(iii). To appoint a president for the Executive Council in his (the Governor's) absence. (iv). To act in opposition to the Executive Council where he deems such course imperatively necessary, but then to report the matter at once to the Crown. b. Duties: (i). To communicate the Instructions (and all others he shall (iii). To see that proper minutes of the business of the Executive (iv). To consult the Executive Council in the execution of his powers, except in urgent cases. (v). To see that different topics are not dealt with in the (vi). To reserve for the royal assent any bill dealing with the B. Grant to Governor. 7. Currency of colony. 8. Imposition of differential duties (except as allowed by the Australian Colonies Duties Act 1873). 2 e. Matters inconsistent with treaty obligations. . Discipline of land or naval forces. 7. Royal prerogative, rights and property of British subjects not residing in the colony, or Imperial trade and shipping. 0. Provisions once refused by the Crown. (vii). To transmit reasons in any case where by reason of urgency the Governor has assented to such a bill. (viii). To transmit copies of all laws, duly annotated and, where necessary, explained. (ix). To transmit copies of journals of legislative bodies and customary returns ("Blue Book "). (x). To require the presiding judge after any capital sentence to forward a written report of the case; and to decide upon 1 And even then, not if it is "repugnant to the law of England," or inconsistent with treaty obligations. But cf. 28 & 29 Vic. c. 63, §§ 2, 3. 2 This is the 36 Vic. c. 22, which empowers the legislature of any Australian colony (not including New Zealand) to make laws for the purpose of carrying into effect any agreement between it and another colony (including New Zealand), whereby duties are imposed upon or remitted from the importation of the produce of such colonies (including New Zealand), provided that no differential rates are to be imposed. CHAP. XXV SPECIAL PROVISIONS 233 the final granting or withholding of pardon or reprieve (xi). To protect and advance the interests of the aborigines. (xiii). Not to leave the colony (except for a period not exceeding These are the principal powers and duties conferred and imposed by the sole authority of the Crown, in addition to those which must be presumed to reside in the Governor by virtue of his commission as commander-in-chief of the forces in the colony. Some of the powers and duties previously enumerated have been confirmed or extended by colonial enactment, but as in most of these cases the intention is obvious that the powers shall be exercised by the "Governor in Council," 1 i.e. by the Cabinet, it will be better to refer to them at a later stage. In his Imperial capacity, the Governor is not, of course, amenable to colonial legislation, and it is in his Imperial capacity that he is part of the legislature of Victoria. It is appropriate to notice here, however, two special provisions which have been made for the clearing up of doubts with respect to the Governor's position. As the Governor is appointed by the Crown during pleasure, the demise of the Crown would, on the ordinary principles of agency, revoke his commission. But as much practical inconvenience might result from a strict interpretation of this rule, it is provided that all acts done in Victoria after such demise, but before the Governor has notified the fact by proclamation in the Government Gazette, shall be deemed to be unaffected by the event, and that all appointments made by the Governor in the name of the Crown shall continue valid, notwithstanding.3 Moreover, the Governor is empowered to exercise on Her Majesty's behalf the power reserved to the Crown in any grant or document, and to take advantage of any reservation or exception for the benefit of the Crown contained in such document in the same way as the Crown itself might do.1 These being the chief features of the office, the actual 1 There are, however, exceptions to this rule, as, for example, in the case of the provisions of the University Act 1890 (§§ 3, 21, 27, 28). 2 Constitution Act Amendment Act 1890, § 3. 3 Ibid. § 5. 4 Ibid. § 7. occupant is appointed to it by a short commission which usually refers to the Letters-Patent and Instructions of February 1879, and nominates the person to whom it is addressed to hold the office during the pleasure of the Crown.1 The appointment of the Governor is usually revoked by express words in the commission appointing his successor,2 but it may be impliedly revoked by any act unequivocally manifesting the pleasure of the Crown, or by the death of the Governor. The Governor cannot, of course, resign without the consent of the Crown. It sometimes becomes necessary that provision should be made for a temporary occupation of the office of Governor, by reason of the latter's death or absence from the colony. these contingencies a regular succession is provided. For 1. If, on the happening of the contingency, there is within the colony a Lieutenant-Governor specially appointed by the Crown, he succeeds to the office. This case has never actually occurred in Victoria since the creation of the Governorship,* but, on the 6th November 1886, Sir William Foster Stawell, formerly Chief-Justice, was appointed by royal commission Lieutenant-Governor of the colony, and the commission, which refers to the Letters-Patent of 21st February 1879, clearly entitled him to succeed without further authority upon the death or incapacity of the Governor for the time being. It so happened, however, that Sir William Stawell never assumed the head of affairs as Lieutenant-Governor, though he had previously occupied the position under another title. During the presence of the Governor, the Lieutenant-Governor has no separate constitutional position, but he takes precedence as the second person in the community. 5 2. If, when a vacancy occurs in the office of Governor, there is no Lieutenant-Governor in the colony, the case is provided for by a standing commission dated 22d February 1879, which provides that the Chief-Justice of the colony for the time being, or, failing him, the senior Puisne judge, shall act as 1 Cf. commission of the Earl of Hopetoun, dated 22d August 1889 (G. G., 1889, November 28). 2 Cf. (e.g.) clause iii. in ibid. 3 Letters-Patent of 21st February 1879, clause xii. (G. G., 1879, p. 955). 4 Before the creation of the office of Governor the heads of the government in Victoria were sometimes commissioned as Lieutenant-Governors. 5 Copy of commission and despatch of Sec. of State in G. G., 31st Dec. 1886. CHAP. XXV PROVISION FOR VACANCIES 235 Under this commission Administrator of the Government.1 Sir William Foster Stawell administered the government of the colony from 18th April to the 15th July 1884, in the interval between the departure of the Marquis of Normanby and the arrival of Sir Henry Loch.2 3. But the Crown may, if it pleases, supersede this standing or "dormant" commission upon any occasion, substituting for the Chief-Justice or Senior Puisne judge to whom it is directed, an Administrator of the Government specially commissioned. This case happened on the departure of Sir Henry Loch from the colony in March 1889, when Sir William Robinson, by virtue of a special commission dated 13th December 1888, assumed office as Administrator of the Government, the commission to the Chief-Justice being suspended.3 4. Finally, in the event of his merely temporary absence from the colony, the Governor is empowered by the terms of the Letters-Patent constituting his office to appoint a Deputy to act for him.4 But he must appoint the Lieutenant-Governor, if there be one, and the Governor's absences must only be for the purpose of visiting the Governors of neighbouring colonies; they may not exceed one month at a time, nor, in the aggregate, one month for every year's service in the colony; and notice of his intended absences must be given to the Executive Council.5 All the substitutes for the Governor have, during their tenure of office, the powers of the Governor. 1 Copy in G. G., 1879, April 29. 2 G. G., 18th April 1884. 3 G. G., 1889, March 9. 4 Letters-patent, clause xiii. (G. G., 1879, April 29). CHAPTER XXVI THE PARLIAMENT THE other constituent part of the central legislature of Victoria is the Parliament. By § 1 of the Constitution Act the Legislative Council and the Legislative Assembly are established in the place of the former Legislative Council, and by colonial legislation the two houses are officially designated "The Parliament of Victoria."1 It will be necessary to consider these two bodies apart, but we may first notice several points relating to the Parliament of Victoria as a whole. 3 In the first place, we notice that the Governor may fix the places and times for the sessions of Parliament, and may prorogue the Parliament and dissolve the Assembly as he may think fit; but there must be a session of the Parliament at least every year, with no interval of twelve calendar months.2 Every member of Parliament, before taking his seat, must take the oath or make the affirmation of allegiance. In pursuance of the power given to it by the Constitution Act, the legislature of Victoria has enacted that the Legislative Council and the Legislative Assembly, and the committees and members thereof, shall have the privileges, immunities, and powers of the British House of Commons as they existed at the time of the passing of the 18 & 19 Vic. c. 55, i.e. on the 16th July 1855. The principal of such privileges were as follow 1 Constitution Act Amendment Act 1890, § 9. 2 Constitution Act, §§ 28, 29. 3 § 32, and Constitution Act Amendment Act 1890, § 28. 4 Constitution Act Amendment Act 1890, § 10. It will be noticed that no claim is made for witnesses attending on the proceedings of the Houses. |