CO885-(10-11) — Page 491

322.

No. 380.

(VICTORIA.)

SIR,

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, January 10, 1866.

We are honoured with your commands, signified in Sir Frederic Rogers' letter

of the 8th of January instant, stating that he was directed by you, Sir, to enclose the copy of a Despatch from the Governor of Victoria, with its enclosures (in original), and to request that we would favour you with our opinion on certain questions which

are raised.

Sir Frederic Rogers was pleased to add that under the Act 22 Geo. III. c. 75. the Governor and Council of any Colony may remove judges for unauthorised absence or for misbehaviour, subject to an appeal to Her Majesty in Council.

That the 5th section of the Act of the Legislature of Victoria, 15 Vict., No. 10 (of which a copy was annexed), empowered the Lieutenant-Governor and Executive Council to suspend judges for the same cause until the pleasure of Her Majesty should be known.

That, lastly, the Victoria Constitution Act (which forms Schedule I. to the Imperial Act, 18 & 19 Vict. c. 55.) provided by section 38 that the judges who had up to that time held during pleasure should hold during good behaviour, but should be removable by the Governor on the address of both Houses of the Legislature.

That in the petition which forms the first enclosure to the Governor's Despatch the judges of Victoria contend that the 38th section of the Constitution Act, which alters their tenure of office, repeals, as far as they are concerned, the Imperial Act of 22 Geo. III. and the 5th section of the Local Act of 15 Vict., and thus leaves them at liberty to absent themselves from the Colony, and otherwise to determine their own duties, subject, for anything that appears to the contrary, to no other liability than that of removal by the Governor on address of the two Houses of the Legislature.

That the Colonial Government, on the contrary, contend that the Governor in Council retains the power of amotion under the Act of 22 Geo. III. and of suspension under the local Act of 15 Vict.

That the judges request that the question may be referred for decision to the Judicial Committee of Privy Council under 3 & 4 Will. IV. c. 41. 8. 4.

Sir Frederic Rogers was also pleased to state that, under these circumstances, he

was directed to request our opinion on the following questions

1. Whether, notwithstanding the passing of the Constitution Act (18 & 19 Vict.

c. 55.), the Governor and Council can still "amove" judges under 22 Geo. III. o. 75.;

and

2. Whether they can still suspend judges under the local Act, 15 Vict., No. 10, s. 5;

3. Whether these questions could properly be referred to the Judicial Committee of Privy Council under the 4th section of the Act 3 & 4 Will. IV. c. 41. a. 4.

Sir Frederic Rogers was further pleased to add that you, Sir, desired him to state that it was in your opinion by no means undesirable that important constitutional questions should be habitually referred by Colonial Governments or Legislatures for the judgment of the Judicial Committee, and also that you desired him to enclose the copy of an opinion of the Attorney General and Sir William Atherton of the 20th of November 1862,* respecting the power of the Governor of Queensland to suspend or remove a judge; and

Sir Frederic was further pleased to add that you would be glad to receive an early answer to this reference, as you would desire, after communication with the Council Office, to return an answer to Governor Darling's Despatch by the mail of the 26th.

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

Report

1. That we think the opinion given by the Law Officers of the Crown on the 20th November 1862 was correct, and that, notwithstanding the passing of the Constitution Act (18 & 19 Vict. c. 55.), the Governor and Council can still "amove judges under the Imperial Statute 22 Ġeo. III. c. 75.

0 16378-458.

25.---5, 86.

• No. 145.

PUBLIC RECORD OFFICE

Reference :-

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

TPEPEC.O. 885 7-11 PUBLIC RECORD OFFICE, LONDON