§ 267. “Presented to the Governor-General for the Queen's Assent.”

When a bill passed by both Houses of the Federal Parliament is presented to the Governor-General for the Queen's assent he may do one of three things:

  • (1.) He may assent to the Bill in the Queen's name; and thereupon it becomes law, and remains law unless within one year from the date of the assent it is expressly disallowed by the Queen.
  • (2.) He may withhold assent, that is absolutely veto the Bill, and thereupon it is lost for the time being.
  • (3.) He may reserve the Bill for the signification of the Queen's pleasure, and thereupon it becomes subject to the procedure defined by sec. 60.

The assent of the Queen to proposed laws is Her Majesty's assent as a separate, independent, and co-equal branch of the Federal Parliament. The form in which this section is drawn is materially different from the wording of corresponding sections in preceding Constitutional Acts, and this difference of form indicates the difference in the structure of the Federal Parliament compared with that of other colonial legislatures, and also the larger grant of power with which it is invested.

By Act 5 and 6 Vic. c. 76 (30th July, 1842) it was provided that the Governor of New South Wales, with the advice and consent of the Legislative Council, should have authority to make laws for the peace, welfare, and good government of the colony, provided that such laws should not be repugnant to the law of England or interfere in any way with the sale or appropriation of the Crown lands within the colony (sec. 29). In accordance with the old constitutional principle, that section recognized the Crown as the sole legislature, and the Legislative Council merely as an advisory body. Consistently with the same principle, sec. 30 gave the Governor authority to transmit to the Council drafts of such laws as appeared to him desirable to pass. The Governor was also entitled to return to the Council bills which it had passed, recommending that amendments should be made in such bills. By sec. 31 it was enacted—

“That every Bill which has been passed by the said Council and also every law proposed by the Governor which shall have been passed by the said Council whether with or without amendments shall be presented for Her Majesty's assent to the Governor of the said Colony and that the Governor shall declare according to his discretion but subject nevertheless to the provisions contained in this Act and to such instructions as may from time to time be given in that behalf by Her Majesty Her Heirs or Successors that he assents to such Bill in Her Majesty's name or that he withholds Her Majesty's assent or that he reserves such Bill for the signification of Her Majesty's pleasure thereon.”

Upon the presentation to the Governor of a Bill for Her Majesty's assent, he was directed to declare “according to his discretion” that he assented to such Bill in Her Majesty's name, or that he withheld Her Majesty's assent or that he reserved such Bill for the signification of Her Majesty's pleasure thereon, but the Governor's discretion was limited in two ways. It could only be exercised:—

  • (1.) Subject to the provisions contained in the Act, and
  • (2.) Subject to such instructions as might from time to time be given to him in that behalf by Her Majesty, her heirs and successors.

The first limitation referring to the provisions of the Act evidently alludes to the constitutionality of the proposed law, the Governor being required to satisfy himself that it was within the legislative authority conferred on him with the advice and consent of

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the Council. The second limitation required the Governor to exercise his discretion according to royal instructions, which would from time to time be given to him. Here then we come upon the statutory origin of an authority for royal instructions to Australian Governors. By sec. 40 of the same Act it is declared that Her Majesty may, with the advice of her Privy Council, or under Her Majesty's signet and sign manual, or through one of her principal Secretaries of State, from time to time convey to the Governor of New South Wales such instructions as to Her Majesty shall seem meet for his guidance in the exercise of his powers of assenting to, dissenting from, or reserving Bills passed by the Council, and that it shall be his duty to act in obedience to such instructions. Next came the Act 7 and 8 Vic. c. 74, sec. 7 (6th Aug., 1844), which recited that the object of providing for the reservation of Bills was to insure that such Bills should not be assented to by the Governor “without due consideration,” and provided that it should not be necessary for the Governor to reserve any such Bill, from which, in the exercise of his discretion as limited in the Act of 1842, he should declare that he withholds Her Majesty's assent, or to which he should have previously received instructions on the part of Her Majesty to assent.

The Constitutional Act for the better government of the Australian colonies, 13 and 14 Vic. c. 59 (5th Aug., 1850), which created Victoria as a separate colony, re-enacted 5 and 6 Vic. c. 76, ss. 31 and 40, and 7 and 8 Vic. c. 74, s. 7, and made them applicable to the newly-created Australian Legislatures. The Constitution Statute of New South Wales, 18 and 19 Vic. c. 54, s. 3 (16th July, 1855), and the Constitution Statute of Victoria, 18 and 19 Vic. c. 55 (16th July, 1855), continued the operation of the old laws, directing the Governor to assent to or reserve Bills in conformity with instructions. The old law was made applicable to the new system of representative and responsible government then introduced.

From this review of constitutional legislation it will be seen that the practice of limiting by instructions the Governor's discretion in giving or withholding the royal assent to Bills began in 5 and 6 Vic. c. 76, s. 31, statutory authority for those instructions being first found in sec. 40 of that Act; that the intention of sections 31 and 40 of the said Act is explained and extended by sec. 7 of the Act 7 and 8 Vic. c. 74; that the provisions of those Acts were confirmed by sec. 33 of the Act 13 and 14 Vic. c. 59; that previous legislation relating to the subject was confirmed by the Constitution Statutes of New South Wales and Victoria (16th July, 1855); and that those Statutes still remain in force, so far as they are applicable to the Governments of the States. Under this series of Imperial Acts, rules and instructions were formulated by the Imperial authorities, regulating the exercise of the discretion of Australian Governors, in giving or withholding the royal assent to Bills passed by the Australian legislatures.

Among the instructions referred to, the following may be mentioned: That in the passing of all laws, each different matter be provided for by a different law, without intermixing in one and the same Act such things as have no proper relation to each other; that no clause or clauses be inserted in or annexed to any Act which shall be foreign to what the title of such Act imports, and that no perpetual clause be part of any temporary law. Then followed a list of the classes of Bills to which the Governor was not permitted to assent, but which he was required to reserve for the signification of the Queen's pleasure. These instructions remained in force in most of the Australian colonies until 1892 (see p. 398, supra), when they were superseded by a new draft of instructions, in which the Governor was allowed greater freedom in the exercise of his discretion in assenting to or withholding assent from Bills; he was not directed to attend to the petty details above recited, but he was still directed to reserve Bills of the following classes:—

  • (a) Any Bill for the divorce of persons joined together in holy matrimony.
  • (b) Any Bill whereby any grant of land or money, or other donation or gratuity, may be made to himself.
  • (c) Any Bill affecting the currency of the colony.

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  • (d) Any Bill imposing differential duties (other than as allowed by the Australian Colonies Duties Act, 1873).
  • (e) Any Bill the provisions of which shall appear inconsistent with obligations imposed upon Us by treaty.
  • (f) Any Bill interfering with the discipline or control of Our forces in the colony by land or sea.
  • (g) 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.
  • (h) Any Bill containing provisions to which Our assent has been once refused, or which has been disallowed by Us.

Since the appointment of the Marquis of Lorne, on 6th October, 1878, the instructions associated with the office of Governor-General of Canada have been amended by the omission of the clause which formerly prescribed the classes of bills to be reserved by the Governor-General for Imperial consideration. Pursuant to this change in the tenor of the Royal Instructions to Governors of Canada—first introduced in 1878, by the omission of any direction for the reservation of bills—an Act passed by the Canadian Parliament in 1879, to effect the judicial separation of certain parties from the bonds of matrimony, was assented to by the Governor-General (42 Vic. 79), which Act previously must needs have been reserved for the signification of the royal pleasure thereon. (Todd's Parl. Gov. in Col., 2nd ed. p. 163.)

The instructions associated with the office of Governor-General of the Commonwealth will probably be framed on the lines of the Canadian model. Indeed, according to a strict interpretation of sec. 58 of the Constitution of the Commonwealth it would not be legal for Her Majesty, through the Secretary of State for the Colonies, to fetter the discretion of the Governor-General by instructions such as those which, with unquestionable legality, were given under the authority of the Act 5 and 6 Vic. c. 76, ss. 31 and 40. The Governor-General is authorized to assent in the Queen's name to Bills, to withhold the Royal assent to Bills, or to reserve Bills for the signification of the Queen's pleasure, “according to his discretion,” and subject only to the Constitution; not subject to instructions, as under the Act of 1842. In determining the exercise of his discretion, the Governor-General will be entitled to receive from the law officers of the Commonwealth a report in reference to each Bill to be submitted for his sanction, specifying whether there is any legal objection to his assenting to it, or whether his duty and obligations, as Representative of the Crown, necessitate that he should withhold his assent or reserve the Bill for the consideration of the Imperial Government. (Todd's Parl. Gov. in Col., 2nd ed. p. 166.) As a general rule, a Governor would be justified in accepting and acting upon statements of such functionaries in local matters. But if his own individual judgment does not coincide with their interpretation of the law, his responsibility to the Crown may require him to delay acting on the advice of his Ministers. But whatever steps he may think fit to take upon such a grave emergency, and from whatever materials his opinion may be formed, he is individually responsible for his conduct, and cannot shelter himself behind advice obtained from outside his Ministry. (Id. p. 167.)