PUBLIC RECORD OFFICE
C.O.8
Reference :-
.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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of which the Charter was issued, but that the reservation was, your Lordship appre- hended, certainly applicable to such provisions of the Charter as might be regarded as having been made independently of the Act, e.g., the grant of precedence to the Chief Justice.
That your Lordship, therefore, inclined to the opinion that Section 42 of the Constitution Act preserved in effect the right of the Sovereign to regulate the pre- cedence of the Chief Justice and that this view appeared to be held also by the Premier and Chief Justice of the State of New South Wales.
That at all events both these gentlemen, according to the Governor, considered that the most convenient course for effecting the desired change in the precedence of the Chief Justice would be the exercise of "the power vested in His Majesty by Clause 24 of the Charter."
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That your Lordship would, however, observe that this view had not in the past been taken in your Department. That it had been recognised that the grant of precedence to the Chief Justice made by the Charter was not in pursuance of the powers conferred by the Act of Parliament, but was irrespective of and did not proceed from these powers, but that it had at the same time been held that the grant was a legislative Act which could not now, owing to the grant of self- government, be repealed or altered by the Crown.
That this opinion was based on the report of the Law Officers of the Crown of the 14th March, 1863,* as to the power of the Crown to regulate the precedence of the Chief Justice and the Puisne Judges of the Cape of Good Hope. That it would be noticed that in this report the Duke of Newcastle was advised that the Charter of Justice of the Cape of Good Hope was a Legislative Act of the Crown which, after the establishment of a Colonial Parliament, could not be repealed or altered either wholly or in part, without the concurrence of that assembly, and in effect that no distinction could be drawn between those provisions of the Charter which proceeded from the special right of the Crown to legislate for the Colony and those which proceeded from the general prerogative of the Crown. That your Lordship would be glad to learn whether we concur in the terms of this report. That, subject to our opinion, you were disposed not to acquiesce in the ruling which it laid down. That if the mere grant of precedence were a legislative Act, it would seem to follow that the Crown could draw up Tables of Precedence, except in cases where its power to do so had been expressly reserved, only for those Colonies for which it retained the right to legislate, a conclusion which would be wholly con- trary to existing practice. That if, on the other hand, the grant of precedence was not of such a character, it was not perceived how its nature was changed by being incorporated in one and the same instrument with provisions of a legislative character. That it would have been open to the Crown in 1832 to regulate the precedence of the Chief Justice and Puisne Judges of the Cape of Good Hope, by separate Letters Patent or otherwise, and, if this had been done, there would have been no question on the theory that the regulation of precedence was not legislu- tive, as to the power of the Crown still to exercise its prerogative in the matter of precedence. That the report of our predecessors would, however, seem to attach too much importance to the fact that the provisions made by the Sovereign in his separate capacities were embodied in one instrument, and that it would appear to be reasonable in discussing the existing powers of the Crown, i.e., as modified by the establishment of a Colonial Parliament, to discriminate between the various provisions of the Charter on the basis of the respective capacities in which they were inade by the Crown, and to hold that the Crown might still modify the Charter in any matter coming within a capacity which it has not transferred to the Colonial Parliament.
That the present question, however, seemed to depend not so much on general principles as on the interpretation to be placed on Section 42 of the New South Wales Constitution Act of 1855 already quoted, which appeared in effect to declare that the grant of self-government should not affect the right (subject to the pro- visions of the Act and of future legislation) of any "competent authority" to vary the terms of the Charter; in other words, that the Crown had, as it had before the grant of self-government to New South Wales, the right to regulate the precedence of the Chief Justice.
No. 166 in Vol. I.
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That your Lordship would be obliged if would consider his letter and the documents referred to therein and favour you with our report as to whether, having regard to Section 42 of the New South Wales Constitution Act, it would be competent to His Majesty by Letters Patent to revoke so much of the New South Wales Charter of 1823 as related to the precedence of the Chief Justice or whether it would be necessary to have recourse to Colonial legislation.
We have taken the matter into our consideration and, in obedience to your Lordship's commands, have the honour to
Report
That, in our opinion, as the Charter was a legislative Act, it cannot, either wholly or in part, be repealed or altered except by another legislative Act, and as a Constitution has since been granted to New South Wales the Colonial Legis- lature must either enact or concur in any such Act.
The Right Honourable
The Earl of Elgin, K.G.,
&c., &c., &c.
We have, &c.,
JOHN L. WALTON. W. S. ROBSON.