CO885-(10-11) — Page 143

8706.

No. 110.

(SOUTH AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, April 12, 1862.

MY LORD DUKE,

We are honoured with your Grace's commands signified in Sir Frederic Rogers' letter of the 29th January last, stating that he was directed by your Grace to request that we would take into our consideration the papers enumerated in the margin, and pos favour your Grace with our opinion on several most important questions which are 171961. raised by them.

No. sis.

6 Bapt. 1861.

& Oct. 1961. Committee of

Council of South

By these papers it appears that Mr. Boothby, Puisne Judge of the Supreme Court of Nois South Australia, has announced, either from the bench, or in answer to questions put to Report of elect him by a Committee of the House of Assembly, various opinions which are alleged to Corsaire be wholly erroneous, and are calculated to render the administration of justice in South Austral Australia almost impossible.

Antof Parliament. #Geo. 4. c. 83, 152 14 Viet. t

Constitution Act,

Sir Frederic Rogers was pleased to add that we would perceive that the two branches 56 Vict. c. 6. of the Legislature had addressed Her Majesty praying for Mr. Boothby's removal, and Bouth Australian that before tendering any advice to Her Majesty in respect to these addresses your No. 1 of 1656-6. Grace was desirous of obtaining our opinion on the questions therein-after submitted to us, first, on the general questions of law, raised by Mr. Boothby, secondly, regard- ing the legal or constitutional propriety of removing him in accordance with the above- mentioned addresses, and that he need hardly demand our especial attention to these questions, as they would be found to be concerned with the very foundations of colonial legislation and judicial independence; and that he should first place before us those points on which your Grace desires to obtain our opinion respecting the powers of the South Australian Legislature; and afterwards those which relate to Mr. Boothby's proposed removal.

The Act 5 & 6 Vict. c. 61. 8. 5. authorized Her Majesty to constitute a Legislative Council to make laws for the peace, order, and good government of South Australia.

The Act 13 & 14 Vict. c. 59. s. 7. authorised the Legislature thus established to con- stitute a Legislative Council, composed, as therein mentioned, and empowered the Governor (section 14) with consent of this Legislative Council, to make laws for the peace, order, and good government of the Colony provided (inter alia) “ that no such law should be repugnant to the law of England."

The 12th clause of the same Act declared applicable to South Australian legislation the following rule (among others) contained in 5 & 6 Vict. c. 76. 8. 31. " that every Bill "shall be presented for Her Majesty's assent to the Governor of the said Colony, and "that the Governor shall declare according to his discretion, but subject, nevertheless, "to the provisions contained in the Act, and to such instructions as may from time to "time be given in that behalf by Her Majesty," that he assents to such Bill, or that he withholds the Royal Assent, or that he reserves the Bill for the signification of Her Majesty's pleasure.

And the Royal instructions to the Governor of South Australia, printed among the enclosures to the Governor's Despatch No. 511 of the 17th August, require him (section 11) to withold his assent from certain classes of Bills, "subject nevertheless to your "discretion in case you should be of opinion that an urgent necessity exists requiring "that such Bill be brought into immediate operation, in which case you are authorised " to assent to such Bill in our name, transmitting to us, by the earliest opportunity, "the Bill so assented to, together with your reasons for assenting thereto.'

"

By the 29th section a special power was given to the Colonies of New South Wales, Van Dieman's Land, and Victoria (without mention of South Australia) to make pro- visions for the administration of justice "anything in the said Act of the 9th

year of King George IV." (which established a Supreme Court in New South Wales and Van Dieman's Land) "or in this Act, or in any charter, or Order in Council made or " issued in pursuance thereof, or to the contrary notwithstanding."

And by the 32nd clause the Legislatures of the Colonies to which the Act referred, including South Australia, were authorised to alter their own constitution and to establish Legislatures composed in each case of a Council and Assembly. By the South Australian Act, No. 2 of 1855-6 this was done, and the "Parliament" now existing was established.

o 16278.-617.

25.-2/86.

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

10 PUBLIC RECORD OFFICE, LONDON

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