When the Commonwealth of Australia Constitution Act 1900 was enacted by the Imperial Parliament, the final text differed in a number of respects from the draft approved by the Australian colonies. One of the less publicly discussed changes was the removal of the words contained in the original Covering Clause 2:
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"This Act shall bind the Crown."
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The omission was not accidental. Constitutional commentators John Quick and Robert Garran recorded that the English Crown Law Officers recommended that these words be removed before the Bill was introduced into the Imperial Parliament. Their explanation identifies a significant constitutional issue: the traditional relationship between the Crown and statutory law.
The following extracts are from the Annotated Constitution.
https://constitutionwatch.com.au/annotated-constitution/
Page 320
At common law, the Crown possessed a special legal position. Statutes were not ordinarily presumed to bind the Crown unless Parliament expressly stated that intention or it arose by necessary implication. The phrase "This Act shall bind the Crown" was therefore a technical legal formula. Its purpose was to remove doubt and declare that the Crown itself was subject to the obligations imposed by the statute.
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The removal of those words, however, did not mean that the Crown stood outside or above the Constitution. The Constitution was not an ordinary statute regulating an external legal person; it was the instrument that created the Commonwealth's constitutional structure and defined the manner in which Crown authority would operate within that structure.
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The Crown was therefore bound by the Constitution through necessary implication. The Constitution did not merely grant powers to the Crown; it constituted those powers and prescribed the offices through which they were exercised.
Section 61 provides:
"The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative..."
This provision demonstrates the constitutional position of the Crown. The executive authority of the Commonwealth exists through the Constitution, and the Crown's Australian executive functions must be exercised according to the constitutional framework established by the Act.
Similarly, sections 58 to 60 regulate the Crown's role in legislation. The Governor-General's authority to assent to Bills, reserve Bills for the Queen's pleasure, and the Queen's power of disallowance are not independent prerogative powers operating outside the Constitution; they are constitutional powers whose existence and limits derive from the Act itself.
The same principle applies to section 74, which dealt with appeals to the Privy Council. The original Australian draft sought to restrict appeals from the High Court, but during the London negotiations the provision was altered to preserve a limited connection with the Judicial Committee of the Privy Council. The final section 74 preserved a constitutional role for the Crown's judicial prerogative, while placing that role within the framework of the Australian Constitution.
This provides an important context for understanding why the Crown Law Officers may have advised against the express statement that the Act "shall bind the Crown." The phrase could have suggested that the Crown was merely another legal person being subjected to a statute. Yet the constitutional reality was more complex: the Crown was not simply bound by the Constitution; the Crown was one of the institutions whose authority was created, organised and limited by it.
The removal of the words therefore preserved the traditional constitutional understanding that Crown authority is exercised through prerogative powers, but those powers operate within the limits of the constitutional settlement. The Crown retained its prerogative character, including the residual authority reflected in provisions such as section 74, but that authority was no longer external to the Constitution. It existed because of, and was regulated by, the Constitution.
The result was constitutional balance. The Crown was not expressly declared to be bound in the ordinary statutory sense, but neither was it free from constitutional restraint. Instead, the Crown became an integral component of the Australian constitutional order, a source of executive authority whose powers, responsibilities and limitations were defined by the Constitution itself.
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TO BIND THEIR KINGS IN CHAINS
NZ LAW COMMISSION
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