CO885-(10-11) — Page 227

PUBLIC

RECORD OFFICE

Reference :-

C.O.

PUBLIC RECORD OFFICE, LONDON

885

10

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

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3. Whether we concur with the Attorney General in considering that Imperial legislation is required to give validity to the electoral law of 1861 or to other Acts of the provincial Parliament which may have been passed in amendment of the Constitu tion Act, and if so, of what kind? and

4. Whether in such case it would be desirable to legislate at once or to await the result of the appeal to the Privy Council, which we would perceive from the Governor's Despatch is to be made respecting another Act of the Colonial Parliament No. 27 of 1862, as to the registration of deeds which is alleged to be liable to the same objection (among others) as that which is brought against the Electoral Act?

In obedience to your Grace's commands we have taken this matter into consideration and have the honour to

Report

That we understand that the second and third readings of the Electoral Act of 1861 did not receive "the concurrence of an absolute majority" of the members of the Council and of the Assembly respectively in terms of the 34th section of the Act No. 2, 1856. It appears to us at the same time that the Act of 1861 did "make an altera- tion of the "House of Assembly," and we are unable to adopt the construction put as it occurs in the Act by the provincial Attorney General on the word “alteration” No. 2, 1856.

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We also think that the validity of the Electoral Act of 1861 is open to question, and that its invalidity may be shown by proof of the fact of the absence of the prescribed majorities. This shows the great inconvenience of imposing such restrictions on the legislative action of provincial Assemblies as well as of the omission to observe in the passing of Acts conditions which, whether expedient or not, can so easily be fulfilled. The Legislature has obtained (at most) conditional power, and such power can only, in our opinion, be properly exercised on compliance with the conditions.

We think that the powers which the Governor and the Legislative Council of South Australia were authorised to vest in the Council and House of Representatives to be established by them under the Imperial Act (13 & 14 Vict. c. 59.) were such powers, and such only, as had theretofore been possessed by the Legislative Council, and we do not find it suggested that the Legislative Council had power to alter its own con- stitution. The Act No. 2, 1856, would therefore appear to be ultra vires in making any provision whatever for future Acts of the provincial assemblies to alter the Legis- lative Council and House of Assembly. If this is a correct view it is immaterial to consider the question (which we have discussed above) of the majorities on the second and third readings of the Electoral Act, 1861.

We are of opinion that legislation by the Imperial Parliament is required to give validity to the electoral law of 1861 and to other Acts of the provincial Parliament which may have been passed in amendment of the Constitution Aot. The tenor of an Imperial Act should be confirmatory of all Acts passed by the two Houses since their constitution, as from the date of such Acts respectively, and the legislative powers of the Assemblies for the future should be very clearly defined, and it would appear to us to be unadvisable to make the validity of Acts of particular descriptions dependent upon particular majorities, though it may be proper to provide that Bills of certain descriptions shall be preserved for signification of the Royal Assent.

We do not advise awaiting the result of the appeal to the Privy Council previous to applying to Parliament in the way we have suggested.

We have, &c.

(Signed)

WM. ATHERTON.

His Grace the Duke of Newcastle, K.G. &c. &c.

ROUNDELL PALMER.

&c.

4870.

No. 182.

(MONTSERRAT.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, May 16, 1863.

MY LORD DUKE,

WE are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 23rd April ultimo, stating that he was directed by your Grace

to transmit to us the accompanying copy of a Despatch, and of its enclosures, from Gov. 17, the Governor of the Leeward Islands; and to request our joint opinion on the follow- 23 March, ing question, on which conflicting opinions have been received from the Colonial Law 1863. Officers.

1862.

That by the 14th section of an Act passed by the Legislature of Montserrat in the Act 283, year 1862, "to amend the constitution of the Island of Montserrat" (of which a copy is annexed) it is provided "that the Governor shall preside at the meetings of the Legislative Assembly, and all questions which shall arise in the said Assembly shall "be decided by the majority of votes of such members as shall be present, and the "Governor shall have a casting vote whenever the votes shall be equal, and a "deliberative vote whenever the Legislative Assembly shall be in Committee. Pro- "vided always, that in the evont of the absence of the Governor the house shall elect "one of their number to act as chairman during such absence, such chairman shall preside over the deliberations of the house, and have a casting but not a deliberative "vote." "

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Sir Frederic Rogers was pleased to state that the question on which he was desired to ask our joint opinion was whether, under the section above quoted of the Consti- tutional Act, the Governor of Montserrat is entitled to preside at the meetings of the Legislative Assemby when the House is in Committee? And in such case whether he has a casting as well as a deliberative vote?

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

Report

That it appears to us that the Governor of Montserrat is entitled to preside at all meetings of the Legislative Assembly, including the meetings of such Assembly when "in Committee." The terms of the 14th section of the Act of 1862 are general. "The Governor shall preside at the meetings of the Legislative Assembly;" and these words appear to us to be equally applicable to meetings at which the House goes into Committee, and to meetings of a more ordinary character. reasons we think that in Committee the Governor is entitled not only to a deliberative vote, but also, in the case of equality of votes, to a casting vote.

For the like

The proceedings in the British Imperial Parliament afford little or no assistance, by way of analogy, in the determination of these questions; inasmuch as the Speaker is not in the position of the Lieutenant-Governor of a Colony as representative of the Crown, but is himself a member of the House, elected by the other members to preside over their deliberations according to Parliamentary usage; and, according to such usage, he is not by virtue of such election Chairman of Committees, but, when the House is in Committee, is in the same position in all respects as any other member. The difficulties suggested by the Attorney General of Antigua appear to us to furnish most an argumentum ab inconvenienti: and in putting that argument the Attorney General seems to assume that, in ordinary course, the same questions will be submitted, successively, to the whole House and to the House in Committee. But such is not the case; the House (speaking generally) deciding on the principle of measures, the Committee on the detailed provisions by which a principle which the House has affirmed is to be carried out. On the other hand, the construction adopted by the Attorney General of Antigua, it is manifest, would practically exclude the Governor from taking part in the deliberations of the Committee, as it would not be

at

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