7103
PUBLIC RECORD OFFICE
Reference :-
TTIC.O.8
.885
16 PUBLIC RECORD OFFICE, LONDON
No. 131.
(SOUTH AUSTRALIA.)
LAW OFFICERS to COLONIAL OFFICE.
[Signing of Warrants by the Governor for the expenditure of public money before appropriation had been made by Parliament.]
MY LORD,
Royal Courts of Justice,
7th March, 1910. We were honoured with your Lordship's commands, signified to us in Sir C. P. Lucas's letter of the 4th December last, stating that he was directed by your Lordship to request that we would be so good as to favour you with our opinion on a question as to the expenditure of public money in South Australia, which had been raised privately by the Governor of that State.
That it appeared that in recent years, seemingly since 1890, the practice had grown up in the State for the Governor to sign warrants for the expenditure of public moneys, before any appropriation had been made by Parliament. That in due course such appropriations were covered by Acts of the State Parliament, but that the Governor had raised the question whether his action in signing such warrants was, strictly speaking, legal. That Sir C. P. Lucas was to add that it was understood that similar practices had been adopted in other States and that like questions of their legality might arise.
That your Lordship was advised that neither in such parts of the Imperial Acts passed between 1842 and 1850 and relating to South Australia as still remained in force, nor in the local Constitution Act of 1855-1856 and the Acts amending it, was there any provision dealing directly with the question at issue. That by Section 14 of the Imperial Act 13 and 14 Vic., Ch. 59, the issue of public money could only be made on the authority of a warrant from the Governor, but that that section did not appear either to sanction or to forbid the issue of such warrants without an appropriation by Parliament.
That as the matter in question was not provided for by the written law of the Constitution, it remained to be considered whether or not it could be held to be rendered legal or illegal by constitutional practice. That in South Australia the custom of signing such warrants did not seem to be more than twenty years old, and that it might be doubted whether, since the grant of responsible government dates back to 1856, the practice could be said to have become a part of the constitu- tional law of the State. That on the other hand the question would be raised whether South Australia could be deemed to have inherited, along with its partly written constitution of English origin, any English constitutional usage having the force of law which would make the practice of signing warrants for sums not That hitherto no yet appropriated by Parliament in the strict sense illegal. practical difficulty had arisen in regard to the signing of such warrants, as the appropriations thus effected had later received the sanction of Parliament; but that it was always possible that Parliament might decline to confirm an expenditure so carried out, and that your Lordship was anxious to learn, for the guidance of the State Governors in Australia, the exact legal position of a Governor who signed warrants in the circumstances described. That this exact question had not, so far as you were aware, been discussed by our predecessors, but that Sir C. P. Lucas was to enclose a copy of the Blue Book C. 2173, in Appendix II. of which would be found a correspondence between the Secretary of State for the Colonies and the Governor of New South Wales bearing on the matter.
That he was accordingly to ask that we would be so good as to take his letter and the accompanying papers into our consideration and advise on the following points
(1) Was the practice of signing warrants for expenditure for which no appro- priation had yet been made by Parliament forbidden by the law of the constitution of South Australia so far as that constitution was written?
(2) If not, was that practice a constitutional usage which had now acquired
the force of unwritten constitutional law in South Australia?
(3) If not, had there been introduced into the constitution of South Australia
any English constitutional usage having the force of unwritten law which would
(15870-2.) Wt 103-396. 25. 4/10. D & 8.
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