CO885-(10-11) — Page 141

8010.

PUBLIC RECORD OFFICE

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Reference :-

C.O. 885

10 PUBLIC RECORD OFFICE, LONDON

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MY LORD DUce,

No. 108.

(SOUTH AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, March 25, 1862. We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 14th instant, stating that he was directed by your Grace to request that we would furnish your Grace with our opinion on the following questions:-

By the Imperial Statute 13 & 14 Vict. c. 59. B. 32., power was given to the Governor and Legislative Council of South Australia to establish by any Act or Acts a Legis- lature composed of a Council and a House of Assembly "to consist respectively of "such members, to be appointed respectively by such persons, and in such manner, as by such Act or Acts shall be determined." Provided always that every Bill which might be passed by the Council for such purpose should be reserved for the significa- tion of Her Majesty's pleasure, and that a copy of such Bill should be laid before both Houses of Parliament for the space of 30 days at least before Her Majesty's pleasure thereon should be signified.

Under the power conferred by this statute, the Legislative Council of South Australia passed two Acts; First, No. 2 of 1855-56 to establish a constitution and to specify the qualification of electors, which was reserved, laid before Parliament, and assented to by Order in Council in accordance with the requirements of the Statute 5 & 6 Vict. c. 76. s. 33. (continued by the 12th section of the Act 13 & 14 Vict. c. 59., above referred to).

Secondly, No. 10 of 1855-56 which declared the electoral districts and the number to be returned by each, and contained provisions regulating the issue and return of write, the revision of the electoral roll, the mode of election, and other similar matters. This Act was not reserved. Both Acta, however, have been treated as valid, and all subsequent legislation in South Australia has been founded on them.

Other Acts relating to the election of members of the Legislature have subsequently been passed by that Legislature (i.e., the Governor, the Legislative Council and House of Assembly) without being reserved for the signification of Her Majesty's pleasure.

The points on which your Grace was desirous of receiving our advice being: 1st. Whether the Colonial Act No. 10 of 1855–56 ought to have been reserved. 2nd. If it ought to have been reserved, whether the effect of the omission is to render the Act itself and subsequent legislation in South Australia invalid:

3rd. Whether the Imperial Act 13 & 14 Vict. c. 59. s. 32., applies not only to Acts passed by the Legislative Council established by that Act, but to those passed by the Legislative Council and Assembly established by No. 2 of 1855-56, and whether, there- fore, all subsequent Acts relating to the appointment or election of members of the Council and Assembly ought to have been reserved, and are invalid on account of not having been so reserved.

4th. If any doubt should exist on these points, or either of them, whether the annexed Draft Act of Parliament appeared to us proper and sufficient to cure the irregularity of the previous legislation. As it would be desirable to legislate, if at all, during the present Session of Parliament, Sir Frederic Rogers was pleased to state that your Grace would be glad to receive our opinion on these questions at our earliest convenience.

In obedience to your Grace's commands we have taken these papers into our con- sideration, and have the honour to

Report

and 2. We are of opinion that the Colonial Act, No. 10 of 1855–56, ought to have been reserved, and that the effect of the omission to reserve the same is to render the Act itself and all the subsequent legislation in South Australia which has been founded thereon, invalid.

The effect of the Act is to establish electoral districts, to make a particular mode of registry on an electoral roll a necessary condition of the exercise of the franchise, aud to regulate the mode of voting, both for the Legislative Council and for the House of Assembly.

0

16978.-18.

25.--9/66.