Confronting the Crown. (2019)
Type of ContentTheses / Dissertations
Degree NameDoctor of Philosophy
PublisherUniversity of Canterbury
AuthorsBagchi, Aishwaryashow all
The concept of the Crown suffers from several deficiencies. It is uncertain who or what the Crown is. The Crown refers to both the Sovereign and the executive government. It can denote the executive branch alone or all three branches of government. The legal approaches to determining whether a public entity is the Crown produce confusing and conflicting answers.
Vestiges of the Sovereign’s personal immunities create gaps in the framework for executive liability. The Crown enjoys a residual immunity from direct tortious liability and is exempt from mandatory orders. Statutes do not bind the Crown except by express words or necessary implication. These rules often complicate judicial analysis of executive liability.
The concept of the Crown enables the executive to claim two non-statutory sources of authority, namely the royal prerogative and residual freedom. These sources of authority are conceptually difficult to reconcile with the constitutional ideal of democratic authorisation. They also create uncertainty about the scope of executive power.
This thesis proposes replacing the Crown with an alternative State theory that is more rational, coherent and simple. It submits that New Zealand law should recognise “the State” as a legal entity that embodies all three branches of government and the public sphere. The Sovereign can remain Head of State but the State should have a distinct legal personality from the Sovereign. The proposed State theory strips the executive of any immunity that is not functionally necessary. It further proposes that statute should displace the prerogative and residual freedom and become the only source of executive authority.