CO885-(15-16) — Page 517

39242

PUBLIC

RECORD OFFICE

TLC.O.885

Reference :-

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

16 PUBLIC RECORD OFFICE, LONDON

No. 87.

(AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

[Reservation of Bills: Interpretation of section 58 of the Constitution of the Commonwealth of Australia.]

MY LORD,

Royal Courts of Justice,

November 6, 1907. WE were honoured with your Lordship's commands, signified to us in Mr. Just's letter of the 14th October last, stating that he was directed to request us to favour your Lordship with our opinion on the subject of the interpretation of Section 58 of the Constitution of the Commonwealth of Australia so far as it relates to the reservation of Bills.

That the question had arisen in connection with the proposed reservation of the Judiciary Bill, 1907.

That a copy of the correspondence which had passed on the subject was trans- mitted to us, but that Mr. Just was to explain that your Lordship would be glad if we would consider the matter generally and not with reference to this particular

case.

That under Section 58 of the Constitution, when a proposed law passed by both Houses of the Parliament was presented to the Governor-General for the King's assent, he shall declare according to his discretion but subject to the Constitution, that he assents or that he withholds assent, or that he reserves the law.

That this section differs in one material point from the corresponding pro- vision in the British North America Act, 1867, Section 55, and in the Con- stitution Acts of the other self-governing Colonies, in that no reference is made to the Governor-General receiving instructions as to the reservation from His Majesty through the Secretary of State.

That it appeared from the records in the Colonial Office that Mr. Chamberlain was advised that the omission of any reference to instructions in the Act made no difference with regard to the Governor-General's duty in case of reservation, as his discretion would always be subject to the instructions he might receive from His Majesty by whom he was appointed (cf., Section 2 of the Constitution).

That your Lordship, however, felt some doubt as to whether that view was correct, as it would be seen that the Act purports to leave the question to the discretion of the Governor-General, which would apparently refer to the personal discretion of the Governor-General, though the known wishes of the Secretary of State would no doubt be a matter which he ought to take into consideration in the exercise of his discretion.

That it would be seen that the Prime Minister of the Commonwealth urged a somewhat vague claim that the Governor-General should accept the advice of his Ministers as to the reservation of Bills.

That your Lordship was advised that no such claim appeared to have been asserted, at any rate in recent years in the case of any other Colony, and that the regular practice had been that the Governor should receive a report from a Minister (usually the Attorney-General or Minister of Justice) on each Bill and should then decide (in the absence of any Royal instruction on the particular point) on his own responsibility whether or not the Bill should be reserved.

That this was also the opinion expressed in Todd's Parliamentary Government, page 169.

That there did not appear to be anything in the Australian Constitution which differentiates this case from that of the other Colonies, at any rate where no ques- tion of Royal Instructions arose.

That the reference in Section 58, "subject to this Constitution," no doubt had reference to Section 74 of the Constitution which requires reservation of one specified class of Bills, and that it might possibly be confined in its scope to the specific circumstances alluded to in that section, though in this connection Section 62 should not be overlooked.

25 W 97 11/07 D&S ត 80341

2