CO885-(15-16) — Page 587

render the practice of signing such warrants in the strict sense illegal in South Australia?

(4) If the practice was not in the strict sense illegal would a Governor be liable to any proceedings, criminal or civil, who signed a warrant authorising expenditure of which Parliament later declined to approve?

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 (1) As regards money which can be appropriated by the Parliament of South Australia, the practice of signing warrants for expenditure for which no appropriation has been made by Parliament is contrary to the provi- sions of the written constitution. That practice is, in effect, an appropriation by the act of the Governor and his Ministers and, as such, derogates from the rights in regard to the appropriation of moneys conferred on the legislative body of the Colony by the Australian Constitution Act, 1850, followed by the Constitution Act, 1855-6, and the institution of Parliamentary Government.

(2) The practice is not a constitutional usage which has acquired the force of unwritten constitutional law in South Australia. The time during which it has been in existence is too short to give it validity as law, and even if it were longer it would be difficult to give such effect to a practice which contravenes the express provisions of the constitution.

In view of the preceding answers this question does not arise.

(4) If the practice is not illegal the Governor would not be liable to either civil

or criminal proceedings.

The Right Honourable

The Earl of Crewe, K.G.,

de..

&c..

&c.

We have, &c.,

W. S. ROBSON.

S. T. EVANS.

16772

MY LORD,

No. 132.

(UGANDA.)

LAW OFFICERS to COLONIAL OFFICE.

[Admiralty jurisdiction in the Uganda Protectorate.]

Royal Courts of Justice,

3rd June, 1910. We were honoured with your Lordship's commands signified in Mr. Fiddes's letter of the 25th April last, stating that he was directed by your Lordship to transmit to us, for our consideration, the accompanying papers on the subject of Admiralty jurisdic- tion in the Uganda Protectorate.

To Officer Administering the Govern- ment, Uganda, No. 285, 10 September.

Officer Administering the Government, Ugunda, No. 332, 7 December.

"Board of Trade, 6 April.

Berlin Act of 1885.

That Mr. Fiddes was to request us to be good enough to report:-

(1) Whether Article 16 (i) and (ii) of the Uganda Order in Council, 1902, legally conferred Admiralty jurisdiction upon the High Court of Uganda and, if

so, to what extent and within what limits?

(2) Whether we concurred in the opinion that Article 16 (3) and (4) of the Order in Council was ultra vires?

(3) Generally on the points raised in Judge Carter's Memorandum, enclosed in Mr. Boyle's despatch, No. 332, of the 7th of December last.

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

Report

(1) and (3). That the question is not free from doubt, but we think that, even if Article 16 (1) and (2) confers Admiralty jurisdiction upon the High Court of Uganda, such jurisdiction could not be exercised by that Court in respect of matters arising in the inland waters of the Protectorate.

The place over which Admiralty jurisdiction extends is described in the authorities as the high seas and the waters connected therewith so far as the tide cbbs and flows and where great ships generally go. Even if that description is too limited and Admiralty jurisdiction, as has been thought sometimes, extends to navigable waters where the tide does not flow, we do not think it can include waters to which access from the sea is not possible to ships. So far as we are aware, the Admiralty jurisdiction now possessed by the High Court in England has never been exercised in respect of matters occurring in inland waters having the characteristics of those in question, and we think, therefore, that an Act of Parliament is necessary in order to enable the High Court of Uganda to exercise over those waters jurisdiction analogous to that exercised by Courts of Admiralty in this country.

The extension of such jurisdiction to all parts of the inland waters in question involves treating those waters as if they were the high seas and, in the absence of the assent of other interested Powers, the exercise of such jurisdiction might lead to difficulties.

(2). We think that Article 16 (3) and (4) is ultra vires, for the reasons given in your Lordship's letter to the Officer Administering the Government of the Uganda Protectorate dated 11th September, 1909.

We have, &c.,

W. S. ROBSON.

The Right Honourable

The Earl of Crewe, K.G.,

&c.,

&c.,

&c.

(16722-2.) Wt. 103-396. 23, 7/10.. D & S.

RUFUS D. ISAACS.

PUBLIC RECORD OFFICE

Reference →

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

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