P
16963
No. 10.
PUBLIC RECORD OFFICE
Reference :-
.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
I can find no authority bearing upon the point, and subject to the foregoing observations, I am inclined to agree with the Colonial Office that the Admiralty Division of the High Court has no jurisdiction, in the absence of statutory enact- ment, to seize and detain a vessel which has committed a breach of any Colonial law; but I think it might be suggested to the Colonial Office that it might be desirable to refer to the Customs, who can probably speak with more authority than the Board of Trade can upon the point submitted by the Governor of Trinidad.
(AUSTRALIA.)
LAW OFFICERS to COLONIAL OFFICE.
[Proposed Legislation to require Courts and Judicial Tribunals in the United Kingdom to take notice of all Acts of the Legislature of any British Possession.]
SIR,
Royal Courts of Justice,
May 11, 1905. We were honoured with your commands, signified to us by Mr. Bertram Cox in his letter of the 15th April last, stating that he was directed by you to lay before us a despatch of the 2nd of February from the Governor-General of Australia sug- gesting the advisability of introducing into Parliament legislation requiring all Courts and Judicial Tribunals in the United Kingdom to take notice of all Acts of the Legis- lature of any British Possession.
That he was to say that if, as you understood by taking judicial notice was meant the entire exemption of the Act and Law judicially noticed from the necessity of being proved, on the ground that it was already supposed to be within the knowledge of the Court the proposal of the Governor-General was not one which you were prepared to support.
That it would, however, appear from certain provisions of the Queensland and New South Wales Acts, referred to in paragraph 5 of the despatch, that what was really suggested and desired was something less than the taking judicial notice of Colonial enactments by Courts of the United Kingdom. That Section 19 (1) of the New South Wales Act, No. 11, of 1898, was a provision, not for the taking judicial notice, but for a simple means of proof of any enactment of any part of His Majesty's dominions or of any foreign State. That Sub-sections (1) and (2) of Section 3 of the Queensland Act, 62 Vict., No. 15, appeared to be strictly hardly consonant. That Sub-section (1) provided that Queensland Courts should take judicial notice of all Australasian Acts, and thereby exempted them, strictly, from the necessity of being proved at all, whilst Sub-section (2) provided, in effect, for their being proved either by Government printers' copy or by the Government Gazette.
That Section 3 of the Commonwealth Act 3 of 1901 simply provided that the Commonwealth Courts should take judicial notice of all Acts of the State Parlia- ments, and, as the inconsistency appearing in Section 3 of the Queensland Act was not found in this Act, it seemed clear that the Commonwealth Courts noticed all State Acts without requiring any proof of them.
That he was to say that, in your view, the Courts of this country should require every Colonial law to be proved, but, that instead of its being proved as a foreign law according to the present procedure, you would be glad to see its proof so greatly facilitated as to make the requirement cease to be vexatious or cumbersome. That you were, therefore, of opinion that if any legislative action were taken in Parlia- ment it should proceed upon the principles of Section 19 (1) of the New South Wales Act and Section 3 (2) of the Queensland Act and not upon those of Section 3 (1) of the Queensland Act and Section 3 of the Commonwealth Act.
That he was to request us to take his letter and its enclosures into our considera- tion and to report:-
1. Whether Imperial legislation is desirable?
2: If so, upon what terms such legislation should proceed?
3. Generally.
We have taken the matter into our consideration and in obedience to your com- mands have the honour to
Report-
That we do not think that legislation, such as is suggested, is desirable. It might be extremely difficult if not impossible for the Courts of this country to decide upon the meaning of a Colonial Statute without the evidence of experts to explain what the law is. The Statute 28 and 29 Vict. c. 63. Section 6, already provides for the proof of Colonial Statutes and there is, we think, no objection to legislation further
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