§ LORD JOHN RUSSELL moved for leave to bring in a Bill to enable Her Majesty to assent to a Bill, as amended, of the Legislature of Victoria, "to establish a constitution in and for the colony of Victoria."
§ MR. LOWE
said, he was very sorry to be obliged to trouble the House at that late hour with two or three observations, but the great importance of the question, and the novelty, as well as the very undesirable nature of the course about to be adopted, must be his excuse for doing so. The noble Lord gave notice of a Bill to enable Her Majesty to assent to an Act of the Legislative Council of Victoria as that Act had been amended. This was a very extraordinary Motion. He would say nothing now of the Bill, which could be discussed 380 when it was before the House, but the form in which they were about to legislate was extremely objectionable, and he was the more inclined to oppose it because he saw from a notice that had been given, what was intended to be adopted in the Council of New South Wales. In 1850 a Bill was passed, giving to the Legislative Councils of the Australian Colonies power to frame new constitutions for themselves. Under that statute the Legislative Council of Victoria had passed a Bill, the preamble of which recited that power had been given it to do so by the statute of 1850, but then the Bills passed by the Legislative Council overleaped and transcended the powers contained in the Act of 1850, presuming to repeal numerous Imperial statutes, and also to invest the Council with a great many powers which it did not now possess, and which nothing but an Act of Parliament could confer upon it, while it likewise in many respects altered the relation of the Legislative Council to the Imperial Legislature. This Bill the Legislative Council of Victoria had no more authority to pass than had any small knot of persons assembling together in a room in the colony and calling themselves a public meeting. The Legislative Council, however, took it upon itself to pass this Bill, reciting the limited powers given to it by Parliament; and then, being conscious that it had exceeded those powers, it sent home, together with this Act, a short Act, which it suggested that Parliament should pass, in order to legalise what it had done. Now, it would be most inconvenient, as well as not very creditable, for the British Parliament to accede to such a request, while it would also be most inexpedient as an example to the other colonies. Certain limited powers having been granted to the Legislative Council, it ought to have confined itself strictly within its authority; and whatever was wanted beyond those constitutional powers should take the form of a gift and concession from the Imperial Parliament to the colony, instead of the colony taking it in a shape that was illegal and void, and then sending its Act home, accompanied by another short Act, asking Parliament to confirm and ratify its irregularity. If this Motion had been for a Bill to assent to the Act of the Legislative Council of Victoria, the course pursued by the Government would have been sufficiently objectionable; but it was more objectionable still, because it was not merely a Bill to enable Her Majesty to grant Her 381 consent, but really a Bill to enable the Legislative Council to pass that which it had set up, though utterly void of law. The House was therefore asked, in fact, to give validity to a law which the Legislative Council had no authority to make, and which Her Majesty had no power to agree to. The matter, however, did not stop there. The Legislative Council of Victoria, having passed an Act which it had no power to pass, and then sent it home to be made valid, the noble Lord (Lord John Russell) did not approve of certain portions of this Colonial Act, and thought it not advisable to adopt them; and, therefore, he had amended the Colonial Act by striking out those objectionable portions of it and inserting others in their place; and then he asked Parliament to pass a Bill to enable Her Majesty to assent, not to the Act which the Colonial Legislature had adopted, but another one which the noble Lord had devised. An Act when thus altered was no longer the same measure, but must be regarded as an entirely new one, and therefore the Act now proposed to be legalised could not be considered as the Bill that was passed by the Legislative Council of Victoria, As the noble Lord had amended this Act, he presumed that the House of Commons could also amend it. If not, the simple effect would be to deprive the House of the power of amending an Act of its own, because the Act would be as much the Act of that House as if it had never passed the Legislature of Victoria, that Legislature never having had power to pass it. They were, therefore, involving themselves in a mass of inextricable confusion, difficulty, and anomaly, and they were placing the House of Commons in a situation in which it ought not to be placed—namely, in the situation of submitting to the dictation of a colonial assembly as to what laws it should pass. He objected, therefore, entirely to the course which the noble Lord proposed to pursue, but he would suggest two courses, either of which would be free from any objection in principle. The noble Lord might stand upon the Act of 1850, and say to the Legislative Council of Victoria, "You have exceeded your powers; you have done that which you had no right to do, and I therefore send back the Act, in order that you may amend it." But, as the case was one of emergency, the noble Lord might also introduce a Bill vesting in the Governor General of the Australian Colonies power to assent to the 382 Act so amended at once in the name of Her Majesty. That Bill might also be coupled with another making such concessions to the Colonial Legislature as the Legislature had assumed to itself without the authority of Parliament, and giving to it the land fund, and anything else which the noble Lord thought it ought to have. The other course would be to do in effect what we were now asked to do in substance—namely, to sweep away the machinery of enabling Her Majesty to assent to a Bill which the Colonial Legislature had never passed, and to legislate directly on the subject. If the noble Lord thought the House ought to make a constitution for the colony, let them do it, but let them have the question brought fairly before them, so that they might know what they were about. He protested against the plan of passing a Bill to enable Her Majesty to assent, not to a Bill that had been passed by the Legislature of Victoria, but to another and a different Bill which, even had it been passed by that Legislature, had been passed by it ultra vires.
§ LORD JOHN RUSSELL
said, he did not think that either of the courses proposed by the hon. Gentleman would be preferable to that which the Government desired to adopt. The hon. Gentleman was mistaken in supposing that it was proposed to insert in this Bill provisions which the Legislature of Victoria had not sanctioned, but the hon. Gentleman was quite correct in stating that the enactments of the Legislature of Victoria were ultra vires, that they interfered with certain Imperial Acts, and that they touched upon matters which were strictly within the province of Her Majesty and Parliament. He proposed, therefore, to take generally the Bill of the Legislature of Victoria as far as concerned its own constitution, but to omit certain proposals which would limit the power vested in the Crown of disallowing the Acts passed by the colonies. The Bill, therefore, although it would certainly not contain all that the Legislature of Victoria had proposed, would not contain anything to which it had not given its assent, and thus, in his opinion, would be within the powers given by Parliament to the Australian colonies to form constitutions for themselves. It must be recollected that both of these constitutions arrived in this country during the last recess. If they had been sent back they could not have arrived in time to give validity to these Bills in the course of this Session. The hon. 383 Gentleman said they would get into inextricable confusion, because a similar course would be pursued with regard to other colonies. With regard to New South Wales, it was quite true a similar course would be adopted; but the constitution proposed by the Legislative Council of New South Wales differed in some important respects from that proposed for Victoria. In Victoria, for instance, it was proposed that a Legislative Council should be elected, in New South Wales, that the Legislative Council should be nominated by the Crown. With regard to the Legislative Council, the Government thought it right that the wishes of the colony should be consulted; but when the Bill was passed with regard to Victoria and with regard to New South Wales he did not apprehend there would be any difficulty about the other colonies. With regard to Van Diemen's Land, they had already a constitution which was strictly within the powers given by the Act of 1850, and that constitution having been laid before the two Houses of Parliament, had already been confirmed and approved by Her Majesty in Council. With respect to South Australia, the constitution was agreed to, but the Council afterwards had several discussions and divisions, the result of which was a desire to indulge the Legislative Council in their wish to have it referred back to them; and, accordingly, the matter was referred back, with discretion to the Governor to propose to the colony, whether elective or nominative, a Council in such a form that he might be able to consent without further reference to Parliament. But he thought it inconvenient to send this proposal to Victoria and New South Wales to be re-discussed, when it appeared their mind upon the subject was not changed. He should be quite ready, in discussing these several Bills, to point out in what way he thought they ought to pass. As the hon. Gentleman said the schedules would be open to discussion, and if hon. members should think parts of those schedules ought to be omitted, it was in the power of Parliament to alter them, though, of course, it was a matter of discretion whether they would do so. With respect to general legislation upon this subject, he would only say that a great desire was expressed in Australia that the management of the waste lands, and the revenues arising from them, should be at the disposition of the Colonial Government. It was a matter upon which the 384 Australian colonies set great value, and it would be most convenient if a Bill for that purpose were carried into effect.
§ MR. G. BUTT
said, he thought the difficulties pointed out by the hon. Member for Kidderminster (Mr. Lowe) had not been answered by the noble lord. The passing of a Bill to enable Her Majesty to assent to a portion and not the whole of the Bill of the Colonial Legislature was a course which, in his opinion, was open to very grave doubt. As he understood the law, a Bill sent to that House from the colonies must be assented to in its entirety, and not partially. He understood a part of the Bill was not to be assented to, as it was a matter which the Colonial Legislature had no power to frame a Bill upon. He thought, therefore, the noble lord ought not to press the Bill without further consideration. When the Bill came from the Colonial Legislature it was an entire thing; and he did not think it was competent upon principle, or, if competent, he considered it would be extremely inconvenient, that the noble lord should introduce a Bill to enable the Crown to assent to the valid part of the Colonial Bill, and to reject the other.
§ MR. ADDERLEY
said, he was quite opposed to the introduction of the Bill, as it was not the Bill of the Colonial Legislature, but a new Bill altogether.
§ MR. J. BALL
said, the Bill which the noble lord was about to introduce did not alter any portion of the Bill which had been passed by the Colonial Legislature. It was simply proposed that certain portions of the Colonial Bill should be omitted.
§ Leave given. Bill ordered to be brought in by Lord JOHN RUSSELL and Mr. JOHN BALL.
§ Bill read 1°.
§ The House adjourned at half past One o'clock.