CO885-(10-11) — Page 145

PUBLIC RECORD OFFICE

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19

لسائر

Reference :-

C.O. 885

PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

4. This question we answer in the negative, subject to our observations in answer to the question next following.

5. We are unable to lay down any rule to fix the dividing line between fundamental and non-fundamental rules of English law, as referred to in questions 3 and 4, and our answers thereto. It may safely, however, be stated that no laws which do not rest upon principles equally applicable in the nature of things to all Her Majesty's Christian subjects in every part of the British Dominions, can be deemed to be such as would make a departure from them by a Colonial Legislature void on the ground of repugnanoy to the principles of English law. We may add that we can hardly anticipate any practical difficulty in the way of the Court deciding the question of repugnancy, if called on so to do. It is extremely improbable that the Colonial Legislature would pass, that the Governor would sanction, and that the Crown would leave to its operation any Act repugnant in the above sense, and we think that the tribunals should not under these circumstances be astute to discover such repugnancy, but ought to disaffirm existing Acts on this ground only in cases admitting of no reasonable legal doubt. Such cases, we think, are not likely to occur.

We think that in an Act containing various distinct and separable provisions, one of such provisions invalid on account of "repugnancy," would not vitiate other portions of the Act, which might be free from that defect.

7. We answer this question in the negative. We understand the expression of the Governor, being “forbidden to assent without urgent necessity," to refer to the Royal “instructions," of which a copy is enclosed in the last enclosure in the accompanying paper, No. 511, and although the 13 & 14 Vict. c. 59. ss. 12 and 33, apply to certain Colonial Acta, the provisions of the 5 & 6 Vict. c. 76. (see ss. 11, 31), empowering Her Majesty to issue “instructions and the Governor to assent in conformity with such instructions, yet we consider such instructions to be a matter between the Crown and the Governor, and to be to the latter directory only. The Governor alone can judge of the "urgent necessity" in case of which, when the Statute does not expressly require the Act to be "reserved," &c., he is at liberty on all occasions to assent."

8. We see no reason to doubt the validity of the South Australian Constitutional Act, per se, understanding thereby the Act of the old Legislative Council, No. 2, 1855-6. Upon the invalidity of other and subsequent South Australian Acts, some of them intimately connected with the Constitutional Act, we have already expressed our opinion on another case submitted to us, and an Imperial Act has been passed to remedy their defects.

9. We understand that the express mention of New South Wales and Van Dieman's Land in the 29th section of the 13 & 14 Vict. c. 59., so far as relates to courts of justice, was or may have been considered to be rendered necessary by Imperial legislation on the subject of the courts of justice of those Colonies previous to the passing of that Act, and that no similar legislation had taken place with respect to courts of justice in South Australia. Under these circumstances we see no reason to doubt the power of the South Australian Legislature to constitute courts of justice.

10. We deem it to be the duty of a single judge in any particular case, generally speaking, to conform his own judgment to the decision on the same point of the Supreme Court of which he is a member. Such is the practice of single judges in the United Kingdom, and a departure from it, unless under extraordinary cir- cumstances, would, as it seems to us, be highly inconvenient.

11. We have already answered this question in the affirmative, and would only add. that we do not think it expedient to go further in the way of new Imperial legislation than is proposed to be done in the Bill now before Parliament.

On the question of Mr. Justice Boothby's removal

We have to observe that although Mr. Boothby has in some instances, as it appears to us, mistaken the law (as, for example, with reference to the Real Property Act, which we think not invalid on the ground on which he rests its invalidity, of the Governor's assent being contrary to the Royal instructions), yet in some other respects 1 Acta he has been right, and the fault has been with the Governor, in not "reserving for the Royal Assent which were expressly required by Statute to be so reserved. Moreover, the "Houses of Parliament" in the addresses by which Her Majesty is prayed to remove the judge were not in strictness when they so addressed the Crown a lawful Parliament, although they either have been, or shortly will be, legalised as from the beginning; and under these circumstances we think that the Crown would not be well advised to accede to the addresses.

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We see no objection to a separate address to this effect being presented by each House, or to the absence on the face of such address of a statement of specific charges, provided that the Crown is by any means satisfied of the reasons on which the address is founded. We think that the Crown is invested always with a discretion as to compliance or non-compliance with such an address, but we entertain no doubt that the Crown might properly remove a judge, on the address of both Houses, if satisfied that, owing to his perversity or habitual disregard of judicial propriety, the administra- tion of justice might be practically obstructed by his continuance in his office. No appeal to the Privy Council or any other court or tribunal would lie against such a removal of a judge by the Crown.

No instance of the removal of an English judge by the Crown on the address of both Houses of Parliament has occurred since the passing of the 5 Geo. 3, c. 23.

We have, &c. (Signed) WM. ATHERTON.

ROUNDELL PALMER.

His Grace the Duke of Newcastle, K.G.

&c.

&c.

&c.