CO885-(10-11) — Page 144

PUBLIC RECORD OFFICE

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PUBLIC RECORD OFFICE, LONDON

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That from the case of Fenn and McEllister, the evidence of Mr. Boothby, second judge of the Supreme Court of South Australia, and the report of the Select Committee of the House of Assembly (all of which were enclosed in Sir R. Macdonnell's Despatch No. 527 of 25th October laat) we should collect what are the questions upon which Mr. Boothby is at issue with one or both branches of the Legislature, and that with reference to these documents your Grace desires to obtain our opinion on the following points:-

1. Is the Supreme Court of South Australia bound, and at liberty to inquire into the validity of an Act passed by the Colonial Legislature, and asssented to either by the Queen in Council, or by the Governor in behalf of Her Majesty, and in the case of an Act assented to by the Governor, does the fact that such an Act has, or has not, been left to its operation by Her Majesty make any difference respecting its validity?

2. Supposing the judge at liberty to pronounce on the validity of a Colonial Act, is he to pronounce such an Act invalid, if its provisions be, in his opinion, inconsistent with those of an Imperial Statute intended by the British Parliament to extend to the Colonies in general, or to South Australia in particular ?

3. Is he to pronounce such an Act invalid, if its provisions be, in his opinion, con- trary to the principles of British law which he deems fundamental, as by denying the Bovereignty of Her Majesty, by allowing slavery or polygamy, by prohibiting Chris- tianity, by authorising the infliction of punishment without trial, or the uncontrolled destruction of aborigines, &c. ?

4. Is he to pronounce such an Act invalid if its provisions be different from those which are in fact prescribed in respect of the same matter by British statutes in force in England, though not properly to be described as fundamental principles of British law, e.g., if the Colonial Act abolished grand juries, or allowed offences to be tried by a magistrate for which a jury is required in England, or dispensed with the unanimity of a jury, or varied the numbers of a jury, or altered the laws of evidence or the law of primogeniture, or introduced modes of transferring real property unknown to the British law ?

5. If the first of the two preceding questions is to be answered in the affirmative, and the second in the negative, are we able to suggest any principle which would regulate the distinction between fundamental principles of which the violation would vitiate a Colonial Act, and the non-fundamental rules or customs of legislation which a Colonial Legislature is at liberty to disregard ?

6. To what extent would a single provision invalid on account of repugnancy with English law vitiate the rest of the Act?

7. Would a judge be at liberty to pronounce a Colonial Act invalid, though duly assented to by the Governor on the ground that it fell within one of the classes to which he was forbidden to assent without urgent necessity?

8. In particular do we see any reason to doubt the validity of the South Australian Constitutional Act?

9. Having special reference to the omission of any reference to South Australia in power the 29th section of the Act 13 & 14 Vict. c. 59., do we see any reason to doubt the of the South Australian Legislature to constitute courts of justice ?

10. Do we see anything objectionable in Mr. Boothby's view of his own obligation to conform his own judgment to the decisions of the Supreme Court of which he is a member ?

11. And, finally, whether we concur with the Committee of the House of Assembly in thinking Imperial legislation advisable or necessary in order to place beyond doubt all or any of the above questions ?

Sir Frederic Rogers next proceeded to the question of Mr. Boothby's removal, and stated that in 1853 Mr. Boothby was appointed second judge in the Supreme Court in the Colony of South Australia, and that the office was to be held during pleasure.

By the 30th and 31st section of the South Australian Constitutional Act (No. 2 of 1855-6), it was enacted that the judges of the Supreme Court should hold their offices "during good behaviour, but that it should be lawful, nevertheless, for Her Majesty, her heirs or successors, to remove any such judge or judges upon the address "of both Houses of Parliament.'

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That the Governor transmitted addresses from the two Houses praying Her Majesty thus to remove Mr. Boothby, and that in these addresses no specific charges are brought against Mr. Boothby, the Legislative Council merely stating that his removal is "absolutely necessary; the Assembly, that "in consequence of the position assumed by him public confidence in his administration of the law of this province is destroyed," and that it rests with your Grace to advise Her Majesty whether

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Mr. Boothby ought in compliance with a request so made, to be removed by the Crown.

Sir Frederic Rogers added that as this is the first occasion on which Her Majesty has been called upon to remove a judge in virtue of addresses from a Colonial Legisla- ture, the precedent is of the highest importance, especially as a controversy of a similar character is now raging, and a similar result appears to be imminent in another Colony.

That it was not necessary to draw our attention to the provisions of 1 Geo. 3. c. 23., from which the 30th and 31st clauses of the South Australian Constitutional Act are taken, or to the Act of 22 Geo. 3. c. 75., commonly called "Burke's Act," which provides & mode of removing judges on misbehaviour. But he might add that the Constitutional Acts of other Australian Colonies contained provisions similar to those embodied in the South Australian Act, while in Canada the Governor (not the Crown) is authorised to remove a judge on address from the two branches of the Legislature, but subject to an appeal to Her Majesty in Council.

With these observations he was to ask our opinion on the following points:-

1. Has Her Majesty under the 31st clause of the Constitutional Act the legal power to dismiss Mr. Boothby on such addresses as are now presented to her by the two houses of the South Australian Legislature?

2. Has she the legal power to refuse to dismiss Mr. Boothby?

3. If the Queen has a discretion in the matter, can Her Majesty be properly advised

to dismiss Mr. Boothby in conformity with these addresses ?

4. If so, should removal be grounded upon the supposition that the Crown is bound

to take for granted that the Legislature has not acted without reason, and to lend its authority to give effect to their decision, or upon the merits of the case as disclosed in Mr. Boothby's reported judgment, in the evidence taken before the Committees of the two Houses of the Legislature and in the reports of those committees ?

5. If on the latter, what acts or opinions of Mr. Boothby have necessitated or justified his removal ?

6. Will any appeal lie to the Privy Council or Judicial Committee of Privy Council against such decision ?

7. If Mr. Boothby cannot properly be dismissed in conformity with the addresses now forwarded, is that refusal to be justified by the technical objection (if it be one) that two addresses have been presented instead of one; or by the absence of any specific charge in those addresses, or by the inadequacy of the charges which may be extracted from other sources ?

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8. If the mode of procedure adopted by the Legislature is irregular or insufficient, what course of procedure or mode of address ought to be adopted by them, in order to bring the question of Mr. Boothby's dismissal properly under Her Majesty's cog-

nizance ?

And 9. Your Grace desired to be informed what course of proceeding would be, or has ever been adopted, in order to procure the removal of an English judge under the 2nd clause of the Act 5 Geo. 3. e. 23.

In obedience to your Grace's commands we have considered these papers, and have the honour to

Report

That 1. The powers of the Colonial Legislature being conferred by Act of the Imperial Parliament, and limited by the same enactment, and so, valid or invalid, as they keep within or transgress the prescribed limits, the Supreme Court of South Australia is, in our opinion, bound (and certainly at liberty) to satisfy itself of the legal validity of any act of the Colonial Legislature, the provisions of which it is called upon to administer.

In the case of an Act assented to by the Governor, we think that the fact of its having been left to its operation by Her Majesty would not affect the question of its validity.

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2. We answer this question in the affirmative, as in the case supposed an unquestion- able repugnancy" would be apparent between the English law and the Colonial enactment and the Colonial Legislature is debarred from the enacting of laws being thus repugnant (13 & 14 Vict. c. 59. s. 14.).

3. This question we also answer in the affirmative, and on the same ground of an unquestionable "repugnancy."

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