HC Deb 28 June 1907 vol 177 cc242-7

Order for Second Reading read.

Motion made and Question proposed, "That the Bill be now read a second time."—(Mr. Churchill.)


said this Bill, though no doubt a very good one, was extremely complicated, and it was almost impossible for any layman to understand it. The Memorandum said— The object of this Bill is to simplify and make uniform the provisions of regulating the reservation of Bills passed by the Legislatures of New South Wales, Victoria, Queensland, South Australia, Western Australia, and Tasmania. That conveyed very little to the mind of the ordinary Member. He gathered from the first clause that, except in regard to certain Bills, the assent of the Crown was to be abolished. The clause provided that— ''There shall be reserved for the signification of His Majesty's pleasure thereon, every Bill passed by the Legislature of any State forming part of the Commonwealth of Australia which (a) alters the constitution of the Legislature of the State, or of either House thereof; or (b) affects the salary of the Governor of the State; or (c) is, under any Act of the Legislature of the State passed after the passing of this Act, or under any provision contained in the Bill itself, required to be reserved. He could not understand what was meant by sub-section (c). He understood that the sub-section had been put in by the desire of the Commonwealth of Australia. If a Bill contained a provision requiring that it should be reserved for the assent of the Crown, he did not see why the Commonwealth should wish to have sub-section (c) in this Bill. Apparently if the provision which he had quoted had any meaning at all, it was that we were going to pass a measure which reserved to the Crown the right to over-ride that Bill, and, therefore, that rendered the Bill totally unnecessary. There were other clauses in the Bill which to him were perfectly incomprehensible, and he hoped that the right hon. Gentle-man would explain them when he came to reply. He and his friends had no wish to oppose the passage of the Bill if it was to do any good, but they did not want to pass a Bill which practically over-rid itself.


said that the Bill was introduced to simplify and regulate the procedure with regard to the reservation of Bills passed by the different States of the Australian Commonwealth. The Australian Constitution Act, 1842, which was applied to New South Wales, reserved to the control of the Crown all Bills which affected electoral institutions, the Constitution of the Colony, or the salary of the Governor. In 1850, an Act was passed which applied to the legislative councils of Victoria, Van Dieman's Land, now called Tasmania, South Australia, and Western Australia the provisions of the Act of 1842. The Act of 1850, further provided that Bills altering the law concerning the election of members to the councils were to be specifically reserved, and under that Act all the five Colonies affected had passed local Constitution Acts, three of which had been confirmed by the Imperial Government and two had not been confirmed, though they were still in force. There was one other layer of legislative difficulty and confusion. In 1859, an Order in Council extended a Constitution to Queensland and applied to Queensland the Acts of 1842 and 1850 in regard to reserved Bills. The Crown, of course, always had the right to signify that any Bill should be reserved for the assent of His Majesty; but in practice a g eat many measures were not reserved, and the Governor was authorised by legislation not to reserve certain Bills. This Bill codified what Bills the Governor was to reserve and what he was not to reserve, and a discrimination was made between measures which fundamentally altered the Constitution of the States or affected the salary of the Governor and those which dealt with electoral matters. If Bills dealt with merely electoral matters they need not be reserved, but if they altered the Constitution or affected the salary of the Governor they must be reserved. The existing state of the law was most confused, and questions arose repeatedly as to the validity of certain Acts passed. The law officers of the Crown in different Administrations had taken the view that although Bills dealt with purely elective matters they must be reserved, while the Colonial law officers, especially those of New South Wales and Victoria, had taken the other view very strongly. By this measure they settled the dispute once for all. They also by Clause 2 of the Bill removed all doubt as to the validity of any previous legislation. He need scarcely say this measure would never have been presented if it did not carry with it the assent of all the Colonies. The provisions were the regular accepted principles of our colonial system, and the whole of the Australian States earnestly desired that the Bill might be passed with reasonable and convenient speed.


said that this Bill, while not very plain on the face of it, was really intended to clear up points of difficulty which had arisen, and which often arose when gentlemen of the legal profession were called upon to deal with the same question. It appeared to be the case that the law officers of the Crown here took a different view from the legal advisers of some of the Colonial Governors on constitutional points at issue. He was sure that it was the unanimous wish that this House, while reserving to itself the power to examine closely the measures submitted to it, should not stand in the way of the passage of a Bill which had been shown to be needed. The speech of the right hon. Gentleman had thrown some light on the necessity for producing this Bill, but there were some questions connected with it on which the right hon. Gentleman had not touched. One of these was contained in Section 2, which stated, as he understood, that it was intended to give validity to Bills which had been passed by the Colonial Legislatures and as to which there was a doubt as to whether they ought or ought not to have been reserved for the consideration of His Majesty. That seemed to him to open up a rather wide question, viz., whether a Bill which ought to have been reserved for the sanction of His Majesty, and was not so reserved, had in reality the force of law in the Colonies. It therefore seemed to him that the passing of this measure became a matter of most urgent necessity. They had it on the authority of the Attorney-General that there were actually in force in Australia measures which ought not to have the full validity of Acts of Parliament.


said that it was just that confusion and doubt which the Bill was designed to deal with.


said that in that case the passing of the Bill was more urgent than they had been led to suppose at first. Might he ask how many of these Acts of the Australian Parliaments were in actual operation at the present time as to which the doubt of their validity applied? Was it only a question of one or two here and there? He could hardly understand how it had been possible for this state of things to arise. How had it happened that Bills which ought to have been reserved for the signification of His Majesty's pleasure were not so reserved? He hoped the right hon. Gentleman would be able to give the House rather fuller particulars on that point; and possibly the Attorney-General might make a useful contribution to the debate.


said that this was a matter which ought to have been dealt with by the late Government, and it brooked no delay. He knew that all the Governments in the Australian States were anxious that the Bill should become law. There was only one matter open to question, and that was the clause reserving Bills which dealt with the salaries of the Governors of the States. For his part he thought that the different States had a perfect right to decide what the salaries of their Governors should be, including all the allowances attaching to them. Ho was certain that the States would never do anything in that regard with which anyone in this country would find fault. It would be far more dignified to trust completely the States on that matter, and he thought that that clause in the Bill should be dropped.


said that having had some experience in Australia he wished to support the Bill; he knew that all the Australian Governments were agreed that the measure was a good one and should be passed. It would put an end to doubts which had arisen, and were prejudicial to all the Colonies, and the sooner those doubts were got rid of the better. This was more the case, when they remembered what good work the Australians did for us in the South African War.


said he could not understand why successive Govern- ments had neglected this matter hitherto; and it was high time that a remedy was provided. Subsection (b) provided that " it shall not be necessary to reserve a Bill for a temporary law which the Governor expressly declared necesary to be assented to forthwith by reason of some public and pressing emergency." He believed that that subsection was a proper one, but it should be made sufficiently definite. Was there such a thing in the English constitution as a temporary law? Doubts might arise as to what was a public and pressing emergency.

VISCOUNT HELMSLEY (Yorkshire, N.R., Thirsk)

asked whether or not the discretion of the Governor was to be entirely taken away by the Bill, or whether the Governor could reserve one or other of the measures specified if he thought it advisable to do so.


replying by the leave of the House, stated that the Bill was drafted in the form in which it was agreed to by all the Australian States. The hon. Member for Clare had referred to the provision concerning the salary of the Governor, and it had, he confessed, occurred to him that it did seem a little queer when it appeared in black and white. It looked as if we were nervous that the Colonies would not make proper provision for their Governors. But as the drafting of the Bill had been assented to by the whole of the Australian States, he thought it was better to adhere to the groundwork and plan of the measure although perhaps it was based upon an old-fashioned system. In the past, differences which arose on legal points could only be resolved in the Courts, and great inconvenience might arise when statutes were tested in the High Court. Fortunately, nothing of the kind had arisen, because it had been the practice from time to time to pass through the British Parliament Bills to validate legislation about which there was a doubt. In 1892 they had an Act passed to confirm certain Acts of the Colonial legislature, and in 1901 the right hon. Gentleman the Member for West Birmingham carried through a similar Act in regard to Queensland and Western Australia. The Government thought it was much better to clear up these matters once for all, and this Bill would prevent in future an accumulation of Bills of a doubtful type,

MR. RAWLINSON (Cambridge University)

inquired whether this Bill would in any way interfere with the discretion of the Governor of the Colony to reserve Bills, and whether the retrospective legislation which appeared in Clause 2 would validate more than the Bills contained in the Schedule. If any other course was intended, he would like to know to what other Bills this measure would apply. If it did not apply to other Bills its meaning should be made more clear.


said the clause was general in its character. The Governor would be bound by his instructions as to what Bills he should reserve. He would also be bound by the law, and this Bill would be the law in future. He might also be bound by any special instruction from His Majesty through the Secretary of State.

Question put, and agreed to.

Bill read a second time, and committed to a Committee of the Whole House for Monday next.