2156.
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No. 58.
(New Zealand.)
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, March 11, 1861. MY LORD DUKE,
We were honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 4th March instant, in which he stated that he was directed by your Grace to transmit to us the accompanying "case" which had been prepared by a Select Committee of the House of Representatives of New Zealand, together with other documents, having reference to the legality of the "New Provinces Act" of 1858, and requesting that we would favour your Grace with our opinion on the questions set forth in these papers.
In obedience to your Grace's commands we have attentively considered the papers transmitted to us, and beg leave to
Report
That by the Constitution Act, 15 & 16 Vict. c. 72. s. 69, the General Assembly had express power to constitute new provinces in New Zealand and to alter the boundaries of existing provinces. But the fact of the repeal of this 69th section by the 20 & 21 Vict. c. 53, and also the exemption by the same Act of sections 3 and 18 of 15 & 16 Vict. c. 72 from the power of the General Assembly prove conclusively that the General Assembly no longer has the power to constitute new provinces, and for that purpose to alter existing provinces. It follows, therefore, that the Act of Assembly of 21st August 1858, so far as it attempts to create new provinces by carving them out of existing provinces, is ultra vires and at variance with the existing Imperial statutes. ' It is impossible to sustain this Act of the Assembly by the doctrine of "inherent power."
No inherent power can enable the Assembly to do anything which is inconsistent with, and therefore forbidden by, an Imperial statute. The Act of Assembly of August 1858 is, in effect, a repeal of the 3rd and 18th sections of the Constitution Act.
Nor can the power of the Assembly "to repeal, alter, and suspend" the provisions of the Constitution Act be appealed to, for by the Act of 20 & 21 Vict., c. 53. 58. 3 and 18 of the 15 & 16 Vict. are exempted from the operation of this power.
The powers of the General Assembly are powers delegated to them by the Constitu- tion Acts, and cannot be exercised save in conformity with the two Imperial statutes.
These observations are, in effect, an answer to the whole of the questions which are case transmitted from New Zealand; but, for fear of drawn out in detail in the " misapprehension, we proceed to answer these questions seriatim.
The first question must be answered in the negative; the second in the affirmative; the third, fourth, and fifth questions must be answered in the negative.
To the sixth question the answer is that the "New Provinces Act" was in excess of
the powers given to the General Assembly.
To the seventh question the answer is that there is no longer a power of constituting new provinces if the doing so involves the alteration of existing provinces.
To the eighth question we answer that, by the 3rd section of the Act 15 & 16 Vict.. the Provincial Council is to consist of nine members, and the superintendent is distinct from the council; but if by the New Provinces Act the superintendent is made an additional member of the council, the council will consist of ten and not of nine members; and if the superintendent is not added but chosen from among the council, then the council will be reduced to eight members, and will not consist of nine. any way the New Provinces Act interferes with and alters the composition of the council, or the relative position of the superintendent and the council, but which the Legislature of New Zealand had no power to do.
In
To the ninth question the answer is that, in our opinion, the provinces of Hawkes Bay and Marlborough are not lawfully constituted.
We have, &c. (Signed) RICHARD BETHELL.
WM. ATHERTON.
His Grace the Duke of Newcastle, K.G.
16270.-619. 25.-2/66.