A. The Crown and the Governor-General.

One of the few legal characteristics of self-governing colonies is that the legislation generally proceeds in the name of the Crown, while in colonies in a less advanced state enactments are in the name of the Governor. The inclusion of the Crown in “The Parliament” follows the British North America Act, 1867, sec. 17, and follows the legal theory as to the composition of the Imperial Parliament.noteIn the Commonwealth it is specifically provided by section 2 of the Constitution that a Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, who has, and “may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.” The office of Governor-General has been created by Letters Patent, and the Governor-General has been appointed by Commission under the Royal Sign Manual and Signet.note

Sections 3 and 4 of the Constitution relate generally to the office of Governor-General, and have no special reference to the Parliament or to legislative power. Section 3 provides

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for a salary of £10,000 per annum, which may be altered by the Parliament, but so that the salary of the Governor-General then in office is not affected. Section 4 deals with the construction of powers in the Constitution conferred upon the Governor-General, and provides that they may be exercised by the Governor-General for the time being or by the administrator of the Government. Section vii. of the Letters Patent follows upon this. Another general provision affecting the office—the power of the Crown to authorize the Governor-General to appoint a deputy or deputies to act in any part of the Commonwealth—is contained in section 126; the power is exercised in the Letters Patent, section vi., which repeat the proviso that the appointment of such a deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function.

As sections 3 and 4 relate generally to the office of Governor-General, it has been inferred that section 2 is equally general; and that the provision that the Governor-General “shall have and may exercise” “such powers and functions of the Queen as Her Majesty may be pleased to assign to him,” shuts out the contention of which something has been heard in Australia and in Canada, that the Governor of a self-governing colony has virtute officii, and without special grant, all the executive powers of the Crown exerciseable in relation to the internal government of the colony. The matter is referred to under the head of “Executive Power.” It may be noticed that the Constitution takes a new departure in speaking of the Governor-General “as Her Majesty's representative” (sections 2, 61, 68). It is true that this term is used colloquially to describe a Governor, and has been occasionally used in judgments. It is believed that it has never before been used in any Statute, Letters Patent, or Commission of a Colonial Governor; and, on the other hand, the expression “the representative of the Queen in the government of the colony” has more than once been used by the Judicial Committee to describe a Viceroy, and to distinguish him

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from a Governor, who is an officer merely with a limited authority from the Crown.note

The powers and duties of the Governor-General in relation to the Parliament and to legislation spring partly from the Royal grant, and partly from the provisions of the Constitution. Some of them, though of statutory origin, correspond with actual prerogatives of the Crown, or are in close analogy thereto; others are rather in the nature of ministerial Acts, lodged in the Governor-General as the only permanent officer of the Commonwealth. The following are the principal powers and duties related to the prerogative:

1. He summons, prorogues, and dissolves the Parliament.

These are prerogative powers, and in accordance with constitutional custom they are conferred upon the Governor-General by the Letter Patent (section v.). They are also, however, expressly granted by the Constitution itself (section 5), and the powers of dissolving and summoning the Parliament are the subject of important provisions. After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs (section 5), and there is to be a session of the Parliament 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” (section 6). The first Parliament of the Commonwealth was to be summoned to meet not later than six months after the establishment of the Commonwealth.note As to the dissolution of the Parliament, that extends in the ordinary case only to the House of Representatives (section 5); but in the special case of a “deadlock,” both Houses may be dissolved (section 57).

2. He recommends to the House in which the proposal

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originates, votes, resolutions, or proposed laws for the appropriation of revenue or monies (section 56).

3. He assents to legislation (sections 58, 128) in the Queen's name.

In the exercise of these powers the Governor-General will generally, but not necessarily nor always, act on the advice of his Ministers. As to the summoning of the Parliament, he is in this as in other matters the guardian of the law, and should see that it meets at the proper times. As to the power of dissolution, that has always been the most difficult and delicate of a Governor's powers in a self-governing colony; and is the one matter in which governors always exercise a personal discretion which not infrequently leads them to refuse a dissolution. The principle which has been acted upon is that with the short Parliaments in the colonies, a dissolution should, save in special circumstances, be resorted to only when it is clear that in no other way can government be carried on.note

The provisions of section 58 relating to the Royal Assent to Bills are taken from the British North America Act, 1867, section 55, with an important difference. The Governor-General is to exercise his powers of assenting, withholding the Royal Assent, or reserving “according to his discretion, but subject to this Constitution.” “According to his discretion” raises the consideration of two matters by which the discretion of the Governor-General may be guided—the Royal Instructions and the advice of his Ministers. As to the Royal Instructions, it has been doubted whether a law assented to by a Governor would not in all cases be valid, notwithstanding that such assent was given contrary to the terms of the Instructions. The Constitution Acts of the Australian Colonies, however, made the observance of the Instructions a condition of validity,note though as the Instructions themselves gave the Governor a discretionary power to assent to any Bill in case he should be of

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opinion that an urgent necessity existed for bringing it into operation, the result was that the non-reservation of a Bill prescribed for reservation by the Royal Instructions only, would not impair its validity. The British North America Act, section 55, provides that when a Bill is presented to the Governor-General for the Royal Assent, he shall declare “according to his discretion, but subject to the provisions of this Act, and to Her Majesty's Instructions, either that he assents,” etc. The words “and to Her Majesty's Instructions” are omitted in the Commonwealth Constitution, and there is no provision on the subject similar to that in the Constitution Acts of the Australian Colonies.note Section 58, however, provides that the Governor-General shall declare his assent, etc., according to his discretion, “but subject to this Constitution”; section 2, as has been seen, limits the powers of the Governor-General to such “powers and functions of the Queen as Her Majesty may be pleased to assign to him”; and it would seem to follow that if the Crown forbids the Governor-General to assent to a particular measure, his assent will be invalid. A difficulty arises from the fact that the limitation of power in section 2, like the grant of power in section 58, is expressed to be “subject to this Constitution.” Another question arises as to the application of the Colonial Laws Validity Act, 1865, section 5:—“No colonial law, passed with the concurrence of or assented to by the Governor of any Colony, or to be hereafter passed or assented to, shall be or be deemed to have been void or inoperative by reason only of any instructions with reference to such law or the subject thereof by any instrument other than the Letters Patent, or instrument authorizing such Governor to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such instructions may be referred to in such letters patent or last mentioned instrument.” The question is, for the present, without practical importance, for the Governor-General's instructions contain no restrictions on the subject.

In assenting to or withholding assent from Bills, the

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Governor-General must first regard his duty as an Imperial Officer. He must consult his instructions, and see whether the measure is one which he ought to reserve. He must then satisfy himself that the subject is one over which the Commonwealth Parliament has power, and that the proposed law does not conflict with any Imperial law in operation in the Commonwealth. For this purpose, he will probably receive a report from his Law Officers; and if the matter is of more than local importance, he may seek the advice of the Imperial Law Officers. With these limitations, it would seem that he ought to act upon the advice of his Ministers.note In any case where the Governor-General assents to a Bill, the Crown may disallow the Act within one year, and the law will then be annulled from the day when the disallowance is made known (sec. 59).

There is one matter in which the Constitution itself requires that proposed laws shall be reserved. Section 74, which gives power to the Parliament to make laws limiting the matters in which leave to appeal to the Crown in Council may be asked, directs that every such proposed law shall be reserved by the Governor-General for the pleasure of the Crown.

The minor powers of the Governor-General in relation to the Parliament will be considered with the matters to which they relate.