CO885-(15-16) — Page 598

PUBLIC RECORD OFFICE

Reference :-

TILLC.O.885

16 PUBLIC RECORD OFFICE, LONDON

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

We have taken the matter into our consideration, and, in obedience to the commands contained in Mr. Bertram Cox's letter, have the honour to

Report—

1. That in our opinion a local Ordinance of Ceylon, if given effect to by Order in Council under Section 12 of the Colonial Prisoners Removal Act, 1884, would be sufficient to provide for the removal of prisoners from Ceylon to the Andaman Islands.

2 and 3. These questions do not in terms arise. But we would point out that the procedure under the Colonial Prisoners Removal Act, 1884, necessitating as it does the commutation of the death sentence followed by an order of the Secretary of State made with the concurrence of the Governments both of India and Ceylon in the case of each prisoner, is somewhat cumbrous. A short Imperial Act amending the Colonial Prisoners Removal Act, 1869, so as to allow any Colony and the Government of India as well as any two Colonies to agree for the removal of prisoners, would therefore, in our opinion, be better adapted to the circumstances of the case, and the law of Ceylon should be so altered as to empower the Judge to pass, in his discretion, sentence of imprisonment or penal servitude for life for murder.

We have, &c.,

The Right Honourable

Lewis Harcourt, M.P.,

&c.,

&c.,

&c.

RUFUS D. ISAACS. JOHN SIMON.

6653

No. 136.

(SOUTH AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

[Question whether the Governor of an Australian State can appoint a Deputy- Governor with the powers contemplated in the 11th Clause of the Letters Patent of 29th October, 1900.]

Royal Courts of Justice,

27 February, 1911.

SIR,

WE were honoured with your commands signified in Mr. Just's letter of the 17th January last, stating that he was directed by you to request us to favour you with an expression of our views on the following subject:-

That a Bill had been passed by the House of Assembly and Legislative Council of the State of South Australia to provide for the exercise-by deputy of certain powers and authorities vested in the Governor. That the Bill had been reserved for the signification of His Majesty's pleasure, on instructions from the Secretary of State for the Colonies.

That you understood that the passing of the Bill was due to the view held by Sir Samuel Way, Chief Justice of the State and Lieutenant-Governor, that a deputy of the Governor, appointed in accordance with Clause 11 of the Letters Patent of October 29th, 1900, could not legally exercise any of the powers of the Governor except those prerogative powers which were delegated to the Governor by the Letters Patent only, and which did not rest upon statute.

That Mr. Just was to enclose a minute by the Chief Justice, dated November 1st, 1890, giving his views on the question. That, for example, it was understood that Sir Samuel Way considered that a Deputy-Governor could exercise the preroga- tive of mercy which was delegated by Clause 7 of the Letters Patent, but that he could not perform validly any of the acts the power to perform which was conferred upon the Governor by the Acts of the Parliament of South Australia. That Sir Samuel Way frequently acted as Deputy of the Governor, and that it was believed that when so acting he refrained, so far as might be, from doing any actions other than those which depend on the Letters Patent. That a Bill to remove doubts as to the powers to be exercised by the Deputy-Governor was introduced into the House of Assembly and passed in 1906, but that it was then rejected by the Legisla- tive Council on the ground, it appeared, that the matter was one affecting the prero- gative, and should not, therefore, be dealt with by a local Act.

That it might be added that the Bill then introduced was open, among other things, to the objection that it purported to confer upon the Deputy all the powers of the Governor, and not merely such powers as the Governor might depute to him as contemplated in the Letters Patent.

That the Bill now passed by both Houses was not open to that objection, as it expressly limits the powers to be enjoyed, by giving power to the Governor to limit the exercise of such powers by the Instrument by which he appoints the Deputy. That Sir Samuel Way had privately informed the Governor that he was of opinion that the Bill did not encroach upon the prerogative, and that it only removed all doubts as to the validity of the Deputy-Governor exercising statutory powers.

That Mr. Just was to explain that the practice of authorising the appointment of Deputies by a Governor was one of long standing in the Colonies; that it had been repeatedly acted upon; and that, so far as you were aware, not only had Deputy- Governors exercised the statutory powers of the Governor, but that such exercise had never been questioned in any Court or by any recognised authority on consti- tutional law, with the exception of Sir Samuel Way. That if His Majesty's Government were to bring this Act into operation by securing the assent of the Crown to it, it was certain that, however clearly it might be explained that His Majesty's Government did not share the doubts felt by Sir Samuel Way as to the power of the Deputy-Governor to exercise the functions which the Letters Patent purported to confer upon him, grave doubts would arise in the other States of the Commonwealth, in New Zealand, in Newfoundland, and generally throughout the Colonies, as to the power of Deputy-Governors who had been, or might be, appointed in the future under the Letters Patent.

(19163—2.) Wt. 103–396. 93, 311. D & S.