6340.
No. 419.
(VICTORIA.)
$
PUBLIC RECORD OFFICE
C.O. 885
Reference :-
SIR,
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, June 30, 1866. We were honoured with your commands, signified in Sir F. Rogers' letter of the 25th instant, stating that he was directed by you to request our opinion under the following circumstances:—
The Act of Parliament 5 & 6 Vict. o. 76., "for the Government of New South Wales and Van Diemen's Land," required the Governor (section 31) to reserve for the signification of Her Majesty's pleasure Bills affecting Customs duties on imports and exports.
By the Act of Parliament 18 & 14 Viot. c. 59., "for the better Government of Her Majesty's Australian Colonies," the Colony of Victoria was erected out of the Colony of New South Wales, and it was enacted (section 2) that subject to the provisions therein contained the provision of 5 & 6 Vict. c. 76., relative to the reservation of Bills, should apply to Victoria. But it was also enacted (section 27) that "subject to the "provisions of this Act, and notwithstanding any Act or Acts of Parliament now in "force to the contrary," it should be lawful for the Legislatures of New South Wales, Victoria, &c. to impose import duties. The Law Officers in 1852 were of opinion that after the passing of this Act Bills passed to impose import duties needed no longer to be reserved. Export duties, however, not having been mentioned the Australian Legislature remained incapable of passing Acts imposing such duties except by reserved Bills.
But the 43rd clause of the Victoria Constitution Act passed in the Colony, which forms Schedule 1 to the Imperial Act 18 & 19 Vict. o. 55., declared that "subject to "the provisions of this Act, and notwithstanding any Act of Parliament now in force "to the contrary," the Legislature might impose both import and export duties, and the Act 18 & 19 Vict. c. 55. (section 2) repealed certain Acts mentioned in Schedule 2, including 5 & 6 Vict. c. 76., and 13 & 14 Vict. c. 59., as far as they were repugnant to Schedule 1, ..., to the Constitution Act. This taken alone would seem to have abolished the necessity for reserving Bills imposing export duties.
But a doubt is raised on this head by the third section of the same Act (18 & 19 Vict. c. 55.), which applied absolutely to Bills passed by the new Legislature of Victoria the provisions respecting the reservation of Bills found in 5 & 6 Vict. c. 76., and 18 & 14 Viot. o. 59. No doubt the third clause was intended to be read subject to the provisions of the second, and thus only to apply to the new Legislature that process of reservation which was already in use with regard to the old Legislature. But it may be alleged to have had the larger effeot of continuing or reimposing the old restrictions on passing Acta respecting import or export duties otherwise than by reserved Bill.
Such being the state of the Imperial and Colonial laws in April last, an Act (29 Vict. No. 293) was passed by the Legislature of Victoria "for granting to Her Majesty certain duties of Customs, and for altering certain other duties" by which the export duty on gold has been altered.
The Governor assented to the Bill upon the advice of the Colonial Attorney General that he would be justified in doing so under Mr. Cardwell's Despatch No. 9 of the 24th of January 1865, extract of which relative to the reservation of Customs Bills is Annexed.
But both the Attorney General and the Chief Secretary, in letters dated the 18th of April, expressed their opinion that the Bill should be reserved for the signification of Her Majesty's pleasure, the latter, insisting especially on 18 & 19 Vict. c. 55. B. 3. in connexion with the opening words of section 43 of the Constitution Act."
Copies are annexed of the Despatch from the Governor of Victoria, No. 43, of the 20th of April, as well as of the Act of the Victoria Legislature, and of the letters of
the Attorney General and Chief Secretary enclosed in that Despatch.
Sir F. Rogers was also pleased to state that he was desired by you to request that we would favour you with our opinion whether, under the circumstances described, the Bill should have been reserved for the signification of Her Majesty's pleasure.
o 16978-455. 95,-5/86.
11 PUBLIC RECORD OFFICE, LONDON
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