Gentlemen,
26
No. 6.
Colonial Office to the Law Officers.
Downing Street, October 4, 1875. I AM directed by the Earl of Carnarvon to transmit to you the inclosed copy of an Act of the Parliament of the Cape of Good Hope No. 29 of 1874, entitled, "an Act further to facilitate the apprehension in this Colony of certain persons who have com- mitted crimes in the Colony of Natal, in the Province of Griqua-Land West, in the Orange Free State, or in the South African Republic."
19
In a despatch, of which an extract is annexed, Lord Carnarvon has objected, on grounds of policy, to the provisions of this Act, as far as they apply to the two South African Republics, but a doubt has been raised as to the legal validity of the Act in respect of the neighbouring British Colonies of Natal and Griqua-Land West on account of its provisions differing from, and being therefore, as is suggested, repugnant to the provisions of the Imperial Statutes, 6 & 7 Vict. c. 34, and 16 & 17 Vict. c. 118, which provide for the rendition of offenders between Colony and Colony.
Putting aside the bearing of the Ordinance upon the Orange Free State and South African Republic, two special grounds on which the Cape Act may be held repugnant have been put forward, namely (1), that it authorises the rendition of persons accused of any offence whatsoever, instead of limiting the rendition to the case of certain offences, as is done by the Imperial Acts; and (2), that it enables any judge, magistrate, or justice, to countersign warrants for the apprehension of persons accused, instead of limit- ing the exercise of this power to a Chief Justice or Judge of a Superior Court.
I am to request that, conjointly with the Solicitor and Attorney-General, you will consider this question, and report whether the Cape Act, No. 29 of 1874, as far as it relates to the Colonics of Natal and Griqua-Land West, is void for repugnancy to Imperial law upon the grounds stated above or upon any other grounds.
I have, &c.
(Signed) J. PAUNCEFOTE.
27
in accordance with the resolution passed at the Intercolonial Conference held at Sydney during the months of January and February 1873, to the effect "that the present state of the law in regard to the extradition of criminals escaping from one Colony into another is defective and that the Government of Queensland be requested to prepare a Bill on the subject, which the representatives of the several Colonies undertake, provided it is approved by their respective Law Officers, to endeavour to pass into law."
I have, &c. (Signed)
{
The Hon. the Colonial Secretary, Western Australia.
Sir,
Inclosure 2 in No. 7.
A. MACALISTER.
A
Colonial Secretary's Office, Perth, August 4, 1875. THE "Bill to facilitate the apprehension of Offenders who shall have escaped to the Colony of Queensland from any other of the Australasian Colonies, and the recovery of Property unlawfully obtained in such Colonies and brought within the said Colony of Queensland," which accompanied your letter of the 15th April, having been submitted to the Chief Justice and the Attorney-General of this Colony, I have now the honour to transmit to you copies of Memoranda which have been received from those officers upon the subject, and which will serve to explain to you the reasons which render it impossible for his Excellency the Governor to recommend the Bill in question for the consideration of the Legislature of this Colony.
2. With reference to the 4th paragraph of the Attorney-General's Minute of the 8th July, I am directed to add that his Excellency the Governor will lose no time in submitting this correspondence for the consideration of Her Majesty's Government.
I have, &c. (Signed)
O'G. LEFROY,
The Hon. the Colonial Secretary, Queensland.
A.
Acting Colonial Secretary.
ELEGA
No. 7.
PUBLIC RECORD OFFICE
T། ། ། ། །
Reference :-
C.O. 885
4 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
Governor Robinson, C.M.G., to the Earl of Carnarvon.--(Received October 25.)
(No. 104.) My Lord,
Government House, Perth, August 28, 1875.
I HAVE the honour to forward, for your Lordship's perusal, copies of a recent correspondence with the Government of Queensland on the subject of a Bill entitled, “A Bill to facilitate the Apprehension of Offenders who shall have escaped to the Colony of Queensland from any other of the Australasian Colonics, and the Recovery of Property unlawfully obtained in such Colonies, and brought within the said Colony of Queens- land."
2. My reasons for declining to recommend the Bill in question for the favourable consideration of the Legislature are contained in the memoranda of the Chief Justice and the Attorney-General, of which copies will be found in the Appendix; but, in view of the Attorney-General's opinion (Memorandum of 8th July, paragraph 4) that "the powers which this Bill professes to give ought to be given by the Imperial Parliament," I thnk it right to submit the whole question, which is one of much importance, for the consideration of Her Majesty's Government.
I have, &c.
Sir,
(Signed)
Inclosure 1 in No. 7.
WILLIAM C. F. ROBINSON.
Colonial Secretary's Office, Brisbane, April 15, 1875.
I HAVE the honour to transmit herewith copy of a Bill, to be submitted for the approval of the Law Officers of your Colony, entitled, "A Bill to facilitate the apprehen- sion of Offenders who shall have escaped to the Colony of Queensland from any other of the Australasian Colonies, and the Recovery of Property unlawfully obtained in such Colonies, and brought within the said Colony of Queensland,” which has been prepared
• Inclosure 3 in No. 1.
Inclosure 3 in No. 7.
Memorandum by Chief Justice.
"A Bill to facilitate the apprehension of offenders who shall have escaped to the Colony of Queensland from any other of the Australasian Colonies, and the recovery of property unlawfully obtained in such Colonies and brought within the said Colony of Queensland."
CONCEIVE that it is not practicable to legislate effectually as proposed by this Bill. The provisions are not consistent with the provisions of the Imperial Statutes 6 and 7 Vict. c. 34, and 16 and 17 Vict. c. 118, which Acts at present regulate the The Acts of a apprehension of offenders escaping from one Colony to another. subordinate Government must not be inconsistent with an Act of the Supreme Legis. lature on the same subject and intended to apply to the Colony under such subordinate Government; and
By the 28 and 29 Vict., c. 63, sec. 2, it is expressly enacted that--
K
Any Colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the Colony to which such Act may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the Colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative."
And in a despatch from the Duke of Newcastle, addressed to Governor Sir Dominic Daly, dated Downing Street, 24th April, 1862, it is forcibly explained that a Colonial judge is not only at liberty, but is bound to entertain the question whether a Colonial law material to the decision of the question before him is or is not valid. An Act, even though left to its operation by Her Majesty, is void if repugnant to an Act of the Imperial Parliament intended by that Parliament to apply to the Colony.
I have on former occasions had to consider the questions involved in the proposed Bill, and for my expressed opinions thereon, I beg to refer to the undermentioned