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governing 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 rires. 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.' p. 107.)



2. A Governor-General 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 pleasure, 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


"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,

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.)

Mr. Glynn, and capable

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." lest these words might revive dormant or dead prerogatives, moved to add 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. 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.)

"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.)

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§ 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

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 2. 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 Coustitution 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 Bilis 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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