So, TheLoadedDog, can we wander into a discussion of the events that psychonaut refers to? I believe he’s referring to the dismissal of the Whitlam government back in the 70s by the Governor General, Sir John Kerr. (I don’t think the Queen had any involvement in it.)
Here’s my take on it:
The Whitlam government (Labour) controlled the House of Representatives.
The Liberal party formed the Official Opposition in the Representatives, but had a majority in the Senate.
The House of Representatives passed the budget, but the Senate refused to pass it. (For Dopers outside the Westminster parliamentary tradition: the budget is the single most important thing the Government must do, more important than passing laws. A defeat on the budget is almost always considered a matter of confidence, leading to the fall of the Government and either a new goverment being formed, or general elections.)
PM Whitlam refused to advise the GG to dissolve Parliament and call elections; there was some indication that the Government was thinking of borrowing money abroad, without legal authority, to keep the Government functioning.
GG Kerr dismissed PM Whitlam, appointed Fraser, the leader of the Opposition as PM, and Fraser immediately advised the GG to dissolve both the House and the Senate to let the people resolve the conflict.
PM Fraser was returned with a majority in both chambers.
Now, assuming I’ve summarised it correctly, to my mind the two most serious aspects here are not the GG’s actions - it’s the fact that PM Whitlam refused to call for elections in the face of a budget defeat, and the possibility that the Government would try to subvert democratic control of the Government by borrowing abroad to get around the budget defeat, without legal authority to do so. The first is one of the most serious breaches of constitutional convention possible; the second, if true, would indicate a government that was no longer following the law. Taken together, it’s arguably the sort of thing that the Governor General may consider it necessary to use the reserve power. In this case, GG Kerr used it to throw the dispute between the chambers to the people to resolve, and prevented unconstitutional exercises of power by the government of the day.
Hmmm, since she is somewhat related to my family, I feel I have to ask you: would you care to back this up RickJay? Have you seen some kind of IQ test that proves this?
First, HM certainly did know about the appointment of the GST Senators, as her signature was required, as opposed to the GG’s consent. It’s one of HM’s functions under the Constitution which she can’t delegate to the GG. The relevant provision of the Constitution Act, 1867 reads:
At Confederation, the significance of this provision is that the GG would make the recommendation on the advice of the Canadian PM, but the Queen would decide whether or not to direct the appointments based on the advice of the British PM. Canada was still a colonial entity in 1867, after all, and the British government would have a say in any attempt by a colonial PM who tried to pack the Senate.
Now, of course, the Queen takes advice on the exercise of her powers under the Canadian Constitution solely from the Canadian Prime Minister; the British PM has absolutely no say. So the Canadian PM advises the GG to recommend the appointment of Senators; the GG, acting as a good constitutional GG, makes the recommendation; the Queen then looks inquiringly at the Canadian PM, who advises her to accept the recommendation, and she does so, like a good constitutional monarch. She then directs the GG to make it so, and he does.
Note that this explanation involves both constitutional law (i.e. - HM exercising one of her legal powers under the Constitution) and constitutional convention (i.e. - HM exercising that power only on the advice of the leader of the elected government.)
HM has the power to dissolve the House of Commons and every provincial Legislative Assembly. The power is used frequently - every three or four years, in fact, in each jurisdiction - that’s what triggers a general election. The GG/Lt.Govs. dissolve the legislatures, using the Monarch’s power of dissolution, but always on the advice of the elected government of the day.
During all those invasions the American armies weren’t simultaniously fighting one of the most powerful empires were they? And were Canadians independent or were they just British subjects at the time?
hansel, in the event of a hung Parliament, by what authority would the Supreme Court intervene? My understanding is that if there is no clear majority, the GG relies on the political processes in the Commons to determine who will become PM. I can’t see any role at all for the SCC.
What section of the 1982 Act are you referring to? The Canada Act ended the authority of the British Parliament, but I’m not aware of any provision in the 1982 Cosntitution Act which affected HM’s constitutional powers, which are set out in the Constitution Act, 1867.
psychonaut has it right, as the following quotation from Hogg, Constitutional Law of Canada, (2d ed.) indicates:
There has been one case of a provincial Lt.Gov. denying royal assent, back in the 40s, I believe, in Prince Edward Island. The courts reached the conclusion indicated by Professor Hogg - that they had no power to intervene, as the Constitution gives the power of assent to the Crown. The breach of constituional convention by the Lt.Gov. did not justify the courts as treating the bill as if it had been passed.
I’m curious - in your view, how did the Canadian colonial governments established in 1791 differ from the pre-Revolutionary governments in the 13 colonies?
The governors of Upper and Lower Canada were actively involved in politics, taking partisan positions, and had the sole power to appoint members to the upper chambers of the Legislatures - which in turn gave them substantial control over the legislative process. As well, the assemblies did not have control over the colonial finances - the main source of revenue was the sale of lands, which were in the hands of the executive. The colonies were essentially oligarchies - governors were supported in Lower Canada by the Château Clique, and in Upper Canada by the Family Compact.
My recollection is that for the first 50 years, the pattern in the Canadian colonies actually mimicked the previous events in the 13 colonies - it wasn’t until the introduction of responsible government in the 1840s, after two rebellions, that the Canadian colonies had a form of government that ensured local control.
I’m not sure that this is really the thread for a discussion of the Whitlam dismissal of 1975, but the Queen’s non-involvement in the crisis does have some passing connection to her role in Canada. The question of whether Whitlam had the right to appeal to the Queen over the head of Sir John Kerr did come up at the time. Buckingham Palace made it clear that it would not allow him to do so, on the grounds that the exercise of the royal prerogative during the absence of the sovereign from Australia was solely a matter for the Governor General. I can imagine that a similar view would be taken if ever a comparable situation arose in Canada.
APB I can certainly see why the Palace would take that view, but I wonder if HM could do it so easily under the Canadian Constitution. It’s been awhile since I did comparative Commonwealth constitutionalism, but it seems to me that this issue touches on one of the differences between the Canadian and Australian constitutions.
Under the Canadian Constitution, the GG doesn’t have independent executive authority. All executive authority is vested in HM, and the GG carries on the Government “on behalf and in the name of the Queen:” Constitution Act, 1867, ss. 9 & 10.
I seem to recall that the Australian courts have interpreted that phrase as meaning the GG of Australia has the constitutional power to exercise the rights unless the Queen is in Australia, while the Canadian position is that the GG is simply HM’s representative. If so, the argument that the Queen won’t intervene in the way the GG of Australia exercises the prerogative powers unless she is in the country may not wash in Canada, since technically the Canadian GG may not be as strong as the Australian GG.
However, this is dredging stuff up from way long ago in my memory - any Australian dopers care to jump in?
Northern Piper, I fully agree that there may be differences of nuance between the Australian and the Canadian constitutions. The relevant point about the 1975 precedent is that, predictably, the Palace erred on the side of caution. What it also does is serve as a reminder that the key issue may not be whether the Queen has any desire to interfere in Canadian politics but whether circumstances might arise in which some Canadian politicians seek that interference.
