3.06.2010

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Thursday, June 3, 2010

Exceptions: Presumption that Statute does not Bind the crown

The presumption that Crown is not bound by the Statute may not have universal implication as the State may legislate to bind the crown as is established by Australian Authorities. Further the presumption would hold good in the cases where there is express provision to this or ,atleast, the same can be clear by the implications.[Blogger]

State may Legislate to Bind the Crown

This principle is not a hard and fast rule, but a rule of construction intended to give effect to the intention of the legislature. The grounds of the presumption have been variously expressed, but, whatever the origin of the rule may be, it is now well established that prima facie legislation does not apply to the government of the country, but to the persons in the country who are subject to the legislative powers of the parliament. In the case of a unitary State the application of the principle does not meet certain difficulties which arise under a federal organization of legislative and other governmental power. In the case of a unitary State the principle may be expressed by saying that the King in Parliament is to be presumed to legislate for subjects and not for the Crown, unless a contrary intention clearly appears. In a federal system the States or provinces cannot be described as "subjects" of the federal government, but, as already shown by the passage in the Engineers' Case [(1920) 28 C.L.R., at p. 153.], the Commonwealth Parliament may legislate so as to bind a State. Similarly, a State may legislate so as to bind the Commonwealth (Pirrie v. McFarlane).  [1925] HCA 30; (1925) 36 C.L.R. 170.

 Other exceptions to the Rule of Presumption

The application of this particular rule of construction in a federal system was carefully considered in R. v. Sutton[1908] HCA 26; (1908) 5 C.L.R. 789. (the Wire Netting Case), where it was held that the rule of construction which prevented the Crown being affected by statutes in the absence of express mention or necessary implication did not apply in respect of all governments in the world which represented the Crown, but only in respect of the government which had authority in the community for which the parliament was legislating. The Commonwealth Parliament has authority in the community of the Commonwealth; a State Government has authority in the community of the State. Mr. Justice O'Connor said that the rule was "applicable in the inquiry whether a Commonwealth Act binds the King as representing the Commonwealth. But where the inquiry is whether the Commonwealth Act binds the King as representing one of the States it can have no relevancy" [1908) 5 C.L.R., at p. 806.] All the Justices concurred in this view—see the report [(1908) 5 C.L.R., at pp. 796 (Griffith C.J.), 801 (Barton J.), 814 (Isaacs J.), 817 (Higgins J.)]. 

The same principle was applied in the Steel Rails CaseAttorney-General of New South Wales v. Collector of Customs for New South Wales  [1908] HCA 28; (1908) 5 C.L.R. 818.  In that case the Court was considering whether a Commonwealth Act (the Arbitration Act) which expressly purported to bind the States could validly do so. 
In view of the explicit reference to the States in the Act, any consideration of the question whether or not a Commonwealth Act should be presumed not to bind the States unless they were expressly mentioned would have been completely irrelevant. No reference whatever to this question was made in the Engineers' Case, in which many decisions were reviewed and some were expressly overruled.Minister for Works for Western Australia v Gulson [1944] HCA 27; (1944) 69 CLR 338 (3 October 1944)[per Latham C.J.]


Qualification of Crown as per constitutional Theory


It has been decided by the highest authority that, in constitutional theory, the Crown is one and indivisible (Williams v. Howarth). It is by the Crown that all legislative and administrative authority is exercised throughout the Empire, although in each constitutional area such authority can be exercised by the Crown only through the agencies of the appropriate parliament and the appropriate group of constitutional ministers, so that, legalistically, it would be more strictly accurate to speak of the State of Western Australia in the right of the Crown than of the Crown in the right of the State of Western Australia (Theodore v. Duncan). Thus, the prerogatives of the Crown are the prerogatives of a single, universal Crown, and enure for the benefit of each and every part of the Empire, save to the extent to which in any part any particular prerogative has been abrogated or diminished (In re Bateman's Trust). The principle was applied by this Court inFederal Commissioner of Taxation v. Official Liquidator of E. O. Farley Ltd in relation to competing rights of the Crown as creditor to be preferred above other creditors of equal degree, for the benefit of different treasuries. The constitutional principle that the Crown is one and indivisible is not limited to cases in which it is the scope of the prerogative which is in question. This is clear from Williams v. Howarth. It applies to the Crown in all its capacities; but it is not inconsistent with this that the Crown should, by appropriate parliamentary action, be shorn, in certain of its fields, of rights or immunities which it retains in others. The theory of the unity of the Crown produces, in relation to the rule now in question for the construction of statutes, the twofold result that, first, the Crown in all its capacities is prima facie not bound by a statute made in any part of the Empire unless this is provided for expressly or by necessary implication, and second, a provision that a statute binds the Crown binds it prima facie in all its capacities unless a contrary intention appears. The second of these results is established by such cases as Attorney-General for Quebec v. Nipissing Central Railway Co. and Pirrie v. McFarlane: the first is a corollary of the second. It is true that a different opinion was expressed in R. v. Sutton, as one of the grounds for holding that the Government of New South Wales was bound by a Commonwealth Customs Act; but the ghost of the heresy of Crown schizophrenia propounded in that case was laid in such explicit terms in theEngineers' Case (where R. v. Sutton was cited to lead up to an observation that "the utmost confusion and uncertainty exist as the decisions now stand") that I feel some surprise at the attempt which has been made to resuscitate it.
Minister for Works for Western Australia v Gulson [1944] HCA 27; (1944) 69 CLR 338 (3 October 1944)[perRich J]

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