Chapter 8 - Parliamentary Control Over Legislation

Perhaps the most absurd parts of our Constitution are those which give the Crown a role in making new laws.

Section 1 states that the Queen is part of Parliament. Section 56 states that Parliament cannot pass a bill to spend money unless the Governor-General has recommended it. Sections 58, 59 and 60 permit the Governor-General and the Queen to prevent proposed laws passed by the House of Representatives and the Senate from becoming law. Similarly referendums under section 128 to change the Constitution do not become law until the Governor-General assents (i.e., agrees) to the change.

It is impossible to justify retaining these sections in our Constitution in the 21st century. The House of Representatives and the Senate are elected. The Queen and Governor-General are not. The matter is beyond argument - democracy requires that the Crown be removed from any law making role.

The best the apologists for our Constitution can say about these provisions is that they have not been abused in the past. Is that a reason for allowing someone to have a power the person should not have? An elementary rule of good Government is that we err on the side of caution when conferring power on people or institutions. They should have no more power than is necessary to enable them to discharge their required functions. Why is it necessary for anyone to have the power to veto legislation which has been passed by our elected representatives in the House of Representatives and the Senate?

There are two ways in which the powers over legislation could be abused to the detriment of democracy.

The first is if the Governor-General does not follow the advice of his or her Ministers when considering whether to assent to legislation. The fifth scenario considered in Appendix 1 provides an example of how a Government elected on a promise to repeal a law could be prevented from implementing the promise by a Governor-General who refuses to follow Constitutional convention and declines to assent to the repeal of the law.

A second possibility is of particular relevance to the Parliament of 2010 to 2013, in which the Government did not have a majority in either House. The Government was dependent on the support of independents to pass legislation. But these independents could just as easily have combined with the Opposition to pass a bill against the wishes of the minority government. What would have happened though if the Prime Minister then advised the Governor-General not to assent to the law? It would not have become law, despite majority support in both Houses. Democracy would have been thwarted through Government use of a wholly unnecessary remnant of monarchical power.

A less obvious way of a minority Government thwarting the majority would be if the proposed law supported by the majority was a bill requiring the spending of Government money. By causing the Governor-General to refuse to recommend the appropriation under s.56, the Government could prevent each House from even voting on the proposed law.

The proposal put by the republicans to the people in the 1999 referendum was that all these sections of the Constitution be retained, but with the Queen and Governor-General being replaced with a President. That would not have solved the problem, because the problem is not who exercises these powers. It is that these powers should not be held by anybody.

If our elected representatives have made a decision on what the law should be, no purpose is served by requiring someone else to ‘assent’, or ‘ratify’ or ‘sign into law’ what they have decided. The Advancing Democracy model requires that upon the proposed laws being passed by both Houses, they automatically become law: see proposed s.56A. The same rule would apply to Constitutional amendments passed under a revised s.128.

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