$ 265. "Such Dissolution shall not Take Place." There is one restriction on the power of the Crown to grant a double dissolution. It may not take place within six months before the date of the expiry of the House of Representatives by effluxion of time. The policy of this restriction is that the House of Representatives may not be permitted to court a deadlock, and to force a dissolution of the Senate, when the House of Representatives is on the point of expiry. If there is to be a dissolution of both Houses, the House of Representatives must submit to sacrifices as well as the Senate. Under this restriction its members will have to lose at least six months of their prospective term of membership. This loss, however, would be small compared with the term of membership which the Senators would lose. It is thus assumed that under this procedure the members of both Houses will have every opportunity to agree and every inducement to abstain from unreasonable disagreement. On the dissolution of the Senate the Governor of each State will cause writs to be issued for the election of new senators for the State. The writs must be issued within ten days from the proclamation of the dissolution. They will appoint the day of election and the officers to conduct the election (sec. 12). The Constitution does not limit the time within which, after the issue of the writs, the election of senators must be held. Power, however, is given to the Parliament of each State to make laws for determining the time and places of election of senators for the State (sec. 9). After the first meeting of the Senate, following a dissolution thereof, the Senate is required by sec. 13 to proceed to make provision for the retirement of its members by rotation, similar to that made by it after its first election. The writs for the election of members of the House of Representatives will be issued by the Governor-General in Council, within ten days from the proclamation of the dissolution (sec. 32). The time appointed for the return of the writs will be specified in the writs. Parliament must be summoned to meet not later than thirty days after the day appointed for the return of writs (sec. 5). $266. "A Joint Sitting." The joint sitting is not a new contrivance in Parliamentary government. It is founded on the practice of conflicting legislative chambers at times appointing representatives to meet in conference authorized to discuss questions in dispute, and to suggest possible modes of settlement. In that practice, recognized both in Great Britain and her colonies, as well as in the United States, may be found the germ of which the joint sitting elaborated in this Constitution is the development. After the re-assembling of Parliament the House of Representatives, if disposed to carry on the campaign in favour of the proposed law, is entitled to again pass it with or without amendments which have been made, suggested or agreed to by the Senate, in the last session of the dissolved Parliament. It is again sent to the Senate, which is again, and for the third time, invited to pass it, or to pass it with amendments agreeable to the House of Representatives. If the Senate rejects the bill or fails to pass it with amendments to which the House of Representatives will agree, the Governor-General, acting according to the advice of his responsible ministers, may convene a joint sitting of the members of the Senate and of the House of Representatives. The conduct of the business and proceedings of the joint sitting will be regulated by joint standing rules and orders made and agreed to by the Houses under sec. 50. The question upon which the members present at the joint sitting "may deliberate and shall vote together" are:-(1) the bill as last proposed by the House of Representatives; and (2) any amendments which have been made by one House and not agreed to by the other. Any such amendments which are affirmed by an absolute majority of the total number of the members of both Houses will be taken to be carried; and the Bill itself, with any amendments so carried, must be voted upon, and if affirmed by a similar "absolute majority" of members it will be presented for the Royal assent just as if it had been passed by both Houses separately. MONEY BILLS. These dead-lock provisions apply to all bills8-as well bills which the Senate may not amend as bills which it may amend. But it should be noticed that the section is careful not to give the Senate any power, by means of the joint sitting, to secure any amendment which the Senate could not have made in the first instance. The only questions, besides the Bill itself, which can be voted on at the joint sitting, are amendments "made by one House" and not agreed to by the other. In the case of a Bill which the Senate may amend, amendments which it has made may be voted on at the joint sitting; but in the case of bills which the Senate may not amend, mere suggestions made by the Senate cannot be dealt with at the joint sitting. This section, therefore, does not give the Senate any indirect power of moulding the form of those financial measures for which the House of Representatives is solely responsible. THE ABSOLUTE MAJORITY.-Under the clause as adopted by the Convention, the proposed law and any amendments had to be carried, not by a simple majority, as in the case of business done in the Houses sitting separately, but by three-fifths of the members "present and voting." The main reason assigned in the Convention for this special majority was that, as the House of Representatives was twice as strong in numbers as the Senate, it would not be fair to the Senate to invite it to a joint conference at which it would be easily swamped and outvoted by overwhelming numbers. At the Premiers' Conference, 1899, Mr. Reid asked for a simple majority-instead of three-fifths of the members present and voting; and the matter was compromised by providing for a majority, not of those present and voting, but of all the members of both Houses-or what is concisely called an "absolute majority." In this way the artificiality of an extraordinary majority was avoided, and at the same time it was ensured that a majority of the Senate could never be defeated at a joint sitting except by a vote which would amount to a majority of a full joint sitting. The effect of the requirement of an "absolute majority" to carry a proposal is that the opponents of a proposal need not muster in force to defeat it; whether they are present or absent the proposal cannot be carried unless its supporters have an absolute majority, and will be carried if its supporters have that majority. On the other hand, the supporters of the proposal must be present to the required number, or they cannot succeed. In view, however, of the fact that a joint sitting, when it occurs, will be the final stage in a long political struggle, the difference between a simple and an absolute majority loses much of its importance. If the supporters of a proposal do not number an absolute majority, they will be unlikely to win in any case; and if they do number an absolute majority, it is very unlikely that any member of that majority will absent himself and thereby betray his party at the moment when victory is within their grasp. THE DEADLOCK MACHINERY.-Some of the members of the Convention, representing the more populous colonies, feared that through the principle of equal representation the less populous States would be able to exercise undue influence in the Senate, so as to thwart the will of the popular majority of the whole Commonwealth. At any rate this was the argument as interpreted by Sir Samuel Griffith. (Notes on the Draft Commonwealth Bill, 1899, p. 18.) Thus the whole of this complex and elaborate machinery for the settlements of deadlocks is founded on the assumption that two Representative Chambers, directly elected by the same class of people in all the States, will not work in harmony, but may at times come into deadly conflict. Should this assumption be well founded, and should the deadlock clause be brought into action with undue frequency, it will not be any evidence against the principle of equal representation, but rather proof of a temporary divergence of interests, and absence of that unity and identity of political growth which in the course of time should weld together the federated community. Such divergences will, no doubt, inevitably disappear, to be succeeded by a permanent tendency to integration, as the resultant of the national elements which pervade the Constitution. The provision made by this Constitution for the dissolution of the Senate is the latest and greatest experiment in Federal Government. No other second Chamber in any federal system is liable to be dissolved on any question of general legislation. By the Swiss Constitution (Art. 120), if the two Chambers are unable to agree on the question whether there shall be a total revision of the Constitution, the question is then referred to the people; and if a majority of the electors voting support a revision, both Chambers are dissolved, and the work of revision devolves upon the new federal legislature. (See Deploigne, Referendum in Switzerland, 1898, p. 129.) But in respect of ordinary legislation there is no such provision. Immunity from dissolution en masse has been hitherto one of the recognized privileges, and certainly the strongest bulwark, of Upper Houses generally. That feeling of constitutional indifference to such disturbing events as general elections has been one of the charms and attractions of the UpperHouse-Membership. The precedent, however, has been established once and for all time, and sooner or later it will invade the sacred precincts of most of the second Chambers in the world. It would be premature as well as unwise to indulge in speculations as to whether its liability to dissolution will tend to weaken the effective power of the Australian Senate. If the Senate is well led, a dissolution may result in its being supported and strengthened by the States. Although the Senate represents the States, as corporate units, it is based on the elective principle, as much as the House of Representatives. It will feel what Goldwin Smith describes as the " sap of popular election in its veins." In a disagreement with the House, it may assert its views with ability, dignity, and determination, it will fully realize its responsibility to the States, and will insist that its responsibility to its corporate constituents is as great as that of the other chamber to the people as individual units. If an uncompromising attitude on the part of both Houses leads to a double dissolution, the Senate may be reconstituted with added, and not diminished, authority. On the other hand, it is equally possible that the Senate, badly led, may be badly beaten in the appeal to the people and to the States. This much is certain, that the people as final arbiters will be the gainers of power by the liability of both Houses to dissolution. Royal assent to Bills. 58. When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's assent207, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure. The Governor-General may return to the House in which it originated any proposed law so presented to him, and may transmit therewith any amendments268 which he may recommend, and the Houses may deal with the recommendation. HISTORICAL NOTE.-The clause as introduced in the Sydney Convention of 1891 was in substance the same as this. The first paragraph follows the provisions of the Act for the Government of New South Wales and Van Diemen's Land, 1842 (5 and 6 Vic. c 76, sec. 31), with the important exception that it makes no mention of the royal instructions. The second paragraph is taken from sec. 36 of the Constitution of Victoria, and sec 28 of the Constitution of South Australia, which are in substantially the same terms. (Conv. Deb., Syd., 1891, p. 763.) At the Adelaide session the clause was adopted in substantially the same form. At the Sydney session, a suggestion by the Legislative Assembly of Victoria, to insert “and to Her Majesty's instructions" after "Constitution," was negatived. (Conv. Deb., Syd., 1897, pp. 778-9.) At the Melbourne session, drafting amendments were made before the first report and after the fourth report. § 267. "Presented to the Governor-General for the Queen's Assent." When a bill passed by both Houses of the Federal Parliament is presented to the Governor-General for the Queen's assent he may do one of three things: (1.) He may assent to the Bill in the Queen's name; and thereupon it becomes law, and remains law unless within one year from the date of the assent it is expressly disallowed by the Queen. (2.) He may withhold assent, that is absolutely veto the Bill, and thereupon it is lost for the time being. (3.) He may reserve the Bill for the signification of the Queen's pleasure, and thereupon it becomes subject to the procedure defined by sec. 60. The assent of the Queen to proposed laws is Her Majesty's assent as a separate, independent, and co-equal branch of the Federal Parliament. The form in which this section is drawn is materially different from the wording of corresponding sections in preceding Constitutional Acts, and this difference of form indicates the difference in the structure of the Federal Parliament compared with that of other colonial legislatures, and also the larger grant of power with which it is invested. By Act 5 and 6 Vic. c. 76 (30th July, 1842) it was provided that the Governor of New South Wales, with the advice and consent of the Legislative Council, should have authority to make laws for the peace, welfare, and good government of the colony, provided that such laws should not be repugnant to the law of England or interfere in any way with the sale or appropriation of the Crown lands within the colony (sec. 29). In accordance with the old constitutional principle, that section recognized the Crown as the sole legislature, and the Legislative Council merely as an advisory body. Consistently with the same principle, sec. 30 gave the Governor authority to transmit to the Council drafts of such laws as appeared to him desirable to pass. The Governor was also entitled to return to the Council bills which it had passed, recommending that amendments should be made in such bills. By sec. 31 it was enacted- "That every Bill which has been passed by the said Council and also every law proposed by the Governor which shall have been passed by the said Council whether with or without amendments shall be presented for Her Majesty's assent to the Governor of the said Colony and that the Governor shall declare according to his discretion but subject nevertheless to the provisions contained in this Act and to such instructions as may from time to time be given in that behalf by Her Majesty Her Heirs or Successors that he assents to such Bill in Her Majesty's name or that he withholds Her Majesty's assent or that he reserves such Bill for the signification of Her Majesty's pleasure thereon." Upon the presentation to the Governor of a Bill for Her Majesty's assent, he was directed to declare "according to his discretion" that he assented to such Bill in Her Majesty's name, or that he withheld Her Majesty's assent or that he reserved such Bill for the signification of Her Majesty's pleasure thereon, but the Governor's discretion was limited in two ways. It could only be exercised : (1.) Subject to the provisions contained in the Act, and (2.) Subject to such instructions as might from time to time be given to him in that behalf by Her Majesty, her heirs and successors. The first limitation referring to the provisions of the Act evidently alludes to the constitutionality of the proposed law, the Governor being required to satisfy himself that it was within the legislative authority conferred on him with the advice and consent of the Council. The second limitation required the Governor to exercise his discretion according to royal instructions, which would from time to time be given to him. Here then we come upon the statutory origin of an authority for royal instructions to Australian Governors. By sec. 40 of the same Act it is declared that Her Majesty may, with the advice of her Privy Council, or under Her Majesty's signet and sign manual, or through one of her principal Secretaries of State, from time to time convey to the Governor of New South Wales such instructions as to Her Majesty shall seem meet for his guidance in the exercise of his powers of assenting to, dissenting from, or reserving Bills passed by the Council, and that it shall be his duty to act in obedience to such instructions. Next came the Act 7 and 8 Vic. c. 74, sec. 7 (6th Aug., 1844), which recited that the object of providing for the reservation of Bills was to insure that such Bills should not be assented to by the Governor "without due consideration,” and provided that it should not be necessary for the Governor to reserve any such Bill, from which, in the exercise of his discretion as limited in the Act of 1842, he should declare that he withholds Her Majesty's assent, or to which he should have previously received instructions on the part of Her Majesty to assent. The Constitutional Act for the better government of the Australian colonies, 13 and 14 Vic. c. 59 (5th Aug., 1850), which created Victoria as a separate colony, re-enacted 5 and 6 Vic. c. 76, ss. 31 and 40, and 7 and 8 Vic. c. 74, s. 7, and made them applicable to the newly-created Australian Legislatures. The Constitution Statute of New South Wales, 18 and 19 Vic. c. 54, s. 3 (16th July, 1855), and the Constitution Statute of Victoria, 18 and 19 Vic. c. 55 (16th July, 1855), continued the operation of the old laws, directing the Governor to assent to or reserve Bills in conformity with instructions. The old law was made applicable to the new system of representative and responsible government then introduced. From this review of constitutional legislation it will be seen that the practice of limiting by instructions the Governor's discretion in giving or withholding the royal assent to Bills began in 5 and 6 Vic. c. 76, s. 31, statutory authority for those instructions being first found in sec. 40 of that Act; that the intention of sections 31 and 40 of the said Act is explained and extended by sec. 7 of the Act 7 and 8 Vic. c. 74; that the provisions of those Acts were confirmed by sec. 33 of the Act 13 and 14 Vic. c. 59; that previous legislation relating to the subject was confirmed by the Constitution Statutes of New South Wales and Victoria (16th July, 1855); and that those Statutes still remain in force, so far as they are applicable to the Governments of the States. Under this series of Imperial Acts, rules and instructions were formulated by the Imperial authorities, regulating the exercise of the discretion of Australian Governors, in giving or withholding the royal assent to Bills passed by the Australian legislatures. Among the instructions referred to, the following may be mentioned: That in the passing of all laws, each different matter be provided for by a different law, without intermixing in one and the same Act such things as have no proper relation to each other; that no clause or clauses be inserted in or annexed to any Act which shall be foreign to what the title of such Act imports, and that no perpetual clause be part of any temporary law. Then followed a list of the classes of Bills to which the Governor was not permitted to assent, but which he was required to reserve for the signification of the Queen's pleasure. These instructions remained in force in most of the Australian colonies until 1892 (see p. 398, supra), when they were superseded by a new draft of instructions, in which the Governor was allowed greater freedom in the exercise of his discretion in assenting to or withholding assent from Bills; he was not directed to attend to the petty details above recited, but he was still directed to reserve Bills of the following classes :— (a) Any Bill for the divorce of persons joined together in holy matrimony. (c) Any Bill affecting the currency of the colony. |