Sharples v Arnison
[2001] QSC 56
•5/03/2001
IN THE SUPREME COURT
OF QUEENSLAND
| BRISBANE | [2001] QSC 056 No S 1182/2001 |
| BETWEEN: | TERRY PATRICK SHARPLES |
Applicant
| AND: | MAJOR GENERAL PETER ARNISON |
First Respondent
| AND: | PETER DOUGLAS BEATTIE |
Second Respondent
| AND: | DESMOND JOSEPH O’SHAY |
Third Respondent
REASONS FOR JUDGMENT
B W Ambrose J
Delivered the 5th day of March 2001
CATCHWORDS: CONSTITUTIONAL LAW – IMPERIAL, COLONIAL, STATE AND COMMONWEALTH CONSTITUTIONAL RELATIONSHIPS – Generally – Whether the Constitution (Office of Governor) Act 1987 is invalid on the basis that it breached s. 53 of the Constitution Act 1867 as amended – definition of “office of Governor” – Whether the Constitution (Office of Governor) Act 1987 alters the constitutional significance or powers and duties of the Governor – Whether stylistic changes are within the ambit of the de minimis non curat lex maxim.
Australia Act 1986 (Cth); s 3, 6, 7, 13, 14, 15
Australia Act (Request) Act 1985 (Qld)
Australian Constitution (Cth) s51 XXX (viii)
Colonial Laws Validity Act 1865
Constitution Act 1867 (Qld); s53; s11A(2), 11B, 14
Constitution Act Amendment Act 1977 (Qld); ss.3-7
Constitution (Office of Governor) Act 1987 (Qld) s3-8
Electoral Act 1992 (Qld)
Extradition Act 1870 (Imp)The Queen v The Minister for Justice and Attorney-General of Queensland Ex Parte Alan George Skyring (OSC 8/86) per Connolly J.
Heartley v Banks (1859) Law Journal Vol 28 NS CP 144 per
Cockburn CJ.
Re Meunier (1894) 2 QB 415 per Cave J.
Re Arton (1894) 1 QB 108
Ex Parte Castioni [1891] 1 QB 149.
R v Governor of Brixton Prison; Ex Parte Kolcyzenski [1955] 1 QB
540.
Schtraks v Government of Israel [1964] AC 556 per ViscountRadcliffe.
| Counsel: | Applicant Self Represented RV Hanson QC and MG Cooper for the Respondent |
| Solicitors: | Applicant Self Represented Crown Solicitor for the Respondent |
| Hearing Dates: | 8 February 2001, 15 February 2001 |
The applicant is a person entitled to vote at a general election of members of the Legislative Assembly in the State of Queensland.
The first respondent is the Governor of Queensland appointed by Queen Elizabeth II by commission under sign manual on 19 March 1992. The commission was published in Queensland Government Gazette on 29 July 1992.
The second respondent is the Premier of Queensland commissioned to that Office as recorded in the Queensland Government Gazette published on 26 June 1998.
The third respondent is the Electoral Commissioner of the State of Queensland appointed by a predecessor of the first respondent pursuant to the provisions of the Electoral Act 1992. That appointment became operative on and from 5 September 1991.
On 23 January 2001, upon the advice of the second respondent the first respondent caused to be issued a writ for the election of 89 members of the Legislative Assembly of Queensland. The polling date was fixed for 17 February 2001. Monday 19 March 2001 was the appointed date for the return of the writ for election.
On 6 February 2001, the applicant applied for a statutory order of review of decisions made by all three respondents pursuant to the Electoral Act 1992 directed to calling the election for 17 February 2001.
Application for Review “in the nature of an information of Quo Warranto” was made to enquire by what authority each of the respondents supported his claim to hold office and the authority which each had to do things resulting in the issue of the writ for election and the taking of the steps required under that writ.
An interlocutory injunction was sought to restrain further steps being taken pursuant to the writ for election. This matter was argued on 8 February 2001 and the interlocutory relief was refused upon the balance of convenience albeit that the respondents conceded that the basis upon which the permanent relief was sought was “faintly arguable.”
The application for final relief was argued on 15 February 2001 when judgment upon that application was reserved.
It is the essence of the applicant’s case that the legal authority of the respondents and therefore the validity and legal effect of their acts in purported pursuance of the Electoral Act 1992 is based upon the validity of the Constitution (Office of Governor) Act 1987 to which assent was given on 1 December 1987. It is the contention of the applicant that that Act “expressly or impliedly provides for …
alteration in the office of Governor”, and that pursuant to s 53 of the Constitution Act 1867 (inserted by the Constitution Act Amendment Act of 1977) the bill for the 1987 Act could not lawfully be presented for assent by or in the name of the Queen except with the prior assent of electors upon referendum.
It is common ground that the bill for the 1987 Act was not approved by referendum before it received the assent of the Governor on 1 December 1987.
Stated shortly, it is the contention of the applicant that as a consequence of the failure to obtain approval of the bill by referendum before it was presented for assent there has been no valid election conducted in Queensland since that time; all the legislation passed and all the steps taken by the Executive to administer such legislation are invalid. More particularly, it is contended that all steps taken by the respondents directed to calling the election held on 17 February 2001 have been without legal effect and indeed, any further steps that may be taken, will also be of no legal effect because they will be taken pursuant to legislation to which assent was given contrary to the express provisions of the Constitution Act 1867 – at least to the extent that they rely upon the provisions of the Constitution (Office of Governor) Act 1987 and upon legislation subsequent to assent being purportedly given to that Act.
It is contended on behalf of the respondents that the application for review must fail on two grounds-
(1)
The Constitution (Office of Governor) Act 1987 did not require that a referendum be held prior to assent being given to the bill because it did not propose an alteration to the “Office of Governor” within the meaning of s 53(1) of The Constitution Act 1867 as amended.
(2)
If however that bill, if assented to, would expressly or impliedly make an alteration to the office of Governor so that it did require a referendum before assent was given, then s 13 of that Act which provided for the suspension of the operation of letters patent made by the Queen on 14 February 1986 would have no effect and all subsequent elections called and legislation passed and indeed all the challenged acts of the respondents in connection with the calling of the election for 17 February 2001 would be supported by the making of the letters patent of 14 February 1986.
It was contended indeed on behalf of the respondents that it is unnecessary to consider the principal matter argued on behalf of the applicant for the purpose of dealing with his application because even accepting his proposition as to the invalidity of the 1987 Act nevertheless the acts of the respondents of which he complains – and indeed all the legislative and administrative processes that have intervened between December 1987 and the present time – can be supported having regard to the Letters Patent given under the Queen’s sign manual on 14 February 1986 and under the hand of the then Premier of Queensland on 6 March 1986 and published in the Queensland Government Gazette on 8 March 1986.
In my view, it is desirable to deal with both matters canvassed upon the application. It is desirable that the principal ground upon which the applicant seeks review be determined rather than leave undetermined the argument supporting the ground and proceed on the basis that even if the applicant be correct in his argument, that the 1987 Act is unconstitutional and therefore ineffective, nevertheless, legislative and government activity since 8 March 1996 may still be supported by the operation of the Letters Patent published on 8 March 1986 – on the basis that in fact they were not suspended by s 13 of the 1987 Act. One would hope that a determination of this point may discourage further applications for relief against performance of statutory duties by the Executive based upon the same constitutional argument with a consequent saving of costs and the avoidance of undue delay in the administration of legislation enacted since 1 December 1987.
It will be convenient to look at the circumstances in which the 1977 amendments to the Constitution Act of 1867 were effected and the circumstances in which those amendments were themselves amended by the Australia Act of 1986. It is unnecessary to canvass the history of amendments to the Constitution Acts of 1867 before the Constitution Act Amendment Act of 1977. However, it is helpful in my view to consider the history of amendment to the Constitution Acts since 1977 together with the proclamation of Letters Patent constituting the office of Governor in March 1986.
Subsequent to the amendment to the Constitution Act 1867 in 1922 to abolish the Legislative of Council section 1 of the act provided –
(1) There shall be within the said colony of Queensland a
Legislative Assembly.(2) Within the said colony of Queensland Her Majesty shall have power by and with the advice and consent of the said Assembly to make laws for the peace, welfare and good Government of the colony in all cases whatsoever.
On 5 April 1977, the Constitution Act Amendment Act 1977 received assent. The Act was passed at a time when there was much public interest and academic debate about the exercise by Sir John Kerr as Governor-General in 1975 of reserve powers to dissolve Parliament. It is unnecessary and unhelpful to analyse the matters then debated on that topic – which indeed to a lesser extent are still debated.
It was obviously the object of the Constitution Act Amendment Act 1977 to entrench the “Office of Governor” by the manner and form legislation prescribed by section 53 of the Act then inserted.
Subsequently however, the amendments effected by the 1977 Constitution Act Amendment Act were significantly altered by the Australia Act 1986 which came into effect by proclamation on 3 March 1986.
It will be convenient to set forth the whole of the amendments effected to the Constitution Act 1867 by the 1977 Amendment Act indicating those parts which were subsequently deleted pursuant to section 13 of the Australia Act 1986. The parts of the 1977 amendment deleted by the Australia Act 1986 are shown in italics-
3. New s. 2A. The Principal Act is amended by inserting after
section 2 the following section: -
“2A. The Parliament. (1) The Parliament of Queensland consists of
the Queen and the Legislative Assembly referred to in sections 1 and
2.(2). Every Bill, after its passage through the Legislative Assembly, shall be presented to the Governor for assent by or in the name of the Queen and shall be of no effect unless it has been duly assented to by or in the name of the Queen.”
4. New S. 11A. The Principal Act is amended by inserting below the heading “The Governor” and before section 12 the following section:-
“11A. Office of Governor. (1) The Queen’s representative in
Queensland is the Governor who shall hold office during Her
Majesty’s pleasure.
(2). Abolition of or alteration in the office of Governor shall not be
effected by an Act of the Parliament except in accordance withsection 53.
(3). In this Act and in every other Act a reference to the Governor
shall be taken –(a) to be a reference to the person appointed for the time being by the Queen by commission under Her Majesty’s Royal Sign Manual and Signet to the office Governor of the State of Queensland constituted under Letters Patent under the Great Seal of the United Kingdom; and
(b) to include any other person appointed by dormant or other Commission under the Royal Sign Manual and Signet to administer the Government of the State of Queensland whenever and so long as the Office of Governor is vacant or the Governor is incapable of discharging the duties of administration or has departed from Queensland.”
5. New s. 11B. The Principal Act is amended by inserting after
section 11A the following section: -
“11B. Governor to conform to instructions
DEFINITION OF ROYAL SIGN MANUAL.
(1) It is the duty of the Governor to act in obedience to instructions
conveyed to him by the Queen with the advice of Her Privy Council
or under Her Majesty’s Royal Sign Manual and Signet or through
one of Her Majesty’s principal Secretaries of State in the United
Kingdom for his guidance, for the exercise of the powers vested in
him by law of assenting to or dissenting from or for reserving for the
signification of Her Majesty’s pleasure Bills to be passed by the
Legislative Assembly.(2). IN this section and in section 11A the expression “Royal Sign Manual” means the signature or royal hand of the Sovereign. And the expression “Signet” means the seal commonly used for the sign manual of the Sovereign or the seal with which documents are sealed by the Secretary of State in the United Kingdom on behalf of the Sovereign.”
6. Amendment of s. 14. Section 14 of the Principal Act is amended
by –(a) numbering the existing provisions as subsection (1).
(b) adding the following subsection:-
“(2) Officers liable to retire from office on political grounds
shall hold office at the pleasure of the Governor who in the
exercise of his power to appoint and dismiss such officers,
subject to his performing his duty prescribed by section 11B,
shall not be subject to direction by any person whatsoever
nor be limited as to his sources of advice.”7. New s. 53. The Principal Act is amended by inserting after
section 52 the following heading and section:-
“REQUIREMENT FOR REFERENDUM
53. Certain measures to be supported by referendum. (1) A Bill that expressly or impliedly provides for the abolition of or alteration in the office of Governor or that expressly or impliedly in any way affects any of the following sections of this Act namely –
sections 1, 2, 2A, 11A, 11B, 14; and
this section 53
shall not be presented for assent by or in the name of the Queen unless it has first been approved by the electors in accordance with this section and a Bill so assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act.
(2) On a day not sooner than two months after the passage through the Legislative Assembly of a Bill of a kind referred to in subsection (1) the question for the approval or otherwise of the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly according to the provisions of the Electoral Act 1915-1973 and of any Act amending the same or of any Act in substitution therefor.
Such day shall be appointed by the Governor in Council by Order in
Council.
(3) When the Bill is submitted to the electors the vote shall be taken
in such manner as the Parliament of Queensland prescribes.(4) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for reservation thereof for the signification of the Queen’s pleasure.
(5) Any person entitled to vote at a general election of members of the Legislative Assembly is entitled to bring proceedings in the Supreme Court for a declaration, injunction or other remedy to enforce the provisions of this section either before or after a Bill of a kind referred to in section (1) is presented for assent by or in the name of the Queen.
(6) Act 245 Geo. 5 No. 35 preserved. The provisions of this section shall in no way affect the operation of The Constitution Act Amendment Act of 1934.”
It is convenient also to refer to the content of Letters Patent published 8 March 1986 constituting the office of Governor of the State of Queensland proclaimed by the then Governor, his authority to do so not being challenged by the applicant. I will not refer to the whole of the proclamation but only to that part which appears to be relevant to the determination of the points of constitutional law canvassed upon this application –
And whereas upon the establishment of the Commonwealth of Australia (hereinafter called “the Commonwealth”) on the First day of January 1901 the said Colony became the State of Queensland (hereinafter called “the State”) within the Commonwealth:
And whereas by Letters Patent under the said Great Seal, bearing date at Westminster the 10th day of June 1925 His late Majesty King George the Fifth did constitute, order and declare that there should be a Governor in and over the State:
And whereas by the Australia Act 1986 of the Commonwealth of Australia provision is made in relation to the office of the Governor of the State of Queensland and corresponding provision will also be made in the Act which is expected to result from the Australia Bill at present before Parliament in the United Kingdom (which Acts are hereinafter together referred to as “the Australia Acts”) and provision is made in relation to the said office in the Constitution Act of 1867, as amended, of the State of Queensland.
And whereas We are desirous of making new provision relating to the office of Government of the State and to persons appointed to administer the Government of the State:
Now Know Ye that We do hereby declare Our Will and Pleasure, and direct and ordain as follows: -
1. We revoke the said Letters Patent dated the 10th day of June 1925 and the Instructions to the Governor in and over the State or to the Lieutenant Governor or other officer for the time being administering the Government of the State dated the 10th day of June 1925 from and after the proclamation of these Our Letters Patent as hereinafter provided.
II. We order and declare that –
(a) there shall be a Governor in and over the State: and
(b) the appointment of a person to the office of Governor in and over the State shall be during Our pleasure by Commission under Our sign Manual and may be terminated only by instrument under Our Sign Manual, taking effect upon publication thereof in the Government Gazette of the State or at a later time specified therein in that behalf.
III. We authorise and command the Governor of the State to do and execute all things that belong to his office according to the tenor of these Our Letters Patent and of such Commission as may be issued to him under Our Sign Manual and according to such laws as are now or shall hereafter be in force in the State.
IV. Every person appointed to the office of Governor of the State, before entering on any of the duties of his office and with all due solemnity –
(a) shall cause the Commission appointed him to be Governor to be read and published at the seat of government in the state, in the presence of the Chief Justice or the next senior Judge of the State and of at least two Members of the Executive Council of the State.
(b) thereafter, then and there take in the presence of the persons referred to in paragraph (a) of this Clause the Oath of Allegiance and the Oath of Office subject to and in accordance with the law and practice of the State.
and the Chief Justice or next senior Judge aforesaid shall administer those Oaths or, where permitted by law, take Affirmations in lieu of those Oaths.
V. There shall be an Executive Council for the State, which shall consist of-
(a) the persons who immediately before the coming into operation of these Letters Patent, are Members of the Executive Council of Queensland; and
(b) persons who may at any time be Members of the Executive Council of Queensland in accordance with a law enacted by the Legislature of the State and in force; and
(c) such other persons as the Governor of the State shall, from time to time in Our name and on Our behalf and subject to an, law enacted by the Legislature of the State and in force, appoint under the Public Seal of the State to be Members of the Executive Council of Queensland,
until their membership thereof be terminated by their resignation
therefrom or their removal therefrom by the Governor of the State.Seniority of members of the Executive Council shall be according to the order of their respective appointments as members thereof
VI. The Governor of the State shall attend and preside at all meetings of the Executive Council unless he is prevented by some good and sufficient cause and, in his absence, such member of the Executive Council as he may appoint in that behalf or, in the absence of that member, the senior member of the Executive Council present at a meeting shall preside.
The Executive Council shall not proceed to dispatch business unless-
It has been duly summoned by authority of the Governor of the
State;
and
two members thereof, at the least, exclusive of the Governor or
member thereof presiding, are present and assisting throughout thewhole of the meeting at which the business is dispatched.
VII. We authorise and empower the Governor of the State-
(a) so far as We may lawfully do, upon cause a appearing to him sufficient, to remove or suspend from office any person holding any office or place by virtue of any appointment made in Our name or under Our authority,
(b) in Our name and on Our behalf, as he shall see occasion, where an offender may be tried in the State in respect of an offence (not being an offence against the laws of the Commonwealth) to grant, either free or subject to lawful conditions, to the offender a pardon, a commutation of sentence, or a reprieve of execution of the sentence for such period as the Governor thinks fit, or a remission of any fine, penalty, forfeiture or other consequence of conviction of the offender:
Provided that, except where the offence is of a political nature unaccompanied by any other grave crime, the Governor shall not make it a condition of his exercising his authorities and powers under this subclause (b) that the offender shall absent himself or be removed from the State.
In the event of the office of Governor of the State becoming
vacant;
or
in the event of the Governor of the State assuming the administration
of the Government of the Commonwealth.
or
subject to Clause IX of these Letters Patent, in the event of the
Governor of the State becoming incapable or being absent from the
State,
the Lieutenant-Governor or, if there be no such officer in the State
and able to act, such person or persons as We may appoint (either
before or after the event) under Our Sign Manual shall, during Our
Pleasure, administer the Government of the State, first taking the
Oaths or Affirmations hereinbefore directed to be taken by the
Governor in the manner herein provided and otherwise complying
with Clause IV of these Our Letters Patent; which being done. We
authorise and command the Lieutenant-Governor and every other
such Administrator, as aforesaid to do and execute, during Our
pleasure, all things that the Governor might do under and in
accordance with these Our Letters Patent, any Commission issued
under Our Sign Manual to such Administrator, and the laws enacted
by the Legislature of the State and in force.VIII. IX. If the Governor of the State has occasion to be temporarily
absent for a short period from the State or from the seat of
government but not from the State, except for the purpose of
administering the Government of the Commonwealth;
or
if by reason of illness, which the Governor has reason to believe will
be of short duration, the Governor considers it desirable so to do,
the Governor may by an Instrument under the Public Seal of the
State constitute and appoint the Lieutenant-Governor or, if there be
no such officer in the State and able to act, any other person
appointed by Us as provided by Clause VIII aforesaid to administer
the Government of the State or, if there be no such person so
appointed in the State and able to act, any other person to be his
deputy during his temporary absence or illness and 'n that capacity to
exercise, perform and execute for and on behalf of the Governor
during his absence or illness, and no longer, all such authorities and
powers vested in the Governor of the State by these Our Letters
Patent or otherwise as shall. in and by such Instrument, be specified
and limited, and no other.
The authority and power of the Governor of the State shall not be
abridged, altered or in any way affected by the appointment of a
deputy as aforesaid, otherwise than as We may at any time hereafter
think proper to direct.
Any such appointment as aforesaid of a deputy may be revoked by
the Governor of the State at any time.
Where in the course of his passage from one part of the State to
another part of the State the Governor is beyond the boundary, of the
State he shall be deemed not to be absent from the State for the
purposes of Clauses VIII and IX of these Our Letters Patent.
An illness or absence, by reason of which the Governor is authorised
to appoint and has appointed a person to be his deputy, shall. for so
long as the appointment subsists, be deemed not to constitute
incapacity or absence from the State of the Governor for the
purposes of Clause VIII of these Our Letters Patent.
Xl. We direct that these Our Letters Patent shall take effect without
affecting in any way. The efficacy of any Commission or
appointment given or made before the coming into operation of these
Our Letters Patent, or of anything done pursuant to any such
Commission or appointment, or of any Oath taken before the coming
into operation of these our Letters Patent for the purpose of any such
Commission or appointment.
Xll. We direct and enjoin that these Our Letters Patent be read and
proclaimed at such place or places in the State as the Governor of the
State shall think fit and that these Our Letters Patent shall come into
operation at the same time as the Australia Acts come into force.
In Witness whereof We have caused these Our Letters to be made
Patent.
Witness Ourself at Westminster the fourteenth day of February in
the Thirty-fifth year of Our Reign.By Warrant under The Queen’s Sign Manual
OULTON
Given under my Hand and Seal, at Government House, Brisbane, this sixth day of March. in the year of our Lord one thousand nine hundred and eighty-six, and in the thirty-fifth year of Her Majesty's reign.
By Command, JOH BJELKE-PETERSEN
The Australia Act 1986 was passed by the Commonwealth Parliament at the request of the Parliaments of all States (including Queensland) and came into force on 3 March 1986.
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“(2) It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State. … ”
Section 3 of the Australia Act terminated from the commencement of that Act the effect which the Colonial Laws Validity Act 1865 had, on laws made by the parliament of a State.
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“Notwithstanding sections 2 and 3(2) above, a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedures of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.”
| [27] | Section | 7 | of | the | Australia | Act | 1986 | provides | – |
“(1) Her Majesty’s representative in each State shall be the
Governor.”
(2) Subject to subsections (3) and (4) below, all powers and
functions of Her Majesty in respect of a State are exercisable only by
the Governor the State.
(3) Subsection (2) does not apply in relation to the power to appoint,
and the power to terminate the appointment of, the Governor of a
State.
(4) While Her Majesty is personally present in a State, Her Majesty
is not precluded from exercising any of Her powers and functions in
respect of the State that are the subject of subsection (2) above.
(5) The advice to Her Majesty in relation to the exercise of the
powers and functions of Her Majesty in respect of a State shall be
tendered by the Premier of the State.
…
(10) After the commencement of this Act Her Majesty’s
Government in the United Kingdom shall have no responsibility for
the government of any State.
Under the Australia Act (Request) Act 1985 (Qld) to which assent was given on 16 October 1985 the Parliament and Government of the State requested (and consented) to the enactment by the Parliament of the United Kingdom of the Australia Act and the Queensland Parliament and Government requested and consented to the enactment by the Commonwealth Parliament of legislation in terms of the schedules to that Act.
Interestingly Allan George Skyring sought an order nisi for certiorari to bring up the Australia Act (Request) Act 1985 with a view to having it declared invalid on the ground that its passage was beyond the powers of the Parliament of Queensland having regard to s 53 of the Constitution Act as it then stood – i.e. as amended by the Constitution Act Amendment Act 1977.
Connolly J dismissed this application on the basis that s 53 of the Constitution Act did not and could not affect the power of the Queensland Government or Parliament to request constitutional change through the Commonwealth Parliament pursuant to s 51 XXX(viii) of the Australian Constitution. Although on one view it might be contended that the use of s 51 XXX (viii) to effect an alteration by partial repeal of ss 11B and 14 of the State Constitution Act was a device adopted to circumvent the provisions of s 11A(2) and s 53(1) of the Constitution Act, nevertheless, it could not be said that the presentation of the bill for the Australia Act (Request) Act 1985 for assent without first having it approved by the electors upon referendum was contrary to the requirements of either s 11A(2) or s 53(1) of the Constitution Act 1867 as at 1985.
In the course of his submissions, the applicant referred to the decision of Connolly J delivered 17 February 1986 on Mr Skyring’s application observing that:
“The issue of the Request Act did come up in my friend Mr Skyring’s challenge. Mr Skyring didn’t deal with the challenge that should have been made to the Request Act which was that it was illegal in accordance with the breach of the laws to the peace, order and good government of the Queensland people. That is the ground. That is the same sort of ground that could be applied to the Constitution (Office of Governor) Act.”
When asked in the course of argument whether he was contending that the Australia Act was also ineffective, the applicant observed:
“Well I don’t have to get into that. I am not wanting to progress
down that path today. I think that is another entire argument.”The genesis of the applicant’s constitutional challenge to the validity of steps taken to call the Queensland election in 2001 seems to be the argument advanced unsuccessfully before Connolly J by Mr Skyring in February 1986.
In determining whether the Constitution (Office of Governor) Act 1987 if valid constitutionally did effect an “alteration in the office of Governor” within s 11(2) and s 53(1) of the Constitution Act 1867, it is necessary to determine what is meant by “the office of Governor” in those sections.
In the Shorter Oxford English Dictionary “office” is defined to mean, inter alia, “duty towards others … duty attaching to one’s station, position or employment, business, function … a position to which certain duties are attached especially a place of trust, authority.”
In Heartley v Banks (1859) Law Journal Vol 28 NS CP 144, Cockburn CJ delivering the Judgment of the Court observed at 151:
“But we are clearly of opinion that the appointment of military knights is not in any sense of the term an office. An office necessarily implies that there is some duty to be performed incidental to it. Here as we have pointed out there are no duties which can be considered as incidental to the office.
…
Although the persons deriving benefit from this royal and noble
institution are distinguished by the honourable title of military
knights, there is nothing whatever of knightly service connected with
the institution which is one of a purely eleemosynary character.”The use of the term “office of governor” in the relevant legislation connotes in my view the duties and powers attributed to the holder of that office “for the time being administering the Government of the State” (definition s 16(1) of the Australia Act). This is confirmed by s 7(2) of the Australia Act which refers to “all powers and functions” exercisable by the Governor of a State.
In my view, one object of s 14(2) of the Constitution Act (as amended by the Australia Act 1986) was to entrench the reserve powers of the Governor on the occasion of perceived political crises of the sorts discussed in books written concerning the exercise of reserve powers – particularly that involving the Governor-General and Prime Minister of Australia in 1975.
To determine whether the Constitution (Office of Governor) Act 1987 did effect any alteration to the powers and duties of a person for the time being administering the government of the State as Governor within ss 11A(2) and 53 of the Constitution Act 1867 (as amended), it seems to be necessary to contrast the powers and duties of the Governor immediately prior to assent being given to that Act on 1 December 1987 with those which have existed subsequent to that date if the 1987 Act is constitutionally valid and effective.
Although invited to draw attention to any such alterations on a number of occasions the applicant declined to do so, with the exception of pointing to s 13 of the Act which suspended the letters patent made on 14 February 1986 and proclaimed on 6 March 1986. It is clear that s 13 of the Act purports to suspend the Letters Patent that had effect (if the 1987 Act is valid) up to the assent given to the 1987 Act on 1 December 1987.
It is clear that the effect of s 13 of the Act suspending those Letters Patent must be viewed in the terms of s 4 of the Act which authorises and requires the Governor to “do and execute all things that belong to his office according to the laws that are now or shall hereafter be in force in the State.” And cf s 7(2) of the Australia Act 1986.
The real question to be addressed by reference to the content of the 1986 Letters Patent and the specific provisions of the Constitution (Office of Governor) Act 1987 viewed against the background of general principles of constitutional law relating to the powers of governors (including reserve powers) is whether there has been any alteration of constitutional significance or substance in the powers and duties of the Governor resulting from the valid passage of the 1987 Act. This question must be determined against the background of Constitutional convention and practice. The applicant made no submissions whatever as to precisely what alteration was effected to the powers and duties exercisable by a Governor by the passing of the 1987 Act and the suspension of the 1986 Letters Patent.
The Honourable Sir Walter Campbell AC QC then Governor of Queensland on 22 March 1988 delivered the 1988 Endowed Lecture of the Royal Australian Institute of Public Administration Queensland Division. He observed -
“Over the last couple of years there have been enacted some important statutes which bear upon the office of a State Governor and this calls for a brief historical account. But I hasten to add that such recent legislation has by virtue of earlier constitutional developments made only minor changes to the role played by a Governor.”
Comment is then made upon the effect of the Australia Acts.
The lecture continues –
“Of course for more than sixty years the Monarch would not have contemplated negating the will of the duly elected parliament of a State and for a long time the UK Government has discharged no independent responsibility for the Government of a State. These matters of historical constitutional development have now been formally recognised by the recent legislation.
By reason of the enactment of the Australia Acts but shortly before they came into force fresh Letters Patent constituting the office of Governor of Queensland were made by Her Majesty on 14 February 1986 and proclaimed in this State on 6 March 1986. These new Letters Patent in addition to constituting the office of Governor of Queensland revoked the earlier Letters Patent and the Royal instructions to the Governor dated 10 June 1925.”
Reference is then made to some of the effects of the Constitution (Office of Governor) Act 1987 and the lecture continues –
“So the present powers of the Governor of Queensland are derived from his Commission, from the provisions of the Australia Acts, from the provisions of the Office of Governor Act from provisions contained in the Constitution Act and from provisions contained in a number of other Acts which provide for certain things to be done or approved by the Governor in Council.”
I remark merely that taken to its logical conclusion the argument of the applicant would lead to the conclusion that any state legislation subsequent to the amendment of the Queensland Constitution by the Australia Act in 1986 which provided for certain specific things to be done or approved by the Governor in Council would be ineffective in the absence of a referendum approving the consequent “alteration of” the Office of Governor by new legislation making specific provision for additional things to be done or approved by the Governor in Council.
In the course of his lecture, Sir Walter Campbell observes the important part played by constitutional conventions which have evolved over many years and which constitute some of the attributes of Office of Governor at the present time.
Sir Walter Campbell referred to an important convention relating to assent to parliamentary bills –
“I mention that no British Monarch has refused assent to an act of Parliament since 1707. The Governor has as does the Monarch the power to refuse assent to Bills duly passed by the Parliament and in this context I mention the possibility of a government advising the Governor to refuse such assent.
Prior to the passage of the Australia Acts the practice was that the Queensland Attorney-General furnished a certificate to the Governor in relation to each Bill to the effect that there was no objection to the bill being assented to by the Governor and that there was no requirement to withhold assent or to reserve the Bill for Her Majesty’s approval. However, after the passage of those acts, I requested that a certificate be issued to the Governor by the Attorney-General merely informing him that the particular Bill presented with the certificate for Royal assent has been duly passed through all stages by the Legislative Assembly and that it is in order for the Governor to assent to the Bill. This is now done in every case.”
He continued –
“Let me remind you of what was pointed out by Walter Bagehot in his work The English Constitution (1867) when he explained that the Monarch’s effective power is to be found in her celebrated rights to be consulted, to encourage, and to warn. Consequently, in the exercise of his constitutional powers and responsibilities the Governor possesses those rights in respect of ministerial advice given to him.”
| [48] | Sir | Walter | Campbell | continued | – |
“The Governor is not himself a member of the Executive Council although the Act provides (s. 7) that the Governor shall attend and preside at all meetings of the Council unless prevented by some good and sufficient cause and in his absence such member of the Council as the Governor may appoint… shall preside”
He continued –
“It is interesting that the Letters Patent of the 14th February 1986 in revoking the 1925 instructions to the Governor revoked that part of the instructions which was to the effect that the Governor in the execution of his powers and authorities shall be guided by the advice of the Executive Council. The 1986 Letters Patent did not repeat those words nor does the Office of Governor Act which suspended the 1986 Letters Patent.”
I observe merely that this revocation seems consistent with the provisions of s 14(2) of the Constitution Act which deals with exercise of reserve powers.
| [49] | The | lecture | continues | – |
“So in Queensland unlike the situation in the other States it is not expressly laid down that the Governor shall be guided by the advice of the Executive Council although it is provided (Acts Interpretation Act 1954-1985) (s. 36) that in any Act unless the contrary intention appears the term “Governor in Council” means “the Governor acting by and with the advice of the Executive Council.” Of course in accordance with constitutional convention the Governor of Queensland should always act on such advice – except in the cases of the exercise of the “reserve” powers which I shall consider later. The principle that the Governor acts only with the advice of ministers is the very essence of our system of responsible government. After all by s 14 of the Constitution Act and by provisions contained in a large number of other Acts it is made clear that it is the Governor in Council which gives legal authority to actions to be taken or decisions made under the Constitution Act and under other Acts of the Parliament of Queensland. The Executive Council exists primarily to put into official form decisions which have been made elsewhere. It is a body which gives formal advice to the Governor by way of seeking approval of a written submission. The Executive Council is not a deliberative body or a forum for debates and the expression of varying opinions as is the Cabinet. The Governor does not reject the advice given to him by members of the Executive Council but in accordance with his rights to be consulted to encourage and to warn he may in response to such ministerial advice ask questions and seek further information.”
Dealing with the dissolution of parliament, appointment of Ministers, and discretionary powers, Sir Walter Campbell continues –
“I think I have already made it clear that in the normal exercise of his powers and duties, the Governor in accordance with constitutional convention must act on the advice of his ministers – and this advice comes usually from the Executive Council. In short, the Governor’s only advisers apart from when he is exercising the discretionary powers to which I will refer later are his ministers. The Governor has only 1 set of advisers.”
Sir Walter then continues to consider the nature of the “constitutional conventions” which play such an important part in the exercise of “Office of Governor.” After referring to text books he observes-
“Constitutional conventions have their basis in the very nature and operation of the system of parliamentary government with the executive being responsible to the parliament. The answers to questions as to which convention should apply in particular cases and the formulation of such answers as propositions of accepted principles of constitutional usage and practice are derived from precedents and from the writings of constitutional lawyers.”
| [52] | He | continues | - |
“In such cases constitutional convention requires a Governor to accept the Premier’s advice in all but exceptional circumstances such as the arising of a constitutional crisis or where there has been a serious breach of constitutional convention or perhaps where the Governor formed the opinion that his ministers were acting illegally as was the case when Sir Phillip Game dismissed Mr Lang from the premiership of New South Wales in 1932. In addition to the convention that the Governor can only act on the advice of his ministers there are two other basic principles mainly that the Governor must not take sides in an open political conflict – the Crown must been seen as impartial in the interest of all people – and that in choosing the Chief Minister (the Premier) the Governor must be guided by the test that the person must be the one who can command the majority of votes in the parliament.”
I will not refer further to that long and interesting lecture. Sir Walter Campbell regarded the functions to be performed by the Governor of the State as including –
“It has always been recognised as one of his functions that a Governor should travel widely throughout the state visiting provincial cities, towns and shires and acquainting himself with the activities and problems of people in all walks of life. These are all important and the Governor is in a position where he can communicate his knowledge and views not only to ministers of state but to a wide range of people who wield influence in the community.”
Prior to the Constitution (Office of Governor Act) 1987 coming into force on 1 December 1987 the expressly bestowed powers and duties of the Governor were to be found in Letters Patent proclaimed in Queensland Government Gazette on 8 March 1986. I shall direct my attention therefore to any alterations which emerge from comparisons of those Letters Patent with the 1987 Act.
Cl (ii) of Letters Patent in my view is the equivalent of section 3 of the 1987 Act. Any variations are merely stylistic.
Cl (iii) of the Letters Patent is repeated in s 4 of the 1987 Act. Any variations in language are merely stylistic.
The content of cl (iv) of the Letters Patent is the same as the content of s 5 of the 1987 Act.
Cl (v) of the Letters Patent is repeated with stylistic variations in s 6 of the 1987 Act.
| [59] |
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“Seniority of members of the Executive Council shall be according
to the order of their respective appointments as members thereof.”
This provision does not appear in s. 6 of the 1987 Act. However, it could hardly be said that that aspect of clause (v) of the Letters Patent touches upon the office of Governor.
Cl (vi) of the Letters Patent has the same content as s. 7 of the 1987 Act with only stylistic variations.
Cl (vii) of the Letters Patent is, subject to one variation, replicated in s. 8 of the 1987 Act.
The variation in s. 8 of the Act is the deletion of a proviso to clause (vii) (b) of the Letters Patent which reads –
“Provided that except where the offence is of a political nature unaccompanied by any other grave crime, the Governor shall not make it a condition of his exercising his authorities and powers under this subclause (b) that the offender should absent himself or be removed from the State.”
Within the context of the power of a Governor to pardon or commute a sentence or to reprieve execution of sentence “either free or subject to lawful conditions” (s. 8(b) of the 1987 Act) with the exception of “where the offence is of a political nature unaccompanied by any other grave crime” no authority was cited relating to the circumstances which might call for the characterisation of an offence as one “of a political nature.”
There is authority for the proposition that if an offence is characterised as one of “a political character” under the Extradition Act 1870 (Imp) there must be at least two distinct political parties each striving to impose its form of government on the country of those in conflict. In this respect I refer to Re Meunier (1894) 2 QB 415 per Cave J and Re Arton (1896) 1 QB 108.
In Vol 2 of Stephens History of the Criminal Law of England at 70, it is observed –
“I think therefore that the expression in the Extradition Act ought to be interpreted to mean that fugitive criminals are not to be surrended for extradition crimes if those crimes were incidental to and formed a part of the political disturbances.”
I refer also to the observations of Hawkins J in Ex parte Castioni [1891] 1 QB 149.
In R v Governor of Brixton Prison Ex parte Kolczyenski [1955] 1 QB 540 it was held that the words “offence of a political character” must always be considered according to the circumstances existing at the time of consideration.
In Schtraks v Government of Israel [1964] AC 556 Viscount Radcliffe observed –
“In my opinion the ideal that lies behind the phrase “an offence of a political character” is that the fugitive is at odds with the State that applied for his extradition on some issue connected with the political control or government of the country. The analogy of “political” in this context is with “political” in such phrases as “political refugee” “political asylum” or “political prisoner” it does indicate I think that the requesting State is after him for reasons other than the enforcement of the criminal law in its ordinary what I may call, its common or international aspect.”
In my view, some assistance may be obtained from consideration of the cases involving extradition sought by foreign countries of a citizen charged with an offence “of a political character” in determining whether an offence committed in Queensland in March 1986 or subsequently might be described as one “of a political nature unaccompanied by any other grave crime.”
Whatever offences the proviso to cl (vii) of the Letters Patent contemplates it denies the governor power to impose as a condition to the granting of pardon or remission of penalty in the exercise of the prerogative of mercy that a person convicted must absent himself or be removed from the State of the Queensland.
Under section 8 of the 1987 Act of course, there is no constraint whatever imposed upon the exercise of the prerogative of mercy under section 8(b) of the Act.
On one view a constraint on the exercise of the prerogative of mercy, imposed by the proviso to clause vii (b) of the Letters Patent, is removed under section 8 of the 1987 Act.
Whether the power of the governor to exercise the prerogative of mercy has been enlarged by section 8(b) of the 1987 Act beyond that given to him/her by cl (vii) of the 1986 Letters Patent, resulting in “an alteration to” the ambit of his/her power to exercise the prerogative of mercy where an offender is convicted of an offence against the laws of Queensland “of a political nature unaccompanied by any other grave crime” is perhaps unnecessary to finally determine. Certainly, under s. 8(b) of the 1987 Act the governor is free to subject to “lawful conditions” any pardon, commutation of sentence or reprieve of execution of sentence.
Whether it would be lawful for the Governor having regard to his powers under the constitution to impose as a condition of the exercise of the prerogative of mercy, a condition that the offender “absent himself” or “be removed” from the state of Queensland was not a matter that was debated upon the application.
To the extent that there was any “alteration” in the ambit of the powers specifically given to the governor under section 8 of the 1987 Act from those given under clause (vii) of the 1986 Letters Patent in my judgment it ought be considered in light of the well established maxim de minimis non curat lex. I do not propose to analyse this ancient principle of statutory construction. I refer merely to Halsbury 4th Ed Vol 44 (1) para 1441 and Bennion Statutory Interpretation (3rd edition) pp 868-873. I note in particular, the observation in Bennion at page 868 -
“It is essential to the working of a legal system that it should adopt the principle of the maxim de minimis non curat lex (the law does not concern itself with trifling matters). There are a number of reasons for this. Litigious persons and unnecessary litigation must be discouraged: doni judicis est lites dirimere (the good judge prevents litigation). Time must not be wasted. Costs must be kept down. The dignity of the law must be preserved. Parliament is presumed to have regard to all these matters and by implication to intend that its enactments shall not apply in a de minimis case. It is excepted from their operation as if excluded by an express proviso.”
In my view, the power given to the governor of Queensland both by the 1986 Letters Patent and by section 8 of the Constitution (Office of Governor) Act of 1987, is a power which would be exercised only upon the advice of Executive Council. It was not suggested that it would come within the ambit of any reserve power.
It is interesting to consider the history of the proviso to cl (vii)(b) of the Letters Patent made in 1986 which restates the proviso in cl (vii) of the Letters Patent of 10 June 1925 which were revoked by cl 1 of the 1986 Letters Patent.
The proviso in cl (vii) of the Letters Patent of 10 June 1925 and in cl (vii) in the Letters Patent of 1986, (to which I have referred), seems to have its genesis in the directions which accompanied the Letters Patent constituting the office of Governor-General of Canada in 1878, which contained inter alia the following authorisation –
“We do further authorise and empower our said governor-general as he shall see occasion in our name and on our behalf when any crime has been committed (for which the offender may be tried within our said dominion) … and further to grant to any offender convicted of any crime in any court or before any judge, justice or magistrate within our said dominion a pardon either free or subject to lawful conditions or any respite of the execution of the sentence of any such offender for such period as our said governor-general may seem fit and to remit any fines, penalties or forfeiture which may become due and payable to us. Provided always that our said governor-general shall not in any case except where the offence has been of a political nature make it a condition of any pardon or remission of sentence that the offender shall be banished from or shall have sent himself from our said dominion.”
In Todd, Parliamentary Government in the British Colonies 2nd ed (1894) 365 it is observed with respect to this proviso:–
“This clause does not appear in early instructions: but it was deemed by the Secretary of State to be obviously wrong to thrust upon other communities a criminal who was regarded as unfit to remain at large in his own country.”
It had earlier been pointed out at page 356 of that work –
“In proof of the necessity for reserving to the governor the final decision upon questions that might involve consequences too momentous for the determination of the ministers of any one colony, however large and important, Lord Carnarvon points out that “the effect upon neighbouring colonies, the empire generally or foreign countries of letting loose a highly criminal or dangerous felon to reside in any part of the world, except only that principally concerned to take charge of him was a step which might clearly and not unreasonably give rise to complaints from without the colony; nor could the recommendation of a colonial ministry in favour of such a course be of itself a sufficient justification for it. Moreover to release a felon upon any such condition was altogether contrary to the theory now generally accepted: “that a community should not relieve itself of its worst criminals at the expense of other countries.” The local enactment which has hitherto authorised the exercise of this right (11 VIC c. 34) ought to be considered as virtually obsolete and as an Act which “cannot be too soon repealed.”
After referring to this part of the text, the footnote at 365 continues –
“In this opinion, Mr Blake fully concurred while he suggested that it may be just and convenient that the restriction should not be applicable to the cases of political criminals, to whose offences as a rule the considerations which make such a condition obnoxious hardly apply, while public convenience and the tranquillity of the country may occasionally be best consulted by so disposing of them. (Report in 1876, p. 5.) The colonial secretary approved of this exception. See the correspondence laid before the dominion parliament in 1879.”
| [83] | The | author | continues | at | 366 | – |
“By this last section, the independent judgment and personal responsibility of the governor-general of Canada as an Imperial Officer, are relied upon to decide finally after consultation with his ministers in all cases of Imperial interest or which might directly affect any country or place outside of Canada; while he is at liberty to defer to the judgment of his ministers in all cases of merely local concern.”
“In any case where the governor-general is authorised to act independently with his ministers, he may, if he thinks fit, remit the matter to the consideration of the Secretary of State for the colonies for the purpose of ascertaining the opinion of Her Majesty’s government thereon. This was done in 1877 by decision of the governor in council in the case of Peter Martin.”
It is clear that the object of the constitutional rearrangement achieved by the passage of the Australia Act 1986 and the Constitution (Office of Governor) Act 1987 was designed to avoid the involvement of Her Majesty’s Privy Council or one of her principal secretaries of state in the United Kingdom in the exercise by the governor of his powers and duties upon appointment. In this respect I refer to s. 7(2) of the Australia Act 1986.
Considered in its historical context, the object of the proviso to cl (vii) of the 1986 Letters Patent, was to constrain the individual discretion of the governor in the exercise of the prerogative of mercy, by making that exercise, referable to advice from the Executive Council rather than from Imperial Officers of state, in any case of an offence which was a “grave crime” and not one merely of a “political nature.” This accords with the object of the Australia Act 1986 to substitute for the obligation upon a state governor to take advice from Her Majesty’s Privy Council or Secretary of State in the United Kingdom, an obligation to take advice from a Queensland Minister or the Executive Council of that state.
| [86] |
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“If a governor is authorised by Her Majesty’s government to proclaim a pardon to certain political offenders or rebels he can do so. If he is not instructed from home to grant a pardon he can issue a proclamation as was done in New Zealand in 1865 by Sir G. Grey to the effect that all who had borne arms against the Queen should never be prosecuted for past offences except in certain cases of murder. Such a proclamation would practically have the same effect as a pardon.
The issue of a proclamation of amnesty or oblivion for past offences against the Crown and government of the realm is within the undoubted prerogative of the Crown; and an amnesty or pardon may thus be granted by the sovereign either before or after attainder or conviction; and also by a colonial governor acting under instructions from the Crown.”
In my view the historical development of the exercise of the crown prerogative of mercy reflected in the 1925 and 1986 Letters Patent to which I have referred makes it clear that the proviso to cl (vii) of the 1986 Letters Patent applied only in respect of offences other than “political offences” committed within the area of the administrative competence of the governor.
With the constitutional “rearrangement” effected by the Australia Act 1986, it seems strongly arguable that the imposition of a condition such as that forbidden in the proviso to cl (vii) might in any event be beyond power having regard to s 117 and s 51 (xxvii) and (xxix) of the Australian Constitution.
This however was not a matter argued and no reference was made to any international treaty obligations or obligations of international law constraining the “banishment” of Australian offenders convicted of serious offences from Australia having the effect of requiring that they take up residence in foreign countries to avoid detention in custodial institutions within Australia.
Cl (viii) of the 1986 Letters Patent with immaterial stylistic variations is repeated in s. 9 of the 1987 Act.
The content of s. 10 of the 1987 Act must be compared with the content of cls (viii, ix and x) of the 1986 Letters Patent.
Although there are significant stylistic variations between the provisions of these clauses of the Letters Patent and s. 10 of the 1987 Act there are no significant or substantial variations in the powers or duties of a governor specified under the Letters Patent of 1986 and the subsequent 1987 Act.
The applicant did not direct attention to any part of the 1987 Act (with the exception of section 13 which suspended the operation of the 1986 Letters Patent during the operation of part (II). He did not refer to a single head of power or a single duty of the governor which was altered by virtue of the assent to the Constitution (Office of Governor) Bill on 1 December 1987.
For the reasons I have expressed I take the view that the only variation which emerged was that to which counsel for the respondents referred – relating to the removal of the constraint imposed upon the governor (undoubtedly acting upon advice from the Executive Council) to impose the specified condition upon the exercise of the prerogative of mercy. For the reasons I have given, in my view, this is such a minor and insubstantial “variation” of the office of Governor as to warrant interpretation of section 53 of the Constitution Act applying the principle of de minimis non curat lex. I would treat that variation, (if any) considered in the context of the constitutional change brought by the Australia Act 1986, as so insignificant and insubstantial as to be only a trifling matter.
| [95] |
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(1) The Bill for the Constitution (Office of Governor) Act 1987 did not require that a referendum be held prior to assent being given to it because it did not propose an alteration to the “office of Governor” within the meaning and/or purview of s 53 (1) of the Constitution Act 1867 as amended.
(2) In any event even if the Constitution (Office of Governor) Act 1987 assented to on 1 December 1987 were invalid because it was enacted contrary to the requirements of s 2A and s 53 of the Constitution Act (as amended), then s. 13 of that Act would not be operative to suspend the operation of the Letters Patent constituting the office of Governor of Queensland made by Her Majesty Queen Elizabeth II on 14 February 1986 and proclaimed in Queensland on 6 March 1986. In that event, all the acts of the respondents purportedly done pursuant to the Electoral Act 1992 which were based upon the valid exercise of powers and the valid performance of duties of the first respondent as governor of Queensland and of other governors of Queensland appointed subsequent to 1 December 1987 were constitutionally valid because of the continued operation of the Letters Patent proclaimed in Queensland on 6 March 1986.
| [96] | I | dismiss | the | application | for | review. |
I order that the applicant pay to the respondents their costs of and incidental to the application for review including reserve cost to be assessed on a standard basis.
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