§ 117. “Shall Continue for Three Years.”

DEMISE OF THE CROWN.—Under the law as it existed prior to the Revolution of 1688, the English Parliament, elected and duly constituted under the writs issued by one reigning sovereign, continued in existence from session to session until a change took place in the succession to the Crown, unless it was previously terminated by the prerogative act of Dissolution. There was no legal provision for its termination by effluxion of time. Its continuity depended only on the life or pleasure of its Royal originator—the King or Queen by whom the writs for its election were issued. It was a principle of the common law, that the created power terminated with the demise of the creating power.

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By the Act 6 and 7 Wm. and Mary c. 2, commonly known as the Triennial Act (1694), it was for the first time in English history declared that no Parliament should have any continuance longer than for three years only, at the farthest. The Act 1 Geo. I. c. 38 (1715), known as the Septennial Act, after reciting the Triennial Act, declared that the then existing Parliament and all future Parliaments “shall and may respectively have continuance for seven years and no longer” from the day appointed by the writ of summons for the meeting of Parliament, unless the Parliament should be sooner dissolved by the Crown. That Act is still in force in Great Britain.

The Triennial Act was a limiting Act; the Septennial Act succeeded it as a limiting Act. Without one or the other of those Acts the duration of Parliament would have remained determinable only by the death or pleasure of the Sovereign. The Septennial Act provided that, no matter how long the sovereign reigned, a Parliament should not continue for longer than seven years. It did not declare that the Parliament should not expire with the death of the Sovereign. Hence the common law doctrine, as to the effect of the demise of the Crown on any Parliament in being, remained in full force.

The practice of summoning a new Parliament immediately after the occurrence of a change in the succession to the Crown was found to be inconvenient, and it was apprehended that danger might arise through there being no Parliament in existence in case of a disputed succession. It was therefore enacted by 7 and 8 Wm. III. c. 15, that the Parliament in being should, if sitting, continue for six months after the demise of the Crown, unless sooner dissolved, and if not sitting should meet on the day fixed by the prorogation; and that, in case there was no Parliament in being, the last preceding Parliament should be convened. By the Act 6 Anne c. 41, s. 4, it was enacted that Parliament should not be determined or dissolved by a demise of the Crown, but should continue and be able to act for six months thereafter and no longer, unless sooner dissolved by the Successor to the Crown. And now by the Act 30 and 31 Vic. c. 102, s. 51 (Representation of the People Act, 1867), the British Parliament is no longer affected in any way by the demise of the Crown.

The effect of a demise of the Crown on the duration of an Australian Legislature was considered by the Privy Council in the case of Devine v. Holloway, 9 Weekly Reporter, 642. In November, 1856, John Devine instituted a suit in the Supreme Court of New South Wales to eject Thomas Holloway and others from certain lands in that colony, which he claimed as heir-at-law of Nicholas Devine, who in 1830 died intestate and seised of the property. On 13th July, 1837, three weeks after the death of His Majesty William IV., and before news of that event had reached the colony, the Governor and Legislative Council of New South Wales, by virtue of authority conferred on him by the Act 9 Geo. IV. c. 83, made an Ordinance enacting that the provisions of the English Statute of Limitations, 3 and 4 Wm. IV. c. 27, should become law in the colony. In the ejectment suit the defendants pleaded the Statute of Limitations in bar of the plaintiff's claim, and being nonsuited he appealed to the Privy Council. On his behalf it was contended, inter alia, that the Colonial Act adopting the English statute was null and void on the ground that the Legislative Council ceased to exist with the death of William IV., and that in order to acquire a new legal life it ought to have been reconstituted in the name of Her Majesty. This contention was overruled by the Privy Council. It was held that the authority of the Governor and Legislative Council was not determined by the demise of the Crown. During the argument, Counsel for the appellant contended that neither the Act 1 Wm. IV. c. 4, which validated acts done by Governors of Plantations after the expiration of their Commissions by demise of the Crown, nor the Act 1 Anne c. 2, which continues all civil and military offices, applied to a colonial Legislature. Lord Cranworth, however, seems from the brief report to have based the decision of the Privy Council upon the Succession Act, 6 Anne c. 41, sec. 8, which provides that no civil or military office within the kingdoms of Great Britain or Ireland “or any of Her Majesty's Plantations” should become void by reason of the demise of the Crown, but that the holder of any such office should continue in office for

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six months unless sooner removed; and it was held that the authority of the Governor and Legislative Council was not determined by the demise of the Crown.

The Constitutions of the Australian Colonies, as originally assented to by the Crown, provided that the Commissions of the judges of the Supreme Court should continue in force notwithstanding the demise of Her Majesty or of Her heirs and successors. They contained no special provisions relating to the effect of a demise of the Crown with reference to the duration of the Legislatures thereby created. The New South Wales Constitution Act, however, contained one section (33) which shows that in the view of the framers of the instrument the Parliament thereby created was not to be dissolved by demise of the Crown. That section, after prescribing the oath of allegiance to the Queen to be taken by Members of the Legislative Council and Legislative assembly before they could sit or vote, went on to declare:—

“And whensoever the demise of Her present Majesty or of any of Her Successors to the Crown of the said United Kingdom shall be notified by the Governor of the colony to the said Council and Assembly respectively, the members of the said Council and Assembly shall before they shall be permitted to sit and vote therein take and subscribe the like oath of allegiance to the successor for the time being to the said Crown.”

Section 4 of the Constitution Act of Queensland is the same in form and substance.

The Constitution Acts of Victoria, South Australia, and Tasmania, contain the usual sections formulating the oath of allegiance to the Queen to be taken by members of Parliament, but making no provision that upon the demise of Her Majesty they should take a like oath of Allegiance to Her Successor. It is open to argument whether the framers of these Constitutions acquiesced in the principle that the Legislatures should be terminated by demise of the Crown, or whether they were of opinion that the form of the instruments and the mode of constituting the proposed Legislatures rendered them free from the operation of the common law rule.

In 1876, however, the Parliament of Victoria passed an Act to amend the Electoral Act, 1865, and section 11 of the amending Act provided that the Parliament in being at any future demise of the Crown should not be determined or dissolved by such demise, but should continue so long as it would have continued but for such demise, unless it should be sooner prorogued or dissolved by the Governor. That section is now to be found in the Victorian Constitution Act Amendment Act, 1890, sec. 4. It was based on the Imperial Act 30 and 31 Vic. c. 102, s. 51. Upon the consideration of the clause in the Committee of the Legislative Assembly the Attorney-General, Mr. G. B. (afterwards Mr. Justice) Kerferd, was questioned by several legal members of the House as to its constitutional necessity. Mr. J. J. (now Judge) Casey thought the clause was unnecessary. He was of opinion that the rule of Common Law, that where a power was brought into existence by another power the created power terminated with the expiration of the creating power, did not apply to a colonial Legislature, the writs for the election of whose members were issued in the name of the Governor and not in the name of the Queen. Mr. Kerferd said that it was the opinion of some learned members of the legal profession that the clause was necessary. There certainly was a doubt about the matter, and in his opinion the doubt ought to be removed. However, he promised to consider the view submitted by Mr. Casey, and if it were clear beyond all doubt that the clause was unnecessary he would ask the House to strike it out at a subsequent stage. No further reference was subsequently made to the clause, which became law. (Vic. Parl. Deb., 12th Sept. [1876], vol. 24, p. 715.) On the authority of Devine v. Holloway, supra, it is submitted that the argument presented by Mr. Casey was a sound one, and that consequently there was no constitutional necessity for the passage of section 11 of the Electoral Act of Victoria, 1865. The fact that writs for the election of senators for each State are issued by the Governor thereof, and that writs for the election of members of the House of Representatives are issued by the Governor-General in Council, coupled with the further provision that senators are chosen for a fixed term of six years' duration and that the House of Representatives “shall continue

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for three years” subject to being sooner dissolved by the Governor-General, and further the forms of oath or affirmation in the schedule, by which members of the Federal Parliament swear or declare allegiance “to Her Majesty Queen Victoria Her Heirs and Successors according to law,” should be sufficient to bar the operation of the common law rule; and it therefore may be safely assumed that a demise of the Crown will not cause a dissolution of the Federal Parliament.