R
PUBLIC RECORD OFFICE
Reference :-
TLC.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
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section 31 of the Act 5 and 6 Vic., cap. 76, and section 3 of the Act 18 and 19 Vic., cap. 54, Act No. 84 was require to be reserved for the signification of His Majesty's pleasure.
That a similar question arose in connection with the New South Wales Act No. 38 of 1893, and the opinion of the Law Officers was taken thereon. That, from their Report of 9th February, 1894," it would appear that the Act in question (No. 84 of 1900) should have been reserved. That it would, however, be seen on perusal of that Report that the attention of the Law Officers was not drawn to the repeal in section 2 of 18 and 19 Vic., cap. 54, nor did it appear that the effect of that repeal on the construc- tion of the Statute, and on the determination of questions similar to the one then submitted had ever come under their consideration.
That that being so, and inasmuch as the New South Wales Constitution Statute contained provisions covering all the classes of enactments dealt with in section 31 of 5 and 6 Vic., cap. 76 (see sections 15 and 36-the Governor's salary being fixed by the grant of the Civil List-and section 54); that as by sections 15 and 36 of the Constitu- tion Statute power to pass Acts of the kinds therein mentioned was expressly given to the Legislature of New South Wales while some only of those Acts were stated to require reservation; and that as section 4 of 18 and 19 Vic., cap. 54, expressly provided that the Legislature of New South Wales might "make laws altering or repealing all or any of the provisions of the said reserved Bill" (fe., the Constitution Statute) in the same manner as any other laws for the good government of the said Colony, subject, however, to the con litions imposed by the said reserved Bill on the alteration of the provisions thereof in certain particulars, until and unless the said conditions shall be repealed or altered by the authority of the said Legislature," it seemed open to doubt whether the provision in section 31 of 5 and 6 Vic., cap. 76, as to the classes of Bills which needed reservation was not repealed, section 3 of 18 and 19 Vic., cap. 54, rendering applicable to Bills passed by the New South Wales Legislature only the general provisions of the first mentioned section as to the need of the Governor's assent to Bills, and the alternative courses open That it would be remarked that to him when any Bill was presented for his assent. section 12 of 13 and 14 Vic., cap. 59, which applied to Victoria and other Australian Colonies certain provisions of 5 and 6 Vic., cap. 76, expressly mentioned, among such provisions, "the provisions concerning the giving and withholding of Her Majesty's assent to Bills, &c., and the Bills so reserved, &c."; and that section 3 of 18 and 19 Vic., cap. 54, which applied the provisions of 5 and 6 Vic., cap. 76, to Bills to be passed by the Legislature of New South Wales, while using the same language in other respects a the section first cited, omitted the underlined words. That that omission would appear to be significant only if the provision as to the class of Bills to be reserved were not intended to apply
That my opinion was therefore desired with reference to Act No. 84 on the questions:-
3. Whether the provision in section 31 of 5 and 6 Vic., cap. 76, necessitating the reservation of certain classes of Bills still applied to Bills passed by the Legislature of New South Wales, and
4. If it still applied, whether Act No. 84 should have been reserved for the significa- tion of His Majesty's pleasure.
In the event of my being of opinion that Act No. 73 and Act No. 84, or either of them, should have been reservel, I was requested to further advise
5. Whether, in view of the inconvenience likely to arise from the invalidity of any action taken under those Acts before they had been as reserved Bills duly assented to in Council. it was expelient and proper to validate all such action by passing an Imperial Act, and
6. If such legislation was required and question 3 above was answered in the uffirmative, whether a section might properly be inserted in the Act repealing the Statutory provision requiring certain Bills passed by the Legislatures of the several Australian Colonies to be reserved, and leaving the matter to be dealt with in His Majesty's Instructions to the Governors of the several Colonies.
That in connection with this question it should be observed that the existence of the Statutory provisions referred to had in many instances given rise to questions as to the validity of Acts passed by those Legislatures, and had necessitated the passing of Imperial Acts validating the Colonial enactments and everything done under them.
No. 51 in Vol. V.
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That Mr. Bertram Cox was to request that I would favour you with my advice on the several questions raised in his letter.
In obedience to your commands, I have taken the matter into my consideration and have the honour to
Report,
1. That in my opinion Act No. 73 ought to have been reserved and laid before Parliament.
2. The whole Act is inoperative. I agree on this point with the Report of the Law Officers of 28th of December [? September], 1864,*
3. The provisions in section 31 of 5 and 6 Vic., cap. 76, necessitating the reservation of certain classes of Bills, still apply to Bills passed by the Legislature of New South Wales. It appears to me that section 3 of the 18 and 19 Vic., cap. 54, in terms applies these provisions, and I cannot see that there is anything in the Scheduled Act which is inconsistent with their application.
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4. Act No. 84 should have been reserved for the signification of His Majesty's pleasure.
5. It appears to me to be expedient and proper that these Acts should be validated by legislation. Such legislation might be either in New South Wales, being duly reserved, or in the Imperial Parliament.
The matters are purely local, but there may be reasons of convenience in having Imperial legislation. If legislation in New South Wales be resorted to, there should be a clause validating all that has been done.
6. As at present advised, I do not think it expedient to repeal the Statutory provisions requiring such Bills to be reserved. The matter is one which must, of course, ie largely dealt with with reference to the character of each particular Bill placed in this category, but with regard to sine measures there is great convenience in having them reserved instead of leaving them to the Governor to be dealt with under instructions.
I have, &c.,
The Right Hon. Joseph Chamberlain, M.P.,
&c.,
&c.,
&c.
No. 275 in Vol. I.
R. B. FINLAY.