CO885-(10-11) — Page 226

4796.

PUBLIC RECORD OFFICE

Reference :-

C.O.

885

10 PUBLIC RECORD OFFICE, LONDON

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

1

MY LORD DUKE,

No. 181.

(SOUTH AUSTRALIATM)

LAW OFFICERS to COLONIAL OFFICE.

Temple, May 13, 1863.

We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 6th March last, stating that he was directed by your Grace to transmit to

us the annexed copy of a Despatch and its enclosures from the Governor of South No. 74, 26 Dec. Australia, and to request that we would favour your Grace with our opinion on certain 1882. question which have arisen respecting the validity of the South Australian Electoral Act No. 20 of 1861.

Sir Frederic Rogers was also pleased to state that a copy of this Act (which was reserved by the Governor for the signification of Her Majesty's pleasure and received the Royal Assent) was enclosed.

Sir Frederic Rogers was further pleased to state that by the Imperial Statute 13 & 14 Vict. c. 59. it is enacted that it shall be lawful for the Governor and Legis- lative Council of South Australia to establish a Council and House of Representatives or other separate Legislative Houses, and to vest in such Legislative Houses the powers and functions of the Legislative Council for which the same may be substituted.

•

That under the powers conferred by the statute the Legislative Council of South Australia passed an Act (No. 2 of 1856) to establish a Parliament consisting of a Legislative Council and House of Assembly. The 34th section of this Act declares that the Parliament thus constituted shall have power" to repeal, alter, or vary any of

the provisions of this Act and to substitute others in lieu thereof, provided that it

* shall not be lawful to present to the Governor for Her Majesty's assent any Bill by which any alteration of the said Legislative Council or House of Assembly may be made unless the second and third reading of such Bill shall have been passed with the concurrence of an absolute majority of the whole of the members of the said Legislative Council and of the House of Assembly respectively."

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That the Electoral Act of 1861 is held by the Chief Justice, Sir J. Fisher, in his letter of the 15th of November (which forms an enclosure of the Governor's Despatch) to be an Act by which, as it alters the boundaries of electoral districts and the number of members returnable by them, an alteration in the House of Assembly is made, and he asserts that it was not assented to by the required majorities, and is consequently null and void.

That the provincial Attorney General, on the other hand, in his report (Enclosure 2 of the Governor's Despatch) gives his reasons for maintaining the validity of the Act. He holds that the proviso in the 34th clause of the Constitution Act merely applies to enactments which "ropeal, alter, or vary" that Act, which the Electorul Act of 1861 does not; that as the journals of the Legislature present no evidence of the insuffi- ciency of the majorities, courts of law must presume that all was "rite actum,” and will not hear any evidence to the contrary; that the Legislative Council had no power to bind a future Legislature by such a restriction as is imposed by the 34th clause of the Constitutional Act; and that at any rate the proviso of the 34th clause was con- trary to the statute 5 & 6 Vict. c. 76. s. 24, which by 13 & 14 Vict. c. 59. s. 12 was applied to the Legislative Council of South Australia, and declared that the decision of a majority of the members present, the quorum being not less than one third of the whole, should prevail.

Sir Frederic Rogers was desired to request that we would favour your Grace with our opinion on the following questions which have been raised in connexion with this dispute:

1. Whether the validity of the Electoral Act of 1861 is open to impeachment, and if not, on what grounds it is to be maintained?

2. Whether the power of altering the constitution of the South Australian Legis- lature conferred on the Legislative Council by the Imperial Statute 13 & 14 Vict. c. 59, is exhausted by passing of the Constitution Act of 1856, or whether that power is transferred with the other powers and functions of the Council to the Parliament then constituted?

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