CO885-(10-11) — Page 334

9105.

PUBLIC RECORD OFFICE

य

Reference :-

LTC.O.

·885

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

PUBLIC RECORD OFFICE, LONDON

SIR,

No. 275.

(SOUTH AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, September 28, 1864. We are honoured with your commands, signified in Mr. Elliot's letter of the Gov. 26 Dec. 26th of August ultimo, stating that he was directed by you to request that we would 1863, No. 79. take into our consideration the annexed papers respecting the judgment delivered by 1864, No. 4. the judges of the Supreme Court of South Australia, in the case of Auld v. Murray.

Gov. 26 Jan.

Gov.23 May,

Mr. Elliot was also pleased to state that we should observe that the opinions held by No. 29. one at least of the judges are such as to involve the administration of the law in great confusion, that the Government as well as the community are much alarmed for the consequences, and that the question arises whether and to what extent the Imperial legislation is proper and necessary for the removal of these real or imaginary difficulties.

Mr. Elliot was also pleased to enumerate, with such observations as might assist their consideration by us, the questions which appear to be raised by this judgment or in the

it. which accompany papers

1. Under what circumstances is a law passed in South Australia to be deemed invalid on account of its repugnancy to the law of England?

Presented

Mr. Elliot was further pleased to state that this question was explicitly treated of in Mr. Justice an opinion given by Sir William Atherton and Sir R. Palmer on the 12th of April Boothby. 1862, and printed in the annexed parliamentary papers, which exhibit in some degree by commianal the origin of the present dispute. But as that opinion is not binding on Colonial Aug. 1862. judges, he was to request our opinion whether or not (following the suggestion of Chief Justice Hausen) it would be advisable by Imperial legislation to extend to the Australian Colonies, or to all Colonics possessing responsible government, or to all Colonies whatever, the provision which, under the Act of Parliament, is now in force in Canada, to the effect that no Colonial law shall be deemed invalid unless it is repugnant to some Imperial Act, which by express enactment or by necessary intend- ment extends to the Colony in which such Colonial law is passed (3 & 4 Vict. c. 35. 6. 3).

2. That the next question is whether an Act which ought to have been reserved for the signification of Her Majesty's pleasure, but which, instead of being so reserved, is assented to by the Governor in Her Majesty's name is or is not valid?

That this question was treated of in the opinion given by Sir William Atherton and Sir R. Palmer on the 12th of April 1862. That it would seem to result from that opinion that if the reservation is prescribed by the Royal Instructions as they are at present worded the Act is valid, but invalid if the reservation is prescribed by Act of Parliament or a Colonial law.

But that it was for our consideration, first, whether any doubts on this head should be removed by Imperial legislation, and next, whether (following the suggestion of the Chief Justice) the subsequent assent of the Queen to any Act which had been wrong- fully assented to in Her Majesty's name by the Governor should have a retrospective operation, and render the Act good ab initio?

That there are objections to such an enactment. That the object of requiring the reservation of Bills for the signification of Her Majesty's pleasure is to enable the Home Government to judge of the propriety of certain classes of laws, uninfluenced by the circumstance that, being already in operation, they cannot be disallowed without inconvenience; but that it is evident that if the law is altered as proposed by the Chief Justice, the Queen's refusal to assent to an act which has been irregularly assented to by the Governor, will cause even more public inconvenience than an ordinary case of disallowance, inasmuch as a disallowance takes effect in general only from the date of its proclamation in the Colony; while the supposed refusal of the Royal Assent will disclose the invalidity of all that has been done between the passing of the Act in the Colony, and the public announcement of the informality in its passing. That the pressure, therefore, on Her Majesty's discretion will in such cases be rendered greater by the very circumstance which was intended to remove it.

⚫ No. 110.

-

ג

0 16278.—-633. 95.-2/86.