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3. The Parliament

51

§ 51. “Parliament.”

ORIGIN.—This word, which, Bagehot says, is descriptive of the greatest inquiring, discussing, and legislative machine the world has ever known, “the great engine of popular instruction and political controversy,” is derived from the Old English, Parlement; French, Parlement, Parler, to speak; Low Latin, Parliamentum—a parleying, a discussion, a conference; hence a formal conference on public affairs; an assembly of representatives of a nation. (Webster's Internat. Dictionary.) Freedom of speech is the essence of political representation, and without it a national council could not exist.

“The word (which was at first applied to general assemblies of the States under Louis VII. in France, about A.D. 1150) was not used in England until the reign of Hen. III., and the first mention of it, in our statute law, is in the preamble to stat. Westm. I., 3 Ed. I., A.D. 1272. When therefore it is said that Parliaments met before that era, it is by a license of speech, considering every national assembly as a Parliament. See I. Comm., c. 2, p. 147, and the notes thereof.” (Tomlins's British Law—Title, Parliament.)

“In 21 Henry III. the King finds himself, in consequence of pressing money embarrassments, again compelled to make a solemn confirmation of the charter, in which once more the clauses relating to the estates are omitted. Shortly afterwards, as had happened just one hundred years previously in France, the name ‘parliamentum’ occurs for the first time (Chron., Dunst., 1244; Matth., Paris, 1246), and, curiously enough, Henry III. himself, in a writ addressed to the Sheriff of Northampton, designates with this term the assembly which originated the Magna Charta: ‘Parliamentum Runemede, quod fuit inter Dom. Joh., Regem patrem nostrum et barones suos Anglice.’ (Rot Claus., 28 Hen. III.) The name ‘parliament’ now occurs more frequently, but does not supplant the more indefinite terms concilium, colloquium, &c.” (Gneist, English Constitution, p. 261.)

PRECURSORS AND PROTOTYPES.—The Parliament of the Commonwealth is not an original invention in any of its leading principles. It has its roots deep in the past. It has been built on lines suggested by the best available models of its kind. Its framers did not venture to indulge in any new fangled experiments; they resisted every temptation to leave the beaten tract of precedent and experience, or to hanker after revolutionary ideals. In constructing a legislative machine for the new community they believed that they would most successfully perform their work by utilizing and adapting the materials to be found in the British, American, and Canadian Constitutions, with such developments and improvements as might be justified by reason and expediency. Of them and their work it may be said, as of the authors of the Constitution of the United States and of their work—

“They had a profound disbelief in theory and knew better than to commit the folly of breaking with the past. They were not seduced by the French fallacy that a new system of Government could be ordered like a new suit of clothes. They would as soon have thought of ordering a suit of flesh and skin. It is only on the roaring loom of time that the stuff is woven for such vesture of their thought and experience as they were meditating.” (Mr. Lowell's Address on Democracy, Oct. 6, 1884.)

“They had neither the rashness nor the capacity necessary for constructing a Constitution, a priori. There is wonderfully little genuine inventiveness in the world, and perhaps least of all has been shown in the sphere of political institutions. These men, practical politicians who knew how infinitely difficult a business government is, desired no bold experiments. They preferred, so far as circumstances permitted, to walk in the old paths, to follow methods which experience had tested. Accordingly they started from the system on which their own colonial governments, and afterwards their State governments, had been conducted. This system bore a general resemblance to the British


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Constitution; and in so far it may with truth be said that the British Constitution became a model for the new national government.” (Bryce's American Comm., I., p. 31.)

“There were other precursors of the federal government; but the men who framed it followed the lead of no theoretical writer of their own or preceding times. They harboured no desire of revolution, no craving after untried experiments. They wrought from the elements which were at hand, and shaped them to meet the new exigencies which had arisen. The least possible reference was made by them to abstract doctrines; they moulded their design by a creative power of their own, but nothing was introduced that did not already exist, or was not a natural development of a well-known principle. The materials for building the American constitution were the gifts of the ages.” (Bancroft, Constitution of the U.S, II, p. 322.)

“In the constant remaking of the constitutions of Europe, South America, and even Asia, Africa, and the Pacific islands, they should teach statesmen the pitfalls to avoid and the paths to seek for the permanent security of both liberty and property. These can be found only by an exhaustive study of the precedents which are landmarks of the progress of the development of the Constitution of the United States, before as well as since its adoption. They lead from the forests of Germany in the time of Tacitus, over the island of Runnymede and the rock at Plymouth, beyond the apple-tree at Appomatox into the old Senate Chamber at Washington, where Chief Justice Fuller sits with his associates. They were the result of conflicts with the sword, the pen, and the tongue, in the field, the press, the senate, and the court. Amongst their builders are enrolled the names of Simon de Montfort, Coke, Eliot, Hampden, Lilburne, Milton, Shaftesbury, Locke, Wilkes, Jefferson, Hamilton, Marshall, Webster, and Lincoln. They present the spectacle of the struggles of a people to obtain civil and religious liberty for themselves, to extend them to those of another and despised race, and now to combine them with the rights to ungoverned labour and complete security for private property.” (Foster's Comm., I., p. 2.)

“The form of government which prevails usually in primitive communities comprises a king or chief, a senate or gathering of elders or selectmen with whom he consults, and a public assembly of all freemen with the right of suffrage, who decide questions of importance, whether legislative, executive, or judicial, which are submitted to them. This naturally arose from the councils of war, where the general, after consulting the more experienced, took the sense of the whole body of warriors before an important enterprise. Such a legislative assemblage of the whole people may still be seen once a year on the Tynwald in the Isle of Man, in the Swiss cantons of Uri, Unter-walden, Glarus, and Appenzell; and more frequently in the town meetings in New England and the Western States. In Switzerland the voters still follow the early custom of attending armed. Of such a character were the federal assemblies of the Achaian, Ætolian and Lycian Leagues, which each citizen had a right to attend, although they voted by cities. They were manifestly impracticable when a government was spread over an extensive territory, and to the lack of representative institutions has been ascribed the loss of liberty in Greece and Rome. The senates of these confederations seem to have been composed of the present and former magistrates of the different cities, who acted rather as ambassadors than legislators, and voted by cities, each having an equal voice regardless of differences in wealth and population.” (Id., p. 307-8.)

Part I.—General.

Legislative Power.

1. The legislative power52 of the Commonwealth shall be vested in a Federal Parliament53, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called “The Parliament,” or “The Parliament of the Commonwealth.”

UNITED STATES.—All legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.—Const., Art. I., sec. 1. CANADA.—There shall be one Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.—B.N.A. Act, 1867, sec. 17.

HISTORICAL NOTE.—The clause in the Commonwealth Bill of 1891 was in substantially the same form. The clause as introduced at the Adelaide session, 1897, substituted “States Assembly” for “Senate,” but in Committee, on Mr. Walker's


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motion, the name “Senate” was restored. (Conv. Deb., Adel., pp. 480-2.) Mr. Higgins proposed “National Assembly” in place of “House of Representatives,” and Mr. Symon proposed “House of Commons,” but both suggestions were negatived. (Conv. Deb., Adel., pp. 483, 628-9, 1189.) At the Sydney session, suggestions of the Legislative Council of New South Wales, to omit “Federal” and to substitute “House of Assembly” for “House of Representatives,” were negatived. (Conv. Deb., Syd. [1897], p. 253.) At the Melbourne session, after the fourth report, “power” was substituted for “powers.”

§ 52. “Legislative Power.”

Legislation consists in the making of laws. It is contrasted with the Executive power, whose office is to enforce the law, and with the Judicial power which deals with the interpretation and application of the law in particular cases. “The legislative power of the Commonwealth,” referred to in this section, means the legislative power in respect of matters limited and defined in the Constitution; or, in the words of the corresponding section of the United States Constitution, it means “the legislative power herein granted.” The legislative power so granted and vested in the Federal Parliament does not exhaust the whole of the quasi-sovereign authority of the Commonwealth. A residuum of power continues vested in the States. What is not granted to the federal government and what is not possessed by the States is reserved to the people of the Commonwealth, and may at any time be brought into action by the provision for amendment of the Constitution of the Commonwealth. By the process of amendment further legislative power may be assigned to the Federal Parliament. That Parliament will possess only such authority as is expressly, or by necessary implication, conferred upon it by the Constitution, as it stands, or by amendments which may hereafter be incorporated into and become part of the Constitution.

The power of the Federal Parliament can only be found by searching through the federal constitutional instrument. It has no scrap or particle of authority except such as can be discovered or inferred somewhere within the document. A general enumeration of the legislative powers of the Parliament is given in section 51 of the Constitution. That, however, is not the only section in which legislative power is conferred. Numerous sections may be referred to, in which law-making authority is embedded. Thus every section beginning with the words or containing the words “until the parliament otherwise provides” contains a grant of legislative power. Other sections not so plainly identifiable are of the same effect; such as sec. 27—the Parliament may alter the number of members of the House of Representatives; Chapter III.—the Parliament may create inferior federal courts and make other judiciary arrangements; sec. 94—the Parliament may distribute the surplus revenue; sec. 102—the Parliament may forbid preferences and discriminations by States; sec. 104—the Parliament may take over the public debts of the States; Chapter VI.—The Parliament may admit new States, govern territories, and alter the limits of States with the consent thereof.

§ 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.)

Governor-General.

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.

§ 54. “A Governor-General.”

“The governor of a colony constitutes the only political link connecting the colony with the mother country. So far as regards the internal administration of his government, he is merely a constitutional sovereign acting through his advisers; interfering with their policy or their patronage, if at all, only as a friend and impartial councillor. But whenever any question is agitated touching the interests of the mother country—such, for instance, as the imposition of customs duties, or the public defence—his functions as an independent officer are called at once into play. He must see that the mother country receives no detriment. In this duty he cannot count on aid from his advisers: they will consult the interests either of the colony or of their own popularity; he may often have to act in opposition to them, either by interposing his veto on enactments or by referring those enactments for the decision of the home government. But for these purposes the constitution furnishes him with no public officers to assist him in council or execution, or to share his responsibility. The home government looks to him alone.” (Merivale's Lectures on Colonization, 1861, p. 649.)

“Under responsible government a Governor becomes the image, in little, of a constitutional king, introducing measures to the legislature, conducting the executive, distributing patronage, in name only, while all these functions are in reality performed by his councillors. And it is a common supposition that his office is consequently become one of parade and sentiment only. There cannot be a greater error. The functions of a colonial Governor under responsible government are (occasionally) arduous and difficult in the extreme. Even in the domestic politics of the colony, his influence as a mediator between extreme parties and controller of extreme resolutions, as an independent and dispassionate adviser, is far from inconsiderable, however cautiously it may be exercised. But the really onerous part of his duty consists in watching that portion of colonial politics which touches on the connection with the mother country. Here he has to reconcile, as well as he can, his double function as governor responsible to the Crown, and as a constitutional head of an executive controlled by his advisers. He has to watch and control, as best he may, those attempted infringements of the recognized principles of the connection which carelessness or ignorance, or deliberate intention, or mere love of popularity, may from time to time originate. And this duty, of peculiar nicety, he must perform alone … His responsible ministers may (and probably will) entertain views quite different from his own. And the temptation to surround himself with a camarilla of special advisers, distinct from those ministers, is one which a governor must carefully resist. It may, therefore, be readily inferred, that to execute the office well requires no common abilities, and I must add that the occasion has called forth these abilities.” (Id., p. 666.)




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“The office of Governor tends to become—in the most emphatic sense of the term—the link which connects the mother country and the colony, and his influence the means by which harmony of action between the local and Imperial authorities is to be preserved. From his independent and impartial position, the opinion of a Governor must needs have great weight in the colonial councils; while he is free to constitute himself, in an especial manner, the patron of those larger and higher interests—as of education, and of moral and material progress in all its branches—which, unlike the contests of party, unite, instead of dividing, the members of the body-politic.” (Lord Elgin [1854], cited Todd's Parl. Gov. in Col., p. 809, 2nd ed.)

“The Governor-General of Canada is the representative of the Queen, and the highest authority in a dominion vast in extent, occupied by several millions of people, comprising within itself various provinces recently brought together which can only knit into a mature and lasting whole by wise and conciliatory administration. Nor is the position insulated. The Governor-General is continually called upon to act on questions affecting international relations with the United States. The person who discharges such exalted functions ought to possess not only sound judgment and wide experience, but also an established public reputation. He should be qualified both to exercise a moderating influence among the different provinces composing the union, and also to bear weight in his relations with the British minister at Washington and with the authorities of the great neighbouring republic.” (Despatch by the Duke of Buckingham, Secretary of State for the Colonies [1868], explaining the reasons of the Imperial Government for advising the Queen to refuse assent to a bill passed by the Dominion Parliament to reduce the salary of the Governor-General. Cited, Todd, p. 810, 2nd ed.)

§ 55. “During the Queen's Pleasure.”

“Colonial Governors invariably hold office during the pleasure of the Crown; but their period of service in a colony is usually limited to six years from the assumption of their duties therein; although, at the discretion of the Crown, a Governor may be re-appointed for a further term. The rule which limits the term of service of a Governor to six years was established principally for the purpose of ensuring in Governors the utmost impartiality of conduct, by disconnecting them from fixed relations with the colony over which they are appointed to preside. It was first made applicable to all British colonies by a circular despatch from Mr. Secretary Huskisson, issued in May, 1828, as follows:—‘It shall for the future be understood that, at the expiration of six years, a Governor of a colony shall, as a matter of course, retire from his government, unless there should be some special reasons for retaining him there; and that the way should thus be opened for the employment of others, who may have claims to the notice of His Majesty's government.”’ (Todd, 2nd ed., pp. 122-3.)

§ 56. “Powers and Functions of the Queen.”

Section 2 of the Constitution is the same in substance as section 2 ch. I. of the Commonwealth Bill of 1891. When it was first proposed in 1891, strong exception was taken to it and other sections relating to the Governor-General on the ground that they would confer extraordinary and enormous powers on the Governor-General, far in excess of any authority previously conferred on any governor in these colonies. Subsequent discussion showed that this contention was untenable.

During the progress of Provincial Government in the Australian colonies, two propositions have been suggested as explaining the position and attributes of the Governor of a Constitutional colony. One proposition has been that the Governor, as the Representative of the Queen, is vested with authority defined and limited, partly by the statute law establishing the Queen's Government in the colony, partly by the letters patent constituting the office of Governor, partly by the commission appointing him to the office, and finally by the royal instructions communicated to him by the Seeretary of State on behalf of Her Majesty. (Anson's Law and Custom of the Constitution, vol. ii., p. 260.) The other view has been that the Governor of a colony, in which the system known as Responsible Government exists, is a local constitutional ruler, vested with authority defined or necessarily implied by the statute law establishing the Queen's Government in the colony, and vested thereby with all the prerogatives of the Crown reasonably necessary for the exercise of the proper functions of government; that the responsible ministers of such a colony possess, by virtue of that law, the power


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to advise the representative of the Crown to do any act which it would be competent for the legislature of the colony to sanction, and which ordinarily is, or under special circumstances may become, reasonably necessary to its existence as a body constituted by law, or for the proper exercise of the functions which it is intended to execute. (Per Higinbotham, C.J., in Ah Toy v. Musgrove [1888], 14 V.L.R. p 295-6.) A similar contention was raised in the year in which that case was decided in Victoria by the Government of Ontario, to the effect that the Lieutenant-Governor of the Province was entitled, virtute officii, to exercise all the prerogatives of the Crown incident to executive authority in matters over which the provincial legislature had jurisdiction, in the same manner as, and to the same extent that the Governor-General was entitled, virtute officii, to exercise all prerogatives incident to executive authority in matters within the jurisdiction of the Dominion Parliament. (Ontario Sess. Pap., 1888, No. 37, pp. 20-2.) The same doctrine was mooted in the Canadian courts on the hearing of the pardoning power case. (Attorney-General of Canada v. Attorney-General of Ontario, 22 Ont. Rep. 222; 19 Ont. App. Rep. 31. Cited, A. H. F. Lefroy, Law Quarterly Review, July, 1899, p. 283.)

In the construction of the powers and functions of the Governor-General of the Commonwealth no such difficulties and ambiguities as were discussed in Ah Toy v. Musgrove need arise. The principal and most important of his powers and functions, legislative as well as executive, are expressly conferred on him by the terms of the Constitution itself. Among these may be mentioned: the appointment of the times for holding the Sessions of Parliament; the prorogation of the Parliament; the dissolution of the House of Representatives (sec. 4); the dissolution of the Senate and of the House of Representatives simultaneously (sec. 57); the convening of a joint sitting of the members of the Senate and of the House of Representatives (sec. 57); the assent in the name of the Queen to Bills passed by the Federal Houses; the withholding of the Queen's assent to such Bills; the reservation of Bills for the Queen's pleasure; the recommendation of amendments to be made in Bills (sec. 58); the exercise of the Executive power of the Commonwealth (sec. 61); the appointment of political officers to administer departments of state of the Commonwealth (sec. 64); the command of the naval and military forces of the Commonwealth (sec. 68); and generally, “in respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a colony” (sec. 70). These are powers and functions vested in the Governor-General by statute, to be exercised by him in accordance with the recognized principles of Responsible Government. The point to emphasize is, that they are legislative and executive powers and functions conferred on the Governor-General, not by Royal authority, but by statutory authority. (See Note § 60.)

The section now under consideration authorizes the Governor-General to exercise such powers and functions as Her Majesty may be pleased to assign to him. These powers and functions, however, must not be confused with the statutory authority and statutory duties to which reference has been made, relating to the Government of the Commonwealth, expressly specified in and expressly conferred on the Governor-General by the Constitution. The powers and functions contemplated by this section relate either to matters subordinate and ancillary to the statutory authority and statutory duties enumerated in the Constitution, or to matters connected with the Royal prerogative (that body of powers, rights, and privileges, belonging to the Crown at common law, such as the prerogative of mercy), or to authority vested in the Crown by Imperial statute law, other than the law creating the Constitution of the Commonwealth. Some of these powers and functions are of a formal character; some of them are purely ceremonial; others import the exercise of sovereign authority in matters of Imperial interests. The nature of some of the prerogative as well as formal and ceremonial power sreferred to, may be gathered from the extracts from letters patent and commissions relating to the office of Governor, which will be found further on. Among examples of powers relating to


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matters of Imperial interests the following may be suggested: the observance of the relations during peace, or in time of war, of foreign States to Great Britain, so far as they may be affected by the indirect relations of such foreign States to the Commonwealth; the treaty rights and obligations of the Crown; the treatment of belligerent and neutral ships in the waters of the Commonwealth in times of war; the control of Her Majesty's Imperial naval and military forces within the limits of the Commonwealth. (Higinbotham, C.J., in Ah Toy v. Musgrove [1888], 14 V.L.R., 380.)

RESPONSIBILITY OF GOVERNORS.—Reference may here be made to two leading cases in which the powers, privileges, and immunities of colonial Governors were considered. In Mostyn v. Fabrigas, [1775], 1 Cowp. 161-172, 2 W. Bl. 929, Lord Mansfield held that a Governor of a colony is in the nature of a Viceroy. This dictum, however, has not been generally acquiesced in, and it is now understood that Mostyn v. Fabrigas simply decided that Governor Mostyn was liable to be sued in England for personal wrongs done by him, whilst he was Governor of Minorca. In the case of Musgrave v. Pulido [1879], 5 App. Cas. 102, Pulido, the charterer of a schooner, sued Sir Anthony Musgrave, the Governor of Jamaica, to recover damages from him for an alleged act of trespass committed by him in seizing and detaining the schooner at Kingston. The defendant pleaded to the jurisdiction of the Court, in effect alleging that he was Captain-General and Governor-in-Chief of the island of Jamaica, and that the acts complained of were done by him as Governor of the island, and in the exercise of his reasonable discretion as such. The plea did not aver, even generally, that the seizure of the plaintiff's ship was an act which the defendant was empowered to do as Governor, nor even that it was an act of state. It was held that a Governor of a colony (in ordinary cases) cannot be regarded as Viceroy; nor can it be assumed that he possesses general sovereign power. His authority is derived from his commission, and is limited to the powers thereby expressly or impliedly entrusted to him. It is within the province of municipal courts to determine whether any exercise of power by a Governor is within the limits of his authority, and, therefore, an act of state. On these grounds it was decided that the plea was not a sufficient answer to the action.

MODE OF APPOINTMENT.—The constitutional position of the Governor-General, as a component of the Executive Government of the Commonwealth, will be considered in detail in our notes to Chapter II. (§ 271). Under this section allusion can appropriately be made (1) to the practice which originally prevailed in connection with the creation of the office of Colonial Governor; the method of appointment to such office, and the assignment of official powers and functions of a stereotyped character to the holder of the office for the time being; and (2) to the changes which, in recent years, have been made in the direction of emancipating the Governor from the restraint and embarrassment of antiquated instructions, and enabling him to act as a constitutional ruler, in accordance with the recognized principles of Responsible Government.

Colonial Governors were formerly appointed by letters patent, under the Great Seal, which defined the scope of their powers, duties, and functions. Pending the preparation of the authorative instruments it was the practice, before 1875, to issue a minor commission under the Royal Sign Manual and Signet, to a new Governor, authorizing him to act under the commission and instructions given to his predecessor in the same office. The validity of this practice having been doubted, the Imperial Government decided in 1875 to abandon it, and thereafter, as soon as practicable, to make permanent provision by letters patent under the Great Seal in every colony of the empire for the constitution of the office of Governor therein, and it was further decided to fill the office as it became vacant, by appointment to be made, by special commission, under the Royal Sign Manual and Signet, which commission should recite the letters patent, and direct the appointee to fulfil the duties of the office according to the permanent instructions issued in connection therewith. (Todd, Parl. Gov. in Col., 2nd ed., p. 109.) There are therefore, now, three important documents associated with the office of Governor:—




  ― 392 ―
  • (1.) The Letters-Patent.
  • (2.) The Commission.
  • (3.) The Instructions.

The Letters Patent.—By the letters-patent constituting the office of Governor in each colony, the powers and duties of the Governor were formerly defined as follows:—

  • (i.) To do and to execute all things that belong to the said command and the trust reposed in him according to the Letters-patent, Commission and Instructions.
  • (ii.) To keep and use the Public Seal of the Colony.
  • (iii.) To appoint an Executive Council.
  • (iv.) To make and execute grants of land according to law.
  • (v.) To appoint Judges, Commissioners, Justices, Ministers, and other officers.
  • (vi.) To grant a pardon to any offender who has committed a crime and to remit fines and forfeitures.
  • (vii.) To remove or suspend from office any person upon sufficient cause appearing.
  • (viii.) To summon, prorogue, or dissolve any legislative body established within the colony.
  • (ix.) To grant licenses for marriages, letters of administration, probate of wills, and to deal with the custody and management of idiots, lunatics, and their estates.
  • (x.) To appoint a deputy to act in his occasional absence from the colony.
  • (xi.) Before entering on the duties of his office to cause his commission to be read and published, and to take the Oath of Allegiance and the usual oath for the due execution of the office of governor and for the due and impartial administration of justice.

The Commission.—This document contains the appointment to the office constituted by the letters-patent, and the usual form of it is as follows:—

Draft of a Commission passed under the Royal Sign Manual and Signet, ..... to be Governor and Commander-in-Chief of the Colony of ..... and its Dependencies.

Dated ..... VICTORIA R.

VICTORIA, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, Empress of India: To Our trusty and well-beloved.........

Greeting:

We do by this Our Commission under Our Sign Manual and Signet appoint you, the said ....., until Our further pleasure shall be signified, to be Our Governor and Commander-in-Chief in and over Our Colony of .....and its Dependencies during Our Will and pleasure, with all and singular the powers and authorities granted to the Governor of Our said Colony in Our Letters-patent under the Great Seal of Our United Kingdom of Great Britain and Ireland constituting the Office of Governor, bearing date at Westminster, the.....day of.....in the.....year of Our Reign, which said powers and authorities We do hereby authorize you to exercise and perform, according to such Orders and Instructions as Our said Governor for the time being hath already or may hereafter receive from Us. And for so doing this shall be your Warrant.




  ― 393 ―

And We do hereby command all and singular Our Officers, Ministers, and loving subjects in Our said Colony and its Dependencies, and all others whom it may concern, to take notice hereof, and to give their ready obedience accordingly. Given at Our Court at Windsor, this.....day of.....in the.....year of Our Reign.

By Her Majesty's Command.

The Instructions.—The powers and functions of the governor partially enumerated in the letters-patent were formerly more fully detailed in the Instructions, and may be summarized as follows:—

  • (i.) To administer the oath of allegiance to persons holding office or place of trust.
  • (ii.) To communicate these instructions to the Executive Council of the Colony.
  • (iii.) To summon the Executive Council for the despatch of business.
  • (iv.) To preside at the meetings of the Executive Council.
  • (v.) To see that a full and exact record is kept of the votes and proceedings of the Executive Council.
  • (vi.) To consult the Executive Council in all cases, excepting in cases where the Queen's service would sustain material prejudice by consulting the Council, or when the matters to be decided should be too unimportant to require their advice or too urgent to admit of their advice being given within the time available; provided that in such urgent cases he should inform the Executive Council, as soon as possible, of the measures adopted.
  • (vii.) To act in opposition to the advice which may in any case be given by the Executive Council, provided that in such case he should fully report to the Secretary of State for the Colonies any such proceeding, with the grounds and reasons thereof.
  • (viii.) To transmit to the Secretary of State for the Colonies twice in each year a copy of the minutes of the Council for the preceding half-year.
  • (ix.) To assent to or dissent from or reserve for the Queen's pleasure such bills as may be passed by the colonial parliament subject to certain rules—
    • (a) That each different matter be provided for by a different law without intermixing different matters in the same Act having no relation to one another.
    • (b) That no clauses be inserted in an Act foreign to the title of such Act.
    • (c) That no perpetual clause be made part of any temporary law.
  • (x.) To reserve for the Queen's pleasure bills dealing with the following:—
    • (a) Divorce.
    • (b) Grants to the Governor.
    • (c) Bills affecting the currency.
    • (d) Bills imposing differential duties other than as allowed by the Australian Colonies Duties Act, 1873.
    • (e) Bills apparently inconsistent with treaty obligations.
    • (f) Bills interfering with the discipline of the land and sea forces of the Colony.
    • (g) Bills of an extraordinary nature and importance prejudicially affecting—(1) The Royal prerogative, or (2) the rights and property of British subjects not residing in the Colony, or (3) the trade and shipping of the United Kingdom and its Dependencies.
    • (h) Bills containing provisions to which the Royal assent has been once refused.
  • (xi.) To transmit abstracts of all laws assented to by the Governor or reserved for the Queen's pleasure, with explanatory observations.
  • (xii.) To transmit fair copies of the journals and minutes of the proceedings of both Houses of Parliament “which you are to require from the clerks or other proper officer in that behalf.”



  •   ― 394 ―
  • (xiii.) After reciting the Commission authorizing and empowering a Governor to grant a pardon to any offender the instructions formerly proceeded as follows:—
“Now, we do hereby direct and enjoin you to call upon the judge presiding at the trial of any offender who may from time to time be condemned to suffer death by the sentence of any court within our said colony, to make to you a written report of the case of such offender, and such report of the said judge shall by you be taken into consideration at the first meeting thereafter which may be conveniently held of our said Executive Council, where the said judge shall be specially summoned to attend, and you shall not pardon or reprieve any such offender as aforesaid unless it shall appear to you expedient so to do upon receiving the advice of our Executive Council therein, but in all such cases you are to decide either to extend or to withhold a pardon or reprieve, according to your own deliberate judgment, whether the members of our said Executive Council concur therein or otherwise; entering, nevertheless, on the minutes of the said Council a minute of your reasons at length, in case you should decide any such question in opposition to the judgment of the majority of the members thereof.”
  • (xiv.) To promote religion and education among the native inhabitants of the colony, and to protect them from violence and injustice.
  • (xv.) Not on any pretence whatever to quit the colony without having first obtained official leave from the Queen.

The new practice above referred to (p. 391) was framed to meet the views of Canada, but was first brought into operation in February, 1877, on the occasion of the appointment of Sir H. Bartle Frere to the office of Governor and Commander-in-Chief of the Cape of Good Hope, and it was followed in April, 1877, on the appointment of Sir W. F. D. Jervois as Governor and Commander-in-Chief of South Australia. The instructions accompanying the letters-patent in each of these cases were, in the main, an embodiment of the instructions previously issued for the guidance of Governors, no alteration in substance then being made. Indeed, they were practically the same in effect as those issued to the Governor of New South Wales in the year 1829, when that colony ceased to be a military settlement, and acquired a rudimentary form of civil government. A comparison of the instructions issued to Australian Governors up to the year 1887, with the commission and instructions issued to Sir Charles A. Fitzroy as Governor-in-Chief of New South Wales in the year 1850, would show that no substantial alteration had been made during that interval of 37 years. (Chief Justice Higinbotham's letter to Sir Henry Holland, 28 Feb., 1887; Professor Morris, Memoir of George Higinbotham, p. 211.)

For some time previous to the initiation of the new practice, the Government of the Dominion of Canada had been in communication with the Secretary of State for the Colonies on the subject of an alteration in the terms of the royal instructions.

“It was contended by Mr. Blake on behalf of the Dominion that the peculiar position of Canada, in relation to the mother country, entitled her to special consideration, and that the existing forms, while they might be eminently suited to other colonies, were inapplicable and objectionable in her case. For Canada is not merely a colony or province of the empire, she is also a Dominion, composed of seven provinces federally united under an imperial charter or Act of Parliament, which expressly recites that her constitution is to be similar in principle to that of the United Kingdom.” (Todd, Parl. Gov. in the Col., 2nd ed., p. 110.)

“As a foundation principle, necessary to be asserted and maintained in any instrument which might be issued for the purpose of defining the powers of a Governor-General in Canada, Mr. Blake contended that it ought to be clearly understood that, ‘as a rule, the governor does and must act through the agency (and upon the advice) of ministers; and ministers must be responsible for such action;’ save ‘only in the rare instances in which owing to the existence of substantial Imperial as distinguished from Canadian interests, it is considered that full freedom of action is not vested in the Canadian people.”’ (Id., p. 111.)

“Mr. Blake's contention, ‘that there is no dependency of the British Crown which is entitled to so full an application of the principles of constitutional freedom as the Dominion of Canada,’ was admitted to be correct by her Majesty's Government; and


  ― 395 ―
the official instruments made use of, in the appointment, on the 7th October, 1878, of the Marquis of Lorne to be Governor-General of Canada, clearly indicate, in their substantial omissions, as well as in their positive directions, the larger measure of self-government thenceforth conceded to the new Dominion. This increase of power, to be exercised by the government and Parliament of Canada, was not merely relatively greater than that now enjoyed by other colonies of the empire, but absolutely more than had been previously intrusted to Canada itself, during the administration of any former Governor-General.” (Id., p. 116.)

The Canadian Letters-Patent.—By letters-patent, 5th October, 1878, the office of Governor-General of Canada was formally constituted, and the Governor-General was thereby authorized and commanded by the Queen:—

  • (i.) To do and to execute all things that belong to the said command and the trust reposed in him according to the Letters-patent, Commission and Instructions.
  • (ii.) To keep and use the Public Seal of the Colony.
  • (iii.) To appoint an Executive Council.
  • (iv.) To remove or suspend from office any person holding any office under the Crown in Canada, so far as the same may lawfully be done.
  • (v.) To exercise all powers lawfully belonging to the Crown in respect of the summoning, proroguing, or dissolving the parliament of Canada.
  • (vi.) To appoint any person or persons, jointly or severally, to be his deputy or deputies within any part of Canada, to exercise such of the powers or functions of the Governor-General as he may please to assign to him or them.

The Canadian Commission.—On 7th October, 1878, the Marquis of Lorne was appointed by Royal Commission to be the Governor-General of Canada. This Commission recited the letters-patent aforesaid and conferred the office upon Lord Lorne with all the powers and authorities belonging to it, according to such orders and instructions as have already been, or may hereafter be, communicated to him from the sovereign; and commanded “all and singular our officers, ministers, and loving subjects in our said Dominion, and all others whom it may concern, to take due notice hereof, and give their ready obedience accordingly.” (Todd, 2nd ed., p. 122.)

The Canadian Instructions.—The Royal Instructions accompanying the letters-patent constituting the office of Governor-General of Canada recited the letters-patent aforesaid and enjoined the Governor-General for the time being:—

  • (i.) To cause his commission to be read and published in the presence of the Chief Justice or other judge of the Supreme Court, and of the members of the Dominion Privy Council, and to be duly sworn upon entering upon the duties of his office.
  • (ii.) To administer, or cause to be administered, the necessary oaths to all persons who shall hold any office or place of trust in the Dominion.
  • (iii.) To communicate these and any other instructions he may receive to the Dominion Privy Council.
  • (iv.) To transmit to the Imperial Government copies of all laws assented to by him in the Queen's name, or reserved for signification of the Royal pleasure; with suitable explanatory observations and copies of the journals and proceedings of the Parliament of the Dominion.
  • (v.) When any crime has been committed for which any offender might be tried within the Dominion, “to grant a pardon to any accomplice, not being the actual perpetrator of such crime, who shall give such information as shall lead to the conviction of the principal offender; and, further, to grant any offender convicted of any crime, in any court, or before any judge, justice, or magistrate, within our said Dominion, a pardon, either


      ― 396 ―
    free or subject to lawful conditions, or any respite of the execution of the sentence of any such offender, for such period as to our said Governor-General may seem fit, and to remit any fines, penalties, or forfeitures which may become due, or payable to us. Provided always, that our said Governor-General shall not in any case, except where the offence has been of a political nature, make it a condition of any pardon or remission of sentence that the offender shall be banished from, or shall absent himself from, our said Dominion. And we do hereby direct and enjoin that our said Governor-General shall not pardon or reprieve any such offender without first receiving, in capital cases, the advice of the Privy Council for our said Dominion, and in other cases, the advice of one, at least, of his ministers, and in any case in which such pardon or reprieve might directly effect the interests of the empire, or of any country or place beyond the jurisdiction of the government of our said Dominion, our said Governor-General shall, before deciding as to either pardon or reprieve, take those interests specially into his own personal consideration, in conjunction with such advice as aforesaid.”
  • (vi.) Not to quit the Dominion without leave first obtained.

It will be seen that the Canadian Instructions differed in several material respects from those which were, at that time, applicable to other self-governing colonies, in which the old instructions remained unaltered for several years longer. One of the most prominent critics, and certainly the most uncompromising assailant, of the old instructions, was the Hon. Geo. Higinbotham, once Attorney-General of Victoria, and subsequently Chief Justice of that colony. In a letter, dated 28th February, 1887, addressed by him to the Right Hon. Sir Henry T. Holland, then Secretary of State for the Colonies, Chief Justice Higinbotham expressed and summarized the views which he had long held concerning the unconstitutionality of some of these instructions.

“The radical vice of the Governor's letters patent, commission and instructions, both public and private, appears to me to be this—that they studiously and persistently refuse to take note of the fundamental change made in the public laws of the Australian colonies by the Constitution Acts of 1854-5. In particular, they pretend to confer powers and authorities which have been already conferred with others by the Constitution Statutes; they decline to recognize the dual character of the Governor, and applying a misleading title to the advisers of the Governor in one of his two characters, they affect to ignore altogether the existence of responsible government. I will refer to particular clauses which present the most striking illustrations of a violation in these respects of constitutional law.

“Clause II. of the letters patent.—‘We do hereby authorize, empower, and command our said Governor and Commander-in-Chief (hereinafter called the Governor) to do and excute all things that belong to his said office, according to the tenor of these our letters patent, and of such commission as may be issued to him under our sign manual and signet, and according to such instructions as may from time to time be given to him under our sign manual and signet, or by our order in our Privy Council, or by us through one of our principal Secretaries of State, and to such laws as are now or shall hereafter be in force in the colony.’

“This purports to grant, subject to limitations, certain authorities and powers already vested in the Governor by the Constitution Statute. The grant is, in my opinion, void, and the limitations and the commands founded thereon are also void and illegal.

“Clause VI. of instructions.—‘In the exercise of the powers and authorities granted to the Governor by our said letters patent, he shall in all cases consult with the Executive Council, excepting only in cases which are of such a nature that, in his judgment, our service would sustain material prejudice by consulting the said Council thereupon, or when the matters to be decided are too unimportant to require their advice, or too urgent to admit of their advice being given by the time within which it may necessary for him to act in respect to any such matters—in all such urgent cases, he


  ― 397 ―
shall, at the earliest practical period, communicate to the said Council the measures which he may so have adopted, with the reasons thereof.’

“This is an instruction which a Governor does not, and cannot obey. The Executive Council, in the proper sense of this expression, has never been convened in Victoria. Like the Privy Council, it could not be convened, except by the direction of the Victorian Premier. If by the words ‘Executive Council,’ the ‘Cabinet’ is intended to be referred to, this instruction is unmeaning and void. It is, doubtless, the duty of the representative of the Sovereign to consult his advisers, and it is their duty to advise him in all matters connected with local affairs, but the duty in neither case springs from this royal instruction. If it be intended to direct the Governor to consult his advisers in matters connected with his duty as an officer of the Imperial Government, this is an indirect instruction, offensive in form and without either legal authority or means of enforcement, to Her Majesty's Ministers to do something which they are not required by their duty as Ministers of the Crown to do.

“Clause VII. of instructions.—‘A Governor may act in the exercise of the powers and authorities granted to him by our said letters patent in opposition to the advice given to him by the members of the Executive Council, if he shall in any case deem it right to do so, but in any such case he shall fully report the matter to us by the first convenient opportunity, with the grounds and reasons of his action.’

“I think that this instruction can only be characterized as a distinct denial of the fundamental principle of the existing public law of Victoria. As a direct instigation to Her Majesty's representative to violate that law, it offers a grave indignity and conveys an unmistakable menace to him and to his advisers, who are here and elsewhere misnamed the Executive Council.

“Clause XI. of instructions.—‘Whenever any offender shall have been condemned to suffer death by the sentence of any court, the Governor shall call upon the judge who presided at the trial to make to him a written report of the case of such offender, and shall cause such report to be taken into consideration at the first meeting thereafter which may be conveniently held of the Executive Council, and he may cause the said judge to be specially summoned to attend at such meeting and to produce his notes thereat. The Governor shall not pardon or reprieve any such offender unless it shall appear to him expedient so to do upon receiving the advice of the said Executive Council thereon; but in all such cases he is to decide either to extend or to withhold a pardon or a reprieve according to his own deliberate judgment, whether the members of the Executive Council concur therein or otherwise; entering nevertheless on the minutes of the said Executive Council a minute of his reasons at length in case he should decide such action in opposition to the judgment of the majority of members thereof.’

“This instruction presents a glaring instance of not less flagrant illegality. The prerogative of mercy is a prerogative essentially necessary to the administration of criminal law. The exercise of it in Victoria is therefore a matter in which the representative of the Crown can and ought to act solely upon the advice of his responsible advisers, and neither the Crown nor the Crown's Imperial advisers are legally competent to dictate or advise upon his action. By this instruction the Governor is personally ordered to call upon the judge to make to him a written report—an order which, if it were conveyed otherwise than through and by the advice of the Minister, it would be, I conceive, the duty of the judge to refuse to comply with. The Governor is further required to decide ‘either to extend or to withhold a pardon or a reprieve, according to his own deliberate judgment, whether the members of the Executive Council concur therein or otherwise.’ This unjust and cruel as well as illegal order is not obeyed, and could not be obeyed by any Governor in the only cases to which it could apply. It has been attempted to excuse this instruction on the ground that it is virtually obsolete, yet on two separate occasions long subsequent to the passing of the Australian Constitution Acts, the Colonial Office has expressed its approval of this instruction, and has repeated the injunction to the Governor to obey it.

“Clauses VIII. and X. of instructions.—VIII. ‘In the execution of such powers as are vested in the Governor by law for assenting to or dissenting from or of reserving for the signification of our pleasure, bills which have been passed by the Legislature of the


  ― 398 ―
colony, he shall take care as far as may be practicable that in the passing of all laws each different matter be provided for by a different law without intermixing in one and the same law such things as have no proper relation to each other; and that no clause be inserted in or annexed to any law which shall be foreign to what the title of such law imports, and that no perpetual clause be part of any temporary law.’ X. ‘The Governor is to take care that all laws assented to in our name or reserved for the signification of our pleasure thereon, shall, when transmitted by him, be fairly abstracted in the margins, and be accompanied, in such cases as may seem to him necessary, with such explanatory observations as may be required to exhibit the reasons and occasions for proposing such laws; and shall also transmit fair copies of the journals and minutes of the proceedings of the legislative bodies of the colony, which he is to require from the clerks or other proper officers in that behalf of the said legislative bodies.’

“These clauses are not illegal because they relate to the reservation of bills for the signification of Her Majesty's pleasure. I refer to them only as showing the almost contemptuous disrespect and want of consideration displayed by the Colonial Office towards Australian Parliaments and Imperial officers in Australia. To order a Governor to take care that in the passing of all laws each different matter shall be provided for by a different law may at one time have been proper and not unnecessary. Addressed, as the order indirectly is, to Legislatures consisting of two Houses of Parliament like the Legislative Council and the Legislative Assembly of the various Australian colonies, it is an insult to all of those bodies. And it has proved on one occasion, at least, a cause of actual embarrassment to Her Majesty's Government in Victoria. When the Governor is ordered to require from the clerks in Parliament fair copies of the journals and minutes of the proceedings of the Legislative bodies, he is humiliated by being needlessly instructed to make a requirement which, if disputed, he could not enforce, and for the fulfilment of which he is in any and in every case indebted to the aid—which is, of course, never withheld—of a Minister of the Crown.”

One of the immediate results of this important letter was that Sir Henry Holland, afterwards Lord Knutsford, consulted the Imperial law officers with reference to the points so forcibly raised by the Chief Justice, and in July, 1888, he re-drafted the instructions with a view of meeting many of the points brought under his notice and of bringing the instructions more into conformity with the existing state of things. Lord Knutsford went out of office in 1892, and one of his last official acts was the promulgation of the re-drafted royal instructions for the guidance of colonial governors. Referring to this important event, Professor Morris writes:—

“The improvement was enormous. For the first time Responsible Government is recognized. For the first time the Governor is instructed to accept the advice of his ministers, whereas all earlier editions seem to imply that he is to be careful about accepting such advice and ready to oppose them.” (Professor Morris, Memoir of George Higinbotham, p. 202.)

“The measure of the victory with respect to Downing Street is to be found in the altered instructions. The Home law officers told Lord Knutsford that it was not illegal for governors to correspond with the Colonial Office; but the tone of that office is not now the tone of Mr. Cardwell, nor of the Duke of Buckingham, but rather this ‘involves no question calling for the intervention of the Imperial Government; it is not one on which it seems to me incumbent to express an opinion.’ Contrast the instructions to Sir Charles Darling, signed ‘V. Rg.,’ of June 23rd, 1863, with those published in the Victoria Government Gazette of September 2nd, 1892, signed, July 9th of that year, ‘V. R. I.’ The difference is enormous. The Victorian newspapers of that September commented on the change, and praised the wisdom of the Colonial Office in making it; but no one remembered the Victorian politician whose persistent efforts were at last successful. That number of the Gazette was published only four months before his death.” (Id. p. 229.)

The New Instructions.—The re-drafted instructions, approved by Her Majesty on the advice of Lord Knutsford, contained a complete recognition of the principle of responsible government, in form as well as in practice, in all self-governing colonies. All the old and obsolete provisions which were really only applicable to Crown colonies, and particularly those complained of by Chief Justice Higinbotham, were now eliminated. As portions of these new instructions will be the basis of the “powers and functions of


  ― 399 ―
the Queen” which may be assigned by Her Majesty to the Governor-General under sec. 2 of this constitution, they may be here appropriately inserted:—

  • “(i.) In these Our Instructions, unless inconsistent with the context, the term ‘the Governor’ shall include every person for the time being administering the Government of the Colony, and the term ‘the Executive Council’ shall mean the members of Our Executive Council for the Colony who are for the time being the responsible advisers of the Governor.
  • (ii.) The Governor may, whenever he thinks fit, require any person in the public service to take the Oath of Allegiance, together with such other Oath or Oaths as may from time to time be prescribed by any Law in force in the Colony. The Governor is to administer such Oaths or cause them to be administered by some Public Officer of the Colony.
  • (iii.) The Governor shall forthwith communicate these Our Instructions to the Executive Council, and likewise all such others, from time to time, as he shall find convenient for Our Service to impart to them.
  • (iv.) The Governor shall attend and preside at the meetings of the Executive Council, unless prevented by some necessary or reasonable cause, and in his absence such member as may be appointed by him in that behalf, or in the absence of such member the senior member of the Executive Council actually present shall preside; the seniority of the members of the said Council being regulated according to the order of their respective appointments as members thereof.
  • (v.) The Executive Council shall not proceed to the despatch of business unless duly summoned by authority of the Governor, nor unless two members at the least (exclusive of the Governor or of the member presiding) be present and assisting throughout the whole of the meetings at which any such business shall be despatched.
  • (vi.) In the execution of the powers and authorities vested in him, the Governor shall be guided by the advice of the Executive Council, but if in any case he shall see sufficient cause to dissent from the opinion of the said Council he may act in the exercise of his said powers and authorities in opposition to the opinion of the Council, reporting the matter to Us without delay, with the reasons for his so acting. In any such case it shall be competent to any member of the said Council to require that there be recorded upon the Minutes of the Council the grounds of any advice or opinion that he may give upon the question.
  • (vii.) The Governor shall not, except in the cases hereunder mentioned, assent in Our name to any Bill of any of the following classes:—
    • (1.) Any Bill for the divorce of persons joined together in holy matrimony.
    • (2.) Any Bill whereby any grant of land or money, or other donation or gratuity, may be made to himself.
    • (3.) Any Bill affecting the currency of the Colony.
    • (4.) Any Bill imposing differential duties (other than as allowed by the Australian Colonies' Duties Act, 1873).
    • (5.) Any Bill the provisions of which shall appear inconsistent with obligations imposed upon Us by Treaty.
    • (6.) Any Bill interfering with the discipline or control of Our forces in the Colony by land or sea.
    • (7.) 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.
    • (8.) Any Bill containing provisions to which Our assent has been once refused, or which has been disallowed by Us. Unless he shall have previously obtained Our Instructions upon such Bill, through one of Our Principal Secretaries of State, or unless such Bill shall contain a clause suspending the operation of such Bill until the signification in the Colony of Our pleasure thereupon, or unless the Governor shall have satisfied himself that an urgent necessity exists requiring that such Bill be brought into immediate operation, in which case he is authorized to assent in Our name to such Bill, unless the same shall be repugnant to the law of England, or inconsistent with any obligations imposed upon Us by Treaty. But he is to transmit to Us by the earliest opportunity the Bill so assented to, together with his reasons for assenting thereto.



  •   ― 400 ―
  • (viii.) The Governor shall not pardon or reprieve any offender without first receiving in capital cases the advice of the Executive Council, and in other cases the advice of one, at least, of his Ministers; and in any case in which such pardon or reprieve might directly affect the interests of our empire, or of any country or place beyond the jurisdiction of the Government of the colony, the Governor shall, before deciding as to either pardon or reprieve, take those interests specially into his own personal consideration in conjunction with such advice as aforesaid.
  • (ix.) All commissions granted by the Governor to any persons to be Judges, Justices of the Peace, or other officers shall, unless otherwise provided by the law, be granted during pleasure only.
  • (x.) The Governor shall not quit the colony without having first obtained leave from us for so doing under our Sign Manual and Signet, or through one of our principal Secretaries of State, except for the purpose of visiting the Governor of any neighbouring colony for periods not exceeding one month at any one time, nor exceeding in the aggregate one month for every year's service in the colony.
  • (xi.) The temporary absence of the Governor for any period not exceeding one month shall not, if he have previously informed the Executive Council, in writing, of his intended absence, and if he have duly appointed a Deputy in accordance with our said letters-patent, be deemed a departure from the colony within the meaning of the said letters-patent.

V.R.I.”

Special Instructions.—Every colonial governor, after his appointment to office, is subject to the control of the Crown, as an Imperial officer. In addition to the permanent and general instructions which he receives in connection with his commission, he may, from time to time, be charged with any further instructions, special or general, which the Crown may lawfully communicate to him under particular circumstances. The medium of communication between the sovereign and her representative in any British colony is the Secretary of State. (Todd, 2nd ed., p. 122.)

In the absence of special appointment, the governor of a British possession is also ex-officio Vice-Admiral thereof. (26 and 27 Vic. c. 24, sec. 3, and 30 and 31 Vic. c. 45, s. 4; repealed and re-enacted by the Colonial Courts of Admiralty Act, 1890, 53 and 54 Vic. c. 27, s. 10.)

Salary of Governor-General.

3. There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor-General57, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds.

The salary of a Governor-General shall not be altered during his continuance in office.

UNITED STATES.—The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.—Const. (Art. II. sec. 1, 7). SWITZERLAND.—The President of the Confederation and the other members of the Federal Council receive an annual salary from the Federal Treasury.—Const. (Art. 99). CANADA.—Unless altered by the Parliament of Canada, the salary of the Governor-General shall be ten thousand pounds sterling money of the United Kingdom of Great Britain and Ireland, payable out of the Consolidated Revenue Fund of Canada, and the same shall form the third charge thereon.—B.N.A. Act, 1867, sec. 105.

HISTORICAL NOTE.—Clause 3, Chap. I., of the Commonwealth Bill of 1891 was as follows:—

“The annual salary of the Governor-General shall be fixed by the Parliament from time to time, but shall not be less than ten thousand pounds, and shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth. The salary of a Governor-General shall not be diminished during his continuance in office.”




  ― 401 ―

In Committee, Sir Harry Atkinson moved the omission of the words “but shall not be less than £10,000;” but after discussion he withdrew the amendment. Sir John Bray moved to omit “but shall not be less than,” and insert “and until so fixed shall be.” This was negatived by 24 votes to 12. An amendment by Sir George Grey, to substitute “altered” for “diminished,” was also negatived. (Conv. Deb., Syd. [1891], pp. 578-85.)

At the Adelaide session, 1897, the clause was introduced as follows:—“The annual salary of the Governor-General shall be ten thousand pounds, and shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth.” In Committee, on the motion of Mr. Higgins, the words “Until the Parliament otherwise provides” were prefixed. An amendment by Mr. Howe, to substitute “seven” for “ten,” was negatived. On Mr. Barton's motion, the second paragraph was added. (Conv. Deb., Melb., pp. 629-33.)

At the Sydney session, suggestions by the Legislative Assembly and Legislative Council of South Australia, to reduce the salary to £7,000 and £8,000 respectively, were negatived, as was also an amendment by Mr. Glynn to omit the second paragraph. (Conv. Deb., Syd. [1897], p. 254.) Drafting amendments to the first paragraph brought it into its present shape.

§ 57. “Salary of the Governor-General.”

“On May 22, 1868, at the close of the first session of Parliament of the new Dominion of Canada, an Act passed by the Senate and House of Commons ‘to fix the salary of the Governor-General’ was reserved for the consideration of Her Majesty's pleasure thereon. It was proposed, by this Act, to reduce the salary of the Governor-General from £10,000, at which rate it had been fixed by the Imperial Act of Union, in 1867 (subject to alteration by the Parliament of Canada), to £6,500. But on July 30, 1868, the Secretary of State for the Colonies notified Lord Monck (the Governor-General) that while it was ‘with reluctance, and only on serious occasions, that the Queen's government can advise Her Majesty to withhold the royal sanction from a bill which has passed two branches of the Canadian Parliament,’ yet that a regard for the interests of Canada, and a well-founded apprehension that a reduction in the salary of the Governor which would place the office, as far as salary is a standard of recognition, in the third class among colonial governments, obliged Her Majesty's Government to advise that this bill should not be permitted to become law. In accordance with the opinions entertained by the Imperial Government on this subject, and with the right to legislate thereon, which was expressly conferred upon the Parliament of Canada by the 105th section of the British North America Act, the Dominion Parliament, in 1869, re enacted, by their own authority, the clause of the Imperial statute which fixed the salary of the Governor-General at £10,000 sterling, the same to be payable out of the consolidated revenue of Canada. This Act was necessarily reserved, under the royal instructions; but it received the assent of Her Majesty in council on August 7, 1869. From this date, no further attempt has been made to reduce the salary of the Governor-General.” (Todd, Parl. Gov. in the Col., 2nd ed., p. 177.)

“The present compensation of the President of the United States, as fixed by statute, is $50,000 per annum, together with the use, as a residence, of the executive mansion, and of the furniture and effects kept therein.” (Burgess, Political Sc., II. p. 244.)

“I think we might trust the Federal Parliament with fixing the amount, and then, of course, there will be an after-clause that the salary of no Governor-General is to be changed during his term of office. That is only fair. But we might trust the Federal Parliament with saying from time to time how much salary should be paid to the Governor-General.” (Mr. H. B. Higgins, Conv. Deb., Adel. [1897], p. 629.)

“I beg to say that the object of the Constitutional Committee was to lift this question of the salary of the Governor-General above that incessant nagging and criticism which has given rise to some of the most discreditable episodes in our political life. We have had in our various Parliaments all sorts of questions as to the value of a Governor, or the value of our connection with the British Crown, with a view to diminish his salary. The Governor-General is the only constitutional link we have between the mother-country and ourselves, and £10,000 is not too small a sum; indeed, everyone will admit that it is a fair salary. This is the salary of the President of the United States, and the object of the Constitutional Committee was to lift the office of the Governor-General, and the person himself, above the attacks to which I have referred—attacks which are made by persons who either despise the British Crown, or wish to subvert the


  ― 402 ―
position of the Governor-General. Under cover of these arguments, attacks are made upon the individuals who represent the Queen in the different colonies. As the Governor-General is to be a visible link between the British empire and ourselves, we should place him beyond the possibility of any trafficking being indulged in about the question of salary.” (Mr. G. H. Reid, id., p. 629.)

“I feel as strongly as Mr. Reid does the undesirability of frequent attacks upon the Governor, or his salary, or his perquisites, or anything else that belongs to him; but I am afraid that liability to attack would not be at all lessened if people were disposed to make it by inserting this provision for a fixed salary. My own inclination is that the reverse would be the case, because if people were disposed to cast unpleasant aspersions upon the Governor-General they would be more likely to do so if they could not relieve any antagonistic feeling they had by reducing his salary or that of his successors. There is a great deal of human nature in man, and if people, however fair they might wish to be, felt they could not gratify in any other way the criticism they may wish to indulge in, they would indulge in it with a great deal more acerbity if they could not touch the salary of the Governor-General or his successor. We may very fairly leave it with the Federal Parliament we are going to constitute, and the men who will compose this Senate and House of Representatives, to deal fairly and honourably with the Governor-General and his salary.” (Mr. J. H. Symon, id., p. 630.)

Provisions relating to Governor-General.

4. The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being, or such person as the Queen may appoint58 to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office59 during his administration of the Government of the Commonwealth.

CANADA.—The provisions of this Act referring to the Governor-General extend and apply to the Governor-General for the time being of Canada, or other the Chief Executive Officer or Administrator for the time being carrying on the Government of Canada on behalf and in the name of the Queen, by whatever title he is designated.—B.N.A. Act, 1867, sec. 10.

HISTORICAL NOTE.—Clause 4, Chap. I., of the Commonwealth Bill of 1891 was as follows:—

“The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being or other the Chief Executive Officer or Administrator of the Government of the Commonwealth, by whatever title he is designated.”

At the Adelaide session, 1897, the clause was introduced as follows:—

“The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being, or such other person as the Queen may appoint to be the Chief Executive Officer or Administrator of the Government of the Commonwealth; but no such person shall be entitled to receive any salary in respect of any other office under the Crown during his administration of the Government of the Commonwealth.”

In Committee the words “under the Crown” were omitted, and “from the Commonwealth” inserted after “salary.” (Conv. Deb., Adel., pp. 633-5) At the Melbourne session, drafting amendments were made after the fourth report.

§ 58. “Such Person as the Queen may Appoint.”

These words refer to the appointment of an acting Governor-General or Administrator of the Government of the Commonwealth, appointed under commission by the Queen. This officer, when so appointed, is authorized to exercise all the powers and functions of the Governor-General. He is not to be confused with the Deputy Governor-General, provided for by sec. 126. A Deputy Governor-General can only be appointed


  ― 403 ―
by the Governor-General himself under the authority of the Queen, and can only exercise such powers and functions as are assigned to him by the Governor-General, subject to any limitations imposed by the Queen; and the appointment of a Deputy does not affect the exercise by the Governor-General himself of those powers. (See sec. 126.)

“During the temporary absence of a Governor from his colony, it was formerly the general practice for the Crown, by a dormant commission under the sign-manual, to empower the Chief Justice or senior judge therein to act as administrator of the government; but difficulties having sometimes arisen in carrying out an arrangement of this kind, it is not now invariably resorted to, at least, in the first instance. Instead of this provision to supply the place of an absent Governor, it is now customary either to appoint a Lieutenant-Governor or Administrator of the Government under the royal sign-manual; or else that the senior officer for the time being of Her Majesty's regular troops in the colony shall be empowered to act in this capacity. But where no such provision has been made, it is usual and appropriate for the Chief Justice or senior judge to be authorized to act as Administrator of the Government, in the event of the death, incapacity, removal or departure from the Government of the Governor and (if there be such an officer) of the Lieutenant-Governor of the colony.” (Todd, Parl. Gov. in the Col., 2nd ed. p. 123.)

§ 59. “Salary … in Respect of any other Office.”

At the Adelaide session of the Convention, a section was inserted in Chapter III. providing that no person holding any judicial office should be appointed to or be capable of holding the office of Governor-General, Lieutenant-Governor, Chief Executive Officer, or Administrator of the Government. (Adel. Bill, sec. 80; Conv. Deb. Adel. pp. 1174-6) At the Melbourne session, this section was eliminated on the ground that it contained an undue limitation of the prerogative of the Crown, and that it might prejudically restrict the choice of the Crown in the appointment of an Administrator of the Government for the time being. The Queen has now, therefore, unfettered discretion in the selection and appointment of an Administrator of the Federal Government; he may be an Imperial officer; he may be an officer of the Commonwealth, such as President of the Senate or a Judge of the High Court; he may be a Governor of a State or other State officer; or he may not occupy any official position whatever at the time of his appointment. No qualification or disqualification for the office is prescribed, the Queen's choice, in conformity with the advice of her Imperial Ministers, being considered a sufficient guarantee for the appointment of a suitable and acceptable Federal Administrator, as well as for that of Governor-General himself. No mention is made in this section of the salary to be paid to the Administrator for his services in that capacity. It may be assumed that he will be paid out of the £10,000 per year payable to the Queen out of the consolidated fund of the Commonwealth for the maintenance of the Governor-Generalship, and that the amount will be apportioned in some manner satisfactory to the Imperial Government. There is, however, a distinct provision that no person acting as Administrator shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth. This inhibition will prevent a Federal Judge, should he be appointed Administrator, or the President of the Senate, should he be so appointed, from receiving the salary annexed to those respective offices during his administration of the Government. But should the Governor of a State or other State officer be so appointed, it will be competent for him to receive the salary of his State office as well as the salary for the Federal office.




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Sessions of Parliament. Prorogation and dissolution. Summoning Parliament. First Session.

5. The Governor-General may appoint such times60 for holding the sessions of the Parliament61 as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue62 the Parliament, and may in like manner dissolve63 the House of Representatives.

After any general election the Parliament shall be summoned64 to meet not later than thirty days after the day appointed for the return of the writs65.

The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth.

UNITED STATES.—The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. —Const., Art. I., sec. 4, subs. 2. CANADA.—The Parliament of Canada shall be called together not later than six months after the union.—B.N.A. Act, 1867, sec. 19.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, the first and third paragraphs of this section were contained, in almost identical words, in Clause 6 of Chap. I.; whilst the substance of the second paragraph was added to clause 42 in Committee, on the motion of Sir John Bray. (Conv. Deb., Syd. [1891], pp. 585, 643-62.)

At the Adelaide session, the same provisions were introduced almost verbatim. (Conv. Deb., Adel., p. 635.) At the Sydney session, the question of dissolving the Senate was raised, and the clause was postponed till the deadlock question had been settled. (Conv. Deb., Syd. [1897], pp. 254-6, 987.)

At the Melbourne session, drafting amendments were made before the first report and after the fourth report; the second paragraph being brought up from the “Duration of House of Representatives” clause (sec. 28).

§ 60. “May Appoint such Times.”

This is the first section in the Constitution in which a specific power to perform executive acts is vested in the Governor-General. It will be noticed that the section states that the Governor-General may perform these acts, and there is no reference to his so acting by the advice of the Federal Executive Council. The powers conferred on the Governor-General by this, and other sections similarly worded, may be here summarized for the purpose of comparing them with other powers conferred on the Governor-General in Council.

STATUTORY POWERS OF THE GOVERNOR-GENERAL.—The Governor-General may appoint the times for the holding the sessions of Parliament (sec. 5).

The Governor-General may prorogue Parliament (sec. 5).

The Governor-General may dissolve the House of Representatives (sec. 5).

The Governor-General shall notify to the Governor of a State interested the happening of a vacancy in the Senate (sec. 21).

The Governor-General may recommend to Parliament the appropriation of revenue or money (sec. 56).

The Governor-General may dissolve the Senate and the House of Representatives simultaneously (sec. 57).




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The Governor-General may convene a joint sitting of members of both Houses (sec. 57.)

The Governor-General may assent in the Queen's name to a proposed law, or withhold assent, or reserve the law for the Queen's pleasure (sec. 58).

The Governor-General may recommend to Parliament amendments in proposed laws (sec. 58.)

The Governor-General may exercise, as the Queen's representative, the executive power of the Commonwealth (sec. 61).

The Governor-General shall choose and summon members of the Federal Executive Council, and may dismiss them (sec. 62).

The Governor-General may appoint officers to administer departments of State, and may dismiss them (sec. 64).

The Governor-General may, in the absence of Parliamentary provision, direct what offices shall be held by Ministers of State (sec. 65).

The Governor-General as the Queen's representative has the command-in-chief of the naval and military forces (sec. 68).

The Governor-General may proclaim dates when certain departments shall be transferred to the Commonwealth (sec. 69).

The Governor-General may, “in respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth,” exercise all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a colony (sec. 70).

STATUTORY POWERS OF THE GOVERNOR-GENERAL IN COUNCIL.—On the other hand there are numerous sections in which authority to do executive acts is vested expressly in the Governor-General in Council, thus:—

The Governor-General in Council may issue writs for general elections of the House of Representatives (sec. 32).

The Governor-General in Council may issue writs for elections to fill vacancies in the House of Representatives (sec. 33).

The Governor-General in Council may establish departments of State (sec. 64).

The Governor-General in Council may appoint and remove all officers except Ministers of State (sec. 67).

The Governor-General in Council may exercise, “in respect of matters which under this Constitution pass to the Executive Government of the Commonwealth,” all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a colony with the advice of his Executive Council (sec. 70).

The Governor-General in Council shall appoint the Justices of the High Court, and may appoint Justices of other Federal Courts (sec. 72).

The Governor-General in Council may, on addresses from both Houses, remove Justices of the High Court and of other Federal Courts (sec. 72).

The Governor-General in Council may draw money from the Federal Treasury and expend the same until the first meeting of the Parliament (sec. 83).

The Governor-General in Council may appoint members of the Inter-State Commission (sec. 103).

The Governor-General in Council may, on addresses from both Houses, remove members of the Inter-State Commission (sec. 103).

MODE OF EXERCISING THESE POWERS.—Without anticipating our general comments on the Executive Government of the Commonwealth, which naturally appear under the heading of Chapter II. (note § 271) it may be advisable here to make a preliminary observation in explanation of the two groups of executive powers, so classified.




  ― 406 ―

The first group includes powers which properly or historically belong to the prerogatives of the Crown, and survive as parts of the prerogative; hence they are vested in the Governor-General, as the Queen's representative. The second group includes powers either of purely statutory origin or which have, by statute or custom, been detached from the prerogative; and they can, therefore, without any constitutional impropriety, be declared to be vested in the Governor-General in Council. But all those powers which involve the performance of executive acts, whether parts of the prerogative or the creatures of statute, will, in accordance with constitutional practice, as developed by the system known as responsible government, be performed by the Governor-General, by and with the advice of the Federal Executive Council. (See Note § 275.) If the section now under review had been made to read “the Governor-General in Council may appoint such times for holding the sessions of the Parliament,” &c., the words “in Council” would have been an invasion of the Royal prerogative; because it is invariably recognized as a prerogative of the Crown to summon, prorogue and dissolve Parliament. The words would moreover have been mere surplusage; nothing would have been gained, since parliamentary government has well established the principle that the Crown can perform no executive act, except on the advice of some minister responsible to Parliament. Hence the power nominally placed in the hands of the Governor-General is really granted to the people through their representatives in Parliament. Whilst, therefore, in this Constitution some executive powers are, in technical phraseology, and in accordance with venerable customs, vested in the Governor-General, and others in the Governor-General in Council, they are all substantially in pari materia, on the same footing, and, in the ultimate resort, can only be exercised according to the will of the people.

“There are certain prerogative rights which have been long demitted or got rid of by statute or by other practice—generally by statute—and in any statute drafted the words “in Council” are inserted. There are certain other prerogative rights which, not having been the subject of such demission, as it is sometimes called, I believe, not having been given up in any way, apparently, are not so described in a statute. There are certain prerogative rights—this was all gone into at Adelaide, and decided by the Convention according to the contention I am advocating—which are not described in a statute as rights of the Governor in Council, simply because no statute has ever dealt with them, and because they belong to that part of the prerogative which has never been nominally given up by the Crown. Of such is the power to summon and dissolve Parliament, to which no one who understood these matters would dream of adding the words ‘in Council.’ But yet these rights can never be exercised without the advice of a responsible Minister, and if that advice is wrongly given it is the Minister who suffers.” (Mr. E. Barton, Conv. Deb., Melb., pp. 2253-4.)

The executive powers referred to, however, must not be confounded with the authority vested in the Governor-General to assent to a proposed law or withhold his assent or to reserve it for the Queen's pleasure. (See Note, § 267.) This is not an executive, but a legislative power entrusted to him as the Queen's representative and one which he may exercise “according to his discretion.” That is the only section in which a discretionary power is clearly and unequivocally given to the Governor-General; it is in reference to matters of legislation and not matters of administration. (See Note, § 271, “The Executive Government.”)

§ 61. “Holding the Sessions of the Parliament.”

“It is by the act of the Crown alone that Parliament can be assembled. The only occasions on which the Lords and Commons have met by their own authority, were previously to the restoration of King Charles II., and at the Revolution in 1688. The first Act of Charles the Second's reign declared the Lords and Commons to be the two houses of Parliament, notwithstanding the irregular manner in which they had been assembled; and all their Acts were confirmed by the succeeding Parliament summoned by the king, which however qualified the confirmation of them, by declaring that ‘the manner of the assembling, enforced by the difficulties and exigencies which then lay upon the nation, is not to be drawn into example.’ In the same manner, the first Act of the reign of William and Mary declared the Convention of Lords and Commons to be the two houses


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of Parliament, as if they had been summoned according to the usual form; and the succeeding Parliament recognized the legality of their Acts.” (May, Parl. Prac., 10th ed., p. 38.)

§ 62. “Prorogue.”

Prorogation is the continuance of the Parliament from one session to another, as an adjournment is a continuance of the session from day to day. Prorogation puts an end to the session, and quashes any Bills which are begun and not perfected. According to the practice of the Imperial Parliament, such Bills must be resumed de novo (if at all) in a subsequent session, as if they had not previously been introduced. (See Tomlins, Vol. II. Parliament, viii.; May, Parl. Prac. 10th ed. p. 43.) The Houses may, however, by standing orders provide for the resumption of such Bills, upon motion, at the stage at which they were interrupted. (See, for instance, Standing Orders, 200-2, of Legislative Council, New South Wales; Standing Orders, 295-7, of Legislative Assembly, New South Wales.) A prorogation may be effected by commission, but the usual course is by proclamation.

“Both Houses are necessarily prorogued at the same time, it not being a prorogation of the House of Lords or Commons, but of the Parliament. The session is never understood to be at an end until a prorogation; though, unless some Act be passed or some judgment given in Parliament, it is in truth no session at all.” (Tomlins, vol. II, Parliament.)

“All orders of Parliament determine by prorogation, and one taken by order of the Parliament after their prorogation, may be discharged on an habeas corpus, as well as after a dissolution; but it was long since determined that the dissolution of a Parliament did not alter the state of impeachments brought up by the Commons in a preceding Parliament.” (Id.)

“The Crown may bring the session to an end by a prorogation, which has the effect of quashing all proceedings, except impeachments and appeals before the House of Lords. Parliament is prorogued by the sovereign in person in the House of Lords, or by commission; it may also be prorogued by proclamation from the day for which it was summoned, or to which it had been previously prorogued.” (Encyclopedia, Laws of England IX. p. 401.)

§ 63. “Dissolve.”

This section confers upon the Governor-General the power to dissolve the House of Representatives before the expiration of the three years for which it is elected. By section 57 the Governor-General, in the circumstances therein specified, is further authorized to dissolve the Senate and the House of Representatives simultaneously.

GRANTING A DISSOLUTION.—It is the prerogative of the Crown to dissolve an existing Parliament subject only to the constitutional rule that this great power, described by Sir Charles G. Duffy as “the most popular of all the prerogatives,” and one of immense utility, can be exercised only on the advice and approval of a Minister of State directly responsible to the national chamber. The granting of a dissolution is, of course, an executive act, the ministerial responsibility for which can be easily established. The following have been suggested as the leading considerations which should reasonably support and justify ministerial advice in favour of a dissolution (Todd, 2nd ed. p. 771):

  • (i.) When a vote of “no confidence” is carried against a government which has not already appealed to the country.
  • (ii.) When there are reasonable grounds to believe that an adverse vote against the government does not represent the opinions and wishes of the country, and would be reversed by a new Parliament.
  • (iii.) When the existing Parliament was elected under the auspices of the opponents of the government.
  • (iv.) When the majority against a government is so small as to make it improbable that a strong government can be formed from the opposition.

REFUSING A DISSOLUTION.—The refusal of a dissolution, recommended by a Minister of State, is not an executive act; it is a refusal to do an executive act. It seems to be


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generally admitted by constitutional authorities that the Crown has still an undoubted constitutional right to withhold its consent to the application of a minister for permission to dissolve Parliament. The sovereign, it is said, ought not to be a mere passive instrument in the hands of ministers; it is not merely the right but the duty of the sovereign to exercise his judgment on the advice so tendered.

“And though, by refusing to act upon that advice, he incurs a serious responsibility, if they should in the end prove to be supported by public opinion, there is, perhaps, no case in which this responsibility may be more safely and more usefully incurred than when ministers have asked to be allowed to appeal to the people from a decision pronounced against them by the House of Commons. For they might prefer this request when there was no probability of the vote of the House being reversed by the nation, and when the measure would be injurious to the public interests. In such a case, the sovereign ought clearly to refuse to allow a dissolution.” (Todd, Parl. Govt. in England, II., 2nd ed., 510.)

“The power of dissolution is, of all the trusts vested in His Majesty, the most critical and delicate.” (Burke, Works, III., p. 525.)

“It is a great instrument in the hands of the Crown, and it would have a tendency to blunt the instrument if it were employed without grave necessity.” (Sir Robert Peel, Speeches, IV., p. 710.)

“It seems to be generally supposed that a defeated minister is entitled, if he think fit, at once to ‘appeal to the country.’ The concurrence of the Crown is assumed as a matter of course. But although ministers may advise a dissolution, the King is by no means bound to follow that advice. The refusal to grant the dissolution would indeed be a sufficient ground for the resignation of ministers; but, on the other hand, compliance with the request can only be meant to assist them against the hostility of Parliament. Such assistance the King cannot and ought not indiscriminately to give. The question therefore arises in what circumstances, according to modern constitutional usage, ought the prerogative of dissolving Parliament to be exercised.” (Hearn's Gov. of Eng., p. 162.)

“Except where some organic change has been effected in the construction of Parliament, the only reason which can induce the King prematurely to dismiss his Great Council must be either that the advice that he obtains from it is unacceptable to him, or that he can obtain no definite and decided advice, or that the two portions of his Council are discordant. In other words, either there is a difference of opinion between the Crown and the House of Commons on the subject of some ministry; or the different parties in the Commons are so equally divided that business is obstructed; or the two Houses cannot on some material question come to an agreement.” (Hearn's Gov. of Eng., p. 163-4.)

“If the minister to whom a dissolution has been refused is not willing to accept the decision of the sovereign, it is his duty to resign. He must then be replaced by another minister, who is prepared to accept full responsibility for the act of the sovereign, and for its consequences, in the judgment of Parliament.” (Todd, Parl. Govt. in Eng., vol. ii., p. 408.)

“It is evident, therefore, that the sovereign—when, in the exercise of this prerogative, a dissolution is either granted or refused—must be sustained and justified by the agreement of a responsible minister. If this be constitutionally necessary, as respects the sovereign, it is doubly so in the case of a Governor. For the sovereign is not personally responsible to any earthly authority; but a Governor is directly responsible to the Crown for every act of his administration.” (Todd, Parl. Govt. in the Col., 2nd ed., p. 761.)

“As the representative of the Crown in the dominion, colony, or province, over which he is commissioned to preside, the power of dissolution rests absolutely and exclusively with the Governor or Lieutenant-Governor for the time being. He is personally responsible to the Crown for the lawful exercise of this prerogative, but he is likewise bound to take into account the welfare of the people, being unable to divest himself of a grave moral responsibility towards the colony he is commissioned to govern.” (Todd, id., p. 800.)

“Whilst this prerogative, as all others in our constitutional system, can only be administered upon the advice of counsellors prepared to assume full responsibility for the Governor's decision, the Governor must be himself the judge of the necessity for a dissolution. The ‘constitutional discretion’ of the Governor should be invoked in respect to every case wherein a dissolution may be advised or requested by his ministers; and his judgment ought not to be fettered, or his discretion disputed, by inferences drawn from previous precedents, when he decides that a proposed dissolution is unnecessary or undesirable.” (Todd, id., p. 800.)




  ― 409 ―

“It is the duty of a Governor to consider the question of a dissolution of the parliament or legislature solely in reference to the general interests of the people and not from a party standpoint. He is under no obligation to sustain the party in power if he believes that the accession to office of their opponents would be more beneficial to the public at large. He is, therefore, justified in withholding a dissolution requested by his ministers, when he is of opinion that it was asked for merely to strengthen a particular party, and not with a view to ascertain the public sentiment upon disputed questions of public policy. These considerations would always warrant a governor in withholding his consent to a dissolution applied for, under such circumstances, by a ministry that had been condemned by a vote of the popular chamber. If he believes that a strong and efficient administration could be formed that would command the confidence of an existing Assembly, he is free to make trial thereof instead of complying with the request of his ministers to grant them a dissolution as an alternative to their enforced resignation of office. On the other hand, he may at his discretion grant a dissolution to a ministry defeated in Parliament and desirous of appealing to the constituencies, notwithstanding that one or both branches of the legislature should remonstrate against the proposed appeal, if only he is persuaded that it would be for the public advantage that the appeal should be allowed.” (Todd, id., p. 801.)

“Parliament is usually dissolved by proclamation under the great seal, after having been prorogued to a certain day. This proclamation is issued by the Queen, with the advice of her Privy Council; and announces that the Queen has given order to the Lord Chancellor of Great Britain and the Lord Chancellor of Ireland to issue out writs in due form, and according to law, for calling a new Parliament; and that the writs are to be returnable in due course of law.” (May's Parl. Prac., 10th ed., p. 46.)

“On the 17th July, 1837, Parliament was prorogued and dissolved on the same day. On the 23rd July, 1847, the Queen, in proroguing Parliament, announced her intention immediately to dissolve it; and it was accordingly dissolved by proclamation on the same day, and the writs were despatched by that evening's post; and this course is now the ordinary, but not the invariable practice.” (May's Parl. Prac., 10th ed., p. 47.)

§ 64. “The Parliament shall be Summoned.”

The first Federal Parliament will have to be elected and summoned to meet for the despatch of business not later than six months after the establishment of the Commonwealth. This part of the section refers to two important events—(1) the establishment of the Commonwealth, and (2) the summoning of the first Parliament. Several intervening events are assumed to have taken place; such as the appointment by the Governor-General of Ministers of State to constitute the first administration of the Commonwealth, and the election of the first Parliament. A Federal Ministry will have to be appointed immediately upon the establishment of the Commonwealth, for on the accomplishment of the union the departments of Customs and Excise, in the several States, are by the terms of the Constitution transferred to the Commonwealth, and the Executive Government will be at once required for the purpose of administering those departments as well as for the purpose of supervising the issue of writs, appointing returning officers, and generally making arrangements necessary for the election of members of the House of Representatives. The writs for the election of Senators are issued by the Governors of States. The various successive steps and stages in the inauguration of the new regime may be here recapitulated for general survey—

  • THE PASSING OF THE ACT. (9th July, 1900.)
  • THE PASSING OF ELECTORAL LAWS BY THE COLONIAL PARLIAMENTS.
  • THE ISSUE OF THE QUEEN'S PROCLAMATION (17th September, 1900).
  • THE APPOINTMENT OF THE GOVERNOR-GENERAL.
  • THE ARRIVAL OF THE GOVERNOR-GENERAL IN AUSTRALIA.
  • THE ESTABLISHMENT OF THE COMMONWEALTH AND THE COMMENCEMENT OF THE OPERATION OF THE CONSTITUTION ON THE DAY APPOINTED IN THE QUEEN'S PROCLAMATION (1st January, 1901).
  • THE TRANSFER OF THE DEPARTMENTS OF CUSTOMS AND EXCISE TO THE COMMONWEALTH (1st January, 1901).
  • THE APPOINTMENT OF THE FIRST FEDERAL MINISTRY.
  • THE ISSUE BY THE GOVERNOR-GENERAL OF WRITS FOR THE ELECTION OF MEMBERS OF THE HOUSE OF REPRESENTATIVES.



  •   ― 410 ―
  • THE ISSUE BY THE GOVERNORS OF STATES OF WRITS FOR THE ELECTION OF SENATORS.
  • THE ELECTION OF REPRESENTATIVES.
  • THE ELECTION OF SENATORS.
  • THE RETURN OF THE WRITS.
  • THE SUMMONING OF THE NEW PARLIAMENT.
  • THE MEETING OF THE NEW PARLIAMENT NOT LATER THAN SIX MONTHS AFTER THE ESTABLISHMENT OF THE COMMONWEALTH.

§ 65. “Day Appointed for the Return of the Writs.”

The provision of this Section, that after any general election the Parliament shall be summoned to meet not later than thirty days “after the day appointed for the return of writs” would seem to refer to the day appointed by the Governor-General in Council under section 32, under which writs are issued for general elections of members of the House of Representatives; such writs would of course appoint the day upon which they are required to be returned. The passage in this section, now under consideration, was taken from a paragraph in ch. I., pt. III., sec. 41 of the Draft Bill of 1891, which under the heading of “Duration of the House of Representatives,” provided that “The Parliament shall be called together not later than thirty days after the day appointed for the return of the writs for the general election.” From this it appears “that the day appointed” means the time specified for the return of the writs issued by the Federal Government for the election of the House of Representatives; and that it has no reference to the times which may be appointed by the Governors of States for the return of writs issued by them for the election of Senators for their respective States. It does not seem to suggest that the Governor-General in Council could limit the time within which the election of Senators would have to be held, and their names certified by the Governors of States. The Governor-General in Council could issue no mandate to the Governors of States on this subject. On the contrary, the State authorities can fix their own times for the election of senators, without reference to the Federal Government (sec. 9). Should any of the States omit to provide for their representation in the Senate, that body could proceed to the despatch of business in the absence of senators from such State (sec. 11), provided that there was a quorum present, consisting of at least one-third of the whole number of the senators (sec. 22).

Yearly Session of Parliament.

6. There shall be a session of the Parliament once at least in every year66, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.

CANADA.—There shall be a session of the Parliament of Canada once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.—B.N.A. Act, 1867, s. 20.

HISTORICAL NOTE.—This provision, which occurs in the Constitutions of all the Australian colonies, was contained, verbatim, in the Commonwealth Bill of 1891, and was adopted by the Convention of 1897-8, without debate or amendment.

§ 66. “Once at Least in Every Year.”

The annual meeting of the Federal Parliament is secured by this section of the Constitution, in accordance with numerous colonial precedents. In the United Kingdom, however, the Queen is only bound by statute to issue writs within three years after the expiration of a Parliament. The guarantee of an annual session is the necessity of providing money for the public service.




  ― 411 ―

“The annual meeting of Parliament, now placed beyond the power of the Crown by a system of finance, rather than by distinct enactment, had, in fact, been the law of England from very early times. By the statute 4 Edward III., c. 14, ‘it is accorded that Parliament shall be holden every year once, [and] [or] more often if need be.’ And again, in the 36 Edw. III., c 10, it was granted ‘for redress of divers mischiefs and grievances which daily happen [a Parliament shall be holden or] be the Parliament holden every year, as another time was ordained by statute.’ It is well known that by extending the words, ‘if need be,’ to the whole sentence instead of to the last part only, to which they are obviously limited, the kings of England constantly disregarded these laws. It is impossible, however, for any words to be more distinct than those of the 36 Edward III., and it is plain from many records that they were rightly understood at the time. In the 50 Edward III., the Commons petitioned the king to establish, by statute, that a Parliament should be held each year; to which the king replied, ‘In regard to a Parliament each year, there are statutes and ordinances made, which should be duly maintained and kept.’ So also to a similar petition in the 1 Richard II., it was answered, ‘So far as relates to the holding of Parliament each year, let the statutes thereupon be kept and observed; and as for the place of meeting, the king will therein do his pleasure.’ And in the following year the king declared that he had summoned Parliament, because at the prayer of the Lords and Commons it had been ordained and agreed that Parliament should be held each year. In the preamble of the Act 16 Chas. I., c. 1, it was also distinctly affirmed, that ‘by the laws and statutes of this realm, Parliament ought to be holden at least once every year for the redress of grievances: but the appointment of the time and place of the holding thereof hath always belonged, as it ought, to his majesty and his royal progenitors.’ Yet by the 16 Chas. II., c. 1, a recognition of these ancient laws was withheld: for the Act of Charles I. was repealed as ‘derogatory of his majesty's just rights and prerogative’; and the statutes of Edward III were incorrectly construed to signify no more than that ‘Parliaments are to be held very often.’ All these statutes, however, were repealed, by implication, by this Act, and also by the 6 and 7 Will. and Mary, c. 2, which declares and enacts ‘that from henceforth Parliament shall be holden once in three years at the least.’ ” (May's Parl. Prac., pp. 38-40.)

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