PUBLIC RECORD OFFICE
Reference :-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC. COPYRIGHT PHOTOGRAPH-NOT TO
སྙ
Commission was to appoint a person who should be empowered to exercise both the prerogative rights conferred specially by the Letters l'atent and also the statutory powers created by Colonial laws, and consequently (under Clause XI. of the Letters Patent) to delegate both prerogative rights and statutory powers to a Deputy.
That in this connexion Sir C. P. Lucas was to say that the draft Letters l'atent were sent to all the Australian Colonies in the year 1875-76, and that in no case was any exception taken to their terms in that regard although they were considered with great care by the Colonial Governments.
That Sir C. P. Lucas was also to invite our attention to two Opinions which were given by the Law Officers of the Crown on the 23rd June, 1894, and the 22nd August, 1894,* and to which you regretted that our attention had not been previously drawn.
That those Opinions were given with regard to the position of the Deputy of the Governor of New Zealand, and that Sir C. P. Lucas was to enclose a copy of the Letters Patent of 1879, which was referred to in them, and a copy of the Act No. 15 of 1888, to which reference was also made. That it would be seen that the then Law Officers did not question the right of the Governor under Clause XIII. of the New Zealand Letters Patent of 1879 to delegate to a Deputy his statutory powers, and that they also held that a Deputy Governor was a person for the time being lawfully administering the Government of the Colony within the meaning of Section 4 of the Act of 1888. That Sir C. P. Lucas was to enclose a copy of the Interpretation Act of South Australia, No. 9, of 1872, and to invite attention to Section 15
That it would appear that the circumstances of New Zealand and of South Australia in that respect were practically identical, and that it followed from the Opinion of the Law Officers in 1894 that a Deputy Governor in South Australia was an Officer administering the Government within the meaning of the Interpretation Act, and was, therefore, entitled to execute the statutory powers of the Governor, if delegated to him by the Governor, under Clause XI. of the Letters Patent,
That you would be grateful if we would be so good as to take these further facts into our consideration together with our Report of the 27th February, and advise whether, in our opinion, the Deputy Governor would exercise the statutory powers delegated to him by the Governor under Clause XI. of the Letters Patent. That if we were still of opinion that that was not the case, you would desire to be advised as to whether it would be practicable to pass a short Imperial Act validating all the actions done by Deputy Governors under similar delegations in the past, and em- powering Governors to make such delegations in the future, or, if not, what other steps should be taken to effect the same object.
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
In our opinion 1. That we confirm our Report of the 27th February, 1911. ('lause II. of the Letters Patent of 1900 cannot be said to vest in the Governor the powers conferred upon him by Colonial Statutes so as to bring those powers within the meaning of the words powers and authorities vested in the Governor by these Our Letters Patent" in Clause XI., and thus enable the Governor to delegate them
Governget to a deputy.
And even if such a construction could be placed upon Clause 11., the further difficulty would arise that Letters l'atent cannot authorise the Governor to delegate to a deputy powers conferred upon the Governor by the legislature of a self- governing Colony, and not by the Crown. The authority of a Governor to delegate powers conferred on him by Colonial legislation must depend on the terms of that legislation. If that legislation requires that powers conferred by it on the Governor should be personally exercised, it is plain that Letters Patent could not justify the delegation of those powers.
We think that the expression Officer Administering the Government of the Province" in Section 15 of the Language of Acts Act, 1872, designates the person referred to in the Letters Patent as appointed to administer the Government,' and we are not able to indorse the opinion expressed in 1894 that a deputy appointed by the Governor is a person "appointed to administer the Government " within the meaning of the Letters Patent either of 1879 or of 1900. We are led to this con- clusion by the provisions of the Letters Patent as to the appointment of such a
Nos. 65 and 72 in Vol. V.
3
person. Clause XII. of the Letters Patent of 1879 and Clause X. of those of 1900 provide that the appointment shall be made on the death, incapacity, or removal of Clause X. of the Instructions of 1892 the Governor or his departure from the State. and Clause XI. of those of 1900 provide that a temporary absence when a Deputy has been duly appointed shall not be deemed a departure from the State within the meaning of the Letters Patent. Such absences would not, therefore, bring into operation the clauses of the Letters Patent providing for the appointment of a person to administer the Government.
Moreover, the Letters Patent provide that such an appointment shall be under the Sign Manual and Signet and that the person appointed should before exercising his powers take the oaths directed to be taken by the Governor.
The Deputy is appointed under the Public Seal of the State and no provision is made for him to take any oaths. He exercises such specified powers as are conferred upon him for and on behalf of the Governor, and it is expressly provided that by his appointment the power and authority of the Governor shall not be abridged, altered, or in any way affected. In other words the Governor remains the person administering the Government, but does so by his Deputy acting on his behalf. It is not therefore possible to rely upon the Language of Acts Act as conferring upon the Deputy authority to exercise the powers conferred upon the Governor by Colonial
Statutes.
2. We consider it desirable in the circumstances that legislative action should be taken to remove doubts and to validate the actions of Deputy Governors in the past, and to empower Governors to make the delegations in question in the future save so far as delegation of statutory powers hereafter conferred is expressly pro- hibited by the legislation conferring them.
The legislation may be enacted either by the respective Colonial Legislatures on the lines of the recent bill passed in South Australia or by the Imperial Parlia- ment. The latter would be the simpler method if acceptable to the Colonies concerned.
The Right Honourable
Lewis Harcourt, M.P.,
&c.,
&c.,
&c.
We have, &c.,
RUFUS D. ISAACS. JOHN SIMON.
.
}