PUBLIC
RECORD OFFICE
Reference :-
PLLC.O. 885
10
PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
subject as valid, if it appears, either on the face of the law itself, or by other proper evidence that it was not, in fact, passed by the required majorities. We do not, however, think that it is absolutely necessary that it should appear on the face of the law itself, that it was passed by the requisite majorities (if that fact can be other- wise proved) in order to authorise the judges to act upon such legislation as valid and effectual; and we incline to think (although this point may perhaps admit of some doubt) that the judges ought to presuine until the contrary is proved, that every Act which has passed the Legislature, and which is authenticated as an Act of the Legis- lature in the ordinary way, was passed by such a majority as would be necessary, according to law, to give it effect.
5. If the Colonial Registration Act was ultra vires of the Legislature of South Australia, it can only have been so on the ground that it altered the electoral law contained in the Constitutional Act, No. 2, of 1855. Assuming this to have been its effect we cannot accede to the argument, which seems to have found acceptance with two South Australian judges, that it was not passed "with the object" of altering the constitution of the Legislature. It must be presumed that a legislative body intends that, which is the necessary effect of its enactments, the object, the purpose, and the intention of the enactment, is the same, it need not be expressed in any recital or preamble, and it is not (as we conceive) competent for any court judicially to ascribe any part of the legal operation of a statute to inadvertence. The application of these principles does not seem to us to be varied by the fact that it was ultra vires for the Colonial Legislature to alter the electoral law of 1855, because the whole of this part of the case proceeds on the assumption that the Registration Act could not operate according to its tenor, and so as to accomplish its declared purposes and objects without altering that law. We think, therefore, that (if the Colonial Registration Act was indeed invalid on the ground suggested) the Imperial Statute 26 & 27 Vict. c. 84., was effectual for giving it validity. At the same time, it is proper for us to state that, in our opinion, the Registration Act did not alter the electoral law contained in the Constitutional Act of 1855, and was therefore not ultra vires or invalid.
Having in view the unfortunate disposition manifested upon the bench of South Australia to favour technical objections against the validity of Acts of the Colonial Legislature, and the confusion and general sense of insecurity which it must be the tendency of such a state of things to produce, we think it will be very expedient to pass an Imperial Act for the purpose of empowering the Legislature of that Colony (and of any other Colonies or Colony which may be in like circumstances) to alter its own constitution, and at the same time to confirm absolutely all South Australian Acts, which down to this time have received the assent of Her Majesty or of the Governor in Her Majesty's behalf. We think that the suggestion of the Colonial Attorney General to this effect is far preferable to any more limited form of remedy.
6. We think that Mr. Justice Boothby's opinion, as to the repeal of the Constitu- tional Act, No. 2, of 1855, by reason of the repeal of the Ordinance No. 1. of 1851, (which created the Legislative Council by which the Constitutional Act, No. 2, of 1855, was enacted) is unsound and erroneous. Without inquiring whether on general principles, all the Acts of a Legislature ought to be held annulled, by a simple repeal of a prior Act which constituted that Legislature, it is (at all events) certain that no such effect would follow if it were apparent on the face of the repealing statute that the Acts of the abolished Legislature were meant to remain in force. And upon the face of the Act, No. 10, of 1856, which repeals the Ordinance No. 1 of 1851, it is apparent that the Constitutional Act, No. 2, of 1855-56, was intended to remain in force because it is expressly provided (we quote the words of Mr. Justice Boothby himself) that the repealing Act shall "come into operation so "soon as the Act No. 2, of 1856, to establish a constitution for South Australia shall come into operation." The two Acts, therefore, were both to operate simultaneously and from one and the same instant of time. If the Constitution Act could be held repealed by this statute, it follows that it never came into operation at all, and if it never came into operation, it follows that the Ordinance No. 1, of 1851, itself (as was pointed out by the Chief Justice in the case of Auld v. Murray) was never repealed. The reason- ing, therefore, of Mr. Justice Boothby, travels in a vicious circle, and results in But we think if it were better founded it would repugnant and absurd conclusions.
44
be properly and sufficiently met by such legislation as that which we have had the honour to recommend in our answer to the preceding question.
We have, &c. (Signed) ROUNDELL PALMER,
R. P. COLLIER.
To the Right Hon. Edward Cardwell, M.P., &c.
&c.
&c.
920 6.
No. 276.
(CANADA.)
QUEEN'S ADVOCATE to COLONIAL OFFICE.
Doctors' Commons, October 4, 1864.
SIR,
I AM honoured with your commands, signified in Sir F. Rogers' letter of the 30th ultimo, stating that he was directed to transmit to me a copy of a Despatch from the Governor of Canada, enclosing a Bill passed by the Legislature of the Province, and reserved by the Governor for the expression of the Queen's pleasure, entitled "An Act for the relief of James Benning."
Sir F. Rogers was also pleased to enclose a copy of Divorce Act which was passed by the Canadian Legislature and received the Royal sanction in 1859, and stated that there is not any Divorce Court in Canada, and Sir F. Rogers was further to request that I would furnish you with my opinion whether this Bill may properly be confirmed by Her Majesty. In obedience to your commands I have taken this matter into con- sideration, and have the honour to
Report
That I am of opinion that this Bill may be properly confirmed by Her Majesty.
I have, &c. (Signed) ROBERT PHILLIMORE.
The Right Hon. Mr. Secretary Cardwell, M.P.,
&c.
&c.
0 16278,---76.
25.-2/86.
&c.