CO885-(10-11) — Page 803

4309.

PUBLIC RECORD OFFICE

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Reference :-

C.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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

MY LORD,

No. 638.

(VICTORIA.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, April 22, 1870.

We are honoured with your Lordship's commands, signified to us in Sir Frederic Rogers' letter of the 9th instant stating:

1st. That he was directed by your Lordship to request that we would favour your Lordship with our opinion upon the following case :-

2nd. That by the first section of the Colonial Acts for establishing a constitution in the Colony of Victoria, (which Act forms the first schedule of the Imperial Act

18 & 19 Vict. cap. 55.) power was given to the Colonial Legislature to make laws in and for that Colony "in all cases whatsoever."

3rd. That by the third section of the Imperial Act, the provisions of certain former Acts, as to the allowance and disallowance by Her Majesty of Bills passed by the Colonial Legislature are preserved.

4th. That by the second section of the Imperial Act 28 & 29 Vict. cap. 63., any Colonial Law which was repugnant to any Act of Parliament extending to the Colony should, to the extent of such repugnancy, be absolutely void and inoperative.

5th. That the first question, upon which our opinion was requested was, whether the first enactment enabled the Victoria Legislature to pass laws for the Colony repug- nant to Imperial Acts extending to the Colony?

6th. That in determining that question, one point for consideration appeared to be, whether the words in the first section of the scheduled Act were merely intended to declare that no local subjects whatever should be excluded from the sphere of Colonial Legislation, in which case the enactment would be harmless, or whether it was intended to declare that, within that sphere, the authority of the local legislation should be para- mount, in which case it would have an effect which could not have been intended in excluding the supreme authority of the Imperial Parliament.

7th. That supposing that the latter was the true construction, it was presumed that such a provision was beyond the power of the Colonial Legislature, and would under ordinary circumstances be simply void. But in the present case there was this peculiar feature that the Colonial Act was scheduled to an Imperial Act, and it might be said that the Imperial Act by adopting it had given the Colonial Act the force of an Im- perial Statute, and cured that invalidity.

8th. That upon that again, it might be observed that the Imperial Act, which was necessary to enable the Crown in assenting to amend the Bill, which had been sent over from Victoria, did not explicitly declare that the provisions of the scheduled Act should all be valid, but merely enabled Her Majesty to assent to them, and it by no means followed that that assent was intended to have any other than its usual effect as applied to a colonial reserved Bill, namely, that of bringing into operation all the provisions which the Colonial Legislature could pass.

9th. That should our answer upon that first question be in the affirmative, a further question remained whether the paramount power thus vested in the Victoria Legisla- ture had been restricted by the clause quoted from the more recent Imperial Act 28 & 29 Vict. cap. 63 ?

10th. That your Lordship would be glad to have our answer at our earliest con- venience as your Lordship desired to write out to Victoria on the subject by the mail of the 15th-22nd.

In obedience to your Lordships' commands, we have the honour to

Report

That, although from the somewhat intricate relations of the Colonial and Imperial Acts in this case it is quite possible to raise an argument upon the first question sub- mitted to us, yet on full consideration we are of opinion that the first enactment did not enable the Legislature of Victoria to pass laws for the Colony repugnant to Im- perial Acts extending to the Colony. The Colonial Legislature could not give itself

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