Friday, February 19, 2016

Three by Twomey on Australian Constitutional History

Anne Twomey, University of Sydney Faculty of Law, has posted three recently published papers on Australian constitutional history.  The Exercise of Reserve Powers in Victoria from 1912-1955, appeared in the Australian Bar Review 39 (2014): 198-214:    
The reserve powers of the monarch or his or her vice-regal representatives are rarely exercised. When they are exercised and the political players loudly object and dispute the legitimacy of their use, they become notorious parts of political history, etched on the public psyche, such as the King/Byng affair in Canada in 1926 and the dismissal of the Whitlam Government in Australia in 1975. In contrast, when the political players choose instead to accept what has happened and move on, the events become lost in history and their lessons ignored. This paper explores the rich history of the exercise of the reserve powers in the Australian State of Victoria from 1912-1955 and ponders how the players and the public in 1975 might have behaved differently if they had had a better understanding of this neglected constitutional history.
Advice to Vice-Regal Officers by Crown Law Officers and Others, appears in the Public Law Review 26 (2015): 193-216:
In countries such as the United Kingdom, Australia, Canada and New Zealand, the monarch or her vice-regal representative is formally advised by responsible Ministers. Difficulties may arise, however, when those Ministers cease to be responsible or advise actions that may be illegal or unconstitutional. In such circumstances, the Queen or Governor-General may need access to legal advice or advice about constitutional conventions and principles. This article addresses the distinction between formal and informal advice to vice-regal officers and the issues that arise when such advice is given by the Attorney-General, the Solicitor-General and legal or political experts. These include whether a Solicitor-General (in countries where he or she is a legal officer - not a member of the Government) should be confined to giving legal advice, rather than policy advice, and whether the Solicitor-General must advise the government of the nature of the advice or even that it has been requested and given.
Royal Assent–The Business of Parliament or the Executive? appears in Australasian Parliamentary Review 30 (2015): 31-47:
In countries with Westminster-type parliamentary systems, royal assent to bills is normally given as a matter of course. In unusual circumstances, however, Ministers may advise the delay or refusal of royal assent. In such a case, should the Queen or her vice-regal representative act upon the advice of Ministers in delaying or refusing assent or on the advice of the two Houses of Parliament that have passed the bill? What if Ministers have ceased to be responsible to Parliament? Are they entitled to override the will of the Houses? A clash arises between the principles of responsible government and representative government. This article considers judicial authority, convention, textual indications, practice and the views of participants in the grant of royal assent in the United Kingdom, Australia, New Zealand and Canada. It contends that rather than relying reflexively on the proposition that the Queen acts on ministerial advice, consideration must be given to all relevant constitutional principles and an effort must be made to reconcile conflicts in accordance with the underlying purposes of these principles.

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