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PUBLIC RECORD OFFICE, LONDON

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3. That the third question is, whether an Act which is in part invalid on account of its repugnancy to English law, or of its non-reservation in pursuance of Royal instruc- tions or Act of Parliament, or of its containing provisions which under some local law could only be passed by certain majorities, which majorities were not in fact obtained, is, on that account, invalid in tofo, or whether it is only invalid as to the part to which the error applies; and whether doubts on this head ought to be removed by Act of Parliament?

That, as to repugnancy this question is disposed of by the Opinion of the 12th of April 1863, but not as to non-reservation or other formal irregularity.

4. That the 4th question arises in cases where it is provided by any Imperial or local enactment that particular changes of the law shall not be made oxcopt by certain specified majorities in one of both branches of the Legislature. That it is questioned whether the judges are at liberty to take notice of any such law without evidence that the conditions of its lawful enactment were duly observed; and, if not, what evidence they are bound or at liberty to require. That, in particular, it is doubted whother such a law can be taken notice of unless it shows on its face the observance of the requisite formalities.

Mr. Elliot was further pleased to state that on these questions you would be glad to receive our opinion; and also、

That part of a report of Sir W. Atherton and Sir R. Palmer, dated May 13th, 1803, approaches but does not decide them.

That the further questions which have arisen require to be prefaced by a short statement of the laws under which the South Australian constitution exists.

That under the Act 5 & 6 Vict. c. 61. s. 5, a nominee legislative council, consisting

of the Governor and seven other persons, was constituted in South Australia.

That the Act 13 & 14 Vict. c. 59. s. 7 authorises the above council to substitute for itself a legislative council composed partly of elective, and partly of nominee members, which mixed council was invested with a power to make laws for the

poace, welfare, and good government of the Colony, and to substitute for itself a legislature composed of two houses, and so vest in such double legislature its own powers and functions.

That the nominee council established under this Act of 5 & 6 Vict. proceeded, under the 7th section of the Act of 13 & 14 Vict., to pass an Ordinance (No. 1 of 1851) establishing a mixed council, which declared, by Act No. 2 of 1855-56, that the Legislature should after a period then defined consist of two chambers, that possession of property registered in a certain manner should confer the elective franchise (s. 6.). and that no alteration in the constitution of the Legislature should be made, except by reserved Bills, passed with an absolute majority of both branches of the Legislature (8. 34).

That the same council then passed a further Act, No. 10 of 1855–56, which repealed No. 1 of 1851.

That this latter Act, with others affecting the constitution of the Legislature, were supposed to be invalid, first, because it was considered that under the above provisions the South Australian Legislature of two chambers had not the power of altering its own constitution; and next, because, in some cases, the necessary> formalities had not been observed. That among them was an Act putting an end to the existing mode of registering property, and thus indirectly affecting the franchise which depended on that registration.

That to cure in part, at least, the inconveniences arising from this state of things an Imperial Act was passed, 26 & 27 Vict. c. 84., giving validity to laws theretofore enacted by the Colonial Legislature "with the object of " declaring or altering its own constitution.

That on this (5) the question has been raised by one of the judges whether the Imperial Statute is effectual for giving validity to the Colonial Registration Act, which is not passed "with the object of" altering the constitution of the Legislature, but has altered that constitution inadvertently.

That if this objection holds it would seem to be one which cannot be removed by the Colonial Legislature, as the Act 26 & 27 Vict. c. 84. only gives validity to Acts already passed without authorising the South Australian Legislature to amend its own constitution hereafter.

That it is for our consideration whether an Act is not required to establish the power of South Australia (and it may be added of Tasmania) to altor its own con- stitution, and to confirm Acts heretofore passed, which have altered the constitution inadvertently; we should observe that the Colonial Attorney General suggests that the abundant objections of the Supreme Court can only be silenced by an Act of Parliament

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giving absolute validity to all South Australian Acts which have up to this time received the assent of Her Majesty, or of the Governor in Her Majesty's behalf.

6. That the 6th question is as follows:-

That it has been said that the Ordinance 10 of 1856, passed by the mixed council, repealed the Ordinance 1 of 1851, by which that mixed council was constituted.

That Mr. Boothby, one of the puisne judges, holds that the Act 10 of 1856, by repealing the Ordinance No. 1 of 1851, which constituted the mixed council, annulled all laws passed by that council, and among the rest the Act No. 2 of 1855-56,

That consequently the Legislature established by the last-mentioned Act never really existed, and that all laws passed by it were equally invalid with those which were passed by the mixed council, and, according to Mr. Boothby, were extinguished with it.

That our opinion was requested whether Mr. Boothby's views in this respect are sound, and, if so, what legislation is necessary to obviate the disaster which it is

calculated to occasion.

Mr. Elliot was also pleased to enclose a copy of a Despatch connected with the 24 June questions treated in his letter, but received after it was written.

In obedience to your commands, we have taken these papers into our consideration, and have the honour to

Report

1. That we think it will be advisable, by Imperial legislation, to apply to the Australian Colonics provisions similar to those contained in 3 & 4 Vict. c. 35. s. 3. concerning the extent of the legislative powers of the Legislative Council and Assembly of Canaria, and we are further strongly inclined to think that the balance of reason and practical convenience is in favour of extending such provisions to all Her Majesty's Colonial possessions.

2. We think it may be expedient to declare, by Imperial legislation, that any general instructions which may have been, or may be given by Her Majesty to any of the Governors of Her Colonial possessions, to reserve any particular class or classes of Bills passed by the Colonial Legislatures for the signification of Her Majesty's pleasure theroon shall not have, or be deemed to have had, the effect of suspending or rendering void any assent which may have been, or may be, given by such Governors to any such Bills, in the name or on behalf of Her Majesty, without reserving the same for the signification of Her Majesty's pleasure thereon, unless it shall have been, or shall be required, by any Act of the Imperial Parliament, or of the Colonial Legislature in force for the time being, that such Bills should be so reserved; but we do not think it advisable to enact that if any such Bills required by law (ie., by Act of Parliament or local statute to be reserved) should have been assented to by the Governor without reservation, the subsequent assent thereto of Her Majesty should have a retrospective operation so as to make the Act good, ab initio. The reasons against such legislation (assuming it to be necessary or desirable in some cases to require by law that a Bill should be reserved) appear to us to preponderate over the arguments in its favour.

3. If an act which under some Act of Parliament or local statute ought to have been reserved for the signification of Her Majesty's pleasure. has not been reserved, or, if an Act containing provisions which could only be passed by certain majorities, has not been passed by such majorities, we think it is void in toto, and not merely as to those particular provisions, which may have rendered its reservation or its

passage by certain majorities necessary. The difference between these cases and the case of repugnancy is, that in the latter the subject matter of the invalid part of the legis- lation is wholly ultra vires, and so far as the Act dealt with matter which was intra wires, all necessary conditions for the due exercise of the legislative power have been Fulfilled. In the case now under consideration, the matter is wholly intra rires, but it is subject, as to certain parts of one legislative act to special conditions, without the observance of which the legislative power will not have been duly exercised. And we think that an Act, which might have been wholly valid if the proper forms had been, observed, cannot be bad in part for the non-observance of those forms, and at the same time good as to other provisions, as to which (if they had stood alone) legislation with different forms might have been competent.

4. When the power of legislation, with regard to a particular subject, is given, DOL to a simple majority, but to certain specified majorities in one or both branches of the Legislature, it is evident that such majorities are a conditio sine quâ non to its exercise, and consequently that the judges are not at liberty to treat any law ca that

1661. No. 32.