§ 269. “The Queen May Disallow.”

In the abandonment of power to regulate, by instructions, the Governor-General's discretion in assenting to, withholding assent from, or reserving, Bills presented to him for the Royal Assent, the Crown has not relinquished one iota of its rightful authority, nor has the paramount sovereignty of the Imperial Parliament been in the smallest degree abated or impaired. The Constitution assumes that the Queen's Representative will have the absolute confidence of the Queen's Imperial Government, and that he will be able to exercise his discretion without the assistance or dominating guidance of standing rules and directions formulated by the Secretary of State for the Colonies. The grant of legislative power is determined by the Constitution, and the Imperial Parliament would not have granted the power if it were not satisfied that its exercise was placed in safe hands. To appoint the Governor-General as the Queen's Representative, in one section of the Constitution, and in another section to withhold the free and trusted exercise of his discretion, within the limits assigned by the Constitution, would have been a manifestation of distrust in the Queen's Representative, unworthy of the

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dignity of his high office. At the same time the grant of a constitutional discretion to the Governor-General is quite compatible with the existence and maintenance of that supreme supervision over all the affairs of the Empire, which is exercised by the Queen through her Imperial Ministers. Even after the Governor-General has assented to a law, the ultimate power of disallowance is, by the Constitution, reserved to the Queen, subject only to the condition that the right of disallowance must be exercised within one year from the date of the Governor-General's assent. Consequently if a Bill assented to by the Governor-General is afterwards found by the Imperial Government to contain matter which justifies the interposition of the Royal veto, so as to suspend its operation, it may be disallowed, pursuant to the power reserved in the Crown. This method of conserving Imperial interests is more satisfactory, and more in harmony with the larger measure of self-government granted by the Constitution, than the old system of instructing the Governor not to assent to certain classes of Bills, many of which were quite within the competence of the colonial legislatures and related to matters of purely local interests.

There can be no doubt that the reserved power of disallowance will be wisely and sparingly exercised, in accordance with the rule long established, that Her Majesty's Government refrains from interfering with any colonial legislation which is consistent with colonial constitutional law, except in cases involving Imperial and international relations. From a return recently presented to the House of Lords, showing the number of cases in which laws, assented to by colonial Governors, have been afterwards vetoed by the Crown, it appears that it has been only necessary to use this extraordinary prerogative on a few occasions. (See Note, § 270 infra.)

The assent of the Queen's Representative to a proposed law, passed by the two Houses of the Federal Parliament, and the subsequent non-exercise of the power of disallowance, would not make it a good and valid law, if it were passed on a matter over which the Federal Parliament had no authority or control under the Constitution of the Commonwealth; such a law would be a nullity according to the maxim, “defectus potestatis nullitas nullitatum.” (Per Taschereau, J., in Lenoir v. Richie, 3 S.C.R. [Can.] 624.) The same law which prescribes limits to the legislative power imposes on the Federal Courts the duty of seeing that that power is not exceeded. (Per Duval, C.J., in L'Union St. Jacques de Montreal v. Belisle, 1 Cartwright, 84.) Where a statute is adjudged to be unconstitutional it is as if it had never been. (Cooley's Const. Lim. 6th ed. p. 222.) But the Courts will not presume that the Federal Parliament has exceeded its power, unless upon grounds of a really serious character, and they will not listen to an objection to the constitutionality of any Federal Act, unless it is raised and pleaded in due form by some one having an interest in questioning its validity. (Stuart, J., in Belanger v. Caron, 5 Quebec L.R. 25.)

Signification of Queen's pleasure on Bills reserved.

60. A proposed law reserved for the Queen's pleasure shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the Queen's assent the Governor-General makes known, by speech or message to each of the Houses of the Parliament, or by Proclamation, that it has received the Queen's assent.

HISTORICAL NOTE.—Clause 59, Chap. I., of the Commonwealth Bill of 1891 was to the same effect, and follows the usual provisions in colonial Constitutions. See for

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instance the Act for the Government of New South Wales and Van Diemen's Land, 1842 (5 and 6 Vic. c. 76, sec. 33). The Bill of 1891 also contained a further provision:—“An entry of every such speech, message, or proclamation shall be made in the journal of each House, and a duplicate thereof duly attested shall be delivered to the proper officer, to be kept among the records of the Parliament.”

At the Adelaide session, 1897, the draft of 1891 was substantially followed. In Committee, Mr. Reid moved to substitute “one year” for “two years,” on the ground that two years was too long to keep the Commonwealth in suspense. It was pointed out, however, that to limit the time might limit the opportunities for securing the assent; and the amendment was negatived by 17 to 16. (Conv. Deb., Adel., pp. 833–4.) At a later stage Dr. Cockburn suggested the omission of the clause, but it was carried. (Ib. pp. 1200–1.)

At the Sydney session, a suggestion by the Legislative Assembly of South Australia, that a reserved bill should come into force unless disallowed by the Queen within one year, was supported by Dr. Cockburn, on the ground that “the veto, if exercised, should be expressly exercised, and not simply brought into effect by silence.” Mr. Isaacs pointed out that this would mean that a law should take effect without the Queen's assent. The amendment was negatived. (Conv. Deb., Syd., 1897, pp. 779–82.) At the Melbourne session, drafting amendments were made before the first report and after the fourth report.