1870
PUBLIC RECORD OFFICE
Reference :-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
GENTLEMEN,
No. 187.
(AUSTRALIA.)
COLONIAL OFFICE to LAW OFFICERS.
[The Judiciary Act, 1914.]
Downing Street,
27th January, 1915.
I AM directed by Mr. Secretary Harcourt to lay before you an Act passed by the Parliament of the Commonwealth of Australia, entitled "The Judiciary Act, 1014," together with copies of the corres- pondence, &c., noted in the margin.
Telegram Governor-General to Secretary of State, 30th September, 1914.
Colonial Office to Admiralty, 19th October,
1914.
Four Commonwealth Law Reports. Admiralty to Colonial Office, 12th December,
1914
Telegram Secretary of State to Governor- General, 23rd December, 1914.
Despatch Secretary of State to Governor-
General, 31st December, 1914.
Commonwealth Judiciary Act, 1903-1912. Commonwealth Judiciary Act, 1914.
2. It will be seen from the Governor- General's telegram of the 30th of Septem- ber that this Act was passed in accordance with Section 76 of the Constitution enacted by the Commonwealth of Australia Con- stitution Act, with a view to the issue to the High Court of Australia, as a Colonial Court of Admiralty, of a warrant to exercise prize jurisdiction.
3. The Act was passed whilst correspondence was proceeding on the subject between this Department and the Admiralty. It was consequently not previously approved by His Majesty through a Secretary of State, and it was not reserved, but was assented to by the Governor-General, and it contains no suspending clause.
**
4. The memorandum enclosed in the Colonial Office letter of the 19th of October to the Admiralty deals with the question whether the Commonwealth Parliament is the legislature of a British possession" for the purposes of the Colonial Courts of Admiralty Act, 1890, and if that question is answered in the affirmative it is conceived that the Judiciary Act, 1914, is, in view of the terms of Section 3 thereof, a "Colonial law" within the meaning of the Colonial Courts of Admiralty Act, and the question arises whether the conditions laid down in Section 4 of the latter Act should have been observed with regard to it, or whether Section 76 (iii) of the Commonwealth Constitution can be said to have the effect of dispensing with those conditions in the case of a law of the Commonwealth Parlia- ment conferring Admiralty jurisdiction upon the High Court of Australia.
5. Before the passing of the Australian States Constitution Act, 1907, the question arose from time to time whether a particular Act passed by one of the Australian Colonies (or States) and assented to by the Governor ought not to have been reserved under the Australian Constitutions Acts of 1842 and 1850 (the construction of which was for long a source of difficulty and controversy), and in cases in which your predecessors in office for the time being advised that such an Act ought to have been reserved the practice was adopted of treating it as if it had, in fact, been reserved (the Governor's assent being regarded as a nullity) and signify- ing the assent of the Crown by Order in Council.
6. In the event of your being of opinion that the Judiciary Act, 1914, is a Colonial law within Section 4 of the Colonial Courts of Admiralty Act, and that the conditions laid down in that section should have been observed with regard to it, it is submitted that the procedure mentioned in the preceding paragraph may be taken in this case as being also one in which a Colonial Act was required by Imperial legislation to be reserved and was not reserved.
7. It should be explained that the Commonwealth Government has not yet asked for a Prize warrant to be issued to the High Court as a Colonial Court of Admiralty since the passing of the new Act, and as most of the cases relating to prize in Australia have by this time been dealt with by the States Courts it is possible that no such application will now be made.
8. But, quite apart from the question of providing a Commonwealth Prize Court to take the place of the existing Prize Courts in the States, the Act raises a further important question with regard to the effect which it may have on the ordinary Admiralty jurisdiction of the Supreme Courts of the six States. That
(5687-9.) Wt. 7-930, 25. 81. DES. G. 1.