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PUBLIC RECORD OFFICE
Reference :-
C.O. 885
SIR,
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FOREIGN OFFICE to COLONIAL OFFICE.
(Received May 20, 1897.)
Foreign Office, May 19, 1897. I LAID before the Marquess of Salisbury your letter of the 14th instant, and his Lordship directs me to suggest that the wishes of the self-governing Colonies as to their representation on the Royal Commission to organise and control the British section at the Paris Exhibition, 1900, should be ascertained when the Colonial Premiers arrive in this country.
The Under Secretary of State,
Colonial Office.
APPENDIX IV.
I am, &c.
GEORGE CURZON.
Issue of Queen's Fiat in Petitions of Right.
EXTRACT FROM RESOLUTIONS OF HOBART CONFERENCE, February 1897. (10.)-Issue of Her Majesty's Fiat in Cases provided by Local Law,
The Premier of Western Australia brought under the notice of the Conference the correspondence respecting Petitions of Right from the Western Australian Land Company, Limited, and from Mr. William Wilkinson, to Her Majesty the Queen.
Resolved, That, in the opinion of this Conference, Her Majesty's fiat should not issue to supersede the decision of the Local Executive on the subject of any reference to the Supreme Court of local claims against the Crown.
MR. CHAMBERLAIN to GOVERNOR SIR GERARD SMITH (WESTERN
(No. 19.) SIR,
AUSTRALIA).*
Downing Street, May 7, 1897.
I HAVE the honour to acknowledge receipt of your Despatch, No. 3, of the 26th of February, transmitting further correspondence respecting the Petition of Right from the West Australian Land Company to Her Majesty the Queen. I had previously forwarded your Despatch, No. 1, of the 6th of January, with its enclosures, and a copy of the Act, 31 Vict. No. 7, to the Law Officers of the Crown, and had requested them to favour me with their opinion on the following questions, and with any general observations which they might wish to offer on the points raised in Sir John Forrest's Minute :-
1. Are the endorsed petitions the property of the petitioners, and should they have
been delivered to them at once when received by the Governor ?
2. Is the right to petition Her Majesty a common law right personal to every British
subject?
3. Is this right in Western Australia taken away or restricted by the local Act,
31 Vict. No. 7?
4. Is there any doubt as to the constitutional right of Her Majesty to grant Her fiat addressed to the Supreme Court of a Colony where, as in Western Australia, the English common law prevails?
A similar Despatch was sent to the other Australasian Colonies on the same day.
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5. If the petition is in proper form, and discloses a proper case, is the fiat granted
as a matter of course; or can it be constitutionally refused?
6. Is the object of the fiat to prevent a denial of justice, and may it be granted even though the Governor of a Colony acting on the advice of his responsible Ministers-may have refused to refer to the Supreme Court a petition for redress presented to him under authority of a Colonial statute, as in the present
case?
7. Has the Secretary of State for the Colonies any discretionary power to withhold a petition from Her Majesty, or to delay it longer than is necessary to obtain advice as to its being in form, and as to its raising a proper case?
8. Has the Colonial Government any discretionary power to prevent the petition from reaching the Secretary of State, or to hinder the petitioner from acting upon the petition when returned with Her Majesty's fiat?
9. Is the question of the applicability of the arbitration clause to the matters raised in the Western Australian Land Company's petition within the province of the Secretary of State to decide with a view to stopping the petition; or is it one for decision by the Supreme Court in the proceedings on the petition?
In reply, the Law Officers advised me that the endorsed petitions ought at once to have been delivered to the petitioners by the Governor when received by him.
2. That the right to petition Her Majesty is a common law right personal to any British subject, so long as the petition is presented in the regular and constitutional
way.
3. That this right is not taken away in Western Australia by the Local Act 31, Victoria, No. 7. That that Act is an enabling one, and if a petitioner chose not to take advantage of its provisions, but addressed a petition to Her Majesty direct, the fact that a remedy is available in the Colony might be a reason for refusing to endorse the petition. But that in a case where leave has been refused in the Colony, the right of petitioning Her Majesty is in no way restricted by this Local Act.
4. That if the petition is in proper form, and discloses a proper case, the fiat cannot be properly refused.
5. That the fiat may be granted even though the Governor of the Colony, acting upon the advice of his responsible ministers, may have refused to refer to the Supreme Court such petition for redress; and that the prerogative in question should be exerted in any case in which it appears necessary to prevent a denial of justice.
6. That the Secretary of State for the Colonies has no discretionary power to withhold a petition from Her Majesty, or to delay it longer than is necessary for obtaining advice upon it.
7. That the Colonial Government has not any discretionary power to prevent the petition from reaching the Secretary of State, or to hinder the petitioner from acting upon the petition when returned with Her Majesty's fiat.
8. That the question of the applicability of the arbitration clause to the matters raise in the Western Australian Land Company's petition is one for decision by the Supreme Court in the proceedings upon the petition; that they did not at all lay down that the existence of an arbitration clause which clearly barred any right of action might not be a ground for refusing the fiat; but that this is not such a case. that the question whether the dispute should be referred to arbitration could be raised by defence to the petition, or by motion to stay the proceedings.
And
I should inform you that the prerogative right of Her Majesty to grant her fiat upon a petition of right from a self-governing Colony had, before the two cases from Western Australia now in question, already been more than once before the Law Officers of the Crown, and that their advice has invariably been given in favour of the existence of that right. This advice was given with respect to Newfoundland in 1861 and 1862; to New South Wales in 1863, and to South Australia in 1894.
I have received and given careful consideration to the resolution adopted at the Conference of Premiers held at Hobart in February last. "That in the opinion of this "Conference Her Majesty's fiat should not issue to supersede the decision of the local "Executive on the subject of any reference to the Supreme Court of local claims against the Crown." But your Ministers will, I trust, on considering the opinion quoted above
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PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE COPYRIGHT PHOTOGRAPH-NOT TO BE REPRODUCED PHOTOGRAPHIC-