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Taylor, Greg --- "Refusals of Assent to Bills Passed by Parliament in Germany and Australia" [2008] FedLawRw 4; (2008) 36(1) Federal Law Review 83

  • 1 INTRODUCTION
  • 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 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 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. He[8] 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 Parliament[9] and was elected directly,[10] the post-1949 Federal President is a figurehead. He appoints as Chancellor a person with the confidence of the Bundestag.[11] This is the system of responsible government to which we are well used. Clearly, therefore, the Federal President does not have a personal policy-based discretion in deciding whether to assent to Bills, as the United States President does.[12]

    In Germany, it is however common for the Federal President to be a former politician — for example, two recent Federal Presidents have been former State Premiers. At the very least each Federal President is elected as the candidate of a political party in the Bundesversammlung, and the election of a party's candidate is seen as a victory for the party concerned, even if one achieved usually by coalition-building prior to the election. Needless to say, those elected are expected to carry out the duties of their office without regard to party politics.

    Given the party-political nature of the process of election, it is harder to imagine popular non-political figures equivalent to John Landy and Marjorie Jackson-Nelson becoming the German head of state. In saying this I am not making any extraneous point. Australian political and constitutional culture, if faced with the same set of formal rules as in Germany, might produce either the same or a significantly different result in practice.

    The current Federal President, who vetoed two Bills towards the end of 2006, is Dr Horst Köhler. He was elected by 604 votes to 589 on 23 May 2004 as the candidate of the conservative Christian Democrats, of which party he was a long-time member, and also of the small Free Democrat party. He had a distinguished career in the federal civil service before being appointed President of the European Bank for Reconstruction and Development in 1998 and then Managing Director of the International Monetary Fund in 2000. His doctorate is in economics and he has no legal qualifications.[13]

    In contrast to most Federal Presidents, his involvement in politics prior to his election was very minor, but he was also not, by any stretch of the imagination, a popular figure.

    The Federal President's power to assent to Bills is found in the first sentence of art 82(1) of the Basic Law, which runs as follows:

    Laws enacted in accordance with the provisions of this Basic Law shall, after counter-signature [by the Federal Chancellor or the responsible Federal Minister under art 58], be certified by the Federal President and promulgated in the Federal Law Gazette.[14]


    'Laws' is in the original — it does not say 'Bills' or 'proposed laws'.[15]

    Under art 93(1)(1) of the Basic Law and §§ 13(5) and 63 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz), it is possible for the government or a House of Parliament[16] to sue the Federal President[17] in cases in which he has refused to sign a law, seeking (to use familiar terminology) a declaration[18] that his refusal was a breach of his duties.[19] This potential has never been realised at any time since it was created in 1949. It might be thought to involve some slight stretching of the words of art 93(1)(1), which speaks of the 'rights and duties' of chief organs of the state including the Federal President. It sounds a bit odd to speak of what we might rather conceive as the power to grant assent as either a right or a duty, but the statement in art 82(1) that laws 'shall' be certified by the Federal President is taken as imposing a duty on him to sign.[20] However, the quoted portion of art 82(1) also states that the obligation to assent arises only if a Bill is 'enacted in accordance with the provisions of the Basic Law'.

    This frankness with which a formal legal duty to sign laws is imposed upon the head of state is less surprising in a republic in which the head of state is merely another official, albeit the highest in terms of protocol, rather than the sacrosanct figure of royalty on which formal legal, as distinct from conventional, duties are rarely imposed.

    The word translated above as 'certified' is ausgefertigt. It is clear enough that the process connoted by this word includes a check that the law to which assent is about to be given has in fact been passed by Parliament in the form in which it is presented for assent.[21] Thus, the word is translated above, and generally understood to mean, 'certified'. But is there anything else that must be 'certified' — for example, that the proposed law has been 'enacted in accordance with the provisions of this Basic Law'? If so, is this a reference merely to the machinery provisions about legislative procedure in art 78,[22] or does it include some or all other parts of the Basic Law? For example, is the Federal President required to certify that a statute is within federal legislative powers, or even that it is not an infringement of the charter of rights?

    Immediately we run into the difficulty that in constitutional law ausgefertigt is not a technical term with a more or less fixed and well-known meaning (unlike our word 'assent', but rather like some other terms in Australian constitutional law such as 'excise'). Ausgefertigt, a past participle, became established rather late as a designation of what has occurred to a law when assent is given to it by a chief executive: its first use was in the Constitution of the North German Confederation of 1867.[23] The word used in earlier German constitutions for the same process was promulgiert, or some variant on it.[24] Promulgiert is obviously related to a well-known English word, itself of Latin origin, but in the second half of the nineteenth century it was common to look for more 'German sounding' words for legal concepts — an approach which may also be seen at work in the Civil Code of 1896 and which is also probably responsible for ausgefertigt. The replacement of well-understood terms by new inventions did not always do much for assisting understanding of the law, either on the part of its professional interpreters or that of the public. As late as 1918, a book[25] appeared with the chapter heading 'Die Ausfertigung (Promulgation)' as if people might not be entirely sure what the newer, more German-sounding word meant without an explanation in terms of the older but less German-sounding one.

    In the civil law, the equivalent noun Ausfertigung can mean the preparation of a certified copy of a judgment, for example for the purposes of execution, or by a familiar result-for-condition metonymy[26] the resulting copy itself; but it cannot have that meaning in constitutional law, where of course the copy of a Bill that has been ausgefertigt by the Federal President is the authentic copy of the resulting statute.[27] The -fertigt part of the word suggests mere finishing off or making ready, as by the production of a clean copy — fertig is the German word for 'finished' or 'ready' — but it is not obvious what enhancement or change in this meaning is implied by the addition of aus-.[28] Like Greek, German has a considerable capacity to create new verbs by the addition of a particle, often originally a preposition, to a stem; but sometimes, as here, the preposition added is used in ways which are not perspicuous.

    Surprising as it may seem, it is the majority view among German scholars that the Federal President in certifying laws must ensure that they surmount all constitutional hurdles, up to and including the charter of rights. But before looking at the scholars' views in more detail, let us first see what has actually been done by Federal Presidents over the years.

    3 THE CASES

    There are now nine cases in which the Federal President has finally refused to assent to a Bill. There was no case of refusal of assent under the Monarchy of 1871-1918. In this period there was no charter of rights, so only errors in parliamentary procedure could have produced a legal objection.[29] There is, however, also one case in which the Reich President of the Weimar Republic refused, without advice from the government to that effect,[30] to assent to a law.[31]

    In total, then, there are ten cases in which assent has been refused by the head of state:[32]

    • Case 1: In 1926, Reich President Field Marshal von Hindenburg refused to sign a law that increased the punishment for duelling and provided, in addition to the prison sentence prescribed in all cases, for the dismissal of military officers who indulged in this practice. The Reich President considered this to be discrimination against the military, and thus an infringement of the constitutional guarantee of equal treatment (art 109, first sentence). Von Hindenburg's was certainly an arguable view, but not in accordance with the then-current majority understanding of the principle of equality. Faced with an objection from the recently elected Reich President and military hero, the Reichstag gave way and in effect cancelled the Bill.[33]

    Case 2: This occurred in 1951, as the new Bonn constitution was being 'run in', and the first Federal President was Professor Theodor Heuss from the Free Democrat Party, also a junior partner in Dr Konrad Adenauer's governing coalition. Heuss formed the view that a Bill relating to the taxation of income and corporations belonged to a class of Bills which, under the Basic Law's rather complicated rules about this question, required the express consent of the federal Upper House, the Bundesrat. This was because the Bill also affected the States' administrative procedures. Under a procedure that has since been abolished,[34] the Federal President referred the question to the Federal Constitutional Court for an advisory opinion. It agreed with him.[35] He thereupon refused to sign the law. The next year a new version was passed in accordance with the constitutional rules and signed by the Federal President.

    Case 3:[36] In 1960 a great deal of pressure was being exerted on behalf of high-street trading firms to prohibit the sale of goods in workplaces. This produced a Bill to prohibit that practice, which passed Parliament in early December 1960, apparently because the proposal was too popular with vested interests for politicians to vote for its rejection just before an election. At this point, federal Ministers raised severe doubts about the constitutionality of this Bill on the basis of the constitutional guarantee of the free exercise of one's occupation in art 12(1) of the Basic Law. The Federal Chancellor nevertheless presented it to Federal President Lübke (of the same party as the government, the conservative Christian Democrats) for signature on 16 August 1961 — three days after the building of the Berlin Wall, when the Bill would hardly be in the centre of press attention, and just before the election of 17 September 1961. The Federal Chancellor's advice was that it was not possible to say that the Bill was definitely unconstitutional; it might be constitutional. The possibility of a reference to the Court having been abolished by this time, the Federal President sought external legal advice, on that basis formed the view that the Bill did infringe art 12(1) and refused to sign it.

    Cases 4 and 5: These two cases involved Bills passed under the conservative/Social Democrat coalition in 1969. Federal President Gustav Heinemann of the Social Democrats refused to sign a Bill amending the statute to prohibit the adoption of the title 'engineer' by unqualified persons[37] after the Federal Constitutional Court had ruled[38] the original statute protecting 'engineer' invalid because the federal legislature did not have power to enact it. A few months later he refused assent to a similar although not identical statute[39] protecting 'architect'. In so doing he expressly referred to the possibility of challenging his decision if the government felt any doubt about it.[40] No challenge occurred.

    Case 6: In 1976 Federal President Walter Scheel of the Free Democrats (then the smaller party in the governing coalition with the Social Democrats) refused to assent to a Bill because it had not received the consent of the Bundesrat as he thought was required. The Bill amended the statutes dealing with conscription and the alternative service available for conscientious objectors and was the subject of some political controversy at the time.[41] The Federal President informed the legislature that he would not assent to the law because he had 'been unable to overcome doubts'[42] about whether the Bill had properly passed Parliament. A later decision of the Federal Constitutional Court[43] is said to have proved these doubts correct.[44]

    Case 7: In this case the Basic Law (art 87d(1)) at the relevant time, 1990–91, provided that the administration of civil aviation was to be carried out by the federal government's own administration (the natural alternative, under the German arrangements, being state administration in accordance with federal laws). Article 33(4) further stated that 'as a rule' public law tasks were to be carried out by members of the civil service in a public law relationship with the government. A Bill proposed to convert the air traffic control office into a corporation wholly owned by the federal government. Federal President von Weizsäcker of the conservative Christian Democrats, which were also in power in Bonn at the time under Dr Helmut Kohl as Chancellor, refused to sign the Bill on the grounds that such an arrangement would not constitute a part of the federal government's own administration.[45] He considered the unconstitutionality of the Bill 'beyond doubt'.[46] He summarily rejected a lame argument of necessity — that there was no practical alternative to this form of privatisation. Importantly, there would have been a serious question whether anyone had standing to challenge the law had it received assent given that it did not directly infringe anyone's legal position and almost all politicians approved of its policy.[47]

    Case 8: This occurred on 23 October 2006. Again, air traffic control was involved. A federally-owned corporation to administer this field had indeed been created in the interim. The Basic Law had been amended in 1992 to add a sentence stating that, while civil aviation was to be the subject of direct federal administration, statutes might be passed providing for it to be carried out by the ordinary civil service or a corporation set up under the ordinary private law. The latter route having been chosen, the federal government (a joint conservative/Social Democrat coalition) had decided to privatise the corporation concerned, for which statutory authorisation was required. The government argued that direct federal administration would still be secured by means of an office to oversee the operations of privatised air traffic control and a federal share in the privatised company of 25.1%.[48] But the Federal President considered the Bill's unconstitutionality 'evident'[49] because of the lack of federal influence on day-to-day operations that would exist and the possibility of a complete sale later on.[50] He had received legal advice from Professor Friedrich Schoch of the Law School of the University of Freiburg[51] but other experts had also publicly denied the constitutionality of the proposal.[52] The government was said by 'informed sources' to be annoyed that the Federal President had declared his own opinion to be obviously right when the government was of a different view.[53]

    Case 9:[54] In the final case to date, which occurred on 8 December 2006, the Basic Law had just (on 1 September 2006) been amended to add a paragraph to art 84(1) which says, 'Tasks may not be assigned by means of federal laws to local authorities or associations of local authorities'.[55] This was done in order to prevent the federal legislature from declaring costly tasks to be the responsibility of local authorities, as it had had a propensity to do — without making any or sufficient financial provision for their discharge.[56] A government Bill dealing with the provision of information to consumers proposed to require local authorities to provide information about products to consumers.[57] Again, doubts about the constitutionality of this Bill were expressed during the legislative process, and in the Bundesrat, Berlin's representatives voted against it for that reason.[58] The Federal President considered the Bill a 'clear infringement'[59] of the new provision and thus found himself for the second time in about six weeks refusing to assent to a Bill. He rejected a reading down of the Bill designed to save it, under which the local authorities' duty under it would arise only when they also actually had governmental responsibility for the subject in relation to which they held information.

    There followed an unmistakable shot across the presidential bows from the government.[60] German newspapers learnt, somehow or other, that thought had been given within the government to bringing the first-ever suit against the Federal President for a declaration that a refusal to assent was legally baseless[61] — a possibility that had been immediately, expressly and officially rejected in the previous case[62] — but this idea was apparently abandoned. Instead, a new statute was assented to by the Federal President on 5 November 2007 which contained a special paragraph reflecting the view he had put forward in refusing assent to the initial Bill and stating that local authorities had duties under the Act only if given them by a State statute.[63]

    • Case 10: There is one other case of non-assent to a Bill in the history of the Federal Republic,[64] anomalous because it occurred in accordance with the wishes of the government. On 18 June 1953, while the anti-communist revolt in eastern Germany was being brutally suppressed, the Bill concerned was passed by the Bundestag at a time before the party system had settled and accordingly non-government Bills still had a fighting chance of success. The Bill purported to provide an amnesty to publishers, journalists and civil servants who had committed certain crimes; the principal beneficiary was intended to be a journalist, one Dr Platow, who was alleged to have breached secrecy and bribery legislation in order to come by information for his 'insiders' newsletter. The Federal Minister of Justice took the view that the Bill was not in accordance with the Basic Law because it was opposed to the principles of equality before the law and what Americans might call substantive due process. He refused to counter-sign the Bill[65] — counter-signature being a step which, under art 82(1) as quoted above, occurs before a Bill is presented to the Federal President, and which is equivalent in function to formal advice to sign it.[66] Thus the Bill was never presented to the Federal President. A revised statute was thereupon prepared, received assent and was later upheld by the Federal Constitutional Court.[67]

    This summary shows that assent has been refused in relation to Bills of various types for various types of alleged constitutional infringements. In cases 1, 3 and 10 the objection was based on the charter of rights; in cases 4, 5 and 9 the division of responsibilities among the constituent parts of the federation was said to have been infringed — in the first two cases the subject-matter did not appear on the federal list, while in case 9 there was an express prohibition of the exercise of federal powers in a particular fashion. Cases 2 and 6 involved non-compliance with required legislative procedures, in both cases the need for the consent of the States' House, the Bundesrat, so that these two cases also had some federalist aspect. Cases 7 and 8 involved constitutional provisions about the structure of federal administration with no 'federalism flavour'.

    As far as the degree of certainty with which a constitutional infringement could be identified is concerned, in cases 2, 4 and 5 more or less direct support was available for the Federal President's view from the decisions of the Federal Constitutional Court, the final arbiter of constitutionality. In the other cases no such direct support existed. In case 1 the Reich President went out on something of a limb to support his old friends in the army. In case 9 the provision was so new that no support from Court decisions could reasonably have been expected; the decision was reasonably well founded, although by no means an unarguable case precisely because the provision was very new. In case 10 the government itself considered the Bill unconstitutional. In cases 3, 6, 7 and 8 the Federal President's view certainly seemed right, but of course the governments which proposed the Bills argued for a more 'sophisticated' understanding of the constitutional provisions concerned, and in case 7 also unsuccessfully alleged necessity.

    In addition to these cases, various other incidents have occurred over the years in which it has been urged that constitutional problems exist with a statute, and it should not be assented to by the Federal President.[68] Perhaps the most controversial of these occurred in 2002, when a new law on immigration was proposed by the governing federal Social Democrat/Green coalition and ran into considerable opposition from many conservatives.

    When the Bill reached the Bundesrat, the government of the State of Brandenburg, then ruled by a Social Democrat/conservative coalition, was unable to agree on how to cast its Bundesrat votes. Each State has a certain number of votes depending on its population, but all the votes of a State must be cast on one side of a question.[69] But when the vote was taken, the Social Democrat Minister cast his vote for yes, while the conservative Deputy Premier, Army Inspector-General (ret'd) Jörg Schönbohm, cast his vote for no. When the procedure was repeated because of this irregularity, the Social Democrat Premier, Manfred Stolpe, indicated that the State voted yes, while Schönbohm said, 'Sie kennen meine Auffassung, Herr Präsident!' ('You know my opinion, Mr President!').[70] Only with Brandenburg's votes did the law pass the Bundesrat.

    The view of the majority of constitutional scholars was that this was a clear case of invalidity: Brandenburg's votes could not be counted at all as they were not unanimous. However, the Federal President — Johannes Rau, a former Social Democrat State Premier — signed the Bill after just over two months' delay, referring to the fact that the consequences of a non-unanimous vote were not clear because there was no case law on the issue and academics were not agreed (when are they ever?). In doing so, Rau deferred to the primacy of the Court in deciding disputed points of constitutional law and disclaimed any party-political motive.[71] While not everyone was able to take this at face value given the coincidence between the former party membership of the Federal President and that of the government that had put forward the disputed Bill, when the Federal Constitutional Court held the law invalid[72] there were two dissenting Judges, which justified the Federal President's stance. Rau later published a defence of his decision in which he explained that he had sought external legal advice (although he gave no details of this) and lamented the political controversy which even the suggestion of a possible veto of the Bill had created for his non-party-political office.[73]

    One further case is worthy of mention under the heading of 'near misses'. When a Bill on the private law liability of the state (not just the federal States, but including them) was passed in the early 1980s severe doubts were entertained about its constitutionality, as the federation could at that time rely only on its general power over civil law to enact such a statute. This did not seem sufficient — and indeed, the Federal Constitutional Court did in fact eventually decide that the statute was invalid.[74] There was also a question whether the Bill needed the endorsement of the Bundesrat. But assent was given by Federal President Professor Karl Carstens — a former professor of constitutional law[75] who had been proposed for the office by the conservative Christian Democrats.

    In a letter to the Federal Chancellor,[76] Carstens stated that he had 'considerable doubts'[77] about the constitutionality of the legislation, but had been advised by the Home Secretary and the Minister of Justice that it was constitutional, and it could not be denied that their arguments had 'a certain weight'. He said further that he believed he would be justified in not signing only if the lack of constitutionality were 'obvious and beyond doubt'. He also referred to the fact that the law could reach the Federal Constitutional Court only if he signed it — which is of course obvious; but this pays no regard to the possibility that a refusal to assent on his part might be followed by a suit for a declaration that he was wrong not to sign because the Act would have been valid. However, a professor of constitutional law would hardly have failed to notice this point — so we may take it that this statement was actually an oblique means of indicating which course he thought preferable, in which case it is easy to understand his view.[78]

    There are in addition two cases in which the Premier of Bavaria — who assents to State laws for lack of any supra-party figurehead at State level equivalent to an Australian State Governor — has also refused to assent to a Bill because he doubted its constitutionality. In the first case, in 1957, the State Premier (in a letter which suggests strongly that he had had legal advice) stated that a proposed State law amending the law reconstituting courts with financial jurisdiction had not received his assent because it either attempted to alter a law which had since been deemed[79] to have become a federal statute and was thus not within State power, or because it would be inconsistent with a provision of the Basic Law itself.[80] In the second case, which related to a law about beer proposed in 1964, the Premier expressly stated that he had received legal advice to the effect that there were federal constitutional problems with the proposal and that it was also inconsistent with certain ordinary federal laws that took precedence and would invalidate the proposed State legislation.[81] In both these cases therefore, the refusal to assent was justified for reasons going beyond the merely procedural steps in Parliament. There was no discussion in the published announcements of the refusals to assent of the extent to which the legal opinions received permitted doubts about the conclusions they reached. It was not suggested that serious doubts existed.

    I have not found any references to any such action in any other State. It is possible that further incidents along those lines might have occurred, as State constitutional law is not always well documented, but these two Bavarian cases are curiosities and may be unique. Refusals of assent by State Premiers are likely to be extremely rare, as the State Premier is almost always also in command of a majority in the State legislature. (All State legislatures now have one chamber, although at that point Bavaria still had two.) In some other States, sometimes other officers are entrusted with the task,[82] but they too are likely to be closely connected with the majority party in the legislature.

    4 SCHOLARS' VIEWS

    Scholars have attempted to impose some order on the data just summarised and to interpret the wording of art 82 under which the Federal President's assent is required, but have been far from unanimous.[83]

    The question on which scholars traditionally divide is whether procedural errors are the only errors that may be taken into account, or there is something further besides. The narrow view is that there is not. The broad view is that there is no restriction to procedural errors only. Under this view, the Federal President can refuse to sign Bills in all other cases of constitutional invalidity, such as when the charter of rights is breached. A middle view is that all non-material defects other than the content-based restrictions of the charter of rights can be a ground for non-assent; this includes not merely parliamentary procedure but also the existence of legislative competence in the federation as distinct from the States (cases 4, 5 and 9) and stand-alone restrictions such as those in cases 7 and 8.[84] The broad view of course includes all those cases as well because it allows for non-assent in all cases of constitutional invalidity.

    Supporters of all views agree that errors in legislative procedure justify non-assent if the resulting statute would be invalid because of the error. This conclusion is based on the reference in art 82(1) of the Basic Law[85] to the certification of laws that have been enacted 'in accordance with the provisions of this Basic Law', and the prescription in art 78 of the ways in which the legislative process within Parliament operates.[86] It is virtually unanimously concluded that the words just quoted from art 82(1) mean to refer back to the provisions of art 78. Supporters of the narrow view assume this reference exhausts the concept of certification,[87] while supporters of the broad view say that it is not clear enough to achieve that result.

    The generally accepted definition of procedural errors in legislation which the Federal President may take into account as part of this process includes situations in which it is uncertain whether the consent of the Bundesrat to a Bill is required and it has not in fact been granted.[88] In other words, procedural errors include choosing wrongly among the various procedures in the first place and thus wrongly assuming that the Bundesrat's consent is not required, even if the chosen procedure is then correctly carried out, as in cases 2 and 6. As the rules about when the Bundesrat must consent can be quite complicated, this is an important point.

    What has been said in the preceding two paragraphs exhausts the agreement among scholars. The courts have never dealt with the question whether the broad, middle or narrow view is correct, and thus there is no relevant case law[89] to speak of.[90] The drafting history of art 82(1), and its predecessors' history before 1949, also contribute nothing to the resolution of this question. The drafters of any of the constitutions in which the word ausgefertigt or its noun Ausfertigung is used simply did not debate the question of its meaning publicly.[91] As we saw earlier, the word ausgefertigt is also quite unhelpful as a matter of ordinary semantics.[92]

    As far as the federal constitutional structure is concerned, it is notable that it expressly confers the function of judicial review on the Federal Constitutional Court (art 93(1)(4a)). The text also states that other courts may not declare laws invalid (art 100(1)). However, it does not extend this prohibition to other constitutional organs.[93] Nevertheless, this might be seen as a broad hint to them, as clearly the intention is to have a central body charged with the task of judicial review. After all, questions relating to whether a statute is valid, especially under value-laden provisions such as a charter of rights, can be very dependent on individual assessments, so that it is necessary to have one authoritative voice.

    But those in favour of the middle or broad views of the Federal President's powers point to other constitutional provisions. For example, references are made to the Federal President's oath to defend the Basic Law,[94] or the possibility of his being accused of neglect of his duties under art 61 for signing a Bill that in fact should not have been signed. The difficulty with this type of argument is that it assumes that which is to be proved, namely that the Federal President does in fact have the duty not to assent to Bills if they conflict with the Basic Law in any respect, rather than leaving the matter to the Court. This is untenable because it begs the question (or, as is often said, because it would turn provisions reinforcing existing duties into provisions creating new duties),[95] a fact which has been realised by most of the supporters of the middle and broad views who have more or less abandoned this argument.

    Some supporters of the broad view, however, still refer to the binding nature of rules of the constitutional system (including the charter of rights) on all constitutional organs, as declared in arts 1(3) and 20(3) of the Basic Law, as the basis for a duty in the Federal President, a constitutional organ, to determine whether Bills are in accordance with the Basic Law.[96] But if the better view of the constitution as a whole is that all or some questions of the validity of proposed laws are reserved for the Federal Constitutional Court, these provisions, coupled with the general duty to assent in art 82(1), can mean only that the Federal President is not to refuse assent. Thus, reference to such provisions does not advance the case for the broad view at all, but merely re-phrases the question: does the constitution impose such a duty on the Federal President or not?[97]

    In fact the provisions mentioned retard the case for all but the narrowest view: if those articles did mean, as is sometimes said, that the Federal President breaches the Basic Law if he signs Bills which breach it, and is thus bound to refuse assent in all cases of unconstitutionality, then of course the Federal President has breached the Basic Law on all those occasions on which he has signed Bills which were later found to be invalid by the Court.[98] While the Federal President would not be in deliberate breach of the Basic Law in cases where he was mistakenly of the view that a Bill was in fact valid, an interpretation should not be lightly adopted which implies that the head of state has been guilty of umpteen reckless[99] or negligent breaches of the constitution by doing what he conceived to be his duty.

    Rather, the fidelity to law which a Rechtsstaat demands does not exclude the possibility that an organ of the constitution must participate in an activity which it considers unlawful if the law appoints another exclusive means of resolving the question.[100] Take for example a judge who fervently believes that constitutional law does not permit the exercise of power by his or her court in a particular matter. We should expect that judge nevertheless to bow to the final contrary decision of the question by the highest court and exercise that jurisdiction anyway.

    Furthermore, the blunderbuss view that giving assent to an invalid law is ipso facto a breach of presidential duty is not well adapted for cases in which only one part of a Bill is thought to be invalid. As there is no power to assent to part only of a Bill,[101] many supporters of the middle and broad views state that the Federal President can refuse to sign a Bill only if it is wholly invalid,[102] while some others say that it depends on things like the proportion of valid to invalid portions and the seriousness of the breach.[103] Either opinion gives the game away,[104] because it implies that the Federal President will sometimes be required to breach his duty. The Basic Law, if a coherent system of constitutional norms, cannot mean to put the Federal President in the position of being 'damned if he does and damned if he doesn't'.

    Surprisingly enough, however, the 'principal argument'[105] for the broad view is none of those considered so far. It is based on the Jesuitical view that there is no distinction between errors relating to legislative procedure and other errors. The argument (which was first formulated at the time of the Weimar Republic)[106] starts with the proposition that a law which infringes the other parts of the Basic Law, apparently unrelated to legislative procedures, is a law which must necessarily also contain an error relating to legislative procedure. This is because art 79(1) requires all laws altering the Basic Law to state expressly an intention to alter the constitution.[107] A Bill that is in conflict with, for example, the basic right to freedom of occupation, as in case 3, is therefore taken by the proponents of this argument as an unsuccessful attempt to amend the Basic Law to permit the infraction of the right concerned, and as failing because of an error in legislative procedure, namely the failure to state an intention to amend the Basic Law.

    This is unconvincing, because that is not the intention of the Bill at all. A Bill's proponents will not argue, and given the prohibition of implied amendments could not rationally argue, that they are putting forward a Bill inconsistent with the Basic Law. Their case will not be that they forgot to ensure that a provision for express amendment of the Basic Law was needed; their case is rather that no such provision is needed at all, because the law is not inconsistent with the Basic Law (and should therefore receive assent in its present form).[108]

    The argument therefore confuses the real defect in the Bill (assuming that there is one) with the means by which it might be fixed — which are not the same thing precisely because of the prohibition on implied amendments.[109] Putting the same point from a different angle: it is not the case that implied amendments are permitted only if a special procedure is followed. Rather, they are entirely prohibited, and that is for substantive reasons, namely their misuse under the Weimar Constitution; any law which would otherwise achieve an implied amendment suffers from a substantive and not a procedural defect.[110]

    Sometimes it is also argued that procedural and non-procedural matters are inextricably mixed because different procedures are prescribed for different types of laws: for example, some require the consent of the Bundesrat, while in other cases its objections can be overridden. A Bill's categorisation depends on its contents. Thus, it is said, it is not possible to determine the correct procedure for any Bill without looking beyond procedural matters, and the distinction is lost. It is certainly true that procedures vary according to content, but this does not mean that there is no such thing as a 'purely' procedural error. There is surely still a difference between not seeking the consent of the Bundesrat because of a mistaken view about whether that is required — even a mistaken view based on a view about the content of the proposed law — and carrying out the procedures flawlessly for a Bill that infringes a basic right. Determining the correct procedure is as much a matter relating to legislative procedure, even if the classification of the Bill based on its content is a criterion, as following the correct procedure once it is determined what that is.[111]

    Finally, the supporters of the middle and broad views refer to the fact that the Federal President can be sued for not assenting, and thus refusal can never prevent the issue coming before the Federal Constitutional Court. Furthermore, proponents of a vetoed law who are serious about its constitutionality, and are not merely prepared to assert its constitutionality to the Federal President as a means of bludgeoning a signature out of him, can 'put their money where their mouth is'.

    This in itself may well be a good thing, although it does not entail the correctness of the broad view: it shows merely that, if the broad view is correct, the usurpation of the Court's role and the consequent flagrant inconsistency with the constitutional design can be avoided by use of this mechanism — not that the broad view actually is correct. The decision not to assent is not taken in a political vacuum. It would hardly be wise for a Federal President to provoke a stream of suits against himself by the government, and this possibility does not equate to a blank cheque to refuse to sign whenever doubts are entertained. Losses before the Court would bring the office into disrepute, and constant refusals, even if unchallenged or unsuccessfully challenged, would make the office appear too political.[112] As Federal President Rau discovered in the Immigration Bill case, even suggestions that refusal might be contemplated[113] lead to inevitable press stories involving uninformed speculation masquerading as inside information and even gross misunderstandings of the basics of the political system and the law — in short, to considerable controversy, something of course which is meat and drink for the press and helps to sell newspapers but is not ideal for an office which is meant to be above party politics. Nor would it be fair to politicians to require them to take action against the head of state every time a law may be invalid.[114]

    There is therefore no good reason to accept the broad view that any error in enacting a Bill which would make the resulting statute invalid justifies a refusal of assent.

    5 THE EMERGING PRACTICE

    A writer on this very topic has noted that 'legal scholarship and practical politics traditionally follow rather separate paths in Germany'.[115] At least in this field, this is less true than it once was. Scholars have increasingly come to realise that it is not so much the source of constitutional error, but the certainty with which it can be stated that an error has indeed occurred that is decisive.[116] So has the Federal President, as the cases analysed above indicate.[117] This takes account of the need to have one authority, that of the Court, in all but the most obvious cases; and indeed the debate has changed as arguments left over from the days of the Weimar Republic, when judicial review was very restricted,[118] have been gradually abandoned as judicial review has become established and extensively practised in post-War Germany.[119]

    Thus we nowadays find passionate scholarly defences of the broad view as the only reasonable one, the view that enjoys the greater number of adherents in academic discussion — as indeed it does[120] — and necessary because otherwise a blank cheque will exist for the disregard of constitutional law by the legislature. This statement however is regularly followed by the somewhat lame qualification that assent should, of course, be refused only when it is quite certain that a constitutional obstacle does in fact exist.[121]

    Equally, the supporters of the narrow view defend their position on the grounds that the Federal President has no business usurping the functions of the Court, and art 82(1), properly interpreted, does not permit him to do so because it refers only to errors in legislative procedure — but then they typically also add that of course a refusal to assent should take place only in clear cases, and additionally that, if the free democratic order were ever in real danger, the Federal President would be justified in refusing to assent to a Bill no matter what its subject matter.[122] This addition is sometimes justified by reference to art 20(4) of the Basic Law, which states that all Germans (including, of course, the Federal President) have a general right, if no other means are available, to resist attempts to do away with the constitutional system established by the Basic Law.[123] The historical background to this provision is too notorious to require spelling out.

    Some supporters of the narrow view were no doubt attracted to it by the idea that the existence of procedural errors in Parliament is likely to be less controversial than errors relating to the charter of rights or the distribution of legislative powers.[124] But, as the Immigration Bill case of 2002 and the various cases involving the Bundesrat show, it is by no means inevitable that all procedural errors will be clear-cut. The supporters of this view too therefore tend towards the practical criterion of certainty.

    A particularly notable case of the shift from category-based arguments to the question whether invalidity is clear is provided by Professor Carstens, the former professor of constitutional law who became Federal President. As a professor he had expressed himself in favour of the narrow view, but even then he added that there would be an exception for Bills which endangered the free democratic system. When it came to the crunch, he based his decision to assent to the State Liability Bill not on category-based grounds, but rather on the grounds that the Bill was arguably constitutional![125]

    There are one or two other considerations that might be decisive in borderline or unlikely cases. In summary form, they are: whether the Bill would work any irretrievable damage to democracy or the rule of law; whether the whole purpose of the Bill is invalid (as in case 8) or merely a detail (case 9); whether the constitutional breach by the legislature is deliberate;[126] and also whether there is anyone who is likely to challenge the Bill and will have standing to do so.[127] In cases in which only part of a law is said to be invalid, the proportion of valid to invalid portions must also be of relevance — although if case 9 becomes accepted as a precedent to be followed, which perhaps it may not be, it is clear that even a small proportion of invalidity may prove fatal.

    In fact there is no opposition at all between the criterion of obviousness and that of seriousness, but rather an underlying congruence. If the government proposes and the legislature passes legislation which is almost certainly in conflict with the constitution, that is a really serious thing in itself because it jeopardises the sense that even the government and the legislature are bound by constitutional provisions. In other words, the principle of the rule of law is endangered — not quite as dramatically as democracy would be endangered by a law banning all opposition parties, for example, but rather more insidiously.

    Now that it has become clear that the principal criterion is that of certainty, it should moreover be explicitly recognised that the power to refuse assent is a discretion to be exercised with sound judgment and in accordance with the individual circumstances of the case, and is not to be confined to one criterion for its exercise.[128] There is, after all, no statement in any constitutional text of the criteria which would bind the Federal President.[129] There are substantial reasons for thinking that such considerations are already taken into account. Thus for example in case 3 a substantial delay in reaching an inevitable decision was partly prompted by the imminence of an election, and one also has the feeling in relation to cases of doubtful assent such as the State Liability Bill or the Immigration Bill of 2002 that strategic considerations and a desire to avoid controversy played a significant role in the decision to assent. One shudders to think of the controversy that would have enveloped the office of Federal President had its holder in 2002 refused assent to the Immigration Bill rather than referring the issue to the courts by granting it.

    The decision whether or not to assent is partly a political one in the broad sense — not just a legal one. It is easy to imagine political circumstances, perhaps involving an imminent election in which a Bill will be at the centre of attention, when it might be unwise to refuse assent to it because doing so would simply ensure that the office of Federal President would be dragged into political controversy.

    One other peculiarity relating to the two cases from 2006 also illustrates the relevance of broad political considerations. In that year, as still at the time of writing, what is known as a grand coalition was in power federally. This means a conservative/Social Democrat coalition — in other words, a coalition of the two largest parties in Parliament, the principal parties of the left and right. The opposition was therefore unusually weak because it included only the smaller parties. At the time of writing, the largest of the three opposition parties, the Free Democrats, had sixty-one of the 614 seats in the Bundestag, the 'hard' left party fifty-three and the Greens fifty-one. The unusual weakness of the opposition created a particular need for strong extra-parliamentary mechanisms for ensuring the accountability of government. In defending the Federal President's actions in case 9, Professor Schoch did indeed argue that

    the last thing that our constitutionally governed state needs when there is a grand coalition with a two-thirds majority [in Parliament, ie having power to amend the constitution] is a Federal President who, in exercising his powers under the first sentence of art 82(1) … turns a blind eye to things and is conspicuous by his reluctance to make decisions.[130]

    In 1969, the previous year in which two Bills were passed but not assented to, the only other grand coalition of the right and left that has existed in post-War German history was also in power.

    The current Federal President, Dr Köhler, has drawn attention to himself in the environment of a grand coalition not merely by refusing assent to two Bills, but also by his occasional stretching of the boundaries of comment within which a Federal President is normally confined (as a matter of practice, not law) — although one commentator in a legal journal has recently written that nevertheless his conduct 'has lived up to the classical doctrine of Walter Bagehot, the great political writer, who restricted the rights of the head of state in a parliamentary system to the right to warn, encourage and be consulted'.[131]

    6 ASSESSMENT AND COMPARISON

    Reference was made in the introduction to a comparable case of refusal for invalidity in Victoria in the 1850s. The equivalent question first arose in the newly-established Commonwealth of Australia in a case in which even the Attorney-General considered a Bill invalid according to the then-current doctrine of the High Court of Australia — but nevertheless advised the Governor-General to assent to the Bill on the grounds that it was not for him or the Governor-General to determine its validity, but rather for 'the High Court and the High Court alone'.[132] Any action by the head of state to veto the Bill, even in accordance with ministerial advice, on the grounds that it was outside the powers of the Commonwealth would, he thought, be 'to usurp the functions of the High Court.'[133] In 1906, at the high point of pre-Engineers doctrine in Australia,[134] the Court did indeed hold invalid much of the passage in question in the resulting legislation[135] — but, in a striking demonstration of the aptness of the Attorney-General's view, the Court overruled itself fourteen years later in the Engineers Case,[136] with the result that the passage in question[137] remained on the statute books without great alteration for decades thereafter.

    Four years after the Engineers Case, the Governor of Tasmania yielded to ministerial advice to assent to Bills that had not passed the State's Legislative Council, although that course was almost certainly constitutionally defective.[138] Shortly afterwards, in The King and His Dominion Governors, Mr Justice Evatt convincingly attacked 19th century views in favour of an independent right in the Governor to decide upon legal questions.[139] In the result, no Australian Vice-Regal representative nowadays would refuse to wield the Vice-Regal assenting pen even if personally convinced of a Bill's invalidity. Government House is just not the correct forum in which to urge such objections: the courts are.

    Sometimes (both in the United Kingdom[140] and in Australia[141]) it is speculated that the Crown would have the right, perhaps even a duty, to refuse assent to legislation which imperilled the very foundations of democracy, and that may well be true as an abstract proposition. But of course, if such legislation were ever proposed the situation might be like that in Germany in early 1933 in which refusal is less of a practical option than even constitutional theory allows. Fortunately we have no practical examples from either the United Kingdom or Australia to guide our speculations in this area.

    Given that they are both figureheads, there is a striking difference in behaviour in the area under discussion between the German Federal President and Australian Vice-Regal representatives. The latter have not vetoed Bills for many years, and some writers question nowadays whether they should do so even if in receipt of ministerial advice to that effect.[142] On the other hand, we have seen that in Germany the Federal President has taken it upon himself in no fewer than eight cases since 1949 to differ from the view of 'his' government and veto Bills on the grounds that they are unconstitutional, in his view. While therefore both sets of heads of state[143] disclaim any policy-based role,[144] and the day is probably still far off on which a German Federal President would refuse assent to a Bill for 'mere' reasons of policy — something which would in fact be a breach of the general duty to assent in art 82(1) — the Federal President has created for himself a role as a preliminary check on the constitutionality of legislative proposals alongside that of the Federal Constitutional Court which no Australian Vice-Regal representative would dream of assuming.

    It would be unduly simplistic to see this difference as nothing more than a reflection of the fact that the one country is a republic, while the other is a monarchy. No Austrian President has ever vetoed a Bill.[145] Thus, our practice will not necessarily change if Australia were to become a republic. Something would of course depend upon the precise arrangements adopted under any proposed republic. A directly elected president might take a more expansive view of his role than an indirectly elected one. From such a person even objections of policy could not be ruled out, unless perhaps the Constitution clearly provided otherwise. But the directly elected Austrian President has not adopted that course. Nor did the directly elected Weimar Reich Presidents, unless one regards case 1 above — involving the ban on duels and the additional punishment for soldiers to which Reich President von Hindenburg objected — as a case in which a policy objection was camouflaged by tendentious legal arguments. Even in that case there is only one exception in fourteen years, and it is significant that camouflage was felt to be required. In the dying days of the Weimar Republic, once Hitler had begun to convert the Weimar Republic into a dictatorship using quasi-legal means, there were plenty of opportunities for similar objections which were not taken — although that certainly had something to do with von Hindenburg's precarious health coupled with the obvious failure of the Weimar democracy and a consequent lack of enthusiasm for defending it.

    A lot clearly depends on factors such as the existence of precedents, other features of the constitutional system and even chance, which vary more or less randomly from one legal order to another. For example, if Federal President Heuss had not vetoed a Bill in the early 1950s (case 2), it may well be that the lack of a precedent for vetoing Bills would have deterred all later Federal Presidents. Pointing out that later cases are by no means the first in German constitutional history is an obvious means by which a veto can be defended to the public. But if the possibility of referring a question of law to the Federal Constitutional Court for an advisory opinion had not existed at the time of case 2, quite possibly Heuss would not have dared to take the step he did and the crucial initial precedent would never have been created. If this reasoning is correct the provision for reference to the Court lives on long after its abolition in 1956. Perhaps this is also why the situation in Austria is different: no-one there has ever been brave enough to set the initial precedent. Similarly, in Australia the first precedent set in the early years after Federation was to assent and refer the issue to the courts, and it has been uniformly followed.

    Tradition may also have a role to play in a manner which is non-random and permits some useful systematic comparisons about causes and effects. Thus the position of a republican president, even an indirectly elected one, is different in a number of ways from that of a representative of the Crown, even one whose tenure is not hereditary and who may possibly have some degree of recognition by the public (one need only think of people as diverse as Sir William Deane or John Landy). First, there is the obvious systematic difference that the German Federal President has some security of tenure. Under art 61 of the Basic Law, he cannot be removed except by an elaborate procedure involving an accusation by two-thirds of one House of Parliament that he has deliberately violated the law followed by a judgment to that effect by the Federal Constitutional Court. The tenure of an Australian Governor-General or State Governor, on the other hand, is, as far as the formal law is concerned, extraordinarily weak: they hold office formally at Her Majesty's pleasure. Prime Ministers and State Premiers, for a host of good practical and political reasons, have been naturally reluctant to tender advice to Her Majesty to dismiss the Vice-Regal representative for no good reason. But if push comes to shove, as on several occasions in recent times,[146] a contest between the head of government and the Vice-Regal representative is always very likely to be won by the former.

    Secondly, the Federal President is indirectly elected in Germany and thus has some form of democratic legitimacy. There is a difference with Australian arrangements which is too obvious to require spelling out. However, this point should not be over-stressed, because the Austrian President has, if anything, more democratic legitimacy, being directly elected by the people, so the number of vetoes of Bills is obviously not directly proportional to the number of electors for the post of head of state!

    A third level on which tradition and systematics may differ between Germany and Australia is in the more subtle level of 'atmosphere'. In a republic each office-holder has a sphere of responsibility allocated by the constitution and is responsible to the res publica for discharging that responsibility conscientiously. If that requires of the non-party head of state the occasional decision which might be characterised as a rebuke to politicians, then that need must be accepted as part of the system under which all office-holders are mere instruments of the constitution, and servants of the state. On the other hand, even in Australia, where the mystique of monarchy has been attenuated almost to vanishing point, something still remains of the need to keep the monarchy and the Monarch's representatives completely above political and legal strife, avoiding the expression of any opinion whatsoever in formal constitutional functions such as assenting to laws which is opposed to that of the government in power.

    Furthermore, it is not usual to speak of the monarchy's duties to the constitution; rather, we tend to focus on the advice which politicians may constitutionally give to the Crown and leave the Crown entirely out of day-to-day concerns. It is seen as desirable for the Crown's representative not to engage in disagreements with the elected government even on dry legal questions, and it would hardly be possible to maintain this if occasional outbreaks of disagreement occurred as they have in Germany.

    In a republic, too, duties to the constitutional order tend to be seen in more black and white terms. Perhaps this tendency is further accentuated by the fact that Germany is a land of codifications. This difference is highlighted when one finds Professor Schoch in case 9 arguing that the Federal President had no discretion at all but was required to refuse assent in that case because the Bill concerned was unconstitutional.[147] It is apparent that I (along with at least one German scholar)[148] would have matters decided even in Germany on a somewhat different and more complicated basis, having regard to political as well as legal realities. Like Geoffrey Sawer in relation to the crisis of 1975,[149] I would insist on speaking of discretions rather than duties; but it is not possible for me to say how much of that is merely my common law training and habits of thought. At any rate, it is hard to imagine an Australian taking a similar black and white view in a case such as case 9, which did not involve the remotest danger to the continued existence of the democratic system itself.

    Indeed, the German experience emphasises the dangers of vetoing laws to the good relations that should exist between the non-party head of state and the elected government. Case 9 in particular illustrates the sort of noises a government can make if displeased by a presidential veto on grounds which it considers open to doubt. These stresses and strains can be accommodated in a republic, but no Vice-Regal representative in Australia would be well advised to act in such a way. Even in Germany, the current Federal President is most unlikely to wish to provoke another such confrontation by vetoing further Bills, while for its part the government too will be on its guard in order to avoid an unprecedented third case; no doubt relations between the two parties have suffered and the easy confidence and frankness that we in Australia expect to exist between the head of state and head of government may well have been impaired, at least temporarily, in Germany.

    There are certainly also practical difficulties with vetoing laws which may explain the contrary attitude taken in Australia. Obviously, the German practice means that an initial decision is taken in the Federal President's office; staff are employed at public expense to do the job which can almost always be done instead by the Court. Whether or not outside legal advice is sought, as is apparently considered to be unexceptionable[150] and is doubtless sometimes necessary if this function is to be discharged properly, the Bill's assessors are anonymous and not subject to anywhere near the same degree of quality control[151] or public and professional criticism of their opinions, views and performance as the judges.[152] Reasons may or may not be given — no public reasons were given in case 3, for example,[153] although all recent cases have been accompanied by a short statement — and, if given, reasons are brief and published at the discretion of the Federal President. The issue is, in other words, shifted from a public arena to a private one with all the disadvantages for open government that that entails.

    One does wonder whether the Germans really do need to have resort to the 'nuclear option' of veto by the head of state, when perhaps simpler methods of dealing with the problem might suffice. Advisory opinions might be reintroduced.[154] While even former Federal President Rau opposed this idea on the grounds that they are not the function of the courts,[155] and advisory opinions are officially banned in this country,[156] I think that this is too black and white a view. Canadian practice,[157] not to mention our own local practice under which Attorneys-General can sue for declarations as to the validity of a law,[158] suggests that judgments unattached to any concrete controversy are by no means incompatible with the concept of judicial power. In fact they are known in Germany too: the equivalent procedure there is known there as abstrakte Normenkontrolle (abstract examination of laws), and if a Federal President were ever sued for a declaration that his non-assent was not required by the law a similar examination of a proposed law divorced from a concrete case of its application would happen.[159] It is hard to see why advisory opinions would be objected to given that they are currently practised under another name, and no undue outbreak of judicial empire-building or collapse of confidence in the judicial system has resulted.

    Certainly an advisory opinion in the Immigration Bill case of 2002 would have enabled Federal President Rau neatly to avoid the issue presented to him without endorsing either the Bill and the apparent constitutional breach involved in the Bill's enactment nor yet the opposition's very strongly urged view that the Bill was invalid. Advisory opinions would certainly be far preferable to the creation of controversy around the office of Federal President whenever there are reasons to doubt the constitutionality of a Bill and a decision whether to assent is expected.

    Whether or not advisory opinions are re-introduced, if it is thought that standing rules are too narrow to permit a challenge to some Bills — as was suggested in cases 7 and 8 — then perhaps they should be liberalised. At the moment the most commonly applicable rule is that one-third of the members of the Bundestag have standing to challenge legislation.[160] This is far too high and excludes the smaller parties which obtain seats through the prevailing system of proportional representation, which, in this regard, should be better exploited. One might even ask whether there is any reason why any member of Parliament who voted against a Bill should not have standing to challenge it.[161] The French Constitution, although its rules about the permissibility of challenges in general might be thought more restrictive, provides standing to sixty members of the National Assembly, just over 10 per cent of its membership.[162] There is certainly much to be said for a mildly restrictive approach to standing in general[163] but in relation to a member of Parliament these arguments have much lesser weight: if the power to seek a ruling by the Court is abused, the member will suffer the consequences in the public arena. If standing rules are so restrictive that they shift the pressure to consider arguments about unconstitutionality from the courts to the head of state, they are worse than useless.

    Thought might also be given to procedural changes designed to reduce the number of occasions on which the veto is required. For example, if more Bills are vetoed because of constitutional difficulties with small parts of them as in case 9, there could be a provision permitting the Federal President to send Bills back to the Bundestag with suggested amendments. Such provisions already exist in several constitutions.[164] It would obviously be necessary for this purpose to uncouple such provisions from any requirement that they might be exercised only on the advice of the government, as exists in at least some Australian jurisdictions[165] and possibly India.[166] As far as what happens after referral back without advice is concerned, the South African Constitution provides that, if a Bill is referred back to Parliament and the President's objections are not accommodated, he or she must either assent or refer the Bill to the Constitutional Court.[167]

    One area in which German rules of constitutional procedure certainly do promote the occasional presidential veto is the capacity to challenge non-assent in court. This difference is another instance of the way in which the monarchical heritage of Australia continues to rule us, if not from its grave, then at least from a retirement home from which it rarely emerges: one could hardly imagine a suit designed to test whether a Vice-Regal refusal to assent was correct in which the Governor-General or Governor was required to defend his non-assent before the courts. In the United Kingdom, of course, Her Majesty the Queen could not be sued for refusing to assent to a Bill, and no doubt this immunity attaches to those who exercise federal[168] and State[169] executive power in her name here.

    As far as the common law is concerned, administrative law has made great strides in this area over the last half-century or so, but such high constitutional decisions are certainly still not susceptible to judicial review,[170] even if a simple error of law were alleged to be the basis of a Vice-Regal decision. Even an action for a declaration, designed to establish the fact (if it were the fact) that assent had been refused as a result of misunderstanding the law, would no doubt fail. There would be great difficulty even in identifying a proper plaintiff, particularly if non-assent occurred on ministerial advice, while in other cases the spectacle would be presented of the Vice-Regal office-holder's being dragged through the courts by one of his constitutional advisors, presumably the Attorney-General. Above all, no-one has a right to have royal assent granted to a Bill which would support a suit for a declaration of right. If the law of this country provided for advisory opinions, that road might be chosen, but of course it does not.

    A few cases do admittedly exist in which a mere Bill has been brought before the courts for appraisal — Attorney-General (NSW) v Trethowan[171] is the best-known example — but in such cases the question has been whether a Bill might lawfully be presented by Ministers of the Crown for the royal assent despite a 'manner and form' provision apparently preventing that, and whether the provision was effective. There was no review of Vice-Regal objections to a Bill that had already been presented for royal assent, and to which royal assent had been denied. Furthermore, those cases have been declared to be rare exceptions, bordering on indefensible anomalies,[172] and they are therefore not likely to provide sound analogies in new situations. Unless some great ingenuity is manifested in the future, there is therefore no way in which Bills can be brought before the courts for a general declaration of their validity until — and unless — royal assent is granted to them.

    Assuming therefore that the refusal of a Vice-Regal officer could no more be brought before a court in this country than could a similar refusal by the Queen in the United Kingdom, the law of Germany differs in an important respect from our law. Current German law is also unlike that of the Weimar Republic,[173] let alone the Second Reich Monarchy (1871–1918),[174] which did not permit curial challenges to non-assent. This is another interesting example of the manner in which changes in the law can have the opposite result to that which at first sight might be expected. The potential for a refusal of assent to be reviewed by the courts might, one would expect at first blush, lead to a reduction in the practice of refusal, as heads of state would be fearful of sustaining a loss and losing face. Far from it: combined with the reluctance of politicians to sue the head of state, it has in fact made Federal Presidents more confident in cases in which they are convinced that the Bill is invalid. They do not have to listen to meretricious arguments from their governments to the contrary, let alone act on them as the Crown in Australia sometimes has to do. Rather, they can dare them to seek a determination of the question from the ultimate arbiter.

    It is nevertheless open to some question whether Germany has gained much as a result of the greater willingness of the head of state to veto legislation. The controversy which attaches in some such cases to the office of Federal President may mean that the game is not worth the candle. It is very hard to see why any of the cases could not have been dealt with by less dramatic means, especially if the standing rules were liberalised. There is a lot to be said for our rule which protects the Crown from making similar decisions. Although our rule may seem an example of institutionalised hypocrisy and unnecessary limitations imposed by a lack of democratic legitimacy and tradition, the most noticeable outcome of what appears at first sight to be the more honest, rational and rule-of-law-respecting German position is the creation of trouble between the head of state and the head of government for no essential purpose.

    Some of this might be avoided if art 82(1) were clearer or other amendments made, but more radically, the power to assent — really a remnant of the more or less constitutional monarchy that disappeared in 1918 — might be wholly abolished. Bills passed by Parliament could be published on the authority of the Presidents of each House[175] as nothing more than a certification that the Bill has indeed received the assent of the House concerned. This is already the system in some German States[176] and the Australian Capital Territory,[177] and in Malaysia the King has thirty days to assent, failing which he is deemed to have done so.[178]

    In cases of disagreement in Germany about whether the Bundesrat is required to be involved in the legislative procedure, there would of course be a difficulty in determining who should take responsibility for publishing the Bill.[179] But the non-participation of the President of the Bundesrat in the publication of a disputed Bill would certainly do nothing to conceal this issue from the Court and would therefore not cause any harm at all. An express qualification could be added in very rare cases such as arose in 2002 in which the fact of approval by one House of Parliament is open to serious dispute.

    At best, assent can be defended as having emblematic value: the Federal President's signature symbolises the subscription of the whole nation to a new legal norm after the conclusion of the legislative process, often dominated by partisan political considerations.[180] But if this symbol were abolished, would the law's authority really suffer, given that everyone knows that the Federal President usually assents automatically, and that his assent is close to meaningless as a symbol? If the power to assent were abolished, final and effective assent to disputed legislation would then be given, in cases of doubt, by a judgment of the Federal Constitutional Court in its favour.

    Except in cases in which the entire constitutional order is under threat from proposed legislation, in which the one notorious precedent that exists suggests that Realpolitik pressures will be overwhelming anyway, it is hard to see what real value is added to a republican constitutional system by the power to assent. A symbolic act in a constitutional monarchy, if translated into a republican system, is out of place and can on occasions be mischievous, because it has to be taken seriously by a republican head of state who cannot shelter behind the mystique of a crown.


    [*] 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] SydLawRw 3; (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, '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.

    [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.

    [11] Article 63 of the Basic Law, which provides that the Federal President proposes, but the Bundestag disposes. In particular, if the former's nominee is not elected by the latter, it may elect another candidate of its own choosing.

    [12] Hartmut Bauer, in Horst Dreier (ed), Grundgesetz: Kommentar (2nd ed, 2006) vol 2, 1902; Karl Heinrich Friauf, 'Zur Prüfungszuständigkeit des Bundespräsidenten bei der Ausfertigung der Gesetze' in Bodo Börner, Hermann Jahrreiß and Klaus Stern (eds), Einigkeit und Recht und Freiheit: Festschrift für Karl Carstens zum 70. Geburtstag am 14. Dezember 1984 (1984) vol 2, 547; Joachim Kniesch, 'Die Stellung des Bundespräsidenten nach Grundgesetz und Staatspraxis' NJW 1960, 1325, 1327; Hans Schneider, Gesetzgebung: ein Lehr- und Handbuch (3rd ed, 2002) 280.

    [13] Biographical notes on Dr Köhler in English are available from his official website: Bundespräsidialamt, Curriculum Vitae Prof Dr Horst Köhler <http://www.bundespraesident.de/en/-,11166/Horst-Koehler.htm> at 22 February 2007.

    [14] Basic Law for the Federal Republic of Germany (2000) <http://www.bundestag.de/htdocs_e/parliament/function/legal/germanbasiclaw .pdf> at 22 February 2007. This version of the Basic Law is now out of date, but this sentence has not been altered since that version was published. Generally however I have made my own translations of other portions of the Basic Law quoted in the text. The reason for relying on the official text in this case appears shortly.

    [15] In this context only, this sloppiness might be defended (but, as far as I am aware, is not in Germany) on the grounds that assent to a Bill 'converts it into an Act, uno ictu': I C Harris (ed), House of Representatives Practice (5th ed, 2005) 393.

    [16] For the list of organs with standing to sue, see § 63 of the Federal Constitutional Court Act: each of the two Houses of Parliament, the federal government and any other organs of Parliament with legal capacity conferred upon them by the Basic Law or one House of Parliament's Standing Orders.

    [17] Georg Anders, 'Zum Prüfungsrecht des Bundespräsidenten' DöV 1963, 653, 658–9 states that Ministers could not be similarly sued for refusing to counter-sign laws and thus implicitly providing advice to assent, and that they should therefore sign in cases of doubt but qualify their signature by explaining their doubts to the Federal President. Hans Joachim Hallier, 'Die Ausfertigung und Verkündung von Gesetzen und Verordnungen in der Bundesrepublik Deutschland' AöR 85 (1960), 391, 403 disagrees with the first premiss.

    [18] Not an injunction compelling signature, and not a decision of the Court which is directly effective as Ausfertigung: Hallier, above n 17, 400; Joachim Mewing, Die Prüfungskompetenz des Bundespräsidenten bei der Gesetzesausfertigung, insbesondere beim teilnichtigen Gesetz (1977) 25; Walther Pohl, Die Prüfungskompetenz des Bundespräsidenten bei der Ausfertigung von Gesetzen (2001) 94.

    [19] Hansjörg Biehl, Die Gegenzeichnung im parlamentarischen Regierungssystem der Bundesrepublik Deutschland (1971) 114; Roman Herzog, 'Bundespräsident und Bundesverfassungsgericht' in Bodo Börner, Hermann Jahrreiß and Klaus Stern (eds), Einigkeit und Recht und Freiheit: Festschrift für Karl Carstens zum 70. Geburtstag am 14. Dezember 1984 (1984) vol 2, 601, 606–7; Mewing, above n 18, 23–4, 28; Michael Nierhaus, Entscheidung, Präsidialakt und Gegen-zeichnung: ein Beitrag zur verfassungsrechtlichen Stellung des Bundespräsidenten im System des Grundgesetzes (1973) 103; Michael Nierhaus, 'Nochmals: Das Prüfungsrecht des Bundespräsidenten bei der Ausfertigung von Bundesgesetzen' in Rudolf Wendt et al (eds), Staat — Wirtschaft — Steuern: Festschrift für Karl Heinrich Friauf zum 65. Geburtstag (1996) 233, 247; Pohl, above n 18, 158; Gisela Wild, Die Ausfertigung von Gesetzen und Rechtsverordnungen und die Anordnung zu ihrer Verkündung (1969) 60–1.

    [20] Jürgen Jekewitz, 'Der Bundespräsident und die Gesetzgebung des Bundes: Was kann, darf, muß das Staatsoberhaupt bei der Ausfertigung der Gesetze nach art 82 GG leisten?' RuP 2007, 11, 11; Nierhaus, 'Nochmals', above n 19; Friedrich Schnapp, 'Ist der Bundespräsident verpflichtet, verfassungsmäßige Gesetze auszufertigen?' JuS 1995, 287, 290-1 (drawing a somewhat fine distinction between the Federal President qua person and qua office-holder, but coming to the right conclusion). Jörg Lücke, in Michael Sachs (ed), Grundgesetz: Kommentar (3rd ed, 2003) 1689, tries in addition to derive an obligation to assent without delay from § 121(1) of the Civil Code, but this is somewhat optimistic. The Weimar Constitution contained a one-month deadline but this was dropped in the Basic Law.

    [21] See eg, Mewing, above n 18, 18; Hallier, above n 17, 398; Schack, 'Prüfungszuständigkeit' above n 9, 89.

    [22] There are also equivalent passages in arts 81(2)(1) and 115d(2)(3), and these would also be included, as is pointed out by Michael Brenner, in Hermann von Mangoldt, Friedrich Klein and Christian Starck (eds), Kommentar zum Grundgesetz (2005) vol 2, 2359; Lücke, above n 20, 1688. However, as the two named emergency provisions have never been used, they will not be mentioned again.

    [23] In art 17, where the equivalent noun Ausfertigung was used. See Hartmut Maurer, in Rudolf Dolzer et al (eds), Bonner Kommentar zum Grundgesetz (2006) art 82, 9; Heinz Herbert Weigt, Das Recht des Reichspräsidenten zur Prüfung der Gesetze (1933) 7. The latter mentions the Bavarian Constitution of 1818 as using the word as well. That Constitution certainly uses Ausfertigung and ausgefertigt but not, as I read it, in relation to assent to laws especially. As far as I can see, not being an expert on this long-since-superseded document, Titel VII § 30 is the provision on that topic, and it uses the word sanctioniert ('sanctions') to describe the process. Weigt states, however, that ausgefertigt gradually became established with the meaning of 'signed' thereafter, and that Ausfertigung first appeared with the modern meaning in constitutional law in the 1867 North German Constitution.

    [24] Hallier, above n 17, 394.

    [25] Friedrich Schack, Die Prüfung der Rechtmäßigkeit von Gesetz und Verordnung unter besonderer Berücksichtigung Preußens und des Deutschen Reiches (1918) 178.

    [26] Cf Antonio Barcelona, 'The Case for a Metonymic Basis of Pragmatic Inferencing: Evidence from Jokes and Funny Anecdotes' in Klaus-Uwe Panther and Linda Thornburg (eds), Metonymy and Pragmatic Inferencing (2003) 90, 98.

    [27] Pohl, above n 18, 74-75, 97; Karlheinz Rode, Die Ausfertigung der Bundesgesetze (1968) 20; Schack, 'Prüfungständigkeit', above n 9, 88, 90.

    [28] Rode, above n 27, 17. The remaining portion of the word, -ge-, has a grammatical rather than a semantic function; it marks the past participle.

    [29] Walter Frormann, 'Die Beteiligung des Kaisers an der Reichsgesetzgebung' AöR 14 (aF) (1899), 31, 57, 59, 65; Friedrich Kolbow, 'Das Veto des deutschen Kaisers' AöR 5 (aF) (1890), 73, 105. Needless to say, all views expressed in this period are affected by the extent to which the writer in question thought it desirable to subject the Emperor to the Reichstag's and thus the people's wishes: Rode, above n 27, 42.

    [30] There were four further cases of refusal on advice, listed in Wild, above n 19, 26-7. See also Anders, above n 17, 654.

    [31] On the general Weimar background and for references to one further case, in 1930, in which von Hindenburg considered refusing assent but was talked around, see Anders, above n 17, 653-4; Claus Arndt, 'Das Prüfungsrecht des Bundespräsidenten' DöV 1958, 604, 604–5.

    [32] As well as the sources given in relation to each individual case in other parts of the text, there is a list for the period from 1949 to the mid-1990s (cases 2 to 7 inclusive) in Peter Schindler, Datenhandbuch zur Geschichte des Deutschen Bundestages 1949 bis 1999 (1999) vol 2, 2453-5.

    [33] The story is told, and von Hindenburg's letter to the federal government is reprinted, in Wild, above n 19, 25-9. See also Gerhard Anschütz, Die Verfassung des Deutschen Reichs vom 11. August 1919 (14th ed, 1933) 377 (here the leading commentator on the Weimar Constitution more or less assumes that von Hindenburg's objection was in fact political rather than legal); Weigt, above n 23, 37-40 (who defends the legal view taken by von Hindenburg, even if rather hesitantly). On the manoeuvres to cancel the Bill see also Hans Heinrich Lammers, 'Die Aussetzung der Verkündung des Duellgesetzes' DJZ 1926, 507-8; Fritz Poetzsch-Heffter, 'Vom Staatsleben unter der Weimarer Verfassung II. Teil' JöR 17 (aF) (1929), 1, 131. There is no sign in the article by Lammers of any contamination connected with his later involvement in the Hitler regime.

    [34] Anders, above n 17, 657; Mewing, above n 18, 16.

    [35] BVerfGE 1, 76. This case report also includes relevant documents.

    [36] Documents relevant to this case are not published in any official source: Epping, above n 9, 1102, 1107 fn 71, 1108 fn 84. The story is, however, told by Professor Epping and in Professor Otto Bachof's ruminations quoted there and to be found in the original in Otto Kimminch, 'Das Staatsoberhaupt in der parlamentarischen Demokratie' VVdStRL 25 (1967), 228.

    [37] Bundestag, Drucksache V/4695, 5 (notice of decision only).

    [38] BVerfGE 26, 246. The case is referred to in David Currie, The Constitution of the Federal Republic of Germany (1994) 48.

    [39] It seems to be generally assumed that this Bill was covered by the Court's ruling as well, but Karl Carstens, Politische Führung: Erfahrungen im Dienst der Bundesregierung (1971) 104, is not absolutely certain. Perhaps the last iota of doubt was why the Federal President's letter (see below n 40) referred to the possibility of seeking a declaration that he was wrong if the government disagreed with his view. They, at all events, did not mount a challenge.

    [40] Bundestag, Drucksache VI/1143.

    [41] Katrin Haghgu, Die Zustimmung des Bundesrates nach Art 84 I GG: Wider die sogenannte Einheitsthese (2007) 279.

    [42] Bundestag, Drucksache 7/5856.

    [43] BVerfGE 48, 127, 177.

    [44] Haghgu, above n 41, 283-4; Pohl, above n 18, 47.

    [45] See generally Epping, above n 9, 1102; Norbert Riedel and Axel Schmidt, 'Die Nichtausfertigung des Gesetzes zur Privatisierung der Flugsicherung durch den Bundespräsidenten' DöV 1991, 371.

    [46] Bundestag, Drucksache 12/67, 2.

    [47] Brun-Otto Bryde, in Philip von Kunig (ed), Grundgesetz-Kommentar (5th ed, 2003), vol 3, 281; Epping, above n 9, 1109.

    [48] See Debates of the Bundestag, 7 April 2006, 2782 (Uwe Beckmayer).

    [49] Federal President, 'Bundespräsident Horst Köhler fertigt Gesetz zur Neuregelung der Flugsicherung nicht aus' (Press Release, 24 October 2006) <http://www.bundespraesident.de/Journalistenservice/Pressemitteilungen-,11107.633675/Bundespraesident-Horst-Koehler.htm?global.back=/Journalistenservice/-%2c11107%2c3/Pressemitteilungen.htm%3flink%3dbpr_liste> at 27 February 2007.

    [50] This argument is elaborated in the letter of the Federal President informing the legislature of his decision published in Bundestag, Drucksache 16/3262.

    [51] Reinhard Müller, '„Evident verfassungswidrig“ — Hoheitliche Aufgabe: Auch Köhler lehnt ein Gesetz zur Flugsicherung ab', Frankfurter Allgemeine Zeitung (Frankfurt), 25 October 2006, 2.

    [52] See, eg, Debates of the Bundesrat, 822nd meeting, 19 May 2006, 157; Karsten Baumann, 'Bundeseigenverwaltung und Wettbewerb? Die Neuordnung der Flugsicherung' DVBl 2006, 332; Christian Tams, 'Article 87d(1) GG und die Neuordnung der Flugsicherung' NVwZ 2006, 1226.

    [53] 'Streit über Flugsicherung: Parteien halten trotz Veto des Bundespräsidenten an Privatisierung fest', Handelsblatt (Düsseldorf), 25 October 2006, 1; Sibylle Haas and Jens Schneider, 'Koalition nimmt Köhler beim Wort: Union und S P D erwägen Änderung des Grundgesetzes, um Luftverkehrssicherung doch privatisieren zu können', Süddeutsche Zeitung (Munich), 25 October 2006, 1.

    [54] There is a good general summary of this case in Stephanie Schiedermair, 'Bundespräsident verhindert Verbraucherinformationsgesetz' DöV 2007, 726, 729-31.

    [55] BGBl 2006 I 2033, 2036.

    [56] Wolfram Försterling, 'Kompetenzrechtliche Probleme nach der Föderalismusreform' ZG 2007, 36, 41-5; Hans-Jörg Hennecke, 'Durch Bundesgesetze dürfen Gemeinden und Gemeindeverbänden Aufgaben nicht übertragen werden: Betrachtungen aus Anlaß der Nichtausfertigung des Verbraucherinformationsgesetzentwurfs und der Änderung des SGB XII' NdsVbl 2007, 57, 57-66 (both of whom demonstrate at great length that the Federal President's view was correct and accorded with the intention of the amendment); Jörn Ipsen, 'Die Kompentenzverteilung zwischen Bund und Ländern nach der Föderalismusnovelle' NJW 2006, 2801, 2802, 2805–6; Irene Kesper, 'Reform des Föderalismus in der Bundesrepublik Deutschland: die geplanten Änderungen im Überblick' NdsVBl 2006, 145, 153; Friedrich Schoch, 'Verfassungswidrigkeit des bundesgesetzlichen Durchgriffs auf Kommunen' DVBl 2007, 261, 261.

    [57] As introduced, it is in Bundestag, Drucksache 16/1408; the amendments by the time it had reached the Bundesrat are in Bundesrat, Drucksache 584/06.

    [58] Debates of the Bundesrat, 825th meeting, 22 September 2006, 292 (Dr Ehrhart Körting).

    [59] The official public statement from the Federal President's office is at

    <http://www.bundespraesident.de/Journalistenservice/Pressemitteilungen-,11107.634505/Bundespraesident-Horst-Koehler.htm?global.back=/Journalistenservice/-%2c11107%2c11/Pressemitteilungen.htm%3flink%3dbpr_liste> at 9 April 2007. The letter of the Federal President informing the legislature of his decision was published in Bundestag, Drucksache 16/3866.

    [60] Public statements of various politicians against the decision are collected by Schoch, above n 56, 268.

    [61] For example, Christoph Schwennicke, 'Ein Präsident, der auch in der Ferne Nähe findet — Eine Ghana-Reise markiert den Beginn seiner zweiten Halbzeit im Amt: Horst Köhler zeigt in Afrika Qualitäten, die zu Hause nicht jeder sieht', Süddeutsche Zeitung (Munich), 15 January 2007, 3. See also Heribert Prantl, 'Halbzeit eines Präsidenten', Süddeutsche Zeitung (Munich), 8 December 2006, 4.

    [62] Maximilian Steinbeis, 'Köhler nennt Verkauf der Luftaufsicht „evident verfassungswidrig“: Bundespräsident kippt mit deutlichen Worten die Privatisierung der Flugsicherung', Handelsblatt (Düsseldorf), 25 October 2006, 3.

    [63] Law of 5 November 2007, BGBl, 9 November 2007, 2558, § 1(2), final sentence.

    [64] For pre-1949 cases, see above n 30. I disregard these because constitutional arrangements were significantly different and not comparable.

    [65] In this situation, one of the classic commentaries, Theodor Maunz, in Theodor Maunz and Günter Dürig (eds), Grundgesetz: Kommentar (2006) art 82, 3, proclaims the sweeping view that a Minister in such a position must resign, although no reason is given for this. In the case discussed in the text, no resignation occurred.

    [66] This function is easily perceived from the point of view of someone used to our constitutional system, and by Brenner, above n 22, 2358 and Markus Gehrlein, 'Braucht Deutschland einen Bundespräsidenten?' DöV 2007, 280, 282; but in Germany not all see the point, eg, Nierhaus, Entscheidung, above n 19, 61.

    [67] BVerfGE 10, 234; Stephanie Berger, 'Materielles Prüfungsrecht des Bundespräsidenten?' Zeitschrift für Parlamentsfragen, 1971, 3, 4-5; Maurer, above n 23, art 82, 27. In addition, the Bundestag's resolution approving the Bill was formally cancelled by the next statute in the same field: see § 29 of the law of 17 July 1954, BGBl 1954 I 203, 209. Without referring to this case, Hans-Uwe Erichsen, 'Der Bundespräsident, Teil II' Jura 1985, 424, 426 rejects the idea of federal Ministers advising the refusal of assent because, he says, it is inconsistent with their responsibility to Parliament. I have dealt with similar Australian arguments in Taylor, 'Two Refusals', above n 1, 109-13.

    [68] Pohl, above n 18, 64; Wild, above n 19, 62–5, 89–92.

    [69] Under the second sentence of arts 51(2) and (3) of the Basic Law.

    [70] Bundesrat, 774th meeting, 22 March 2002, 171.

    [71] The Federal President's statement is reprinted in ZAR 2002, 210.

    [72] BVerfGE 106, 310.

    [73] Johannes Rau, 'Vom Gesetzesprüfungsrecht des Bundespräsidenten' in Peter Häberle, Martin Morlok and Vassilios Skouris (eds), Festschrift für Dimitris Tsatos zum 70. Geburtstag am 5. Mai 2003 (2003) 562, 572, 574. A slightly revised version was published as Johannes Rau, 'Vom Gesetzesprüfungsrecht des Bundespräsidenten' DVBl 2004, 1.

    [74] BVerfGE 61, 149. The Basic Law was later amended to add art 74(25) conferring concurrent power in this field on the federal legislature.

    [75] He is the author of the book referred to above n 39.

    [76] Bulletin der Bundesregierung, 2 July 1981, 545.

    [77] He used this expression also in an address to the Association of German Constitutional Law Teachers reprinted in Bulletin der Bundesregierung, 4 October 1983, 943.

    [78] For commentary on this incident, see Pohl, above n 18, 48-50.

    [79] Under art 125 of the Basic Law, which is still in force and re-adjusts legislative responsibilities having regard to the re-introduction of a federal division of powers in 1949.

    [80] Bavaria, Parl Paper No. III/2685 (1957).

    [81] Bavaria, Parliamentary Debates, State Assembly, 15 December 1964, 2298 (Alfons Goppel, Premier). The Basic Law (art 31) states that if there is a conflict between federal and State law, the latter is invalid (not merely ineffective). Both cases are also referred to in para 3 of Schweiger's commentary on art 76 of the State Constitution, Karl Schweiger, in Hans Nawiasky et al (eds), Die Verfassung des Freistaates Bayern (2006) 86-94.

    [82] For a survey of the various States' rules on this topic, see Anne-Louise Schümer, Die Stellung des Ministerpräsidenten in den Bundesländern im Vergleich (2006) 86–94.

    [83] There is a parallel dispute in relation to the Ausfertigung of State laws. In Germany there is no apolitical State figurehead comparable to the Federal President to do this, so the State Constitutions give the task variously to the State Premier, the Cabinet or the president of the legislature. The arguments are nevertheless very similar to those in the federal sphere and are summarised in ibid 87–90.

    [84] Mewing, above n 18, 18.

    [85] Quoted in full above, text accompanying above n 14.

    [86] Bryde, above n 47, 281; Epping, above n 9, 1102, 1105; Rode, above n 27, 50–1. Matthias Hederich, 'Zur Kompetenz des Bundespräsidenten, die Gesetzesausfertigung zu verweigern' ZG 1999, 123, 124 adds questions arising under the parliamentary Standing Orders, but he is alone in this as far as I am aware, and rightly contradicted by Maurer, above n 23, art 82, 24. It is for Parliament to enforce, or to dispense with compliance with, its standing orders. For further information in English on the legislative procedures, see Currie, above n 38, 62.

    [87] For example, Friesenhahn, above n 9, 679–80; Lücke, above n 20, 1688; Ulrich Ramsauer, in Erhard Denninger et al (eds), [Alternativ-]Kommentar zum Grundgesetz für die Bundesrepublik Deutschland (2nd ed, 1989) vol 2, 624-5.

    [88] Most commentators assume that this is so, if they do not expressly state it (as does for example Nierhaus, 'Nochmals', above n 19, 235). Even the most determined supporter of the narrow view agreed (Friesenhahn, above n 9, 685). Only rarely does one come across an argument such as that in Heinz Mayer, B-VG: Kurzkommentar (3rd ed, 2002) 201 (Austria): the President should check whether the constitutional procedure that was deemed applicable was complied with, but not whether the right procedure was chosen.

    [89] The common law concept of case law is not out of place in this area, as § 31 of the Federal Constitutional Court Act provides that the decisions of that Court bind all constitutional organs and in some circumstances also 'have the force of law'.

    [90] The only exception is a brief obiter dictum of the Hessian State Constitutional Court apparently supporting the broad view. But it is not only a brief obiter dictum; it also dates from 1950, is unsupported by reasons, was uninformed by post-1949 experience and deals with a State constitution only: decision of 4 August 1950 by the Hessian State Constitutional Court under the Hessian State Constitution, which I have read in full in Beilage Nr. 7 zum 'Hessischen Staatsanzeiger' 1950, 41–4, and which is also recorded in JZ 1951, 244 sub 2(b). Sometimes BVerfGE 1, 396, 412; 2, 143, 169; 34, 9, 22-3 are cited as relevant case law, eg, by Brenner, above n 22, 2360. But these cases contain old dicta (the latest is from 1972); the point was not directly raised in them; the dicta state that the Federal President has some function of checking the constitutionality of laws presented to him for assent, but the Court does not even consider precisely how far that function extends, or attempt to determine whether what I call the narrow, the middle or the broad view is correct. Cf Paul Glauben, 'Das Prüfungsrecht des Bundespräsidenten' DriZ 2007, 38, 38-9; Hederich, above n 86, 125; Jekewitz, above n 20, 13; Maurer, above n 23, art 82, 16. Of even less use is BVerfGE 7, 330, 337, also sometimes cited, for reasons which appear on reading the passage concerned.

    [91] Mewing, above n 18, 58; Weigt, above n 23, 9.

    [92] Bryde, above n 47, 281; Martin Nolte and Christian Tams, 'Der Bundespräsident und das Flugsicherungsgesetz' JuS 2006, 1088, 1089.

    [93] Epping, above n 9, 1106. Furthermore, the Court can take action only after assent, so it could also be argued on that ground that there is no conflict with a power to refuse assent: Nolte and Tams, above n 92, 1089; Schümer, above n 82, 89 (States).

    [94] Under art 56, the President swears an oath which includes a promise to 'uphold and defend the Basic Law and the laws of the Federation' and to 'conscientiously fulfil my duties'.

    [95] Bryde, above n 47, 283; Epping, above n 9, 1105; Friauf, above n 12, 550; Friesenhahn, above n 9, 686; Wolfgang Heyde, 'Zum Umfang der materiellen Prüfungskompetenz des Bundespräsidenten' DöV 1971, 797, 798; Dietmar Jahnel, 'Die Mitwirkung des Bundespräsidenten an der Bundesgesetzgebung' JBl 1987, 683, 638; Gerold Lehnguth, 'Die Verweigerung der Ausfertigung von Gesetzen durch den Bundespräsidenten und das weitere Verfahren' DöV 439, 442; Maurer, above n 23, art 82, 19; Mewing, above n 18, 74-5; Nierhaus, Entscheidung, above n 19, 94; Nierhaus, 'Nochmals', above n 19, 240-1; Nolte and Tams, above n 92, 1089; Pohl, above n 18, 136; Rau, above n 73, 564; Riedel and Schmidt, above n 45, 372-3; Rode, above n 27, 64. Schümer, above n 82, 88 makes the same point at State level.

    [96] Bauer, above n 12, 1904; Brenner, above n 22, 2361; Karl-Heinrich Hall, 'Überlegungen zur Prüfungskompetenz des Bundespräsidenten' JZ 1965, 305, 306; Lehnguth, above n 95, 442; Nierhaus, Entscheidung, above n 19, 65-6, 104; Pohl, above n 18, 145, 149; Rau, above n 73, 564; Schümer, above n 82, 89-90, 93 (States).

    [97] Bryde, above n 47, 283; Friauf, above n 12, 559-60; Hederich, above n 86, 132-3; Maurer, above n 23, art 82, 19; Nolte and Tams, above n 92, 1089.

    [98] Friauf, above n 12, 554.

    [99] Indeed, Arndt, above n 31, 605 states that breaches of the Basic Law committed with dolus eventualis, very roughly equivalent in function to common law recklessness, would be included in the breaches for which the Federal President could be called to account by the Federal Constitutional Court under art 61, mentioned earlier.

    [100] Friauf, above n 12, 561.

    [101] Cf R v Commissioner for Transport (Qld); Ex parte Cobb & Co Ltd [1963] Qd R 547, 568.

    [102] Biehl, above n 19, 114; Lehnguth, above n 95, 443; Mewing, above n 18, 77–9; Nierhaus, 'Nochmals', above n 19, 249. Obviously, if it were the true position that any valid clause could save a whole Bill, 'tacking' would be rewarded: the government could deliberately add a certainly valid provision to an otherwise doubtful Bill, and claim the right to have it assented to as a result. On the other hand, if only one detail of a Bill is doubtful there might be any number of good reasons for letting it through so that the point can be finally determined and the rest of the provisions are not held up as a result of a problem that is trifling when considered as a proportion of the whole. Case 9 may be an example of this.

    [103] Herzog, above n 19, 610; Heyde, above n 95, 800; Maurer, above n 23, art 82, 22; Pohl, above n 18, 193.

    [104] As do authors like Lehnguth, above n 95, 443, who rely on the argument that the subjection of the Federal President to the rules of constitutional law means that he should not sign unconstitutional laws, only to go on and add that he may nevertheless decide to do so for tactical reasons.

    [105] Biehl, above n 19, 113. Others to put forward this argument include Maunz, above n 65, art 82, 2; Nierhaus, Entscheidung, above n 19, 98-99; Schneider, above n 12, 277; Wild, above n 19, 58-60.

    [106] Anschütz, above n 33, 368; Arndt, above n 31, 605.

    [107] In relation to the States, Schümer, above n 82, 89, refers to two States with similar provisions prohibiting implied amendments in relation to which the same arguments pertain, but does not go on to tell us about the other fourteen. The federal rule is also a point of distinction with the Weimar Constitution, which did not prohibit implied amendments: Nierhaus, Entscheidung, above n 19, 96-7; Pohl, above n 18, 134; Rode, above n 27, 55–7.

    [108] Epping, above n 9, 1106; Hederich, above n 86, 125-6, 136.

    [109] Riedel and Schmidt, above n 45, 373. See also Heyde, above n 95, 798.

    [110] Rode, above n 27, 56-7.

    [111] Maurer, above n 23, art 82, 18-19.

    [112] Bryde, above n 47, 289; Friauf, above n 12, 563, 565. However, Pohl, above n 18, 159-60, points out that citizens nowadays can generally be expected to cope with the idea that there will be occasional differences of opinion about the correct legal answer to a question, and thus loss of prestige is not inevitable.

    [113] Pace Christian Lutze, 'Ein präsidiales Mißverständnis über die formelle Prüfungskompentenz' NVwZ 2003, 323, 325, the involvement of the office in political speculation began not when Herr Rau eventually signed the law, but rather as a result of speculation and suggestions that he should not — in other words, because the power existed.

    [114] Mewing, above n 18, 28.

    [115] Friauf, above n 12, 545.

    [116] A notable example of the shift in the focus of the argument is Riedel and Schmidt, above n 45, 374; and see Bryde, above n 47, 282; Epping, above n 9, 1109; Gehrlein, above n 66, 281; Glauben, above n 90, 39; Maurer, above n 23, art 82, 15-16, 17; Martin Nettesheim, 'Die Aufgaben des Bundespräsidenten' in Josef Isensee and Paul Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland (2005) 1091; Rüdiger Sannwald, in Bruno Schmidt-Bleibtreu and Franz Klein (eds), Kommentar zum Grundgesetz (2004) 1540-1; Schiedermair, above n 54, 728-9. And there are some early voices calling for certainty of error to be the principal criterion: Heyde, above n 95, 800; Ulrich Scheuner, 'Probleme und Verantwortungen der Verfassungsgerichtsbarkeit in der Bundesrepublik' DöV 1952, 293. Nevertheless this development still causes surprise to Bauer, above n 12, 1902-3 and Lutze, above n 113, 324, who believe that the criterion of obviousness applies only to non-procedural errors although citing cases such as the State Liability Bill in which the practice has diverged.

    [117] Pohl, above n 18, 62; Rau, above n 73, 565-6.

    [118] Arndt, above n 31, 604-5; Friesenhahn, above n 9, 688-9; Wilhelm Wertenbruch, 'Für und wider das materielle Prüfungsrecht des Bundespräsidenten' DöV 1952, 201.

    [119] Hederich, above n 86, 127.

    [120] It thus has the coveted status of herrschende Meinung or prevalent opinion (among academics that is — although that is more important in a civil law country). For statements that it is the hM see, eg, Friauf, above n 12, 548-9 (pointing out that reasoning differs even among supporters of the hM); Friesenhahn, above n 9, 680, 692; Hall, above n 96, 306; Herzog, above n 19, 605; Heyde, above n 95, 797; Riedel and Schmidt, above n 45, 372; Rode, above n 27, 11-12.

    [121] Brenner, above n 22, 2361; Herzog, above n 19, 605, 609.

    [122] Friauf, above n 12, 567; Hederich, above n 86, 135-7; Jahnel, above n 95, 639-40 (Austria). Nierhaus, 'Nochmals', above n 19, 248-9, makes a similar point although a supporter of the broad view.

    [123] Bryde, above n 47, 282-3; Hederich, above n 86, 136-7.

    [124] For example, Kimminch, above n 36, 85, although he also shows awareness of the limitations of this rule of thumb. Whether there is a real difference between charters of rights and other provisions in this respect has recently been the subject of a thoughtful article: Adrienne Stone, 'Judicial Review without Rights: Some Problems for the Democratic Legitimacy of Structural Judicial Review' (2008) 28 Oxford Journal of Legal Studies 1. I do not mean to imply that I take the same view as Professor Stone, but clearly there is a lot in what she says.

    [125] Carstens, above n 39, 103-4.

    [126] Hederich, above n 86, 140; Pohl, above n 18, 181–3.

    [127] Maurer, above n 23, art 82, 22-3.

    [128] Ibid art 82, 23.

    [129] Ibid art 82, 21-2; Pohl, above n 18, 174.

    [130] Schoch, above n 56, 268.

    [131] 'Spectator', 'Der Mahner: Bundespräsident Köhler ist im Begriff, seine Rolle zu finden und seiner Funktion gerecht zu werden' RuP 2006, 193, 193. It is interesting to find Bagehot also cited in Gehrlein, above n 66, 285; Jekewitz, above n 20, 11; Nierhaus, Entscheidung, above n 19, 110. See also Schiedermair, above n 54, 726, 731-2. His dictum also applies, of course, in Australia. See Principle 'R' of the Australian Constitutional Convention reproduced in C J G Sampford, '"Recognise and Declare": An Australian Experiment in Codifying Constitutional Conventions' (1987) 7 Oxford Journal of Legal Studies 369, 420.

    [132] Josiah Symon, 'Royal Assent' in Patrick Brazil and Bevan Mitchell (eds), Opinions of the Attorneys-General of the Commonwealth of Australia (1981) vol 1, 238, 239.

    [133] Ibid 239.

    [134] Charles Parkinson, 'The Early High Court and the Doctrine of Immunity of Instrumentalities' (2002) 13 Public Law Review 26, 37.

    [135] Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employes Association [1906] HCA 94; (1906) 4 CLR 488.

    [136] Amalgamated Society of Engineers v Adelaide Steamship Company Ltd [1920] HCA 54; (1920) 28 CLR 129 ('Engineers Case'), 159, 171; confirmed in Australian Railways Union v Victorian Railways Commissioners [1930] HCA 52; (1930) 44 CLR 319, 346, 381, 390-1.

    [137] Conciliation and Arbitration Act 1904 (Cth) s 4 — the words including State-run industries in the definition of 'industrial dispute'.

    [138] W A Townsley, The Government of Tasmania (1976) 88–90; W A Townsley, 'The Government of Tasmania' in S R Davis (ed), The Government of the Australian States (1960) 479, 524–6; John Waugh, 'Deadlocks in State Parliaments' in George Winterton (ed), State Constitutional Landmarks (2006) 185, 202–4.

    [139] Herbert Evatt, The King and His Dominion Governors (2nd ed, 1967) 189–91.

    [140] See, eg, Brazier, above n 4, 195–6; Ian Loveland, Constitutional Law, Administrative Law and Human Rights: A Critical Introduction (3rd ed, 2003) 273–4. The idea of refusing assent was considered at the time of the Home Rule crisis and rejected, one reason for which, it may be safely said, was that it became clear that even Home Rule was not sufficiently extreme to warrant such action: Vernon Bogdanor, The Monarchy and the Constitution (1995) 129.

    [141] Bradley Selway, Constitution of South Australia (1997) 42; Greg Taylor, Constitution of Victoria, above n 6, 132-4; George Winterton, 'The Constitutional Position of Australian State Governors' in H P Lee and George Winterton (eds), Australian Constitutional Perspectives (1992) 274, 293–4.

    [142] I have expressed my views elsewhere on this question, with references to alternative views, and do not repeat them here as the discussion is not germane to the comparison. I may however note that in the last Australian example referred to, above n 2, ministerial advice did accompany refusal of assent (see Re Scully (1937) 32 Tas LR 3, 30). See also 'New Zealand Gazette', 21 June 1878, 91–3, for a case in New Zealand in 1878 in which the Governor of New Zealand insisted on assenting to a Bill despite ministerial advice to veto it (referred to in Alpheus Todd, Parliamentary Government in the British Colonies (2nd ed, 1894) 664). It is clear that that case is of very limited value because it occurred at an earlier stage of constitutional government, before the party system had developed and when the Governor still had a reservoir of independent discretion as a result of his connexion with the Colonial Office. The Governor's main reason for refusing the veto was that he would be 'lending [himself] to something little short of a trick upon Parliament' if he did refuse assent because the government had not indicated its objection to Parliament when it was still sitting. I think that nowadays such a pronouncement would seem something of an intervention in day-to-day politics and that no Governor would say that in relation to today's Parliaments, most of which are dominated by the executive.

    [143] I am conscious that controversy exists about whether this term can accurately be applied to the Australian Vice-Regal representatives as distinct from Her Majesty the Queen. In this context, however, the term is convenient and, given the locus of the power under discussion, accurate enough.

    [144] For a discussion of what might happen in Australia if the Governor-General refused assent for reasons of public policy, expressed in characteristically amusing terms, see Geoffrey Sawer, Federation under Strain: Australia 1972–1975 (1977) 184-5.

    [145] Jahnel, above n 95, 633. As Jahnel's article is now twenty years old, I have also checked with an Austrian source that no cases have occurred since. While the practice thus seems to be quite clear, the theory is less so, as the scholars are divided even about what is the majority opinion among them. See Ludwig Adamovich and Bernd-Christian Funk, Österreichisches Verfassungsrecht: Verfassungsrechtslehre unter Berücksichtigung von Staatslehre und Politikwissenschaft (3rd ed, 1985) 212; Mayer, above n 88, 201–2; Robert Walter and Heinz Mayer, Grundriß des österreichischen Bundesverfassungsrechts (8th ed, 1996) 189.

    [146] Michael Stokes, 'The Resignation of Richard Butler as Governor of Tasmania' (2004) 23 University of Tasmania Law Review 207, 208–10; Taylor, Constitution of Victoria, above n 6, 79; George Winterton, 'The Hollingworth Experiment' (2003) 14 Public Law Review 139, 143–5.

    [147] Schoch, above n 56, 267.

    [148] See Maurer, above n 23.

    [149] Sawer, above n 144, 159-60.

    [150] As Anders points out, there is no written prohibition on taking this course, and in a country of codes that is equivalent to permission: Anders, above n 17, 657.

    [151] Bachof, above n 36, 230; Berger, above n 67, 10.

    [152] Carstens, above n 39, 104.

    [153] See above, text accompanying n 36.

    [154] As is suggested by Rolf Lamprecht, 'Der Bundespräsident in Geiselhaft — ein Rechtsgutachten aus Karlsruhe hätte ihn befreien können!' NJW 2002, 2686.

    [155] Rau, above n 73, 575.

    [156] Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257.

    [157] A well-known recent case is Reference re Same-Sex Marriage [2004] 3 SCR 698, although it is hard to escape a suspicion that one reason for making this reference was to mobilise the Court's prestige in favour of a controversial innovation. On the other hand the Court refused to answer one of the questions asked of it, so it was doubtless alive to this danger itself; and an unfriendly challenge to the legislation — which the Court, after all, found invalid in one respect — was hardly unlikely.

    [158] A-G (Vic); ex rel Dale v Commonwealth [1945] HCA 30; (1945) 71 CLR 237, 272-3.

    [159] Formally this would be not be a case of abstrakte Normenkontrolle, as no law would have been enacted for examination, but rather an Organstreit, a dispute among constitutional organs about their duties and relationships. However, that does not affect the substantive point made in the text. For a description of these procedures in English, see Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd ed, 1997) 12–14 (he calls the Organstreit 'disputes between higher federal organs' and abstrakte Normenkontrolle 'abstract judicial review').

    [160] Basic Law art 93(1)(2).

    [161] This issue appears to be unresolved in Australian law: see Combet v Commonwealth (2005) 224 CLR 494, 531, 556-7, 578-9, 618–20.

    [162] French Constitution art 61(2); John Bell, French Constitutional Law (1992) 32.

    [163] Henry Burmester, 'Locus Standi in Constitutional Litigation' in George Winterton and H P Lee (eds), Australian Constitutional Perspectives (1992) 148, 150-61.

    [164] In addition to those mentioned in the text, see Australian Constitution s 58, second paragraph; Constitution Act 1975 (Vic) s 14; Constitution Act 1934 (SA) s 56; Constitution Act, RSBC 1996, c 66, s 48; and no doubt many others.

    [165] Namely the Commonwealth (Sampford, above n 131, 416) and Victoria (Taylor, Constitution of Victoria, above n 6, 303–4). The same position appears to obtain in South Australia having regard to the most recent cases of the provision's use there (eg, South Australia, Parliamentary Debates, House of Assembly, 1 March 1966, 4352-3); but I have no information at all about the recent practice in British Columbia and enquiries directed to its legislature have produced no answer. There are some older cases in which advice was apparently not obtained: Saywell, above n 3, 221 fn 97.

    [166] Mahabir Jain, Indian Constitutional Law (5th ed, 2004) 64–5 appears to assume that this power could have been exercised without advice, but in fact in the case he mentions it was not according to Venkataraman, above n 4, 335.

    [167] South African Constitution art 79(4).

    [168] Australian Constitution s 61. Furthermore, under s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), a decision by the Governor-General is not amenable to review under that Act because it is not a 'decision to which this Act applies'.

    [169] Australia Act 1986 (Imp & Cth) s 7(2). State legislation, in so far as it is relevant, is not always quite as clear, but the Queensland and Tasmanian Acts, for example, apply only to a decision 'of an administrative character', which the decision to give assent certainly is not : Judicial Review Act 1991 (Qld) s 4; Judicial Review Act 2000 (Tas) s 4(1).

    [170] R v Governor of South Australia [1907] HCA 31; (1907) 4 CLR 1497, 1510–12; Enid Campbell, 'Royal Assent to Bills' (2003) 14 Public Law Review 9, 12-13; Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law (8th ed, 1998) 28; cf also Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004) 144-5, 724-5.

    [171] [1932] UKPC 1; [1932] AC 526; (1932) 47 CLR 97. A-G (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545 is another more recent example.

    [172] Taylor, Constitution of Victoria, above n 6, 518.

    [173] Anders, above n 17, 656.

    [174] Hallier, above n 17, 404.

    [175] Berger, above n 67, 9; Friesenhahn, above n 9, 682; Heyde, above n 95, 797-8; Lücke, above n 20, 1688.

    [176] Schümer, above n 82, 93–4.

    [177] Legislation Act 2001 (ACT) s 28. See also Australian Capital Territory (Self-Government) Act 1988 (Cth) s 25(1); Geoffrey Lindell, 'The Arrangements for Self-Government for the Australian Capital Territory: A Partial Road to Republicanism in the Seat of Government?' (1992) 3 Public Law Review 5, 13-15.

    [178] Malaysian Constitution arts 66(4), (4A). See Lee, above n 4.

    [179] Lehnguth, above n 95, 441; Schneider, above n 12, 276; Wild, above n 19, 34; cf Bryde, above n 47, 281.

    [180] Bauer, above n 12, 1902; Ramsauer, above n 87, 621.

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