Refusals of Assent to Bills Passed by Parliament in Germany and Australia
| Date | 01 March 2008 |
| DOI | 10.22145/flr.36.1.4 |
| Published date | 01 March 2008 |
| Subject Matter | Article |
REFUSALS OF ASSENT TO BILLS PASSED BY PARLIAMENT
IN GERMANY AND AUSTRALIA
Greg Taylor*
1 INTRODUCTION
There has recently been a minor research and publishing boom in the field of refusals
of royal assent to Bills in Australia.1 When in the throes of finalising my own
contribution to this outburst of scholarship, I discovered that the figurehead German
Federal President had just refused his assent to two government Bills passed by the
Bundestag (the lower house of Parliament). In the two cases, which occurred in October
and December 2006, the Federal President acted because he thought the proposed
statute unconstitutional. Further research revealed that these were the seventh and
eighth refusals of assent by a Federal President against the government's wishes since
the foundation of the Federal Republic in 1949. As a result, there is a long-running
academic debate in Germany about the circumstances in which the figurehead Federal
President may refuse assent. Some scholars even permit the Federal President to assess
every proposed law to ensure that it complies with the constitutional charter of rights,
while others take a more restrictive view and confine his task to errors of
parliamentary procedure and/or restrictions on law-making power other than those to
be found in the charter of rights.
The Crown as we know it today would be most unlikely to take on any of these
roles. In Australian constitutional history there are few examples of refusal of assent to
legislation; most are anomalous in some way, or based on a colonial relationship that
no longer exists.2 The last — and highly irregular — refusal of assent of which I am
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* Associate Professor, Monash University Law School. For their assistance during the course
of research for this article, the author wishes to thank Herren Kraft and Simmet of the
Zentrale Informationsstelle of the Bayerischer Landtag, Rüdiger Hitz, Dr Konrad
Lachmayer, Corey Ogilvy, Dr Sabine Pittrof, Professor Dr Friedrich Schoch and Dr
Christian Tams. Warm thanks are also due to Dr Pittrof and the anonymous referees for
their comments on a draft; the usual caveat applies.
1 Greg Taylor, 'Two Refusals of Royal Assent in Victoria' (2007) 29 Sydney Law Review 85;
Anne Twomey, 'The Refusal or Deferral of Royal Assent' [2006] Public Law 580, 599-600;
John Waugh, 'Government Control of Royal Assent in Victoria' (2006) 8 Constitutional Law
& Policy Review 69.
2 There are some isolated examples from the nineteenth century to the contrary, but they are
predicated on relationships of subordination which no longer exist; see Taylor, 'Two
Refusals', above n 1, 87; Garth Stevenson, Ex Uno Plures: Federal-Provincial Relations in
Canada, 1867–1896 (1993) 244. Disallowance and reservation (for a list of cases see Taylor,
84 Federal Law Review Volume 36
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aware within what are now the Queen's realms involved the Lieutenant-Governor of
Prince Edward Island in 1945,3 and, as is well known, the Crown has not refused
assent in Great Britain or the United Kingdom for just over three centuries.4 So the
German cases present quite a contrast with the practice that we are used to from what
is now a multinational and rather diverse Crown, and it is worth asking why this
difference exists.
Most of the very few cases of refusal of assent in Australian history, being
anomalous and/or anachronistic, are not good material for systematic comparison. The
nearest comparable Australian case of refusal of assent to those that have recently
occurred in Germany was in the late 1850s, when a Bill was passed in disregard of
binding manner and form requirements found in Victoria's colonial Constitution.5
While such requirements still exist today, that case also, on closer examination, can be
seen to be bound up with bygone constitutional realities. There was the real possibility
of a severe reprimand from London for the disregard of legal requirements; the
Governor was the Colonial Office's agent in the colony as well as the local substitute
for the absent Queen; it was necessary to ensure that good precedents were set at the
start of the period of responsible government; and judicial review was not then well
established in Australia. Thus a refusal on the ground of unconstitutionality, as
occurred in those two cases in 2006 in Germany, would be far less likely here even if a
similar case recurred: here the issue would be considered one for the courts, and a later
federal precedent to be examined below does indeed take the view that assent should
be granted and the question thus remitted to the courts. I have therefore suggested
elsewhere that refusal of assent on the ground of unconstitutionality would not be
proper nowadays except in extreme cases.6 It is all the more interesting therefore to see
the opposite view taken in Germany in late 2006, especially given that judicial review
is long established there as well and the question could have been similarly sent to the
Federal Constitutional Court.
The academic debate in Germany about the proper exercise of the powers of the
Federal President has, at least until very recently, revolved around a discussion of
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'Two Refusals', above n 1, 87 fn 8) are also merely legal history nowadays: Australia Act
1986 (Imp & Cth) ss 7(5), 8, 9. The last Australian example of final refusal of royal assent of
which I am aware is recorded in Re Scully (1937) 32 Tas LR 3, 29–30, but note the other cases
involving delays or other unusual events, dealt with in the articles mentioned above n 1.
3 Gallant v R (1949) 23 MPR 48, 52; Frank MacKinnon, The Government of Prince Edward Island
(1951) 154-5; Frank MacKinnon, 'The Royal Assent in Prince Edward Island: Disallowance
of Provincial Acts, Reservation of Provincial Bills, and the Giving and Withholding of
Assent by Lieutenant-Governors' (1949) 15 Canadian Journal of Economics and Political Science
216; John Saywell, The Office of Lieutenant-Governor: A Study in Canadian Government and
Politics (1957) 222.
4 Famously, the last example was in 1707, although little appears to be known about the
precise circumstances. See, eg, Rodney Brazier, Constitutional Practice (1988) 154. In the
newer Commonwealth there are more recent examples of at least hesitation in granting
assent, however. See H P Lee, 'The Malaysian Constitutional Crisis: King, Rulers and Royal
Assent' in F A Trindade and H P Lee (eds), The Constitution of Malaysia: Further Perspectives
and Developments (1986) 237; Ramaswamy Venkataraman, My Presidential Years (1994) 42,
84, 335.
5 The provision was the first proviso to s 60 of the Constitution Act 1855 (Imp). See further
Taylor, 'Two Refusals', above n 1, 120-30.
6 Greg Taylor, Constitution of Victoria (2006) 132-4.
2008 Refusals of Assent to Bills Passed by Parliament in Germany and Australia 85
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what types of constitutional infringement justify refusal of assent — whether an
infringement of the charter of rights is an available ground for refusal, or only other
grounds such as the rules of parliamentary procedure, the division of powers between
the central and provincial governments or some other constitutional provision. But the
emerging practice of the German presidential office takes as decisive the certainty with
which an error can be identified rather than the category of the provision allegedly
breached. I shall suggest that this is a development to be welcomed, while querying
whether it is really necessary or desirable for a republican president to refuse assent to
Bills on account of legal objections.
An even more fundamental question is whether it is necessary for the power to
grant assent to be retained at all in a republic. I am reluctant to add to the volume of
discussion about various potential refinements of constitutional law if Australia
becomes a republic — a topic which has not suffered through lack of discussion — but
reference will be made on occasion to that possibility.
2 GERMAN CONSTITUTIONAL BACKGROUND AND
PROVISIONS
A brief review of the Federal President's position, functions and method of election is
in order for those who may need their memories refreshed.7 Under art 54 of the Basic
Law, the Federal President is elected for a period of five years, renewable once only, by
a body convened especially for that purpose and known as the Bundesversammlung (the
Federal Assembly); it consists of all the members of the Bundestag and an equal number
of members of the State legislatures. The Federal President is thus elected indirectly.
He8 can be dismissed only if convicted by the Federal Constitutional Court of
'deliberate breach of the Basic Law or another federal law' on the accusation of two-
thirds of the members of either House of federal Parliament (art 61). Fortunately, this
has never happened.
Unlike the Reich President of the Weimar Republic, who was conceived of as
something of a substitute for the Emperor and a check and balance on Parliament9 and
was elected directly,10 the post-1949 Federal President is a figurehead. He appoints as
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7 Further information in English may be found in a number of readily available sources, eg,
Klaus von Beyme, 'Overseas Studies: Germany' in Republic Advisory Committee, An
Australian Republic: The Options – The Appendices (1993) 52.
8 All Federal Presidents have been gentlemen.
9 Volker Epping, 'Das Ausfertigungsverweigerungsrecht im Selbstverständnis der
Bundespräsidenten: Warum der Bundespräsident das 10. Änderungsgesetz zum LuftVG
nicht unterschreiben wollte' JZ 1991, 1102, 1105; Ernst Friesenhahn, 'Zum Prüfungsrecht
des Bundespräsidenten' in Karl Dietrich Bracher et al (eds), Die moderne Demokratie und ihr
Recht: Festschrift für Gerhard Leibholz zum 65. Geburtstag (1966) vol 2, 687–8. It is amusing to
note that one writer on this topic (Friedrich Schack, 'Die Prüfungszuständigkeit des
Bundespräsidenten bei der Ausfertigung der Gesetze' AöR 89 (1964), 88, 92) accidentally
refers to the assent of the Emperor to laws under art 70 of the Constitution of the Weimar
Republic.
10 Except the first Reich President, who was appointed by the Constituent Assembly at
Weimar.
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