(d) Any Bill imposing differential duties (other than as allowed by the Australian Colonies Duties Act, 1873).

(e) Any Bill the provisions of which shall appear inconsistent with obligations

imposed upon Us by treaty.

(ƒ) Any Bill interfering with the discipline or control of Our forces in the colony by land or sea.

(g) 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.

(h) Any Bill containing provisions to which Our assent has been once refused, or which has been disallowed by Us.

Since the appointment of the Marquis of Lorne, on 6th October, 1878, the instructions associated with the office of Governor-General of Canada have been amended by the omission of the clause which formerly prescribed the classes of bills to be reserved by the Governor-General for Imperial consideration. Pursuant to this change in the tenor of the Royal Instructions to Governors of Canada-first introduced in 1878, by the omission of any direction for the reservation of bills-an Act passed by the Canadian Parliament in 1879, to effect the judicial separation of certain parties from the bonds of matrimony, was assented to by the Governor-General (42 Vic. 79), which Act previously must needs have been reserved for the signification of the royal pleasure thereon. (Todd's Parl. Gov. in Col., 2nd ed. p. 163.)

The instructions associated with the office of Governor-General of the Commonwealth will probably be framed on the lines of the Canadian model. Indeed, according to a strict interpretation of sec. 58 of the Constitution of the Commonwealth it would not be legal for Her Majesty, through the Secretary of State for the Colonies, to fetter the discretion of the Governor-General by instructions such as those which, with unquestionable legality, were given under the authority of the Act 5 and 6 Vic. c. 76, ss. 31 and 40. The Governor-General is authorized to assent in the Queen's name to Bills, to withhold the Royal assent to Bills, or to reserve Bills for the signification of the Queen's pleasure, "according to his discretion," and subject only to the Constitution; not subject to instructions, as under the Act of 1842. In determining the exercise of his discretion, the Governor-General will be entitled to receive from the law officers of the Commonwealth a report in reference to each Bill to be submitted for his sanction, specifying whether there is any legal objection to his assenting to it, or whether his duty and obligations, as Representative of the Crown, necessitate that he should withhold his assent or reserve the Bill for the consideration of the Imperial Government. (Todd's Parl. Gov. in Col., 2nd ed. p. 166.) As a general rule, a Governor would be justified in accepting and acting upon statements of such functionaries in local matters. But if his own individual judgment does not coincide with their interpretation of the law, his responsibility to the Crown may require him to delay acting on the advice of his Ministers. But whatever steps he may think fit to take upon such a grave emergency, and from whatever materials his opinion may be formed, he is individually responsible for his conduct, and cannot shelter himself behind advice obtained from outside his Ministry. (Id. p. 167.)

The origin of the constitutional legislation enabling the Governor of a colony to recommend to its legislature amendments in proposed laws, may be traced back to 5 and 6 Vic. c. 76, s. 30 (p. 689 supra). It was reproduced in the Constitution Act of Victoria, 1855, sec. 36, as follows:

"It shall be lawful for the Governor to transmit by message to the Council or Assembly for their consideration any amendment which he shall desire to be made in any

Bill presented to him for Her Majesty's assent; and all such amendments shall be taken into consideration in such convenient manner as shall by the rules and orders aforesaid be in that behalf provided.”

This power of recommending amendments, vested in the Governor, has been found in parliamentary practice a very useful one, and even under our system of responsible government it has been used with advantage. It is of special value, towards the end of a session, when Bills have been passed through all their stages in both Houses of Parliament, and when it has been found that inaccuracies or discrepancies have crept into some of them. In such circumstances Ministers formulate the required amendments, and upon their advice the Governor transmits a message to the House in which the Bill or Bills requiring rectification originated. Thereupon amendments recommended are duly considered and dealt with, and if adopted, are transmitted to the other Chamber for its concurrence.

Disallowance by the Queen.

59. The Queen may disallow 269 any law within one year from the Governor-General's assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.

HISTORICAL NOTE. The first draft of this clause in the Commonwealth Bill of 1891 was taken from the Act for the Government of New South Wales and Van Diemen's Land, 1842 (5 and 6 Vic. c. 76, sec. 32). It was to the same effect, except that the period for disallowance was within two years from the receipt of the Bill by the Queen. In Committee, Mr. Cockburn moved to substitute "one year" for "two years," but this was negatived. He then moved to add :-" Provided that such disallowance shall be exercised on such subjects only as affect Imperial interests and are specified in schedule B." This also was negatived. (Conv. Deb., Syd., 1891, pp. 7€3-5.) At the Adelaide session, 1897, the clause was introduced and adopted in the same form, except that the period for disallowance was one year from the receipt of the Bill. At the Melbourne session, before the first report, this period was altered to "one year from the Governor-General's assent,” and further drafting amendments were made. A verbal amendment was made after the fourth report.

§ 269. "The Queen May Disallow."

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

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

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

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

Signification of Queen's pleasure on Bills reserved.

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

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

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

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

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

$270. "A Proposed Law Reserved."

The power of reservation will be exercised by the Governor-General according to his discretion. The principal consideration influencing his discretion will probably be whether the proposed law is in conflict with Imperial legislation applicable to the colonies, or inconsistent with the treaty obligations of Her Majesty's Government.

The following are extracts from a return presented to the House of Lords on the motion of the Earl of Onslow (2nd August, 1894) giving particulars of (1) Acts passed by both Houses of the Legislatures and assented to by Governors of Colonies possessing Responsible Government, and subsequently disallowed; (2) bills reserved, as to which Her Majesty was subsequently advised to withhold her assent, showing in each case whether the principle contained in such measure had or had not, up to the date of the return, become law in the colony :