The first group includes powers which properly or historically belong to the prerogatives of the Crown, and survive as parts of the prerogative; hence they are vested in the Governor-General, as the Queen's representative. The second group includes powers either of purely statutory origin or which have, by statute or custom, been detached from the prerogative; and they can, therefore, without any constitutional impropriety, be declared to be vested in the Governor-General in Council. But all those powers which involve the performance of executive acts, whether parts of the prerogative or the creatures of statute, will, in accordance with constitutional practice, as developed by the system known as responsible government, be performed by the GovernorGeneral, by and with the advice of the Federal Executive Council. (See Note § 275.) If the section now under review had been made to read "the Governor-General in Council may appoint such times for holding the sessions of the Parliament," &c, the words "in Council" would have been an invasion of the Royal prerogative; because it is invariably recognized as a prerogative of the Crown to summon, prorogue and dissolve Parliament. The words would moreover have been mere surplusage; nothing would have been gained, since parliamentary government has well established the principle that the Crown can perform no executive act, except on the advice of some minister responsible to Parliament. Hence the power nominally placed in the hands of the Governor-General is really granted to the people through their representatives in Parliament. Whilst, therefore, in this Constitution some executive powers are, in technical phraseology, and in accordance with venerable customs, vested in the Governor-General, and others in the Governor-General in Council, they are all substantially in pari materia, on the same footing, and, in the ultimate resort, can only be exercised according to the will of the people.

"There are certain prerogative rights which have been long demitted or got rid of by statute or by other practice-generally by statute-and in any statute drafted the words "in Council" are inserted. There are certain other prerogative rights which, not having been the subject of such demission, as it is sometimes called, I believe. not having been given up in any way, apparently, are not so described in a statute. There are certain prerogative rights-this was all gone into at Adelaide, and decided by the Convention according to the contention I am advocating-which are not described in a statute as rights of the Governor in Council, simply because no statute has ever dealt with them, and because they belong to that part of the prerogative which has never been nominally given up by the Crown. Of such is the power to summon and dissolve Parliament, to which no one who understood these matters would dream of adding the words in Council.' But yet these rights can never be exercised without the advice of a responsible Minister, and if that advice is wrongly given it is the Minister who suffers." (Mr. E. Barton, Conv. Deb., Melb., pp. 2253-4.)

The executive powers referred to, however, must not be confounded with the authority vested in the Governor-General to assent to a proposed law or withhold his assent or to reserve it for the Queen's pleasure. (See Note, § 267.) This is not an executive, but a legislative power entrusted to him as the Queen's representative and one which he may exercise "according to his discretion." That is the only section in which a discretionary power is clearly and unequivocally given to the Governor-General; it is in reference to matters of legislation and not matters of administration. (See Note, § 271,The Executive Government.")

§ 61.

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Holding the Sessions of the Parliament.”

"It is by the act of the Crown alone that Parliament can be assembled. The only occasions on which the Lords and Commons have met by their own authority, were previously to the restoration of King Charles II., and at the Revolution in 1688. The first Act of Charles the Second's reign declared the Lords and Commons to be the two houses of Parliament, notwithstanding the irregular manner in which they had been assembled ; and all their Acts were confirmed by the succeeding Parliament summoned by the king, which however qualified the confirmation of them, by declaring that the manner of the assembling, enforced by the difficulties and exigencies which then lay upon the nation, is not to be drawn into example.' In the same manner, the first Act of the reign of William and Mary declared the Convention of Lords and Commons to be the two houses

.

of Parliament, as if they had been summoned according to the usual form; and the succeeding Parliament recognized the legality of their Acts." (May, Parl. Prac., 10th ed., p. 38.)

Prorogation is the continuance of the Parliament from one session to another, as an adjournment is a continuance of the session from day to day. Prorogation puts an end to the session, and quashes any Bills which are begun and not perfected. According to the practice of the Imperial Parliament, such Bills must be resumed de novo (if at all) in a subsequent session, as if they had not previously been introduced. (See Tomlins, Vol. II. Parliament, viii.; May, Parl. Prac. 10th ed. p. 43.) The Houses may, however, by standing orders provide for the resumption of such Bills, upon motion, at the stage at which they were interrupted. (See, for instance, Standing Orders, 200-2, of Legislative Council, New South Wales; Standing Orders, 295-7, of Legislative Assembly, New South Wales.) A prorogation may be effected by commission, but the usual course is by proclamation.

"Both Houses are necessarily prorogued at the same time, it not being a prorogation of the House of Lords or Commons, but of the Parliament. The session is never understood to be at an end until a prorogation; though, unless some Act be passed or some judgment given in Parliament, it is in truth no session at all." (Tomlins, vol. 11, Parliament.)

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All orders of Parliament determine by prorogation, and one taken by order of the Parliament after their prorogation, may be discharged on an habeas corpus, as well as after a dissolution; but it was long since determined that the dissolution of a Parliament did not alter the state of impeachments brought up by the Commons in a preceding Parliament." (Id.)

"The Crown may bring the session to an end by a prorogation, which has the effect of quashing all proceedings, except impeachments and appeals before the House of Lords. Parliament is prorogued by the sovereign in person in the House of Lords, or by commission; it may also be prorogued by proclamation from the day for which it was summoned, or to which it had been previously prorogued." (Encyclopedia, Laws of England IX. p. 401.)

$63. "Dissolve."

This section confers upon the Governor-General the power to dissolve the House of Representatives before the expiration of the three years for which it is elected. By section 57 the Governor-General, in the circumstances therein specified, is further authorized to dissolve the Senate and the House of Representatives simultaneously.

GRANTING A DISSOLUTION.-It is the prerogative of the Crown to dissolve an existing Parliament subject only to the constitutional rule that this great power, described by Sir Charles G. Duffy as "the most popular of all the prerogatives," and one of immense utility, can be exercised only on the advice and approval of a Minister of State directly responsible to the national chamber. The granting of a dissolution is, of course, an executive act, the ministerial responsibility for which can be easily established. The following have been suggested as the leading considerations which should reasonably support and justify ministerial advice in favour of a dissolution (Todd, 2nd ed. p. 771): (i.) When a vote of "no confidence" is carried against a government which has not already appealed to the country.

(ii.) When there are reasonable grounds to believe that an adverse vote against the government does not represent the opinions and wishes of the country, and would be reversed by a new Parliament.

(iii.) When the existing Parliament was elected under the auspices of the opponents of the government.

(iv.) When the majority against a government is so small as to make it improbable that a strong government can be formed from the opposition. REFUSING A DISSOLUTION. -The refusal of a dissolution, recommended by a Minister of State, is not an executive act; it is a refusal to do an executive act. It seems to be

generally admitted by constitutional authorities that the Crown has still an undoubted constitutional right to withhold its consent to the application of a minister for permission to dissolve Parliament. The sovereign, it is said, ought not to be a mere passive instrument in the hands of ministers; it is not merely the right but the duty of the sovereign to exercise his judgment on the advice so tendered.

"And though, by refusing to act upon that advice, he incurs a serious responsibility, if they should in the end prove to be supported by public opinion, there is, perhaps, no case in which this responsibility may be more safely and more usefully incurred than when ministers have asked to be allowed to appeal to the people from a decision pronounced against them by the House of Commons. For they might prefer this request when there was no probability of the vote of the House being reversed by the nation, and when the measure would be injurious to the public interests. In such a case, the sovereign ought clearly to refuse to allow a dissolution.” (Todd, Parl. Govt. in England, II., 2nd ed., 510.)

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The power of dissolution is, of all the trusts vested in His Majesty, the most critical and delicate." (Burke, Works, III., p. 525.)

"It is a great instrument in the hands of the Crown, and it would have a tendency to blunt the instrument if it were employed without grave necessity." (Sir Robert Peel, Speeches, IV., p. 710.)

"It seems to be generally supposed that a defeated minister is entitled, if he think fit, at once to appeal to the country.' The concurrence of the Crown is assumed as a matter of course. But although ministers may advise a dissolution, the King is by no means bound to follow that advice. The refusal to grant the dissolution would indeed be a sufficient ground for the resignation of ministers; but, on the other hand, compliance with the request can only be meant to assist them against the hostility of Parlia ment. Such assistance the King cannot and ought not indiscriminately to give. The question therefore arises in what circumstances, according to modern constitutional usage, ought the prerogative of dissolving Parliament to be exercised." (Hearn's Gov. of Eng., p. 162.)

Except where some organic change has been effected in the construction of Parliament, the only reason which can induce the King prematurely to dismiss his Great Council must be either that the advice that he obtains from it is unacceptable to him, or that he can obtain no definite and decided advice, or that the two portions of his Council are discordant. In other words, either there is a difference of opinion between the Crown and the House of Commons on the subject of some ministry; or the different parties in the Commons are so equally divided that business is obstructed; or the two Houses cannot on some material question come to an agreement." (Hearn's Gov. of Eng., p. 163-4.)

"If the minister to whom a dissolution has been refused is not willing to accept the decision of the sovereign, it is his duty to resign. He must then be replaced by another minister, who is prepared to accept full responsibility for the act of the sovereign, and for its consequences, in the judgment of Parliament." (Todd, Parl. Govt. in Eng., vol. ii., p. 408.)

"It is evident, therefore, that the sovereign--when, in the exercise of this prerogative, a dissolution is either granted or refused--must be sustained and justified by the agreement of a responsible minister. If this be constitutionally necessary, as respects the sovereign, it is doubly so in the case of a Governor. For the sovereign is not personally responsible to any earthly authority; but a Governor is directly responsible to the Crown for every act of his administration." (Todd, Parl. Govt. in the Col., 2nd ed., p. 761.)

"As the representative of the Crown in the dominion, colony, or province, over which he is commissioned to preside, the power of dissolution rests absolutely and exclusively with the Governor or Lieutenant-Governor for the time being. He is personally responsible to the Crown for the lawful exercise of this prerogative, but he is likewise bound to take into account the welfare of the people, being unable to divest himself of a grave moral responsibility towards the colony he is commissioned to govern." (Todd, id., p. 800.)

"Whilst this prerogative, as all others in our constitutional system, can only be administered upon the advice of counsellors prepared to assume full responsibility for the Governor's decision, the Governor must be himself the judge of the necessity for a dissolution. The constitutional discretion of the Governor should be invoked in respect to every case wherein a dissolution may be advised or requested by his ministers; and his judgment ought not to be fettered, or his discretion disputed, by inferences drawn from previous precedents, when he decides that a proposed dissolution is unnecessary or undesirable." (Todd, id., p. 800.)

"It is the duty of a Governor to consider the question of a dissolution of the parliament or legislature solely in reference to the general interests of the people and not from a party standpoint. He is under no obligation to sustain the party in power if he believes that the accession to office of their opponents would be more beneficial to the public at large. He is, therefore, justified in withholding a dissolution requested by his ministers, when he is of opinion that it was asked for merely to strengthen a particular party, and not with a view to ascertain the public sentiment upon disputed questions of public policy. These considerations would always warrant a governor in withholding his consent to a dissolution applied for, under such circumstances, by a ministry that had been condemned by a vote of the popular chamber. If he believes that a strong and efficient administration could be formed that would command the confidence of an existing Assembly, he is free to make trial thereof, instead of complying with the request of his ministers to grant them a dissolution as an alternative to their enforced resignation of office. On the other hand, he may at his discretion grant a dissolution to a ministry defeated in Parliament and desirous of appealing to the constituencies, notwithstanding that one or both branches of the legislature should remonstrate against the proposed appeal, if only he is persuaded that it would be for the public advantage that the appeal should be allowed." (Todd, id., p. 801.)

Parliament is usually dissolved by proclamation under the great seal, after having been prorogued to a certain day. This proclamation is issued by the Queen, with the advice of her Privy Council; and announces that the Queen has given order to the Lord Chancellor of Great Britain and the Lord Chancellor of Ireland to issue out writs in due form, and according to law, for calling a new Parliament; and that the writs are to be returnable in due course of law." (May's Parl. Prac., 10th ed., p. 46.)

"On the 17th July, 1837, Parliament was prorogued and dissolved on the same day. On the 23rd July, 1847, the Queen, in proroguing Parliament, announced her intention immediately to dissolve it; and it was accordingly dissolved by proclamation on the same day, and the writs were despatched by that evening's post; and this course is now the ordinary, but not the invariable practice." (May's Parl. Prac., 10th ed., p. 47.)

$ 64. "The Parliament shall be Summoned."

The first Federal Parliament will have to be elected and summoned to meet for the despatch of business not later than six months after the establishment of the Commonwealth. This part of the section refers to two important events-(1) the establishment of the Commonwealth, and (2) the summoning of the first Parliament. Several intervening events are assumed to have taken place; such as the appointment by the GovernorGeneral of Ministers of State to constitute the first administration of the Commonwealth, and the election of the first Parliament. A Federal Ministry will have to be appointed immediately upon the establishment of the Commonwealth, for on the accom. plishment of the union the departments of Customs and Excise, in the several States, are by the terms of the Constitution transferred to the Commonwealth, and the Executive Government will be at once required for the purpose of administering those departments as well as for the purpose of supervising the issue of writs, appointing returning officers, and generally making arrangements necessary for the election of members of the House of Representatives. The writs for the election of Senators are issued by the Governors of States. The various successive steps and stages in the inauguration of the new regime may be here recapitulated for general survey

THE PASSING OF THE ACT. (9th July, 1900.)

THE PASSING OF ELECTORAL LAWS BY THE COLONIAL PARLIAMENTS.

THE ISSUE OF THE QUEEN'S PROCLAMATION (17th September, 1900).

THE APPOINTMENT OF THE GOVERNOR-GENERAL.

THE ARRIVAL OF THE GOVERNOR-GENERAL IN AUSTRALIA.

THE ESTABLISHMENT OF THE COMMONWEALTH AND THE COMMENCEMENT OF THE
OPERATION OF THE CONSTITUTION ON THE DAY APPOINTED IN THE QUEEN'S
PROCLAMATION (1st January, 1901).

THE TRANSFER OF THE DEPARTMENTS OF CUSTOMS AND EXCISE TO THE COMMON-
WEALTH (1st January, 1901).

THE APPOINTMENT OF THE FIRST FEDERAL MINISTRY.

THE ISSUE BY THE GOVERNOR-GENERAL OF WRITS FOR THE ELECTION OF

MEMBERS OF THE HOUSE OF REPRESENTATIVES.

THE ISSUE BY THE GOVERNORS OF STATES OF WRITS FOR THE ELECTION OF

SENATORS.

THE ELECTION OF REPRESENTATIVES.

THE ELECTION OF SENATORS.

THE RETURN OF THE WRITS.

THE SUMMONING OF THE NEW PARLIAMENT.

THE MEETING OF THE NEW PARLIAMENT NOT LATER THAN SIX MONTHS AFTER
THE ESTABLISHMENT OF THE COMMONWEALTH.

$ 65.

"Day Appointed for the Return of the Writs."

The provision of this Section, that after any general election the Parliament shall be summoned to meet not later than thirty days "after the day appointed for the return of writs" would seem to refer to the day appointed by the Governor-General in Council nnder section 32, under which writs are issued for general elections of members of the House of Representatives; such writs would of course appoint the day upon which they are required to be returned. The passage in this section, now under consideration, was taken from a paragraph in ch. I., pt. III., sec. 41 of the Draft Bill of 1891, which under the heading of " 'Duration of the House of Representatives," provided that "The Parliament shall be called together not later than thirty days after the day appointed for the return of the writs for the general election." From this it appears "that the day appointed" means the time specified for the return of the writs issued by the Federal Government for the election of the House of Representatives; and that it has no reference to the times which may be appointed by the Governors of States for the return of writs issued by them for the election of Senators for their respective States. It does not seem to suggest that the Governor-General in Council could limit the time within which the election of Senators would have to be held, and their names certified by the Governors of States. The Governor-General in Council could issue no mandate to the Governors of States on this subject. On the contrary, the State authorities can fix their own times for the election of senators, without reference to the Federal Government (sec. 9). Should any of the States omit to provide for their representation in the Senate, that body could proceed to the despatch of business in the absence of senators from such State (sec. 11), provided that there was a quorum present, consisting of at least one-third of the whole number of the senators (sec. 22).

Yearly Session of Parliament.

6. There shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.

CANADA. There shall be a session of the Parliament of Canada once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.-B.N.A. Act, 1867, s. 20.

HISTORICAL NOTE.-This provision, which occurs in the Constitutions of all the Australian colonies, was contained, verbatim, in the Commonwealth Bill of 1891, and was adopted by the Convention of 1897-8, without debate or amendment.

§ 66. "Once at Least in Every Year."

The annual meeting of the Federal Parliament is secured by this section of the Constitution, in accordance with numerous colonial precedents. In the United Kingdom, however, the Queen is only bound by statute to issue writs within three years after the expiration of a Parliament. The guarantee of an annual session is the necessity of providing money for the public service.