royal charter AUSTRALIAN RED CROSS SOCIETY: ROYAL CHARTER: procedure: whether petition should be presented to governor-general and determined by governor-general on the advice and responsibility of Commonwealth Ministers or referred to England for signification of His Majesty’s approval: powers of governor-general
Constitution s 2
I am in recept of your Minute of 24th October, 1939, forwarding for consideration papers in connexion with the above matter.
I gather that it is desired that this matter be dealt with as one of urgency.
The following questions arise:
- Whether the correct constitutional course is for the petition to be presented to His Majesty through the proper channels of communication between His Majesty and His Majesty’s Government in the Commonwealth, the prayer being granted or refused on the advice and responsibility of His Majesty’s Commonwealth Ministers only; or whether the petition should be presented in the usual manner through the Privy Council; and
- Whether the petition should be presented to His Excellency the Governor-General as His Majesty’s Representative in the Commonwealth, the grant or refusal being determined upon by His Excellency as such Representative, on the advice and responsibility of His Majesty’s Commonwealth Ministers.
At first glance it would appear to be in accordance with the constitutional status of the Commonwealth of Australia for the petition to be dealt with on the advice and responsibility of Commonwealth Ministers only.
In my view, however, the adoption of this course is undesirable in the present instance, for the following reasons:
- The machinery for giving effect to the new constitutional status of the Dominions has hardly kept pace with the development of the constitutional status itself;
- Notwithstanding the declaration of the 1926 conference as to the status of the Dominions, it has continued to be the practice for petitions from Australian bodies for the grant of royal charters to be transmitted to His Majesty through the Secretary of State for Dominion Affairs;
- The grant of a charter will undoubtedly require the affixing of one of the Royal Seals, and this may only be done by one of the Principal Secretaries of State, as the Secretaries of State alone have possession of the Royal Seals;
- The petition of the Royal Australian College of Surgeons for the grant of a Royal Charter was in the first instance transmitted by the Prime Minister to His Excellency the Governor-General for submission to His Majesty the King in Council. It was subsequently returned by His Excellency the Governor-General to the Prime Minister under cover of a letter in which His Excellency drew attention to the fact that in 1937, in the case of the petition of the Institution of Engineers in Australia for the grant of a Royal Charter, it had been decided that the proper channel of communication was from the Prime Minister to the Secretary of State for Dominion Affairs. This channel of communication was subsequently resorted to by the Prime Minister in the case of the petition of the Royal College of Surgeons;
- In view of the foregoing I am of opinion that, if it is desired that the petition of the Australian Red Cross Society should be dealt with as a matter of urgency, it is more probable that it will be dealt with expeditiously if it is dealt with in the same manner as the more recent petitions, than if a procedure apparently more in consonance with the constitutional status of the Commonwealth is resorted to.
The papers forwarded raise an alternative question as to whether the petition should be made to the Governor-General as His Majesty’s Representative in the Commonwealth, and be dealt with on the advice and responsibility of His Majesty’s Commonwealth Ministers.
In support of this view the case of Bonanza Greek Gold Mining Company Ltd. v. The King (1916 1 A.C. 566) has been cited. That case, however, was a case arising under Letters Patent issued by the Lieutenant-Governor of one of the Canadian Provinces. The decision itself caused some surprise at the time of its delivery. In addition, it does not necessarily follow that that case is applicable in Australia where the Constitution specifically provides (s. 2) that the Governor-General ‘shall have ... such powers and functions of the Queen as Her Majesty may be pleased to assign to him.’ Certain powers and functions have been assigned to the Governor-General, but, so far as I have been able to ascertain, these do not include the exercise of the prerogative in relation to the granting of charters. In any case, it seems probable that, if this course of action were decided upon, His Excellency would, in view of the existing practice, feel it incumbent on him to transmit the papers to England for the signification of His Majesty’s approval of the altered procedure: a course which in the end would probably take longer than would the exploration of the possibility of having the petition dealt with by His Majesty on the advice and responsibility of His Majesty’s Commonwealth Ministers.
Under these circumstances I recommend the transmission of the petition to His Majesty’s Secretary of State for Dominion Affairs with the recommendation of the Commonwealth Government.
I see no matter in the petition which calls for revision, except the provision in paragraph 9 of the Draft Charter relating to the Rules of the Society. It has always been the practise to require petitioners for a Royal Charter to insert in the Draft Charter provisions making the Rules of the body subject to the approval of the Governor-General-in-Council. In my view such a provision should be required in the present instance.
[Vol. 32, p. 381]