TRANSMISSION OF COMMONWEALTH ACTS TO DOMINIONS OFFICE COMMONWEALTH ACTS: NUMBER OF COPIES TO BE SIGNED BY GOVERNOR-GENERAL: CHANNEL OF TRANSMISSION OF ACTS TO DOMINIONS OFFICE: RESERVATION OF BILL FOR ROYAL ASSENT: EXERCISE OF POWER OF DISALLOWANCE ON ADVICE OF COMMONWEALTH MINISTERS
INSTRUCTIONS PASSED UNDER THE ROYAL SIGN MANUAL AND SIGNET TO THE GOVERNOR-GENERAL AND COMMANDER-IN-CHIEF OF THE COMMONWEALTH OF AUSTRALIA dated 29 October 1900 para VII: CONSTITUTION s 59
I refer to the following matters raised some little time ago by the Official Secretary to the Governor-General.
- Whether the present practice should be continued whereby the Governor-General transmits, under cover of a despatch to the Secretary of State for the Dominions, copies of every Act to which His Excellency has assented, together with a copy of the Opinion of the Attorney-General as to whether the Bill should or should not be reserved for His Majesty’s pleasure to be made known; and
- Whether the present practice should be continued whereby the Governor-General signs an original and four copies of each Act assented to by him.
It appears from Captain Bracegirdle’s(1) letters that the Dominions Office is of opinion that the present practice of transmitting Acts to that Office is no longer constitutionally appropriate but is anxious that it should continue to receive copies of Commonwealth Acts as soon as the Acts are assented to.
The matters raised by Captain Bracegirdle have now been considered by the Attorney-General and I am now in a position to advise you as follows:
The King’s instructions to the Governor-General (published in Commonwealth Statutory Rules 1901–1927, Vol. 4, p. 3631) do not expressly require the Governor-General to transmit Acts, but paragraph VII of the instructions implies that the copies of Acts are to be transmitted. That paragraph reads as follows:
VII. Our said Governor-General is to take care that all laws assented to by him 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 he shall also transmit fair copies of the Journals and Minutes of the proceedings of the Parliament of Our said Commonwealth, which he is to require from the clerks, or other proper officers in that behalf, of the said Parliament.
Section 59 of the Constitution is as follows:
59. The Queen may disallow 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.
This power of disallowance cannot, of course, be legally removed except by an amendment of the Constitution, but, in the opinion of the Attorney-General, it would not be in accordance with present constitutional practice for the King to exercise the power otherwise than on the advice of Commonwealth Ministers.
The Attorney-General is of opinion that the provision for the despatch of Acts by the Governor-General to the Secretary of State for Dominions is open to objection and that it would be better for a supply of Commonwealth Acts to be forwarded by the Prime Minister, rather than by the Governor-General, to the Secretary of State.
As to the power of disallowance, despatches in the past have contained a paragraph from the Governor-General trusting that it will not be found necessary to advise His Majesty to exercise His power of disallowance of the Act. In the Attorney-General’s view, this provision is entirely inconsistent with the present constitutional status of the Commonwealth. Any power of disallowance now exercised by the King under section 59 of the Constitution would be exercised on the advice of the Commonwealth Ministers and not on the advice of the Ministers of the United Kingdom.
It is true that certain laws must be reserved by the Governor-General for the King’s pleasure. The Governor-General is always advised (when a Bill is presented after having been passed through both Houses of the Parliament) as to whether it is a Bill which should be reserved for the Royal Assent. This practice will be continued and, if any Bill should be passed which requires reservation for the Royal Assent, a special procedure can be instituted for the transmission of the Bill to His Majesty.
In the case of Bills not required to be reserved for His Majesty’s pleasure to be made known, I suggest that a despatch in the following form from the Prime Minister to the Secretary of State for the Dominions would meet the position:
I have the honour to transmit one duly authenticated copy and four paper copies of the following Acts of the Parliament of the Commonwealth of Australia to which His Royal Highness the Governor-General has assented in the name and on behalf of His Majesty:
(Set out short titles of Acts)
Before assent was given in each case, the Attorney-General of the Commonwealth advised His Royal Highness the Governor-General that the Constitution of the Commonwealth did not require His Royal Highness to reserve the Bill for His Majesty’s pleasure to be made known.
As to the second matter raised by the Official Secretary to the Governor-General, I desire to state that the Attorney-General is of opinion that one Bill only should be signed by the Governor-General–that is the original. An authenticated copy of the document, bearing a copy of the form of the Governor-General’s assent thereto, should be supplied to the Secretary, Attorney-General’s Department, for the purpose of checking the copies of the Act to be issued to the public and the Acts contained in the annual volumes of Commonwealth statutes. Authenticated copies should also be furnished to the House of the Parliament in which the Bill originated, the Parliamentary Librarian and to the Prime Minister for transmission to the Dominions Office.
I suggest that the authentication should be added at the end of each Act after the form of assent by the Governor-General and be in the following form:
I HEREBY CERTIFY that the above is a fair print of the (here insert short title of Act) which has this day been assented to by the Governor-General for and on behalf of His Majesty.
Dated this day of 19 .
Official Secretary to the Governor-General.
Will you be so good as to advise the Official Secretary to the Governor-General in accordance with the foregoing.
[Vol. 36, p. 416]
(1) Sir Leighton Seymour Bracegirdle (1881–1970). Military and Official Secretary to the Governor-General 1931–1947.