Presentation of bills for assent
The Constitution provides that on the presentation of proposed laws for assent, the Governor-General declares, according to his discretion but subject to the Constitution, that he assents in the Queen’s name, or that he withholds assent, or that he reserves assent for the Queen’s pleasure, or he may recommend amendments. Before assenting, the Governor-General formally receives written advice from the Attorney-General as to whether there are any amendments that the Governor-General should recommend, and as to whether the Governor-General should, in the Attorney-General’s opinion, reserve the bill for the Queen’s pleasure. This advice is prepared by the Office of Parliamentary Counsel.
Preparation of bills for submission for assent
When a bill which originated in the House of Representatives has finally passed both Houses in identical form, the assent copies of the bill are printed, incorporating any amendments not yet incorporated and some minor adjustments, including a special cover and the addition to the back page of the Clerk’s certificate stating that the bill originated in the House and has finally passed both Houses. The Clerk’s certificate in the circumstances of the passage of a normal bill is:
I HEREBY CERTIFY that this Bill originated in the House of Representatives and has been finally passed by the Senate and the House of Representatives.
On the back page of the assent copy of a bill are printed the words of assent used by the Governor-General as follows:
IN THE NAME OF HER MAJESTY, I assent to this Act.
If a bill were to be reserved for assent, the Governor-General would cross out these words and write in the following:
I reserve this proposed law for Her Majesty’s pleasure.
The question has been raised as to whether it would be more correct to use the word ‘bill’ or the constitutional expression ‘proposed law’ instead of ‘Act’ in the words of assent. The Parliamentary Counsel has expressed a view for the retention of the word ‘Act’, on the ground that the Governor-General assents to the bill and converts it into an Act, in one action.
Three copies of bills are presented to the Governor-General for assent. When assented to, two copies are returned, one for the originating House and one for the other House. The Governor-General’s Office forwards the other copy to the Office of Parliamentary Counsel.
It is desirable to have bills available for the Governor-General’s assent before a Parliament is prorogued or the House is dissolved. This may mean that there is not sufficient time for the specially printed assent copies of the bill to be prepared, and ordinary copies (that is, a print of the bill with manuscript amendments) may have to be submitted to the Governor-General. When this occurs, the normal assent copies are obtained as soon as possible and forwarded to the Official Secretary to the Governor-General with a note seeking the Governor-General’s signature for permanent record. This procedure may also be adopted in other circumstances where a clearly demonstrable need for urgent assent exists.
The Governor-General advises each House by message of the assent to bills, and the messages are announced in each House.
Presentation of first bill for assent
It has become the practice for the first bill to be assented to by a newly-appointed Governor-General to be presented by the Speaker in person, accompanied by the Clerk of the House. The Attorney-General has sometimes been present also and, as a formal procedure, at the Governor-General’s request, provided advice as to the desirability of assent. The Speaker informs the House accordingly.
Other than on rare occasions the Governor-General, in the Queen’s name, is pleased to assent to the bill immediately. The Queen may disallow any law within a year from the Governor-General’s assent, an action which has never been taken. Such disallowance on being made known by the Governor-General by speech or message to each of the Houses of Parliament, or by proclamation, would annul the law from the day when the disallowance was made known.
Bills reserved for the Queen’s assent
The Constitution allows the Governor-General to reserve assent ‘for the Queen’s pleasure’. As a consequence of the United Kingdom Statute of Westminster of 1931 and the passing of the Statute of Westminster Adoption Act 1942 by the Australian Parliament, the necessity was removed of reserving for the Queen’s assent certain shipping and related laws. The Constitution provides that proposed laws containing any limitation on the prerogative of the Crown to grant special leave of appeal from the High Court to the Privy Council shall be reserved for Her Majesty’s pleasure. However, since the passing of the Privy Council (Limitation of Appeals) Act 1968 and the Privy Council (Appeals from the High Court) Act 1975, the latter bill being the last bill of any kind reserved for the Queen’s assent, it would appear that there will be no further bills coming within this ground of reservation.
In respect of other bills reserved for the Queen’s assent, in the lack of any legal requirement a decision would probably be based on the appropriateness of the bill (Flags Act 1953) or the appropriateness of the occasion (that is, the Queen’s presence in Canberra), or both (Royal Style and Titles Act 1973). In the latter case the Prime Minister informed the House that the Queen had indicated that it would give her pleasure to approve the legislation personally.
A proposed law reserved for the Queen’s assent shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the Queen’s assent the Governor-General makes known, by speech or message to each House, or by proclamation, that it has received the Queen’s assent.
In the United Kingdom bills affecting the royal prerogative or personal interests of the Queen must receive signification of the Queen’s consent before they can be passed. There is no equivalent requirement or process in the Australian Parliament.
Presentation of double dissolution bills
When a Prime Minister is to request the Governor-General to dissolve both Houses of the Parliament because of disagreement between the Houses in respect of a bill (or bills), the Secretary of the Department of Prime Minister and Cabinet asks the Clerk in writing for a copy of the bill, duly certified by the Clerk as to the proceedings in the House on the bill, to accompany the submission to the Governor-General. There is no requirement of the Constitution or the standing orders of the House in respect of such a certificate, but it has become the practice for such a certificate to be attached to a copy of a bill which is to be the basis of a request for a dissolution of both Houses.
A certificate reciting the parliamentary history of the bill is attached to the Minister’s copy of the bill as first introduced and also to the second bill passed after the interval of three months, with the exception of a bill amended in the House, in which case the third reading print is used for the first bill and the Minister’s introduced copy for the second bill. The traditional form of the certificate has been as follows:
THIS Bill originated in the House of Representatives and, on [date], was passed by the House of Representatives. The Bill was transmitted to the Senate for its concurrence on [date] and
had not been returned to the House of Representatives at the date of the prorogation of the Parliament on [date]; or
has not to date been returned to the House.
Where the history of the bill has been more complex the certificate reflects this. For example, the certificate used in respect of the Petroleum and Minerals Authority Bill 1973 (one of the six bills submitted as a basis for a double dissolution on 11 April 1974), as first introduced, was as follows:
THIS Bill originated in the House of Representatives and on 12 December 1973 was passed by the House of Representatives. The Bill was transmitted to the Senate for its concurrence on 12 December 1973 and had not been returned to the House of Representatives at the date of the prorogation of the Parliament on 14 February 1974. The Bill lapsed by reason of the prorogation. On 7 March 1974 the House of Representatives requested the Senate to resume consideration of the Bill and on 13 March 1974 the Senate acquainted the House that it had agreed to resume consideration of the Bill. To date the Bill has not been returned to the House.
A more recent example is the certificate used for the Building and Construction Industry (Improving Productivity) Bill 2013 [No. 2] (one of the bills submitted as a basis for a double dissolution on 8 May 2016):
This Bill originated in the House of Representatives and, on 4 February 2016, was passed by the House of Representatives. The Bill was transmitted to the Senate for its concurrence on 4 February 2016 and had not been returned to the House of Representatives at the date of the prorogation of the Parliament on 15 April 2016. The Bill lapsed by reason of the prorogation. On 18 April 2016 the House of Representatives requested the Senate to resume consideration of the Bill and on 18 April 2016 the Senate acquainted the House that it had agreed to resume consideration of the Bill. To date the Bill has not been returned to the House.
Should the deadlock between the Houses in respect of the legislation continue after the double dissolution, section 57 of the Constitution provides further that the Governor-General may convene a joint sitting of members of both Houses, which may deliberate and shall vote together on the proposed law. In 1974, the only occasion when a joint sitting for this reason eventuated, the Prime Minister requested certified copies of the six bills indicating details of their subsequent consideration by the Houses following the double dissolution. The bills were necessary to support a submission to the Governor-General for the convening of a joint sitting. A certificate similar to those used on the bills submitted for the double dissolution was attached to a copy of each of the bills.
After a double dissolution the certified copies of the bills concerned, which are records of the House, are returned to the custody of the Clerk.
(And see Chapter on ‘Double dissolutions and joint sittings’.)
Presentation of constitution alteration bills
On the passage of a constitution alteration bill through both Houses, it is necessary to certify a copy of the bill for presentation to the Governor-General in order that a referendum may be held. A certificate, signed by both the Clerk and the Speaker and indicating the date of final passage, is printed at the top of the first page of the bill. The most recent example was in the following terms:
THIS Proposed Law originated in the House of Representatives, and on [date], finally passed both Houses of the Parliament. There was an absolute majority of each House to the passing of this Proposed Law.
In the case of a constitution alteration bill which has twice passed the House and which has on each occasion been rejected by the Senate, or the Senate has failed to pass it or passed it in a form not agreeable to the House of Representatives, both bills passed by the House are presented to the Governor-General with certificates signed by the Clerk and the Speaker. For example, the certificates in respect of the Constitution Alteration (Simultaneous Elections) Bill 1974 was on the first occasion as follows:
THIS Proposed Law originated in the House of Representatives and on 14 November 1973 was passed by the House of Representatives by an absolute majority as required by section 128 of the Constitution. The Proposed Law was transmitted to the Senate on 15 November 1973 and had not been returned to the House of Representatives at the date of the prorogation of the Parliament on 14 February 1974.
and on the second occasion:
THIS Proposed Law originated in the House of Representatives and on 6 March 1974 was passed by an absolute majority as required by section 128 of the Constitution. The Proposed Law was transmitted to the Senate for its concurrence on 6 March 1974 and has not to date been returned to the House.
The certificate in respect of the Constitution Alteration (Mode of Altering the Constitution) Bill 1974 introduced on the first occasion was in the following form:
THIS Proposed Law originated in the House of Representatives, and on 21 November 1973 was passed by the House of Representatives by an absolute majority as required by section 128 of the Constitution. The Proposed Law was transmitted to the Senate for its concurrence on 21 November 1973. On 4 December 1973 the Senate returned the Proposed Law with amendments to which the House of Representatives did not agree. On 5 December 1973 the Senate insisted upon its amendments disagreed to by the House. The House insisted on disagreeing to the amendments insisted on by the Senate and the Bill was laid aside.
The certificate in respect of the bill introduced on the second occasion was similar to that for the Constitution Alteration (Simultaneous Elections) Bill as indicated above.
Where a constitution alteration bill has been approved by the electors, and no petition disputing the referendum has been filed in the time allowed by law, the following certificate is printed on the bill and signed by the Clerk and the Speaker:
THIS is a copy of the Proposed Law as presented to the Governor-General, and, according to the Constitution, in pursuance of a Writ of His Excellency the Governor-General, submitted to a Referendum of the Electors. The period allowed by law for disputing the Referendum has expired, and no petition disputing the Referendum, or disputing any return or statement showing the voting on the Referendum, has been filed. The said Proposed Law was approved in a majority of the States by a majority of the Electors voting, and also approved by a majority of all the Electors voting.
The Bill is now presented to the Governor-General for the Queen’s assent.
Amendment recommended by Governor-General
The Constitution makes provision for the Governor-General, in practice on the advice of the Attorney-General, to return to the House in which it originated, a proposed law presented for assent, with a recommendation for amendment. On all occasions of such amendments the Governor-General has acted on advice when it has become apparent to the Government, after a bill has passed both Houses, that further amendment to the bill is desirable, for example, by reason of an error in the bill. On all but one occasion (see below) the Houses have agreed to the amendments recommended.
Standing order 176 supplements the constitutional provision concerning amendments recommended by the Governor-General to bills presented for assent. Such amendments are considered and dealt with in the same manner as amendments proposed by the Senate. Any amendment is recommended by message and is considered by the House.
When the House has agreed to any amendment proposed by the Governor-General with or without amendment, such amendments, together with any necessary consequential amendments, are sent to the Senate for its agreement. The House transmits to the Senate by message a copy of the Governor-General’s message, together with a copy of the bill forwarded for assent, acquaints the Senate of the action the House has taken in respect of the amendment, and requests the concurrence of the Senate. Any amendments made by the Senate are dealt with in the same manner as amendments made by the Senate to House bills. The Senate returned the message of the Governor-General recommending amendments in the Customs Tariff (British Preference) Bill 1906, together with a copy of the bill as presented for assent, and acquainted the House that the Senate had disagreed to the amendments recommended by the Governor-General. The message from the Senate was ordered to be taken into consideration immediately and the House resolved not to insist on the amendments disagreed to by the Senate. The Governor-General reserved the bill for the King’s assent which was never given.
Amendments recommended by the Governor-General to Senate bills and which have been agreed to by the Senate are forwarded for the concurrence of the House by means of message. The form of the message is similar to that of the House and conveys recommended amendments of the Governor-General and an assent copy of the bill. The message is considered in the same manner as amendments made by the Senate on the House’s amendments to bills first received from the Senate.
When recommended amendments are made, the assent copy of the bill is reprinted and presented again to the Governor-General for assent. The Speaker and the Clerk sign letters to the Governor-General and the Official Secretary, respectively, confirming that the recommended amendments have been made. If any amendments recommended have been disagreed to by the House, or if no agreement between the two Houses is arrived at prior to the last day of the session, the Speaker shall again present the bill for assent in the same form as it was originally presented.
Errors in bills assented to
In 1976 the Governor-General purportedly assented to a bill which had not been passed by both Houses of Parliament as required by section 58 of the Constitution. A States Grants (Aboriginal Assistance) Bill 1976 passed the House but did not proceed past the second reading stage in the Senate. A second bill, slightly different in content but with exactly the same title, passed the House and the Senate. Due to a clerical error in the Department of the House of Representatives, the Clerk’s certificate, as to the bill having originated in the House and having finally passed both Houses, was placed on the first bill which had not passed both Houses and that bill was assented to. When the error was discovered, the Governor-General cancelled his signature on the incorrect bill and gave his assent to the second bill, which had passed both Houses. A similar cancellation occurred in the case of the Family and Community Services and Veterans’ Affairs Legislation Amendment (Debt Recovery) Bill 2001, when due to a clerical error a Senate amendment which had not been agreed to by the House was incorporated into the original assent print.
While typographical corrections found necessary during the checking processes before assent may be made, it is not possible to make corrections in Acts after assent. It is considered that should a bill be assented to with typographical or clerical errors in it, if necessary a court would interpret the Act so as to remedy the mistake (the ‘slip rule’) and there would be no question of invalidity. Depending on the circumstances, legislative amendment at a suitable time may still be desirable.