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Provincial
Legislation in
Canada.

"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. As a general rule, a Governor would be justified in accepting and acting upon the 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."

[In the case of the Governor-General of Canada, his position in relation to legislation passed by the Dominion Parliament should be contrasted with his position in relation to legislation passed by the Provincial Parliaments. The latter is fully discussed below.]

Both the Constitution of Canada [Sec. 57] and that of Australia [Sec. 60] provide a period for the signification of the Queen's assent to Bills reserved by the Governor-General. Such a Bill does not pass into law unless "within two years from the day on which it was presented to the Governor-General for the Queen's assent, the Governor-General signifies, by speech or message to each of the Houses of the Parliament, or by Proclamation, that it has received the assent of the Queen in Council." Similarly, both the Canadian and Australian Constitutions [Sec. 56 and Sec. 59 respectively] give the Queen in Council power to disallow any Bill assented to by the Governor-General. In Canada this may be done within two years after the receipt of the Bill by the Secretary of State, in Australia within one year from the Governor-General's assent. The Constitution of Australia also [Sec. 58] allows the Governor-General to "return to the House in which it originated any proposed law" presented to him for the Queen's assent, and to "transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation."

The Governor-General of Canada is also vested with special powers and placed in a position of special importance in so far as the giving or withholding of assent to legislation passed by the Provincial Parliaments is concerned. In this respect the Constitution of Canada is unique, and its provisions are of singular interest on that account. The necessity of assigning special functions to the Governor-General of Canada in this respect arises from the fact that, at the creation of the Dominion, the whole body of legislative power was taken away from the several States and given to the Dominion Parliament, whilst the Parliaments of the States-which were known as Provinces after the Dominion Constitution had come into force-were given certain strictly-limited and defined powers of legislation. [Vide chapter on "Legislative Power of Central Government."] In complete contrast to this method of distribution of the legislative power, Sec. 106 of the Australian Constitution says that :

"The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State."

And Sec. 107 says that :

"Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be."

On the other hand, Sec. 90 of the British North America Act provides that :

"The following provisions of this Act respecting the Parliament of Canada. namely the provisions relating to appropriation and tax bills,* the recommendation of money votes, the assent to Bills, the disallowance of Acts, and the signification of pleasure on Bills reserved-shall extend and apply to the Legislatures of the several Provinces, as if those provisions were here re-enacted and made applicable in terms to the respective Provinces and the Legislatures thereof, with the substitution of the Lieutenant-Governor of the Province for the Governor-General, of the Governor-General for the Queen and for a Secretary of State, of one year for two years, and of the Province for Canada."

The provisions referred to in this section-as far as the duties of the Governor-General in relation to Bills passed by the Dominion Parliament are concerned-are those contained in Šecs. 55, 56, and 57 of the British North America Act. They are fully described above. The effect of Sec. 90 is to place the Governor-General in the same position with regard to assenting to, reserving, or disallowing Bills passed by the Provincial Legislatures, as that which the Queen-in-Council holds with regard to Bills passed by the Dominion Parliament. That is to say that when a Bill is passed by a Provincial Legislature, the Lieutenant-Governor of the Province either assents or withholds his assent to it, or reserves it for the signification of the pleasure of the Governor-General.

As to the practical exercise by the Governor-General of Canada of this power of supervision over Bills passed by the Provincial Legislatures, the following memorandum sent to the Privy Council of Canada by the Minister of Justice [Sir John A. Macdonald] in 1868 is of interest. [The recommendations of this memorandum have with one or two exceptions-been acted upon.]

"The same powers of disallowance as have always belonged to the Imperial Government with respect to the Acts passed by Colonial Legislatures have been conferred by the Union Act (i.e., the B.N.A. Act, 1867) on the Government of Canada. Of late years Her Majesty's Government has not, as a general rule, interfered with the legislation of the Colonies having representative institutions and responsible government, except in the cases specially mentioned in the instruction to the Governors, or in matters of Imperial and not merely local interest.

"Under the present Constitution of Canada, the Governor-General will be called upon to consider the propriety of allowance or disallowance of provincial Acts much more frequently than Her Majesty's Government has been with respect to Colonial enactments. In deciding whether any Act of a Provincial Legislature should be disallowed or sanctioned, the GovernorGeneral must not only consider whether it affects the interests of the whole Dominion or not, but also whether it be unconstitutional-whether it

* See Chapter V., p. 108.

exceeds the jurisdiction conferred on the local Legislatures-and in cases where the jurisdiction is concurrent, whether it clashes with the legislation of the General Parliament.

"As it is of importance that the course of local legislation should be interfered with as little as possible, and the power of disallowance exercised with great caution, and only in cases where the law and the general interests of the Dominion imperatively demand it, the undersigned recommends that the following course be pursued:

That on receipt by Your Excellency of the Acts passed in any Province, they be referred to the Minister of Justice for report, and that he, with all convenient speed, do report as to those Acts which he considers free from objection of any kind, and if such report be approved by Your Excellency in Council, that such approval be forthwith communicated to the Provincial Government.

"That he make a separate report, or reports, on those Acts which he may consider

"(1) As being altogether illegal or unconstitutional;

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(2) As illegal or unconstitutional in part;

(3) In cases of concurrent jurisdiction, as clashing with the legislation of the General Parliament;

"(4) As affecting the interests of the Dominion generally.

And that in such report, or reports, he give his reasons for his opinions. "That where a measure is considered only partially defective, or where objectionable as being prejudicial to the general interests of the Dominion, or as clashing with its legislation, communication should be had with the Provincial Government with respect to such measure, and that, in such cases, the Act should not be disallowed, if the general interests permit such a course, until the local Government has an opportunity of considering and discussing the objections taken, and the local Legislatures have also had an opportunity of remedying the defects found to exist."*

There remains the question whether the Governor-General of Canada can exercise this power with regard to Provincial Legislation on his own individual discretion, or whether he must act according to the advice of his Ministers. On this point, the conclusions arrived at by a Minister of Justice for the Dominion— [Edward Blake]-as expressed in a memorandum dated 22nd December, 1875-are worthy of quotation :

"The power of disallowance of Canadian Statutes is, by Sec. 56 of the British North America Act, 1867, vested in the Queen in Council. By Sec. 90 of the same Act this provision is extended and applied to each Province as if it were re-enacted, and is so made applicable in terms thereto, with the substitution, amongst other things, of the Governor-General for the Queen. The result is that by the express words of the Act, the power of disallowance of Provincial Statutes is vested in the Governor-General in Council, a phrase which, under the 13th section of the Act, means the Governor-General acting by and with the advice of the Queen's Privy Council of Canada. .. It esults from the preceding observations that the only contingencies which can arise are: (1) That the Governor should propose to disallow a Provincial Statute without or against the advice of his Ministers; (2) that Ministers should propose to disallow a Provincial Statute without the assent of the Governor. The position taken by the Council is that neither of these things can be done; that, the power being vested in the Governor-General in Council, any action taken must be accomplished by Order in Council, and that a Governor-General who thinks it necessary that a Provincial Act should be disallowed must find Ministers who will take the responsibility of advising its disallowance; while Ministers who think it necessary that a Provincial Act should be disallowed must resign unless they can secure the consent of the Governor-General to its disallowance, Ministers being in every case responsible to Parliament for the course taken."†

* Quoted in Wheeler's "Confederation Law of Canada" p. 51.
† Quoted in Wheeler's "Confederation Law of Canada," p. 337-

Both the Canadian and Australian Constitutions provide for the Salary. payment of an annual salary to the Governor-General. Thus Sec. Canada 105 of the British North America Act enacts :

"Unless altered by the Parliament of Canada, the salary of the GovernorGeneral shall be ten thousand pounds sterling of money of the United Kingdom of Great Britain and Ireland, payable out of the Consolidated Revenue Fund of Canada. . . .

This power of alteration was actually exercised by the Dominion Parliament, which passed an Act, on 22nd May, 1868, reducing the salary of the Governor-General to £6,500; but the Act, having been reserved for the consideration of the Queen, was disallowed-for reasons which were defined by the Secretary of State in the following words :

'Whilst it is with reluctance, and only on serious occasions, that the Queen's Government can advise Her Majesty to withhold the Royal sanction from a Bill which has passed the two branches of the Canadian Parliament, yet a regard for the interests of Canada, and a well-founded apprehension that a reduction in the salary of the Governor-General would place the office, as far as salary is a standard of recognition, in the third class among Colonial Governments, obliged Her Majesty's Government to advise that this Bill should not be permitted to become law."*

Sec. 3 of the Australian Constitution provides for the payment Australia. to the Governor-General, " until the Parliament otherwise provides,' of an annual salary of £10,000. The salary of a Governor-General is not to be altered during his continuance in office. By Sec. 4, the provisions of the Constitution relating to the Governor-General are applied to the Governor-General for the time being, or any person appointed by the Sovereign to administer the Government of the Commonwealth; "but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth."

Quoted by Doutre : 'Constitution of Canada," p. 35

CHAPTER II.

FORM OF THE LEGISLATURE.

[This chapter is quoted from "A manual of reference to authorities for the use of the members of the National Australasian Convention which will assemble at Sydney on March 2nd, 1891," by Richard C. Baker, one of the delegates of South Australia at that Convention.]

There can be little doubt but that there must be two Houses of Parliament (which for convenience may for the present be called the Senate and the House of Representatives).

*All experience, both ancient and modern, clearly proves this, and in all cases where it has been attempted to carry on a democratic form of government with one House, the result has been either anarchy and the abandonment of the attempt, or the institution of some other form of government.†

Three of the States of America (Pennsylvania, Georgia and Vermont) tried the uni-cameral, or one House system, but all gave it up.

Kent remarks: "The instability and passion which marked their proceedings (Legislatures of Pennsylvania and Georgia) was very visible at the time, and the subject of much public animadversion; and in the subsequent reform of their Constitution the people were so sensible of this defect, and of the inconvenience they had suffered from it, that in both States a Senate was introduced." §With these trifling exceptions (Pennsylvania, etc.), the bi-cameral system is the "quod semper, quod ubique, quod ab omnibus" of American constitutional doctrine.

It is true that three of the Canadian Provinces (Ontario, British Columbia and Manitoba) and most of the Swiss Cantons have adopted the uni-cameral system, but the powers of the Legislatures of the Provinces in Canada are so restricted, and such large powers are (in theory) given to the Federal Government to veto their acts, that it was thought the functions of a second Chamber could be exercised by the Dominion Government; and in Switzerland the referendum," to a certain extent, exercises such functions.

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Sparta, Carthage, Rome, England, Sweden, Norway, United States, British North America, Germany, Italy, Austria, Spain, and South American Republics all have had or have two or more Houses. The Parliament of Sweden consisted of four Chambers, and the States General of France of three.

† See cases cited by Kent, 231, 232. Kent, 230. § Bryce, 461

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