The Pamphlet Collection of Sir Robert Stout: Personal Volume
26th November, 1885.
With reference to the Joint Address to Her Majesty lately agreed to by the Legislative Council and Legislative Assembly of this colony, submitting a case on which they desire to obtain the opinion of Her Majesty's Privy Council, I have the honour to offer the following observations for your Excellency's consideration.
2. Your Excellency will doubtless have observed that the questions submitted (and in particular the second question) are rather questions as to the constitutional rights and powers of the two Houses of the Legislature than technical questions as to the construction of the statute law. So far, at least, as the Legislative Assembly are concerned, I think I am right in saying that the literal interpretation of the words of the Constitution Act is regarded as a matter of small importance as compared with the larger question, Whether, on a true construction of the written and unwritten Constitution of the colony, the two Houses of the Legislature should be regarded as holding and discharging, relatively to one another, positions and functions analogous to those of the House of Lords and House of Commons.
For the assistance of Her Majesty's Government, and in compliance with a promise mode by myself to the Joint Committee by which the Joint Address was framed, I enclose copies of the official reports of the debates in both Houses on the question which gave rise to the Address, which will indicate the line of argument adopted by both Houses respectively.
4. I am not aware of any instance in which a similar case has been submitted for the opinion of the Privy Council. The only analogous case that I have been able to discover is that of the case submitted in 1872 by both Houses of the Legislature page 32 of New Zealand for the opinion of the Imperial Crown Law Officers. Some reluctance, however, existed in this colony to submit the matter, as one purely of law, for the opinion of the Law Officers. I am sure that very great satisfaction will be felt by both Houses of the Legislature if Her Majesty should think fit in this instance to refer the matter to the Privy Council, as prayed by the Joint Address. And I conceive also that such a reference would not involve any departure in principle from ancient theory and practice as to the functions of the Council, although those functions may not in recent times have been exercised under circumstances precisely analogous. But, even if the proposed reference is considered to be not supported by ancient theory or precedent, I venture to suggest that the establishment of such a precedent would not be disadvantageous.
5. In the event of the reference being made, I do not, of course, know whether it would be made to the Judicial Committee of the Council or in Borne other form, or whether, in either case, it would be thought advisable that the case should be argued by counsel. As to the desirableness or otherwise of its being so argued I have no suggestion to offer; but, if it is proposed, it would be a great convenience if information were given either to your Excellency, by telegraph, or to the Agent-General for Queensland in London, in order that the necessary arrangements may be made without delay for supporting the views of either House, if it should be thought desirable that they or either of them should be represented.
S. W. Griffith.His Excellency Sir Anthony Musgrave, G.C.M.G., &c.