The Prerogatives of the Crown and Treaty-Making

Abstract

A legal analysis of the treaty-making power as a prerogative of the Crown under the Australian constitutional system may appropriately begin with a discussion of the Crown as a single juristic entity in the British Commonwealth. The Austinian concept of sovereignty, one and indivisible, has asserted itself with surprising persistence in English Constitutional theory down to the present.¹ So long as the British Commonwealth acted as a unit, accepted a composite policy in foreign affairs, and recognized the legislative superiority of the Westminster Parliament, it was possible to preserve the fiction of the Crown as a single juristic unit. It was possible to demonstrate, in theory and in practice, the unity in the Commonwealth of a sovereign common to the several constituent members.²

The substance of this Chapter has appeared as “The Prerogatives of the Crown in the Commonwealth of Australia and External Affairs” in II A.J.C.L. 610 (1962).