§ 53. “Federal Parliament.”

THE QUEEN.—The Federal Parliament consists of the Queen, the Senate, and the House of Representatives This is a statutory recognition of the Queen as a constituent part of Parliament. In the British Constitution, and in most of the colonial constitutions, the King or Queen for the time being has up to the present been recognized in form and in theory, at least, as the principal legislator, if not the sole legislator, acting by and with the consent of the parliamentary bodies. For over three hundred years every Act of Parliament passed in England has begun with the well-known formula “Be it enacted by the King's (Queen's) most excellent Majesty by and with the advice and consent,” &c. In the Australian Constitutional Acts, 5 and 6 Vic. c. 76, and 13 and 14 Vic. c. 59, the legislative power was vested in the Governor by and with the advice and consent of the Legislative Council, &c. In the subsequent constitutions of the self-governing

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Australian colonies (1855) the power of legislation was conferred upon the Queen “by and with the advice and consent of the said Council and Assembly.” In the Constitution of the Commonwealth the old fiction that the occupant of the throne was the principal legislator, as expressed in the above formula, has been disregarded; and the ancient enacting words will hereafter be replaced by words more in harmony with the practice and reality of constitutional government. The Queen, instead of being represented as the principal or sole legislator, is now plainly stated to be one of the co-ordinate constituents of the Parliament. Consequently, federal legislation will begin with such mandatory words as “Be it enacted by the Queen, the Senate, and the House of Representatives,” or, “Be it enacted by the Parliament of the Commonwealth of Australia.”

It would not be correct to say that the Queen's share in the exercise of federal legislative authority will be altogether formal and nominal. As regards matters of purely Australian policy, no doubt the Governor-General, as representative of the Queen, will be guided by the advice of the federal administration, as to whether he should, in the Queen's name, assent to a proposed law passed by both Houses. But if he has reason to believe that any proposed law comes within a class of bills to which, in his discretion as the Queen's representative, he ought not to assent, he will reserve the proposed law for the Queen's pleasure. A Bill so reserved will not have any force unless and until it receives the Queen's assent within two years from the day on which it was presented to the Governor-General (sec. 60). If the Governor-General assents to a proposed law in the Queen's name, and the Imperial Government find that it is contrary to an Imperial Act applicable to the Commonwealth, or that it is in excess of the legislative power possessed by the Federal Parliament, or that it is inconsistent with Her Majesty's treaty obligations, Her Majesty may be advised to disallow such law, within one year from the Governor-General's assent. (Secs. 58 and 59.)

“The right of the Crown, as the supreme executive authority of the empire, to control all legislation which is enacted in the name of the Crown, in any part of the Queen's dominion, is self-evident and unquestionable. In the mother country, the personal and direct exercise of this prerogative has fallen into disuse. But eminent statesmen, irrespective of party, and who represent the ideas of our own day, have concurred in asserting that it is a fundamental error to suppose that the power of the Crown to reject laws has consequently ceased to exist.' The authority of the Crown, as a constituent part of the legislative body, still remains; although, since the establishment of parliamentary government, the prerogative has been constitutionally exercised in a different way. But, in respect to the colonies, the royal veto upon legislation has always been an active and not a dormant power. The reason of this is obvious. A colony is but a part of the empire, occupying a subordinate position in the realm. No colonial legislative body is competent to pass a law which is at variance with, or repugnant to, any Imperial statute which extends in its operation to the particular colony. Neither may a colonial legislature exceed the bounds of its assigned jurisdiction, or limited powers. Should such an excess of authority be assumed, it becomes the duty of the Crown to veto, or disallow, the illegal or unconstitutional enactment. This duty should be fulfilled by the Crown, without reference to the conclusions arrived at in respect to the legality of a particular enactment, by any legal tribunal. It would be no adequate protection to the public, against erroneous and unlawful legislation on the part of a colonial legislature, that a decision of a court of law had pronounced the same to be ultra vires. An appeal might be taken against this decision, and the question carried to a higher court. Pending its ultimate determination, the public interests might suffer. Therefore, whenever it is clear to the advisers of the Crown that there has been an unlawful exercise of power by a legislative body, it becomes their duty to recommend that the royal prerogative should be invoked to annul the same.” (Todd, 1st ed., pp. 125-6; 2nd ed., p. 155.)

THE BICAMERAL SYSTEM.—The Senate and the House of Representatives compose the two Chambers, according to what is generally described as the Bicameral System. Apart from the philosophical and practical arguments in favour of a two-chambered legislature as against a single-chambered legislature, a political union on the federal plan could not have been accomplished without the constitution of two Houses to represent the composite elements of the union

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“Theory and practice both proclaim that in a single House there is danger of a legislative despotism.” (James Wilson, in the American Federal Convention, 16th June, 1787.)

“We may say that modern constitutional law has settled firmly upon the bicameral system in the legislature, with substantial parity of powers in the two Houses, except in dealing with the budget; and that, in the control of the finances, a larger privilege is regularly confided to the more popular House, i.e., the House least removed in its origin from universal suffrage and direct election.” (Burgess, Political Sc., II., p. 106.)

“A single body of men is a ways in danger of adopting hasty and one-sided views, of accepting facts upon insufficient tests, of being satisfied with incomplete generalizations, and of mistaking happy phrases for sound principles. Two legislative bodies do not always escape these crude and one-sided processes and results, but they are far more likely to do so than is a single body. There is a sort of natural and healthy rivalry between the two bodies, which causes each to subject the measures proceeding from the other to a careful scrutiny, and a destructive criticism, even though the same party may be in a majority in both. In this conflict of views between the two houses lies, in fact, the only safe-guard against hasty and ill-digested legislation when the same party is in majority in both houses. A disagreement between the majorities in such a case is far more likely, also, to lead to a deeper generalization of principle than when the struggle is between the majority and the minority in each house; since the majority in each house will be much more inclined to look into the real merits of the question in the former than in the latter instance, and will come to a decision far more independent of partizanship.” (Burgess, Political Sc., II., pp. 106-7.)

“The necessity of a double, independent deliberation is thus the fundamental principle of the bicameral system in the construction of the legislature. A legislature of one chamber inclines too much to radicalism. One of three chambers or more would incline too much to conservatism. The true mean between conservatism and progress, and therefore the true interpretation of the common consciousness at each particular moment, will be best secured by the legislature of two chambers. There is another reason for this system, which, though less philosophic, is fully as practical. It is that two chambers are necessary to preserve the balance of power between the legislative and executive departments. The single-chamber legislature tends to subject the executive to its will. It then introduces into the administration a confusion which degenerates into anarchy. The necessity of the state then produces the military executive, who subjects the legislature to himself. History so often presents these events in this sequence, that we cannot refrain from connecting them as cause and effect. The two chambers, on the other hand, are a support in the first place to the executive power, and therefore in the second place to the legislature. By preventing legislative usurpation in the beginning, the bicameral legislature avoids executive usurpation in the end.” (Id., p. 107.)


2. A Governor-General54 appointed by the Queen shall be Her Majesty's Representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure55, but subject to this Constitution, such powers and functions of the Queen56 as Her Majesty may be pleased to assign to him.

HISTORICAL NOTE.—Clause 2 Chap. I. of the Commonwealth Bill of 1891 was as follows:—

“The Queen may, from time to time, appoint a Governor-General, who shall be Her Majesty's representative in the Commonwealth, and who shall have and may exercise in the Commonwealth during the Queen's pleasure, and subject to the provisions of this Constitution, such powers and functions as the Queen may think fit to assign to him.”

In Committee, Sir George Grey proposed to make the clause read “There shall be a Governor-General,” with the intention of making the Governor-General elective. This, after debate, was negatived by 35 votes to 3. Mr. Baker proposed to insert, after “functions,” the words “as are contained in Schedule B hereto, and such other powers and functions as are not inconsistent therewith.” He urged that the clause, as it stood.

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made the royal instructions part of the Constitutional law of the Commonwealth; and though he was not prepared at present to define the powers of the Governor-General, he wished to affirm the principle that they should be contained in the Constitution. Mr. Deakin and Dr. Cockburn thought that the best means of securing Mr. Baker's object would be to state on the face of the Constitution that the Governor-General should always act on the advice of his Ministers. Mr. Wrixon thought that if they were careful, in the Executive Chapter, to thoroughly establish responsible Government, they might let this clause go. Mr. Baker finally withdrew his amendment. (Conv. Deb., Syd. [1891] pp. 560-78.)

At the Adelaide session, 1897, the clause was introduced in the same words, except that the powers exercisable by the Governor-General were defined to be “such powers and functions of the Queen as Her Majesty may think fit to assign to him.” Mr. Glynn, lest these words might revive dormant or dead prerogatives, moved to add “and capable of being constitutionally exercised as part of the prerogative of the Crown.” This was negatived. (Conv. Deb., Adel., p. 629.)

At the Sydney session, Mr. Reid suggested that the clause be postponed. Mr. Barton agreed, saying “Some question may arise about the clause, which I do not like to indicate at present; but the Committee may take my word for it that it will be wise to postpone it now.” (Conv. Deb., Syd. [1897] pp. 253-4.) Subsequently, as a drafting amendment, the clause was altered to read:—“A Governor-General appointed by the Queen shall be,” &c. After the fourth report, the words “the provisions of” were omitted.