CO885-(10-11) — Page 149

PUBLIC RECORD OFFICE

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Reference:

C.O. 8

· 885

PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

provinces specifically as should appear to it expedient, the Legislature in each succeeding session being made the judge as to the particular emergency requiring the erection of a new province, and that power was to be used from time to time.

(Questions.)

1st. Could the Legislature by any act of its own deprive itself of such power, or erect a permanent machinery for creating new provinces without reference to itself?

That, further, the Act provided that new provinces might be constituted by the officer administering the government, acting under the authority of any such Act or Acts, intending thereby, as he conceived, to enable the Legislature to devolve upon the Governor for the time being ministerial functions as regarded the constitution of any new provinces, but not so as to pass away from themselves the legislative discretion of determining when and under what conditions such new provinces should be established.

2nd. Do not the words "acting under authority of any such Act or Acts” limit the Governor's functions to ministerial acts in pursuance of Acts to be from time to time passed for constituting new provinces ?

That the New Provinces Act had established a permanent self-acting machinery by which new provinces were to be practically constituted by the joint action of a certain proportion of the electors of districts in conjunction with the Governor without reference to the Legislature.

3rd. Was that in accordance with the Aot of the Imperial Parliament, which provided that new provinces should be constituted “by the General Assembly by any Act or Acts to be from time to time passed by them, or by the officer administering the govern- “ment acting under the authority of any such Act or Acts"?

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That Parliament having vested in the General Assembly, or the Governor acting under their authority, the power of constituting new provinces, has that power been duly executed by placing it practically in three fifths of the electors of a district, subject to certain fired conditions, the Governor's power being merely ministerial, the Act obliging him to give effect to such action of the electors?

That the provinces which had been created under the New Provinces Act had in fact been created only in obedience to and in performance of the ministerial functions so vested in the Governor, not in the exercise of any discretion on the part either of the Legislature or the Governor, and that a variety of incidental questions occurred.

That the New Provinces Act of the General Assembly made the superintendent eligible as a member of council. He understood the Law Officers of England to have given their opinion that that was not consistent with the 3rd, 9th, 10th, 11th, 12th, and 18th sections of the Constitution Act, the two offices of superintendent and member of a provincial council being incompatible.

4th. If so, would not that invalidate the constitution of the new provinces ? That the Law Officers were, he understood, of opinion that the powers given by the Constitution Amendment Act to repeal, alter, and suspend certain provisions of the Constitution Act could not be exercised inferentially by passing overriding Acts, but must be exercised directly and expressly. (See former case and the answer thereto.)

That the New Provinces Act exercises that power passim inferentially, and not directly and expressly.

5th. Did the new Act remedy that defect? That was an important question as affecting other Acts of the General Assembly.

That the effect of the 4th clause of the new Imperial Act was not clear. It enacted that the provisions of the Constitution and Constitution Amendment Acts, as altered by that Act, should apply to all provinces at any time existing in New Zealand in like manner and under the same conditions as the same apply to the provinces originally established by the first Constitution Act.

6th. Was the effect of that to make the provisions of the Constitution Act (altered by the 1st and 2nd sections of the new Act) applicable to all provinces in New Zealand, new as well as old, or did it validate the various departures from the Constitution Act made by the New Provinces Act, e.g., the Constitution Act provided that the superintendent of a province should be elected by the body of electors? That the New Provinces Act provided that as regards the new provinces the superintendent How was that discrepancy to be should be elected by the provincial council. reconciled?

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That the 18th clause of the Constitution Act (unalterable) gave to: the super- intendent and the provincial council the power to make and ordain “laws - and ordinanoes."

That the 28th clause (unalterable) provides that, "whenever any Bill shall have " been consented to by the superintendent as aforesaid, the superintendent shall “forthwith transmit to the Governor an authentic copy thereof.'

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That the 29th clause (unalterable) empowered the Governor within three months after any Bill should have been received by him after its original transmission as enjoined by the 28th olause (also unalterable) to disallow it.

That the 13th clause of the New Provinces Act enabled a Bill to be twice presented to and received by the Governor, and declared the limit of three months to commence from the date of the second receipt.

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""

That glause also declared in regard to any such Bill that it should be lawful for the Governor "to make such amendments therein as he may think needful and expedient and " to return such Bill with the amendments to the superintendent, whose duty it shall be " to transmit the Bill and amendments to the provincial council, and the consideration "of such amendments by such council shall take place in such convenient manner as ** the council shall think fit, and on ne Bill being again presented to the Governor, either * amended or not, it shall be lawful for the Governor, at any time within three months

after he shall have received the same, to signify his pleasure thereon? That in that clause no provision was made for the consideration of and concurrence in those amendments by the superintendent. That a new element was introduced, viz., the Governor, into the legislation of the provinces, but the Constitution Act (unalter- able in that respect) vested the legislative power in the superintendent and pro- vincial council. That it also appeared to override the power of the superintendent altogether, whose concurrence in the Governor's amendment was not made essential.

7. Was the 13th clause of the New Provinces Aot an infringement of the unalterable alauses quoted above of the Constitution Act? If so, how would that affect the validity of the New Provinces Act, and in particular, could the General Assembly make the Governor a direct party to the provincial legislation by enabling him to propose amendments to provincial Bills? Could they exclude, or have they in fact excluded, the superintendent from taking part in the consideration of amendments so proposed ? Could they extend the time within which the Governor's power of allowance or dis. allowance should be exercised. beyond three months from the first receipt of the Bills?

In obedience to your Grace's commands we have taken these papers into considera- tion, and have the honour to

Report

That in the case which was prepared by a Select Committee of the House of Repre sentatives of New Zealand, the attention of the Law Officers was particularly called to two points, namely, the power of the General Assembly with reference to constituting new provinces in New Zealand, and the number of the members of which the new provincial councils might consist. The report containing the Law Officers' answers to "has reference mainly to the same two points, and the questions contained in such “ case in framing the Bill which was prepared and laid before Parliament last session, and became law (24 & 25 Viot. c. 30.), it now appears to us that too exclusive a considera- tion has been given to the same subjects. The effect of the first two sections of the Imperial Act is to empower the General Assembly in future to constitute new pro vinces and to determine the number of the members of provincial connoils. The 3rd section gives to the New Provinces Act of the General Assembly, and to all matters done under it, not absolute force and validity, but "such" force and “validity". (and no more) "as" would have belonged to them "if" the Imperial Act had been already in force when the New Provinces Act was passed; and the 4th and last section applies to new provinces the provisions of the Constitution Act, 15 & 16 Viat. c. 72., and of the 20 & 21 Vict. c. 53,, as altered by the Act in question, in the same manner as they apply to the provinces originally constituted. It is further to be observed that the powers conferred on the General Assembly by the 69th section of the Constitution act the repeal of which by the Constitution Amendment Act appears to have been entirely overlooked in the framing of the New Provinces Act) were more extensive than those which were anew given by the Act of laat session, for whereas under the 69th section, the General Assembly had power not only to constitute new provinces and appoint the number of members of their provincial councils, and to alter boundaries, but also to "alter the provisions of this Act and any laws for the time being in force respecting

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0 16278.--610.