meet giea emergencies may well be doubted. The divergent opinions in. the S preme Court of the United States concerning the New Deal, and the history of Section 92 ot our Constitution do not encourage a belief in certainty as the necessary product of the written word or in the infallibility of the judicial mind. | The chapter on Sir Philip Game s dismissal of his Ministers is interesting. Neither the supporters nor opponents of Mr. Lang can honestly draw much comfort from the authoi analysis. No one, of course, denies that since the Act of Settlement and the abolition of the suspending power by the Bill of Rights the Crown and its Ministers are bound by the law. But Mr. Justice Evatt appears to attach much importance to the fact that the illegality of Mr. Lang’s instructions was never judicially determined, as the legality of the Commonwealth proclomation which they contravened was never tested. But as he himself points out, the Governor did not make an unqualified demand tor the withholding of the unlawful ciicular. but offered the Premier the.alternative of withdrawal or proof that it was within the law. The Premier did not seek an opportunity to furnish such proof, and apparently did not deny that the circular was. unlawful. The ground of dismissal was this breach of the law. Other considerations are, as the author insists, n relevant, but paragraph 19 in the statement of the preceding events may, in the absence of any reference to the Prime Minister’s asurances, give a misleading impression. For laymen, if not for lawyers, the seriousness of any breach of the law

and the appropriate be judged in the light of surrounding circumstances. The circular was issued at a time when feeling was alarmingly inflamed, when talked of civil war, and some people seriously advocated and prepared for action subversive of the State Government. The Premier’s defiance of Commonwealth law had then a more serious significance than it might at other times, and the Governor’s action enabled the crisis to be resolved by an election, and not by violence. The result ot the election, as Mr. Justice Evatt points out, does not conclude the matter. The correctness of the Sovereign’s action is not measured by his success as a. prophet. The endorsement by the electors of New South Wales of the action of Sir Philip Game and the disapproval by the electors of Canade of the actions of Lord Byng have only an indirect bearing on the abstract questions of their constitutionality. “The King and His Dominion Governors” will certainly help in the elucidation of a difficult branch of constitutional theory, and will probably be quoted along with the works of Dicey, Anson, Todd, Keith, May, and Lowell. But unless its author’s suggestion of statutory definition •is adopted, the Crown itself will probably have to decide when doctors disagree and make the Parliamentary system bend to the wishes of the electorate so that it may not break.