CO885-(10-11) — Page 184

11421.

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

PUBLIC RECORD OFFICE, LONDON

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

No. 144.

(QUEENSLAND.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD DUKE,

Temple, November 19, 1862. We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 13th instant, stating that he was directed by your Grace to enclose for our consideration-

1. An extract from a petition addressed to your Grace by Mr. Lutwyche, judge of the Supreme Court in Queensland, against the confirmation of an Act recently passed in that Colony, in which he argues that the Act is invalid.

2. The copy of a report from the Colonial Attorney General on this part of Mr. Lutwyche's petition, and of a case on which the Government of Queensland desire to obtain our opinion.

And to request that we would furnish your Grace at our early convenience with our opinion upon the questions raised in that case.

In obedience to your Grace's commands we have taken these papers into consideration. and have the honour to

That-

Report

I. In our opinion the seats of the two members, Messrs. Sandeman and Fleming, did not become absolutely vacant in consequence of their non-attendance at the extra- ordinary session of the Queensland Parliament held in the month of January 1862. For although it appears to us that the short session held at that period was a "whole "session of the Legislature" within section 26 of the Colonial Act, ratified and con- firmed by the Imperial Statute 18 & 19 Vict. cap. 54., yet we think that mere absence of the members referred to during the entire session without personal laches, or default, did not amount, upon a reasonable construction of the enactment, to a "failure" to give attendance in the House. No such personal default is alleged, or seems to be probable.

II. We do not think that the provisions of the 22nd section of the above Act bear in any way upon the question of the vacancy of seats, but only upon the manner of supplying existing vacancies. The two matters are in themselves distinct, and par- ticular seats may be equally vacant whether steps shall or shall not be taken according to law to fill up the vacancies. Assuming the two seats in question to have been legally vacant, no doubt can arise as to the course to be pursued, either during session or out of session, to supply the vacancies.

III. We are of opinion that it is competent to the House of Assembly to take notice of the non-attendance of the members, although no written record of such non-atten- dance may have been made. The making and preserving of parliamentary records is extremely useful, and greatly for the benefit of all parliamentary assemblies, but to hold that nothing unless recorded could be noticed would be to make the Parliament a slave to regulations adopted for its own convenience.

IV. We have already advised that, in our opinion, upon the facts submitted to us the seats of the two members referred to were not vacant during the annual session which followed the short session held in January 1862. But even supposing that the seats of those members were vacated owing to their absence from the short session, still we are of opinion that no Acts or proceedings of the Parliament which was called together, and met for the despatch of business, on the 29th April last were invalid in consequence of the votes of those two members, and their presence in the House; and especially, we think their votes and presence immaterial on the question of the validity of such Acts It and proceedings in cases in which majorities were not created by their votes. appears to us, on principle, that the validity or invalidity of Acts of Parliamennot be made to depend upon the legal sufficiency or insufficiency of the title to sit and vote of particular members of the Assembly, such members being for the time accepted and received by the Parliament itself as members thereof. It would be dangerous in the last degree if the validity and force of Acts of Parliament could be made to depend upon the due constitution, in whole, or in any part or proportion, of

16278.-525.

95.-9/86.

1