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§ 56. “Powers and Functions of the Queen.”

Section 2 of the Constitution is the same in substance as section 2 ch. I. of the Commonwealth Bill of 1891. When it was first proposed in 1891, strong exception was taken to it and other sections relating to the Governor-General on the ground that they would confer extraordinary and enormous powers on the Governor-General, far in excess of any authority previously conferred on any governor in these colonies. Subsequent discussion showed that this contention was untenable.

During the progress of Provincial Government in the Australian colonies, two propositions have been suggested as explaining the position and attributes of the Governor of a Constitutional colony. One proposition has been that the Governor, as the Representative of the Queen, is vested with authority defined and limited, partly by the statute law establishing the Queen's Government in the colony, partly by the letters patent constituting the office of Governor, partly by the commission appointing him to the office, and finally by the royal instructions communicated to him by the Seeretary of State on behalf of Her Majesty. (Anson's Law and Custom of the Constitution, vol. ii., p. 260.) The other view has been that the Governor of a colony, in which the system known as Responsible Government exists, is a local constitutional ruler, vested with authority defined or necessarily implied by the statute law establishing the Queen's Government in the colony, and vested thereby with all the prerogatives of the Crown reasonably necessary for the exercise of the proper functions of government; that the responsible ministers of such a colony possess, by virtue of that law, the power


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to advise the representative of the Crown to do any act which it would be competent for the legislature of the colony to sanction, and which ordinarily is, or under special circumstances may become, reasonably necessary to its existence as a body constituted by law, or for the proper exercise of the functions which it is intended to execute. (Per Higinbotham, C.J., in Ah Toy v. Musgrove [1888], 14 V.L.R. p 295-6.) A similar contention was raised in the year in which that case was decided in Victoria by the Government of Ontario, to the effect that the Lieutenant-Governor of the Province was entitled, virtute officii, to exercise all the prerogatives of the Crown incident to executive authority in matters over which the provincial legislature had jurisdiction, in the same manner as, and to the same extent that the Governor-General was entitled, virtute officii, to exercise all prerogatives incident to executive authority in matters within the jurisdiction of the Dominion Parliament. (Ontario Sess. Pap., 1888, No. 37, pp. 20-2.) The same doctrine was mooted in the Canadian courts on the hearing of the pardoning power case. (Attorney-General of Canada v. Attorney-General of Ontario, 22 Ont. Rep. 222; 19 Ont. App. Rep. 31. Cited, A. H. F. Lefroy, Law Quarterly Review, July, 1899, p. 283.)

In the construction of the powers and functions of the Governor-General of the Commonwealth no such difficulties and ambiguities as were discussed in Ah Toy v. Musgrove need arise. The principal and most important of his powers and functions, legislative as well as executive, are expressly conferred on him by the terms of the Constitution itself. Among these may be mentioned: the appointment of the times for holding the Sessions of Parliament; the prorogation of the Parliament; the dissolution of the House of Representatives (sec. 4); the dissolution of the Senate and of the House of Representatives simultaneously (sec. 57); the convening of a joint sitting of the members of the Senate and of the House of Representatives (sec. 57); the assent in the name of the Queen to Bills passed by the Federal Houses; the withholding of the Queen's assent to such Bills; the reservation of Bills for the Queen's pleasure; the recommendation of amendments to be made in Bills (sec. 58); the exercise of the Executive power of the Commonwealth (sec. 61); the appointment of political officers to administer departments of state of the Commonwealth (sec. 64); the command of the naval and military forces of the Commonwealth (sec. 68); and generally, “in respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a colony” (sec. 70). These are powers and functions vested in the Governor-General by statute, to be exercised by him in accordance with the recognized principles of Responsible Government. The point to emphasize is, that they are legislative and executive powers and functions conferred on the Governor-General, not by Royal authority, but by statutory authority. (See Note § 60.)

The section now under consideration authorizes the Governor-General to exercise such powers and functions as Her Majesty may be pleased to assign to him. These powers and functions, however, must not be confused with the statutory authority and statutory duties to which reference has been made, relating to the Government of the Commonwealth, expressly specified in and expressly conferred on the Governor-General by the Constitution. The powers and functions contemplated by this section relate either to matters subordinate and ancillary to the statutory authority and statutory duties enumerated in the Constitution, or to matters connected with the Royal prerogative (that body of powers, rights, and privileges, belonging to the Crown at common law, such as the prerogative of mercy), or to authority vested in the Crown by Imperial statute law, other than the law creating the Constitution of the Commonwealth. Some of these powers and functions are of a formal character; some of them are purely ceremonial; others import the exercise of sovereign authority in matters of Imperial interests. The nature of some of the prerogative as well as formal and ceremonial power sreferred to, may be gathered from the extracts from letters patent and commissions relating to the office of Governor, which will be found further on. Among examples of powers relating to


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matters of Imperial interests the following may be suggested: the observance of the relations during peace, or in time of war, of foreign States to Great Britain, so far as they may be affected by the indirect relations of such foreign States to the Commonwealth; the treaty rights and obligations of the Crown; the treatment of belligerent and neutral ships in the waters of the Commonwealth in times of war; the control of Her Majesty's Imperial naval and military forces within the limits of the Commonwealth. (Higinbotham, C.J., in Ah Toy v. Musgrove [1888], 14 V.L.R., 380.)

RESPONSIBILITY OF GOVERNORS.—Reference may here be made to two leading cases in which the powers, privileges, and immunities of colonial Governors were considered. In Mostyn v. Fabrigas, [1775], 1 Cowp. 161-172, 2 W. Bl. 929, Lord Mansfield held that a Governor of a colony is in the nature of a Viceroy. This dictum, however, has not been generally acquiesced in, and it is now understood that Mostyn v. Fabrigas simply decided that Governor Mostyn was liable to be sued in England for personal wrongs done by him, whilst he was Governor of Minorca. In the case of Musgrave v. Pulido [1879], 5 App. Cas. 102, Pulido, the charterer of a schooner, sued Sir Anthony Musgrave, the Governor of Jamaica, to recover damages from him for an alleged act of trespass committed by him in seizing and detaining the schooner at Kingston. The defendant pleaded to the jurisdiction of the Court, in effect alleging that he was Captain-General and Governor-in-Chief of the island of Jamaica, and that the acts complained of were done by him as Governor of the island, and in the exercise of his reasonable discretion as such. The plea did not aver, even generally, that the seizure of the plaintiff's ship was an act which the defendant was empowered to do as Governor, nor even that it was an act of state. It was held that a Governor of a colony (in ordinary cases) cannot be regarded as Viceroy; nor can it be assumed that he possesses general sovereign power. His authority is derived from his commission, and is limited to the powers thereby expressly or impliedly entrusted to him. It is within the province of municipal courts to determine whether any exercise of power by a Governor is within the limits of his authority, and, therefore, an act of state. On these grounds it was decided that the plea was not a sufficient answer to the action.

MODE OF APPOINTMENT.—The constitutional position of the Governor-General, as a component of the Executive Government of the Commonwealth, will be considered in detail in our notes to Chapter II. (§ 271). Under this section allusion can appropriately be made (1) to the practice which originally prevailed in connection with the creation of the office of Colonial Governor; the method of appointment to such office, and the assignment of official powers and functions of a stereotyped character to the holder of the office for the time being; and (2) to the changes which, in recent years, have been made in the direction of emancipating the Governor from the restraint and embarrassment of antiquated instructions, and enabling him to act as a constitutional ruler, in accordance with the recognized principles of Responsible Government.

Colonial Governors were formerly appointed by letters patent, under the Great Seal, which defined the scope of their powers, duties, and functions. Pending the preparation of the authorative instruments it was the practice, before 1875, to issue a minor commission under the Royal Sign Manual and Signet, to a new Governor, authorizing him to act under the commission and instructions given to his predecessor in the same office. The validity of this practice having been doubted, the Imperial Government decided in 1875 to abandon it, and thereafter, as soon as practicable, to make permanent provision by letters patent under the Great Seal in every colony of the empire for the constitution of the office of Governor therein, and it was further decided to fill the office as it became vacant, by appointment to be made, by special commission, under the Royal Sign Manual and Signet, which commission should recite the letters patent, and direct the appointee to fulfil the duties of the office according to the permanent instructions issued in connection therewith. (Todd, Parl. Gov. in Col., 2nd ed., p. 109.) There are therefore, now, three important documents associated with the office of Governor:—




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  • (1.) The Letters-Patent.
  • (2.) The Commission.
  • (3.) The Instructions.

The Letters Patent.—By the letters-patent constituting the office of Governor in each colony, the powers and duties of the Governor were formerly defined as follows:—

  • (i.) To do and to execute all things that belong to the said command and the trust reposed in him according to the Letters-patent, Commission and Instructions.
  • (ii.) To keep and use the Public Seal of the Colony.
  • (iii.) To appoint an Executive Council.
  • (iv.) To make and execute grants of land according to law.
  • (v.) To appoint Judges, Commissioners, Justices, Ministers, and other officers.
  • (vi.) To grant a pardon to any offender who has committed a crime and to remit fines and forfeitures.
  • (vii.) To remove or suspend from office any person upon sufficient cause appearing.
  • (viii.) To summon, prorogue, or dissolve any legislative body established within the colony.
  • (ix.) To grant licenses for marriages, letters of administration, probate of wills, and to deal with the custody and management of idiots, lunatics, and their estates.
  • (x.) To appoint a deputy to act in his occasional absence from the colony.
  • (xi.) Before entering on the duties of his office to cause his commission to be read and published, and to take the Oath of Allegiance and the usual oath for the due execution of the office of governor and for the due and impartial administration of justice.

The Commission.—This document contains the appointment to the office constituted by the letters-patent, and the usual form of it is as follows:—

Draft of a Commission passed under the Royal Sign Manual and Signet, ..... to be Governor and Commander-in-Chief of the Colony of ..... and its Dependencies.

Dated ..... VICTORIA R.

VICTORIA, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, Empress of India: To Our trusty and well-beloved.........

Greeting:

We do by this Our Commission under Our Sign Manual and Signet appoint you, the said ....., until Our further pleasure shall be signified, to be Our Governor and Commander-in-Chief in and over Our Colony of .....and its Dependencies during Our Will and pleasure, with all and singular the powers and authorities granted to the Governor of Our said Colony in Our Letters-patent under the Great Seal of Our United Kingdom of Great Britain and Ireland constituting the Office of Governor, bearing date at Westminster, the.....day of.....in the.....year of Our Reign, which said powers and authorities We do hereby authorize you to exercise and perform, according to such Orders and Instructions as Our said Governor for the time being hath already or may hereafter receive from Us. And for so doing this shall be your Warrant.




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And We do hereby command all and singular Our Officers, Ministers, and loving subjects in Our said Colony and its Dependencies, and all others whom it may concern, to take notice hereof, and to give their ready obedience accordingly. Given at Our Court at Windsor, this.....day of.....in the.....year of Our Reign.

By Her Majesty's Command.

The Instructions.—The powers and functions of the governor partially enumerated in the letters-patent were formerly more fully detailed in the Instructions, and may be summarized as follows:—

  • (i.) To administer the oath of allegiance to persons holding office or place of trust.
  • (ii.) To communicate these instructions to the Executive Council of the Colony.
  • (iii.) To summon the Executive Council for the despatch of business.
  • (iv.) To preside at the meetings of the Executive Council.
  • (v.) To see that a full and exact record is kept of the votes and proceedings of the Executive Council.
  • (vi.) To consult the Executive Council in all cases, excepting in cases where the Queen's service would sustain material prejudice by consulting the Council, or when the matters to be decided should be too unimportant to require their advice or too urgent to admit of their advice being given within the time available; provided that in such urgent cases he should inform the Executive Council, as soon as possible, of the measures adopted.
  • (vii.) To act in opposition to the advice which may in any case be given by the Executive Council, provided that in such case he should fully report to the Secretary of State for the Colonies any such proceeding, with the grounds and reasons thereof.
  • (viii.) To transmit to the Secretary of State for the Colonies twice in each year a copy of the minutes of the Council for the preceding half-year.
  • (ix.) To assent to or dissent from or reserve for the Queen's pleasure such bills as may be passed by the colonial parliament subject to certain rules—
    • (a) That each different matter be provided for by a different law without intermixing different matters in the same Act having no relation to one another.
    • (b) That no clauses be inserted in an Act foreign to the title of such Act.
    • (c) That no perpetual clause be made part of any temporary law.
  • (x.) To reserve for the Queen's pleasure bills dealing with the following:—
    • (a) Divorce.
    • (b) Grants to the Governor.
    • (c) Bills affecting the currency.
    • (d) Bills imposing differential duties other than as allowed by the Australian Colonies Duties Act, 1873.
    • (e) Bills apparently inconsistent with treaty obligations.
    • (f) Bills interfering with the discipline of the land and sea forces of the Colony.
    • (g) Bills of an extraordinary nature and importance prejudicially affecting—(1) The Royal prerogative, or (2) the rights and property of British subjects not residing in the Colony, or (3) the trade and shipping of the United Kingdom and its Dependencies.
    • (h) Bills containing provisions to which the Royal assent has been once refused.
  • (xi.) To transmit abstracts of all laws assented to by the Governor or reserved for the Queen's pleasure, with explanatory observations.
  • (xii.) To transmit fair copies of the journals and minutes of the proceedings of both Houses of Parliament “which you are to require from the clerks or other proper officer in that behalf.”



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  • (xiii.) After reciting the Commission authorizing and empowering a Governor to grant a pardon to any offender the instructions formerly proceeded as follows:—
“Now, we do hereby direct and enjoin you to call upon the judge presiding at the trial of any offender who may from time to time be condemned to suffer death by the sentence of any court within our said colony, to make to you a written report of the case of such offender, and such report of the said judge shall by you be taken into consideration at the first meeting thereafter which may be conveniently held of our said Executive Council, where the said judge shall be specially summoned to attend, and you shall not pardon or reprieve any such offender as aforesaid unless it shall appear to you expedient so to do upon receiving the advice of our Executive Council therein, but in all such cases you are to decide either to extend or to withhold a pardon or reprieve, according to your own deliberate judgment, whether the members of our said Executive Council concur therein or otherwise; entering, nevertheless, on the minutes of the said Council a minute of your reasons at length, in case you should decide any such question in opposition to the judgment of the majority of the members thereof.”
  • (xiv.) To promote religion and education among the native inhabitants of the colony, and to protect them from violence and injustice.
  • (xv.) Not on any pretence whatever to quit the colony without having first obtained official leave from the Queen.

The new practice above referred to (p. 391) was framed to meet the views of Canada, but was first brought into operation in February, 1877, on the occasion of the appointment of Sir H. Bartle Frere to the office of Governor and Commander-in-Chief of the Cape of Good Hope, and it was followed in April, 1877, on the appointment of Sir W. F. D. Jervois as Governor and Commander-in-Chief of South Australia. The instructions accompanying the letters-patent in each of these cases were, in the main, an embodiment of the instructions previously issued for the guidance of Governors, no alteration in substance then being made. Indeed, they were practically the same in effect as those issued to the Governor of New South Wales in the year 1829, when that colony ceased to be a military settlement, and acquired a rudimentary form of civil government. A comparison of the instructions issued to Australian Governors up to the year 1887, with the commission and instructions issued to Sir Charles A. Fitzroy as Governor-in-Chief of New South Wales in the year 1850, would show that no substantial alteration had been made during that interval of 37 years. (Chief Justice Higinbotham's letter to Sir Henry Holland, 28 Feb., 1887; Professor Morris, Memoir of George Higinbotham, p. 211.)

For some time previous to the initiation of the new practice, the Government of the Dominion of Canada had been in communication with the Secretary of State for the Colonies on the subject of an alteration in the terms of the royal instructions.

“It was contended by Mr. Blake on behalf of the Dominion that the peculiar position of Canada, in relation to the mother country, entitled her to special consideration, and that the existing forms, while they might be eminently suited to other colonies, were inapplicable and objectionable in her case. For Canada is not merely a colony or province of the empire, she is also a Dominion, composed of seven provinces federally united under an imperial charter or Act of Parliament, which expressly recites that her constitution is to be similar in principle to that of the United Kingdom.” (Todd, Parl. Gov. in the Col., 2nd ed., p. 110.)

“As a foundation principle, necessary to be asserted and maintained in any instrument which might be issued for the purpose of defining the powers of a Governor-General in Canada, Mr. Blake contended that it ought to be clearly understood that, ‘as a rule, the governor does and must act through the agency (and upon the advice) of ministers; and ministers must be responsible for such action;’ save ‘only in the rare instances in which owing to the existence of substantial Imperial as distinguished from Canadian interests, it is considered that full freedom of action is not vested in the Canadian people.”’ (Id., p. 111.)

“Mr. Blake's contention, ‘that there is no dependency of the British Crown which is entitled to so full an application of the principles of constitutional freedom as the Dominion of Canada,’ was admitted to be correct by her Majesty's Government; and


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the official instruments made use of, in the appointment, on the 7th October, 1878, of the Marquis of Lorne to be Governor-General of Canada, clearly indicate, in their substantial omissions, as well as in their positive directions, the larger measure of self-government thenceforth conceded to the new Dominion. This increase of power, to be exercised by the government and Parliament of Canada, was not merely relatively greater than that now enjoyed by other colonies of the empire, but absolutely more than had been previously intrusted to Canada itself, during the administration of any former Governor-General.” (Id., p. 116.)

The Canadian Letters-Patent.—By letters-patent, 5th October, 1878, the office of Governor-General of Canada was formally constituted, and the Governor-General was thereby authorized and commanded by the Queen:—

  • (i.) To do and to execute all things that belong to the said command and the trust reposed in him according to the Letters-patent, Commission and Instructions.
  • (ii.) To keep and use the Public Seal of the Colony.
  • (iii.) To appoint an Executive Council.
  • (iv.) To remove or suspend from office any person holding any office under the Crown in Canada, so far as the same may lawfully be done.
  • (v.) To exercise all powers lawfully belonging to the Crown in respect of the summoning, proroguing, or dissolving the parliament of Canada.
  • (vi.) To appoint any person or persons, jointly or severally, to be his deputy or deputies within any part of Canada, to exercise such of the powers or functions of the Governor-General as he may please to assign to him or them.

The Canadian Commission.—On 7th October, 1878, the Marquis of Lorne was appointed by Royal Commission to be the Governor-General of Canada. This Commission recited the letters-patent aforesaid and conferred the office upon Lord Lorne with all the powers and authorities belonging to it, according to such orders and instructions as have already been, or may hereafter be, communicated to him from the sovereign; and commanded “all and singular our officers, ministers, and loving subjects in our said Dominion, and all others whom it may concern, to take due notice hereof, and give their ready obedience accordingly.” (Todd, 2nd ed., p. 122.)

The Canadian Instructions.—The Royal Instructions accompanying the letters-patent constituting the office of Governor-General of Canada recited the letters-patent aforesaid and enjoined the Governor-General for the time being:—

  • (i.) To cause his commission to be read and published in the presence of the Chief Justice or other judge of the Supreme Court, and of the members of the Dominion Privy Council, and to be duly sworn upon entering upon the duties of his office.
  • (ii.) To administer, or cause to be administered, the necessary oaths to all persons who shall hold any office or place of trust in the Dominion.
  • (iii.) To communicate these and any other instructions he may receive to the Dominion Privy Council.
  • (iv.) To transmit to the Imperial Government copies of all laws assented to by him in the Queen's name, or reserved for signification of the Royal pleasure; with suitable explanatory observations and copies of the journals and proceedings of the Parliament of the Dominion.
  • (v.) When any crime has been committed for which any offender might be tried within the Dominion, “to grant a pardon to any accomplice, not being the actual perpetrator of such crime, who shall give such information as shall lead to the conviction of the principal offender; and, further, to grant any offender convicted of any crime, in any court, or before any judge, justice, or magistrate, within our said Dominion, a pardon, either


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    free or subject to lawful conditions, or any respite of the execution of the sentence of any such offender, for such period as to our said Governor-General may seem fit, and to remit any fines, penalties, or forfeitures which may become due, or 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 absent himself from, our said Dominion. And we do hereby direct and enjoin that our said Governor-General shall not pardon or reprieve any such offender without first receiving, in capital cases, the advice of the Privy Council for our said Dominion, and in other cases, the advice of one, at least, of his ministers, and in any case in which such pardon or reprieve might directly effect the interests of the empire, or of any country or place beyond the jurisdiction of the government of our said Dominion, our said Governor-General shall, before deciding as to either pardon or reprieve, take those interests specially into his own personal consideration, in conjunction with such advice as aforesaid.”
  • (vi.) Not to quit the Dominion without leave first obtained.

It will be seen that the Canadian Instructions differed in several material respects from those which were, at that time, applicable to other self-governing colonies, in which the old instructions remained unaltered for several years longer. One of the most prominent critics, and certainly the most uncompromising assailant, of the old instructions, was the Hon. Geo. Higinbotham, once Attorney-General of Victoria, and subsequently Chief Justice of that colony. In a letter, dated 28th February, 1887, addressed by him to the Right Hon. Sir Henry T. Holland, then Secretary of State for the Colonies, Chief Justice Higinbotham expressed and summarized the views which he had long held concerning the unconstitutionality of some of these instructions.

“The radical vice of the Governor's letters patent, commission and instructions, both public and private, appears to me to be this—that they studiously and persistently refuse to take note of the fundamental change made in the public laws of the Australian colonies by the Constitution Acts of 1854-5. In particular, they pretend to confer powers and authorities which have been already conferred with others by the Constitution Statutes; they decline to recognize the dual character of the Governor, and applying a misleading title to the advisers of the Governor in one of his two characters, they affect to ignore altogether the existence of responsible government. I will refer to particular clauses which present the most striking illustrations of a violation in these respects of constitutional law.

“Clause II. of the letters patent.—‘We do hereby authorize, empower, and command our said Governor and Commander-in-Chief (hereinafter called the Governor) to do and excute all things that belong to his said 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 signet, and according to such instructions as may from time to time be given to him under our sign manual and signet, or by our order in our Privy Council, or by us through one of our principal Secretaries of State, and to such laws as are now or shall hereafter be in force in the colony.’

“This purports to grant, subject to limitations, certain authorities and powers already vested in the Governor by the Constitution Statute. The grant is, in my opinion, void, and the limitations and the commands founded thereon are also void and illegal.

“Clause VI. of instructions.—‘In the exercise of the powers and authorities granted to the Governor by our said letters patent, he shall in all cases consult with the Executive Council, excepting only in cases which are of such a nature that, in his judgment, our service would sustain material prejudice by consulting the said Council thereupon, or when the matters to be decided are too unimportant to require their advice, or too urgent to admit of their advice being given by the time within which it may necessary for him to act in respect to any such matters—in all such urgent cases, he


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shall, at the earliest practical period, communicate to the said Council the measures which he may so have adopted, with the reasons thereof.’

“This is an instruction which a Governor does not, and cannot obey. The Executive Council, in the proper sense of this expression, has never been convened in Victoria. Like the Privy Council, it could not be convened, except by the direction of the Victorian Premier. If by the words ‘Executive Council,’ the ‘Cabinet’ is intended to be referred to, this instruction is unmeaning and void. It is, doubtless, the duty of the representative of the Sovereign to consult his advisers, and it is their duty to advise him in all matters connected with local affairs, but the duty in neither case springs from this royal instruction. If it be intended to direct the Governor to consult his advisers in matters connected with his duty as an officer of the Imperial Government, this is an indirect instruction, offensive in form and without either legal authority or means of enforcement, to Her Majesty's Ministers to do something which they are not required by their duty as Ministers of the Crown to do.

“Clause VII. of instructions.—‘A Governor may act in the exercise of the powers and authorities granted to him by our said letters patent in opposition to the advice given to him by the members of the Executive Council, if he shall in any case deem it right to do so, but in any such case he shall fully report the matter to us by the first convenient opportunity, with the grounds and reasons of his action.’

“I think that this instruction can only be characterized as a distinct denial of the fundamental principle of the existing public law of Victoria. As a direct instigation to Her Majesty's representative to violate that law, it offers a grave indignity and conveys an unmistakable menace to him and to his advisers, who are here and elsewhere misnamed the Executive Council.

“Clause XI. of instructions.—‘Whenever any offender shall have been condemned to suffer death by the sentence of any court, the Governor shall call upon the judge who presided at the trial to make to him a written report of the case of such offender, and shall cause such report to be taken into consideration at the first meeting thereafter which may be conveniently held of the Executive Council, and he may cause the said judge to be specially summoned to attend at such meeting and to produce his notes thereat. The Governor shall not pardon or reprieve any such offender unless it shall appear to him expedient so to do upon receiving the advice of the said Executive Council thereon; but in all such cases he is to decide either to extend or to withhold a pardon or a reprieve according to his own deliberate judgment, whether the members of the Executive Council concur therein or otherwise; entering nevertheless on the minutes of the said Executive Council a minute of his reasons at length in case he should decide such action in opposition to the judgment of the majority of members thereof.’

“This instruction presents a glaring instance of not less flagrant illegality. The prerogative of mercy is a prerogative essentially necessary to the administration of criminal law. The exercise of it in Victoria is therefore a matter in which the representative of the Crown can and ought to act solely upon the advice of his responsible advisers, and neither the Crown nor the Crown's Imperial advisers are legally competent to dictate or advise upon his action. By this instruction the Governor is personally ordered to call upon the judge to make to him a written report—an order which, if it were conveyed otherwise than through and by the advice of the Minister, it would be, I conceive, the duty of the judge to refuse to comply with. The Governor is further required to decide ‘either to extend or to withhold a pardon or a reprieve, according to his own deliberate judgment, whether the members of the Executive Council concur therein or otherwise.’ This unjust and cruel as well as illegal order is not obeyed, and could not be obeyed by any Governor in the only cases to which it could apply. It has been attempted to excuse this instruction on the ground that it is virtually obsolete, yet on two separate occasions long subsequent to the passing of the Australian Constitution Acts, the Colonial Office has expressed its approval of this instruction, and has repeated the injunction to the Governor to obey it.

“Clauses VIII. and X. of instructions.—VIII. ‘In the execution of such powers as are vested in the Governor by law for assenting to or dissenting from or of reserving for the signification of our pleasure, bills which have been passed by the Legislature of the


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colony, he shall take care as far as may be practicable that in the passing of all laws each different matter be provided for by a different law without intermixing in one and the same law such things as have no proper relation to each other; and that no clause be inserted in or annexed to any law which shall be foreign to what the title of such law imports, and that no perpetual clause be part of any temporary law.’ X. ‘The Governor is to take care that all laws assented to in our name or reserved for the signification of our pleasure thereon, shall, when transmitted by him, be fairly abstracted in the margins, and be accompanied, in such cases as may seem to him necessary, with such explanatory observations as may be required to exhibit the reasons and occasions for proposing such laws; and shall also transmit fair copies of the journals and minutes of the proceedings of the legislative bodies of the colony, which he is to require from the clerks or other proper officers in that behalf of the said legislative bodies.’

“These clauses are not illegal because they relate to the reservation of bills for the signification of Her Majesty's pleasure. I refer to them only as showing the almost contemptuous disrespect and want of consideration displayed by the Colonial Office towards Australian Parliaments and Imperial officers in Australia. To order a Governor to take care that in the passing of all laws each different matter shall be provided for by a different law may at one time have been proper and not unnecessary. Addressed, as the order indirectly is, to Legislatures consisting of two Houses of Parliament like the Legislative Council and the Legislative Assembly of the various Australian colonies, it is an insult to all of those bodies. And it has proved on one occasion, at least, a cause of actual embarrassment to Her Majesty's Government in Victoria. When the Governor is ordered to require from the clerks in Parliament fair copies of the journals and minutes of the proceedings of the Legislative bodies, he is humiliated by being needlessly instructed to make a requirement which, if disputed, he could not enforce, and for the fulfilment of which he is in any and in every case indebted to the aid—which is, of course, never withheld—of a Minister of the Crown.”

One of the immediate results of this important letter was that Sir Henry Holland, afterwards Lord Knutsford, consulted the Imperial law officers with reference to the points so forcibly raised by the Chief Justice, and in July, 1888, he re-drafted the instructions with a view of meeting many of the points brought under his notice and of bringing the instructions more into conformity with the existing state of things. Lord Knutsford went out of office in 1892, and one of his last official acts was the promulgation of the re-drafted royal instructions for the guidance of colonial governors. Referring to this important event, Professor Morris writes:—

“The improvement was enormous. For the first time Responsible Government is recognized. For the first time the Governor is instructed to accept the advice of his ministers, whereas all earlier editions seem to imply that he is to be careful about accepting such advice and ready to oppose them.” (Professor Morris, Memoir of George Higinbotham, p. 202.)

“The measure of the victory with respect to Downing Street is to be found in the altered instructions. The Home law officers told Lord Knutsford that it was not illegal for governors to correspond with the Colonial Office; but the tone of that office is not now the tone of Mr. Cardwell, nor of the Duke of Buckingham, but rather this ‘involves no question calling for the intervention of the Imperial Government; it is not one on which it seems to me incumbent to express an opinion.’ Contrast the instructions to Sir Charles Darling, signed ‘V. Rg.,’ of June 23rd, 1863, with those published in the Victoria Government Gazette of September 2nd, 1892, signed, July 9th of that year, ‘V. R. I.’ The difference is enormous. The Victorian newspapers of that September commented on the change, and praised the wisdom of the Colonial Office in making it; but no one remembered the Victorian politician whose persistent efforts were at last successful. That number of the Gazette was published only four months before his death.” (Id. p. 229.)

The New Instructions.—The re-drafted instructions, approved by Her Majesty on the advice of Lord Knutsford, contained a complete recognition of the principle of responsible government, in form as well as in practice, in all self-governing colonies. All the old and obsolete provisions which were really only applicable to Crown colonies, and particularly those complained of by Chief Justice Higinbotham, were now eliminated. As portions of these new instructions will be the basis of the “powers and functions of


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the Queen” which may be assigned by Her Majesty to the Governor-General under sec. 2 of this constitution, they may be here appropriately inserted:—

  • “(i.) In these Our Instructions, unless inconsistent with the context, the term ‘the Governor’ shall include every person for the time being administering the Government of the Colony, and the term ‘the Executive Council’ shall mean the members of Our Executive Council for the Colony who are for the time being the responsible advisers of the Governor.
  • (ii.) The Governor may, whenever he thinks fit, require any person in the public service to take the Oath of Allegiance, together with such other Oath or Oaths as may from time to time be prescribed by any Law in force in the Colony. The Governor is to administer such Oaths or cause them to be administered by some Public Officer of the Colony.
  • (iii.) The Governor shall forthwith communicate these Our Instructions to the Executive Council, and likewise all such others, from time to time, as he shall find convenient for Our Service to impart to them.
  • (iv.) The Governor shall attend and preside at the meetings of the Executive Council, unless prevented by some necessary or reasonable cause, and in his absence such member as may be appointed by him in that behalf, or in the absence of such member the senior member of the Executive Council actually present shall preside; the seniority of the members of the said Council being regulated according to the order of their respective appointments as members thereof.
  • (v.) The Executive Council shall not proceed to the despatch of business unless duly summoned by authority of the Governor, nor unless two members at the least (exclusive of the Governor or of the member presiding) be present and assisting throughout the whole of the meetings at which any such business shall be despatched.
  • (vi.) In the execution of the powers and authorities vested in him, the Governor shall be guided by the advice of the Executive Council, but if in any case he shall see sufficient cause to dissent from the opinion of the said Council he may act in the exercise of his said powers and authorities in opposition to the opinion of the Council, reporting the matter to Us without delay, with the reasons for his so acting. In any such case it shall be competent to any member of the said Council to require that there be recorded upon the Minutes of the Council the grounds of any advice or opinion that he may give upon the question.
  • (vii.) The Governor shall not, except in the cases hereunder mentioned, assent in Our name to any Bill of any of the following classes:—
    • (1.) Any Bill for the divorce of persons joined together in holy matrimony.
    • (2.) Any Bill whereby any grant of land or money, or other donation or gratuity, may be made to himself.
    • (3.) Any Bill affecting the currency of the Colony.
    • (4.) Any Bill imposing differential duties (other than as allowed by the Australian Colonies' Duties Act, 1873).
    • (5.) Any Bill the provisions of which shall appear inconsistent with obligations imposed upon Us by Treaty.
    • (6.) Any Bill interfering with the discipline or control of Our forces in the Colony by land or sea.
    • (7.) Any Bill of an extraordinary nature and importance, whereby Our prerogative or the rights and property of Our subjects not residing in the Colony, or the trade and shipping of the United Kingdom and its Dependencies, may be prejudiced.
    • (8.) Any Bill containing provisions to which Our assent has been once refused, or which has been disallowed by Us. Unless he shall have previously obtained Our Instructions upon such Bill, through one of Our Principal Secretaries of State, or unless such Bill shall contain a clause suspending the operation of such Bill until the signification in the Colony of Our pleasure thereupon, or unless the Governor shall have satisfied himself that an urgent necessity exists requiring that such Bill be brought into immediate operation, in which case he is authorized to assent in Our name to such Bill, unless the same shall be repugnant to the law of England, or inconsistent with any obligations imposed upon Us by Treaty. But he is to transmit to Us by the earliest opportunity the Bill so assented to, together with his reasons for assenting thereto.



  •   ― 400 ―
  • (viii.) The Governor shall not pardon or reprieve any offender without first receiving in capital cases the advice of the Executive Council, and in other cases the advice of one, at least, of his Ministers; and in any case in which such pardon or reprieve might directly affect the interests of our empire, or of any country or place beyond the jurisdiction of the Government of the colony, the Governor shall, before deciding as to either pardon or reprieve, take those interests specially into his own personal consideration in conjunction with such advice as aforesaid.
  • (ix.) All commissions granted by the Governor to any persons to be Judges, Justices of the Peace, or other officers shall, unless otherwise provided by the law, be granted during pleasure only.
  • (x.) The Governor shall not quit the colony without having first obtained leave from us for so doing under our Sign Manual and Signet, or through one of our principal Secretaries of State, except for the purpose of visiting the Governor of any neighbouring colony for periods not exceeding one month at any one time, nor exceeding in the aggregate one month for every year's service in the colony.
  • (xi.) The temporary absence of the Governor for any period not exceeding one month shall not, if he have previously informed the Executive Council, in writing, of his intended absence, and if he have duly appointed a Deputy in accordance with our said letters-patent, be deemed a departure from the colony within the meaning of the said letters-patent.

V.R.I.”

Special Instructions.—Every colonial governor, after his appointment to office, is subject to the control of the Crown, as an Imperial officer. In addition to the permanent and general instructions which he receives in connection with his commission, he may, from time to time, be charged with any further instructions, special or general, which the Crown may lawfully communicate to him under particular circumstances. The medium of communication between the sovereign and her representative in any British colony is the Secretary of State. (Todd, 2nd ed., p. 122.)

In the absence of special appointment, the governor of a British possession is also ex-officio Vice-Admiral thereof. (26 and 27 Vic. c. 24, sec. 3, and 30 and 31 Vic. c. 45, s. 4; repealed and re-enacted by the Colonial Courts of Admiralty Act, 1890, 53 and 54 Vic. c. 27, s. 10.)

Salary of Governor-General.

3. There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor-General57, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds.

The salary of a Governor-General shall not be altered during his continuance in office.

UNITED STATES.—The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.—Const. (Art. II. sec. 1, 7). SWITZERLAND.—The President of the Confederation and the other members of the Federal Council receive an annual salary from the Federal Treasury.—Const. (Art. 99). CANADA.—Unless altered by the Parliament of Canada, the salary of the Governor-General shall be ten thousand pounds sterling money of the United Kingdom of Great Britain and Ireland, payable out of the Consolidated Revenue Fund of Canada, and the same shall form the third charge thereon.—B.N.A. Act, 1867, sec. 105.

HISTORICAL NOTE.—Clause 3, Chap. I., of the Commonwealth Bill of 1891 was as follows:—

“The annual salary of the Governor-General shall be fixed by the Parliament from time to time, but shall not be less than ten thousand pounds, and shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth. The salary of a Governor-General shall not be diminished during his continuance in office.”




  ― 401 ―

In Committee, Sir Harry Atkinson moved the omission of the words “but shall not be less than £10,000;” but after discussion he withdrew the amendment. Sir John Bray moved to omit “but shall not be less than,” and insert “and until so fixed shall be.” This was negatived by 24 votes to 12. An amendment by Sir George Grey, to substitute “altered” for “diminished,” was also negatived. (Conv. Deb., Syd. [1891], pp. 578-85.)

At the Adelaide session, 1897, the clause was introduced as follows:—“The annual salary of the Governor-General shall be ten thousand pounds, and shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth.” In Committee, on the motion of Mr. Higgins, the words “Until the Parliament otherwise provides” were prefixed. An amendment by Mr. Howe, to substitute “seven” for “ten,” was negatived. On Mr. Barton's motion, the second paragraph was added. (Conv. Deb., Melb., pp. 629-33.)

At the Sydney session, suggestions by the Legislative Assembly and Legislative Council of South Australia, to reduce the salary to £7,000 and £8,000 respectively, were negatived, as was also an amendment by Mr. Glynn to omit the second paragraph. (Conv. Deb., Syd. [1897], p. 254.) Drafting amendments to the first paragraph brought it into its present shape.

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