CO885-(15-16) — Page 520

PUBLIC RECORD OFFICE

Reference:

TILL.C.O.885

2

constituted in order to enable Australia to act as one body in matters of external interest, and that Your Lordship could see no reason for consulting the State Governments in any instance in which the Commonwealth Government was in a position on its own authority to make good any obligations which it undertook.

That there were on the other hand certain cases in which the Commonwealth had no legislative power. That His Majesty's Government, for instance, had recently entered into Conventions for the regulation of night labour of women and for the unification of the pharmacopoeial formulas for potent drugs, under both of which any Colony or Possession of His Majesty's Government could adhere separately to the Conventions. That the necessary steps to carry out the terms of these Conventions would, Your Lordship was advised, have to be taken by the State Governments and Parliaments, and that an adhesion on the part of the Commonwealth would involve it in obligations which, without the consent of the States, it could not perform.

That it would appear, therefore, that any adhesion to those Conventions would have to be based on the consent of the Government of the State, and should be made, in accordance with the report of our predecessors of the 11th March, 1902,* by His Majesty's Government on behalf of the Government of the Commonwealth and of the Government of the State concerned, and that the consent of both the Commonwealth and of the State Government would be requisite. That there still remained, however, the question whether all the States must adhere to such Conventions or whether one or more might adhere.

That Mr. Bertram Cox was accordingly to request us to take this matter into our consideration and to report

(1) Whether Treaties to which States of the Commonwealth of Australia had adhered before confederation were still binding on the Commonwealth in respect of the State concerned notwithstanding the confederation of the States?

(2) Whether in cases of treaties whose subject-matter fell within the legislative competence of the Commonwealth adhesion should be notified on behalf of the Commonwealth and on the advice of the Commonwealth Government without reference to the States; or, if not, in what other manner?

(3) Whether in cases of treaties whose subject-matter fell within the exclusive legislative competence of the States, adhesion should be notified on behalf of the Commonwealth Government and of the States and on the advice of both Govern- ments; or, if not, what procedure should be adopted?

(4) Whether it was possible for adhesion to be signified on behalf of one or more States only, in cases where all the States were not prepared to adhere?

We have taken the papers into our consideration and, in obedience to Your Lordship's commands, have the honour to

Report-

(1) That, in our opinion, treaties to which States of the Commonwealth adhered before confederation are still binding on the Commonwealth in respect of the State concerned.

(2) In cases of treaties whose subject-matter falls within the legislative com- petence of the Commonwealth, adhesion should be notified on behalf of the Common- wealth and on the advice of the Commonwealth Government without reference to the States.

(3) In cases of treaties whose subject-matter falls within the exclusive legis- lative competence of the States, adhesion should be notified on behalf of the Commonwealth Government on the advice of both Governments.

(4) Yes.

44227

No. 90.

(TRANSVAAL.)

LAW OFFICERS to COLONIAL OFFICE.

[Question whether having regard to the terms of Clause 39A of the Transvaal Constitution Letters Patent the Act No. 13 of 1907 (Game Preservation Amendment Act) should have been reserved.]

Royal Courts of Justice, MY LORD,

December 17, 1907. We were honoured with your Lordship's commands, signified to us in Mr. Just's letter of the 14th November last, stating that he was directed by your Lordship to transmit to us the accompanying copy of an Act (No. 13 of 1907) of the Legislature of the Transvaal, entitled “An Act to amend the Game Preserva- tion Ordinance, 1905," together with copies of the report of the Attorney-General of the Colony on the Act, of Ordinance No. 6 of 1905 which it amends, and of the Letters Patent, dated the 6th of December, 1906, providing for the constitution of Responsible Government in the Transvaal.

That it would be observed that under Section 5 of the Act, natives were subject to certain disabilities, which, however, were identical with the disabilities to which they were made liable by Section 10 of the amended Ordinance. That the Act did not contain a clause suspending its operation until the signification in the Colony of His Majesty's pleasure: and that the Deputy Governor had not, pre- viously to giving his assent, obtained His Majesty's instructions upon it through a Secretary of State.

That Mr. Just was to request us to be good enough to advise your Lordship whether, having regard to the terms of Clause XXXIX. (a) of the Constitution contained in the Letters Patent of the 6th of December, 1906, this Act ought to have been reserved for the signification of his Majesty's pleasure?

(2) If so, whether the Act was valid and had the force of law in the Colony? (3) If not, what action, if any, could be taken to validate it?

We have taken the matter into our consideration, and, in obedience to your Lordship's commands, have the honour to

Report-

That in our opinion, having regard to the terms of Clause XXXIX. (a) of the Constitution contained in the Letters Patent, there was no obligation on the Governor to reserve this Act for the signification of His Majesty's pleasure.

(2) and (3) These questions do not now arise.

The Right Honourable

The Earl of Elgin, K.G.,

&c..

&c..

&c.

We have, &c.,

JOHN L. WALTON.

W. S. ROBSON.

The Right Honourable

The Earl of Elgin, K.G.,

&c.,

&c..

&c.

We have, &c.,

JOHN L. WALTON. W. S. ROBSON.

No. 133 in Vol. VI.

25 Wt 97 1/08 D & B

5 30760

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