2327.
PUBLIC RECORD OFFICE
CO. 885
Reference :-
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
12 PUBLIC RECORD OFFICE, LONDON
MY LORD,
No. 51.
(VICTORIA.)
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, 2nd March 1875. We are honoured with your Lordship's commands, signified in Mr. Malcolm's letter of the 8th February ultimo, stating that he was directed by your Lordship to forward to us—
(a.) Copy of a letter from the Agent-General for Victoria.
(b.) Copy of a telegram from the Government of Victoria to the Agent-General.
(c.) Copy of a draft dormant Commission appointing the Chief Justice or the Senior 4 Mar. 1872, Judge for the time being of the Colony to be Administrator of the Government, in the N. S. Wales. event of the death, incapacity, or absence of the Governor.
2. That the draft dormant Commission sent related to New South Wales, but mutatis mutandis it was identical in terms with the draft Commission appointing the Chief Justice or Senior Judge to be Administrator of the Government in the case of the Colony of Victoria, with respect to which Colony the question arose on which Lordship desired to have our advice.
your
3. That we would gather from these documents that the Governor and the Chief Justice being both absent from the Colony of Victoria the Senior Judge for the time being of the Colony was sworn in as and acted as Administrator of the Government in accordance with the terms of the dormant Commission, and that after the Senior Judge had become Administrator, but before the return of the Governor, the Chief Justice had returned to the Colony, and in virtue of the said Commission was inducted into the office of Administrator of the Government; this, however, was resisted by the Senior Judge, who claimed to continue as Administrator, apparently upon the ground that the existing Commission was spent as regarded the Chief Justice, and that he (the Senior Judge) could only be displaced by a new Commission.
4. That, under these circumstances, Mr. Malcolm was to ask our opinion whether there can be any room for doubting that on his arrival in the Colony and assuming the administration of the Government, having taken the necessary oaths, the Chief Justice becomes fully empowered to act, and that the Senior Judge ceased to have any power to act as Governor.
5. If, however, we should entertain any doubt that the Chief Justice is legally acting as Governor, Mr. Malcolm was to inquire whether it would be a proper or sufficient validation of his acts to issue an ante-dated Commission, bearing date the day on which the Chief Justice purported to assume office, or what would, in our opinion, be the best course to pursue in order to procure such validation.
In obedience to your Lordship's commands we have taken these papers into con- sideration, and have the honour to
Report
1. That the Dormant Commission is somewhat obscurely worded, but, reading it as a 4 Mar. 1872, whole, we are of opinion that it must be taken to appoint the Senior Judge to be the N. S. Wales. Administrator of the Government during the absence only of the Chief Justice, and that on the return of the Chief Justice he, and not the Senior Judge, is authorised to act as Administrator in the absence of the Governor.
case.
2. If there were any doubt as to the authority of the Chief Justice, we do not think that an ante-dated Commission (which is suggested) would meet the difficulty of the A Commission might, without being ante-dated, revoke the authority of the Senior Judge and give the acts of the Chief Justice validity as a ratification; but we do not think that a Commission could invalidate the acts of the Senior Judge done previous to its issue (c.g., the pardon of a criminal), supposing him to be now Administrator under the original Commission.
We may add, however, that we do not entertain any doubt as to the true interpreta- tion of the Commission. We would suggest, however, whether it might not be
▲ 12916.-30. 25.-12/84.