§ 240. “Proposed Laws.”

In the Draft Bill of 1891 the opening words of this important section were “Laws appropriating.” In the Bill, as recommended by the Constitutional Committee to the Adelaide Convention, 1897, the phrase was “proposed laws.”

Now, the first question to be considered is the difference between “bills,” “laws,” and “proposed laws.”

  ― 664 ―

“A law” is a legislative measure which has been passed by both Houses of the Parliament, received the Royal assent, and is in actual operation. “A proposed law” is a bill or measure which is in course of progress through the legislature. “A bill” is a proposed law.

In the section under review, and its associated section 55, there is a clear-cut distinction between “laws” and “proposed laws,” and this distinction may lead to important consequences in interpretation. The corresponding provisions in the Constitution of the United States make no such distinction, nor do those of the Canadian Constitution.

When the Federal Constitution directs that a proposed law shall be initiated, and passed, in a certain manner, that method of initiation or passage involves merely a question of order, regularity, or procedure, as between the two Houses of Parliament, inter se, or as between the Parliament and the Crown For example, under this section a proposed law, or in other words, a bill appropriating money or imposing taxation, “shall not” originate in the Senate. No prohibition could be couched in stronger terms. Suppose that a money bill violating this prohibition were introduced into the Senate. A point of order could be at once taken that it was not within the competence of the Senate to entertain it. It would be the duty of the President of the Senate to rule such a bill out of order. But suppose that the point of order were not taken, or if taken were not sustained by the President, and that the bill were passed by the Senate and transmitted to the House of Representatives. Here again, the point of order could, and no doubt would, be taken. It would in all probability be upheld by the Speaker. It is, however, conceivable that the bill might slip through, without the point of order being taken, or that the Speaker might decide that the bill did not come within the constitutional prohibition. Suppose that the bill has run the gauntlet of points of order and objections in both houses, and has at last received the royal assent and become law. Could its validity be then challenged in the High Court? According to the view of the Convention it appears that it could not. The expression, “proposed laws,” would preclude the Courts from entering into the inquiry whether the law had originated in the proper Chamber. The question of order and procedure would only be open to debate in the Houses of Parliament, whilst it was in the proposal stage, and not after that stage was passed, and it had received the final sanction of the Crown, whereby it ceased to be a “proposed law” and became a “law.” But it was thought that if the expression used in the Bill of 1891—“laws appropriating,” &c.—had been reproduced, the Courts would have been able to examine the history and constitutionality of the law and ascertain whether it had been initiated in accordance with the mandatory requirements of the Constitution.

At the Adelaide sittings of the Convention an attempt was made to alter the draft of the section, as submitted by the Constitutional Committee, by striking out the word “proposed” and making the phrase read “laws appropriating.” In support of this suggestion Mr. R. E. O'Connor said there was a very strong reason why we should have “laws” in this part of the Bill, to indicate that the law must comply with certain conditions, and that if it did not comply with those conditions it would be unconstitutional, and must be set aside. He thought it most essential that the powers of the two houses with respect to money bills should be made matters of constitutional objection, and not mere matters of order. To this it was replied that it would be a calamity if, after an appropriation bill or a tax bill had been passed by both Houses and assented to by the Crown, it could be impeached in the Law Courts for an irregularity not appearing on its face, and if its validity could be impugned for some informality in its inception. (Conv. Deb., Adel., p. 472.) It was not at the time perceived by the opponents of Mr. O'Connor's view that it was calculated to strengthen the originating power of the House of Representatives, by rendering open to legal attack any “law” initiated in the Senate and involving appropriation or taxation. But the argument prevailed, and Mr. O'Connor yielded to it, that all such matters should be treated as political questions

  ― 665 ―
to be settled by the two Houses, and not open to examination in the Federal Courts. “The question whether a bill should be originated in the House of Representatives … was one not intended to come before the Courts afterwards, but to be settled by the Houses themselves.” (Per Mr. E. Barton, Conv. Deb., Adel., p. 473.)

As already stated, the use of the expression “proposed laws” was, in the opinion of the Convention, sufficient to deprive the Federal Courts of power to examine such questions as the origination of Money Bills. A distinguished American jurist is, however, of opinion that the Supreme Court of the United States could examine and declare null and void a bill for raising revenue originating in the Senate. Art. 1, sec. vii. sub-s. 1, above quoted, requires that all bills for raising revenue shall originate in the House of Representatives; referring to which Dr. Burgess says:—

“The vesting of the power to originate tax levies exclusively in the more popular branch of the legislative department of the government is not a defence against the whole government, and therefore is not, strictly speaking, an immunity. Its advantage to the security of private property springs from the fact that the people, i.e., the suffrage-holders, have a more direct influence over this branch of the government than any other, rather than from any restriction imposed by the Constitution upon the government as to the extent of its power of taxation. The real immunity is to be found in the negative side of this provision, viz., that the power of taxation shall not be exercised at all in any other way than as thus prescribed. The House of Representatives itself has not the power, either by separate resolution or by joining with the Senate and the President in a law to that effect, to permit the Senate, or any other branch of the government, to originate a bill for the raising of revenue; and I think it is at least a question whether, should the Senate or the President undertake to assume this power, and the House acquiesce in the usurpation, the individual may not defend himself in the Courts of the United States against the collection from him of any tax so levied, on the ground of its unconstitutionality. It does not seem to me that the judicial power could excuse itself from taking jurisdiction under the plea that this is a political question. As a general principle, the distribution of powers by the Constitution between the different departments of the government is a political question; but in this particular instance private property would be directly involved, and the United States Courts have never declined jurisdiction where private property was immediately affected, on the ground that the question was political.” (Burgess Political Sc. i. pp., 196–7.)

A strong argument against the application of this dictum to the interpretation of the first paragraph of sec. 53 of the Constitution of the Commonwealth will be found in the conspicuous distinction drawn between the term “proposed laws” used in sections 53 and 54, and “laws” in sec. 55. The importance of the difference between “proposed laws” and “laws” will be found further illustrated in our notes to sec. 55.