HC Deb 02 April 1935 vol 300 cc212-4

Motion made, and Question proposed, "That the Clause stand part of the Bill."

3.52 p.m.


We really must have some exposition of these important legal Clauses by a member of the Government. It need not take more than two or three minutes, but I ask for an exposition as concise and informing as possible. No time is lost by giving a reasonable explanation of what is intended in these Clauses.

The ATTORNEY-GENERAL (Sir Thomas Inskip)

We assume that the right hon. Gentleman, like the rest of the Committee, is able to read what is so plainly stated in the Clause. It deals simply with the power of the Governor-General to refer any question of law, on which he thinks it desirable to obtain the opinion of the Federal Court, to that court for a decision. There is an analogous power in a well-known section of the Privy Council Act.

3.53 p.m.


The Committee will observe that if a certain condition is fulfilled, the Governor-General may in his discretion refer a question to the Federal Court for consideration. The Clause goes on and the court may after such hearing as they think fit, report to the Governor-General thereon. If the condition is fulfilled, should not the court be under an obligation to make a report to the Governor-General? Should not the instruction be mandatory and not merely permissive?

3.54 p.m.


My hon. Friend is familiar enough with the forms of legislation to know that in certain circumstances "may" and "shall" are interchangeable expressions. He knows quite well that "may" in this position means "shall," having regard to the consideration that you cannot compel a court to answer a question, although, no doubt, they will regard is as their duty to answer it having regard to the powers that are conferred on them.

Lieut.-Commander AGNEW

It is clear that any action which the Governor-General takes he takes in his discretion. It is not clear in the condition at the opening of the Clause whether it appears to the Governor-General in his discretion or whether it appears to him as the constitutional head of the executive and therefore on the advice of his ministers.

3.55 p.m.


I do not think it matters in what capacity he has his attention called to a, question of law, whether his ministers draw his attention to the point, or whether it appears to him of his own motion.


The point is that, if it appears to him on his own motion, he can act?




Will the opinion of the court be binding in law, or will it be only an opinion? Will it actually have the force of law once the court has given an opinion, and will it be binding upon the Princes?


The binding effect of interpretations of the law by the Federal Court is dealt with by Clause 202.

Question put, and agreed to.