PUBLIC RECORD OFFICE
Reference :-
C.O. 885
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
2
Such a course would be contrary to all the Parliament by whom they were enacted. analogy in the British Parliament, as the cases of Mr. Fox and Mr. Alderman Salomons (referred to in the observations of the Attorney General of Queensland) and other familiar examples abundantly show. We observe that it is stated in the report of the Attorney General of Queensland to his Excellency the Governor of the 16th August 1862, that "the Act referred to was not carried in any of its stages by the votes of "either Mr. Fleming or of Mr. Sandeman."
V. The judge of the Colony is no doubt empowered, sitting and acting judicially in matters properly before him, to form and express an opinion as to whether de facto enactments of the Colonial Legislature have or have not the authority of law. But if, with the view of forming such an opinion, he should embark in an inquiry into the legal vacancy of certain seats for which members were permitted to sit and vote, and did sit and vote, we think he would take a very erroneous view of his duties and functions, and would justly expose himself to severe animadversion on the part of Her Majesty's Government.
We have, &c. (Signed) WM. ATHERTON.
ROUNDELL PALMER.
His Grace the Duke of Newcastle, K.G.
&c.
&c.
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11422.
No. 145.
(QUEENSLAND.)
LAW OFFICERS to COLONIAL OFFICE.
Temple, November 20, 1862. MY LORD DUKE,
We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 13th November instant, stating that he was directed by your Grace to request that we would favour you with our opinion upon the questions raised in the annexed case which had been forwarded to you respecting the power of the Governor of Queensland to remove or suspend a judge.
Sir Frederic Rogers added that it may be convenient to observe that the Imperial Act 22 Geo. 3. c. 75. enables the Governor and Executive Council of any Colony to remove colonial judges and other holders of offices during good behaviour; that the Imperial Act 18 & 19 Vict. c. 54. authorised Her Majesty to assent to a New South Wales Act (set forth in the schedule to the Imperial Statute) by which (sections 38, 39) the judges were declared to hold office during good behaviour, provided that they might be removed by the Crown on the address of the two Houses of the Legislature; that the 7th section of the Imperial Act above mentioned enabled the Queen by Letters Patent to erect a Colony in the northern part of Australia, and by Order in Council to make provision for the government of such Colony; that Her Majesty erected the Colony of Queensland by Letters Patent (of which a copy was annexed), and by an Order in Council (of which a copy was also annexed) declared the provisions of the above- mentioned New South Wales Act respecting judges to be applicable to the Supreme Court of Queensland.
And that by the above-mentioned Letters Patent (being the Governor's Commission) Her Majesty authorised Sir G. Bowen (section 7) to suspend public officers, and by the instructions accompanying the Commission (of which a copy was likewise annexed) prescribed the mode of exercising that power of suspension (section 18), and, finally, that by the subsequent Letters Patent the larger powers of suspension and dismissal were given, which are correctly quoted in the case submitted to us.
In obedience to your Grace's commands we have taken these papers into consideration, and have the honour to
That-
Report
1. The first question on which our opinion is desired by the Government of We think it best to Queensland is expressed in too general and abstract a form. answer it by stating our view of the law upon the subject as applicable to Queensland. The authority to remove public officers for misbehaviour conferred upon the Governor and Council for the time being of every British Colony by the Imperial Statute 22 Geo. 3. c. 75. is of a quasi judicial nature; it can only be exercised upon definite charges, after hearing the person accused in his defence, and it is subject to an appeal When a public office is held during good behaviour a power to the Queen in Council.
of this kind must exist somewhere, and when it is put in force the tenure of the office is not thereby abridged, but it is forfeited and declared vacant, for non-performance of the condition on which it was originally conferred.
The power of the Crown to remove a judge upon the address of the two Houses of Parliament is of a different nature. This is not in any proper sense judicial, it may be exercised without any such misbehaviour, as would be a legal breach of the conditions on which the office is held. The liability to this kind of removal is in truth a qualification of or exception from the words creating a tenure during good behaviour, and not an incident or legal consequence thereof.
It follows, therefore, on general principles, that (except so far as it may be controlled by express legislation) there is no constitutional reason why, in a Colonytere parliamentary or responsible government is established, the former may not co-exist with the latter power.
The power of amotion for misbehaviour, being given to the Governor and Council by a general Imperial Statute, must (we consider) now exist in Queensland; unless it has been taken away, expressly or by necessary implication, by the same authority. In Willis v. Gipps (5 Moore P.C. Reports 379) the Privy Council determined that this
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