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The Pamphlet Collection of Sir Robert Stout: Personal Volume

Appendix No. 2

Appendix No. 2.

Government House, Auckland,

My Lord Duke,—

A question of privilege having arisen between the Legislative Council and the House of Representatives of New Zealand, the Legislative Council has requested time to transmit a case, embodying the facts of the question at issue, to your Grace, with a request that you would be pleased to obtain, for their future guidance, the opinion on this case of the Law Officers of the Crown in England.

2. In compliance with the address of the Legislative Council, I have now the honour to enclose the documents necessary to enable you to obtain for the Council the opinion of the Law Officers of the Crown, if you would be pleased to do so.

I have, &c.,

G. Grey.

His Grace the Duke of Newcastle, K.G.

Enclosure.

Case for the Opinion of the Law Officers of the Crown.

A question of privilege has arisen between the Legislative Council and House of Representatives of New Zealand, upon which the Legislative Coun- page 35 cil are anxious to obtain, for their guidance, the opinion of the Law Officers of the Crown in England.

They venture to ask for that opinion partly be cause the question arises upon the construction of an Act of the Imperial Legislature, and partly because the question depends upon analogy to the practice of other constitutional governments, and in particular of the Imperial Parliament.

The circumstances out of which the question arises occurred in the passing of the Native Lands Bill through the Colonial Legislature, and are as follow:—

A large extent of land in New Zealand, comprising many millions of acres, is still held by the aboriginal inhabitants, who have never surrendered their title to the Crown, and whose rights were guaranteed to them by the Treaty of Waitangi.

Hitherto the only mode in which such land has been acquired for purposes of colonization has been through the exercise of the Queen's right of preemption or exclusive purchase. Land so acquired is subject to the disposal of the General Assembly of New Zealand under the 72nd section of the Constitution Act.

It has been determined to effect a change in this system; to abandon the Crown's right of preemption or exclusive purchase; to institute Courts for denning the rights of Natives to their lands according to their own customs; and to permit the Native proprietors to dispose of their land as of common right.

With this view a Bill was introduced into the General Assembly through the House of Representatives in the last session—a copy of which, as finally passed, is herewith.

The Bill as passed by the House of Representatives contained, instead of what is now clause 19, a clause to the following effect:—

Upon the signing and sealing of every certificate by the Governor, or the issue of every Crown grant in exchange for a certificate under the provisions of this Act, there shall be paid to Her Majesty the sum of two shillings and sixpence for every acre of land described in such certificate or grant; and such sum shall be deemed to be part of the land revenue of the province in which such lands are situate, and shall be paid over to the Treasury of such province, subject to the appropriation of the Provincial Council of such province.

page 36
The Legislative Council amended the Bill by adding to clause 17 the following proviso:—

But no certificate shall entitle any tribe, community, or person named therein to sell, exchange, or lease for a longer period than seven years, or dispose of any land or interest thereby affected, unless such certificate shall have been indorsed by the Governor and sealed with the Public Seal of the colony as aforesaid, and the amount payable on such indorsement and sealing be duly paid.

The Bill was returned to the House of Representatives so amended. The amendment was accepted by the House of Representatives, and a message to that effect was transmitted to the Legislative Council, without notifying any exception thereto. A resolution, however, was passed, at the same time, in the House of Representatives to the following effect:—

That the amendment of the 17th clause of "The Native Lands Act, 1862,"by the Legislative Council is an infringement of the privileges of this House, inasmuch as it assumes to "regulate"the imposition of a fee and the limits within which it is proposed to be levied, contrary to the provisions of the 128th Standing Order and the practice of the Imperial Parliament in such matters.

The Bill, thus amended, was transmitted to the Governor for the signification of Her Majesty's pleasure thereon.

The Governor, under the provisions of the 56th section of the Constitution Act, returned the Bill to the House of Representatives with a message proposing two amendments, a copy of which message is herewith.

The Governor's amendments were adopted by both Houses, and in that shape the Bill finally passed, and now stands.

The question submitted for consideration is, Whether the Legislative Council was warranted in amending the Bill as they did, or whether their amendment was, as the House of Representatives insists, a breach of the privileges of that House?

The general rule practically acted on by the two Chambers as regards money Bills and money clauses is understood to be analogous to that which governs the two Chambers of the Imperial Legislature, mutatis mutandis.

The following Standing Orders have been specially agreed to by both Houses:—
That, with respect to any Bill brought to this House from the Legislative Council, or returned by the Legislative Council oil to this House with amendments, whereby any pecuniary page 37 penalty, forfeiture, or fee shall be authorized, imposed, appropriated, regulated, varied, or extinguished, this House will not insist on its undoubted privilege in the following cases:—
(1.)When the subject of such pecuniary penalty or forfeiture is to secure the execution of the Act, or the punishment or prevention of offences.
(2.)Where such fees are imposed in respect of benefit taken or service rendered under this Act, and in order to the execution of the Act, and are not made payable into the Treasury or Exchequer, or in aid of the public revenue, and do not form the ground of public accounting by the parties receiving the same, either in respect of deficit or surplus.
(3.)When such Bill shall be a private Bill for a local or personal Act.

Also, that provisions for giving full effect to the object of such Bills, but which might infringe upon the privileges of the House, ought, if printed in italics, to be treated by the House as forming no part of the Bill, and ought not, if adopted in Committee of Supply, to necessitate the return of such Bill to the Legislative Council as though amendments had been made.

The Legislative Council appointed a Select Committee to consider the question of privilege. The report of the Committee is as follows:—

Report of the Select Committee appointed to consider and report as to the question whether the amendments introduced into the Native Lands Bill by the Legislative Council be a breach of the privileges of the House of Representatives, and, if the Committee shall think lit to do so, then to prepare a ease to be submitted for the opinion of the Law Officers of the Crown in England, as a guide to the Council in its future dealings with like questions.

Your Committee have considered the question referred to them. At this late period of the session they can do little more than state their opinion that the question involved is one of the greatest importance as affecting the legislative functions of this Council, particularly as the House of Representatives has passed a resolution on the subject which, if acted on, will bring the two branches of the Legislature into collision.

In the opinion of your Committee the Council has not exceeded its privileges in this matter.

As a guide to the Council in future upon a question of so great importance, your Committee recommend that a case be prepared to be submitted to the Law Officers of the Crown in England, by and under the direction of the Chairman, the case to embody the following material points:—

A copy of the Native Land Bill, in its original and amended state, the Governor's amendments, and the reports of such of the debates as may elucidate the points at issue should accompany the case.

The question to be stated is this: Whether, the House of Representatives having, in a Bill, imposed on a Crown grant, or an instrument in the nature of a Crown grant, a certain tax or duty, it is competent to the Legislative Council to introduce an enactment to the effect that no transaction page 38 shall take place under another class of instruments affecting Native lands until such instruments have been practically transmuted into or changed for Crown grants, so, in effect, rendering the latter class of instruments liable to such tax or duty.

Heney Sewell.

Committee Room,

In the course of debate two arguments were urged which appeared to have great weight with the Council, one, that, if the present claim of the House of Representatives be admitted, the Legislative Council will be practically excluded from legislating on one of the most important questions, viz., the price of waste land, or, what is virtually the same thing, the taxation on alienation; the other, that, if the House of Representatives could, by imposing a tax or duty on a particular kind of legal instrument, exclude the Legislative Council from all consideration of questions connected with the subject-matter of such instruments, the field of legislation over which the power of the Legislative Council would extend would be greatly and most injuriously narrowed. It would, in effect, be the same as if, a stamp duty being imposed on deeds in England, the House of Peers were thereby precluded from considering whether certain transactions should or should not be effected by deed.

The question of taxation, as the Council insists, is, in this case, merely incidental to a general question of policy, upon which the Legislative Council is unquestionably entitled to legislate and make amendments in Bills. It cannot, it is conceived, be debarred from doing so by the mere circumstance of a question of taxation being incidentally involved.

The report of the debate in the Legislative Council accompanies the case.

Henry Sewell,

Chairman of Committee.

Copy of Despatch from His Grace the Duke of Newcastle, K.G., to Governor Sir George Grey, K.C.B.

Sir,—

Downing Street,

I have to acknowledge the receipt of your Despatch, No. 134, of the 31st December, forwarding, in conformity with a request to that effect which was made to you by the Legislative Council, a case embodying the facts relating to a question of privilege page 39 which had arisen between the two Houses, upon which the Legislative Council were desirous that the opinion of the Law Officers of the Crown should be obtained for their future guidance.

The House of Representatives are not parties to this application; but, as I have no reason to suppose that they object to it, and as I infer from your despatch that the reference is in conformity with your wishes and of those of your Responsible Advisers, I caused the case, with the documents which accompanied it, to be forwarded to the Law Officers of the Crown; and I now enclose for your information a copy of the report which they furnished upon the subject.

I have, &c.,

Newcastle.

Governor Sir George Grey, K.C.B.

Enclosure.

The Law Officers to the Duke of Newcastle.

My Lord Duke,—

Temple,
We are honoured with your Grace's command, signified in Sir Frederic Rogers's letter of the 28th March ultimo, stating that, in compliance with an application forwarded by the Governor of New Zealand from the Legislative Council of that colony, your Grace directed him to request that we would favour you with our opinion on a question of privilege which had recently been raised in Now Zealand, and which is stated in the following terms, in the report of the Committee of the Legislative Council:—

Whether, the House of Representatives having, in a Bill, imposed on a Crown grant, or an instrument in the nature of a Crown grant, a certain tax or duty, it is competent to the Legislative Council to introduce an enactment to the effect that no transaction shall take place under another class of instruments affecting Native lands until such instruments have been practically transmuted into or changed for Crown grants, so, in effect, rendering the latter class of instruments liable to such tax or duty.

Sir Frederic Rogers was also pleased to annex the case which was received from the colony, and the papers which accompanied it.

The Standing Orders quoted in the case were passed under authority of the 52nd clause of the New Zealand Government Act 15 and 16 Vict., cap. 72.

page 40

Sir Frederic Rogers was further pleased to state that we would not fail to observe that the case was drawn on the part of the Legislative Council, and that the House of Representatives was not a party to the reference; but we would find among the papers a Ministerial memorandum in an opposite sense, from which it might be inferred that the question was fairly stated.

In obedience to your Grace's commands, we have taken this matter into consideration, and have the honour to report,—

That we are of opinion that, if, in a Bill introduced in the House of Representatives, and passed through that House, a certain tax or duty has been imposed upon a Crown grant, or an instrument in the nature of a Crown grant, it is competent to the Legislative Council, without any breach of the privileges of the House of Representatives, to make the efficacy for any given purpose of another class of instruments intended to affect Native lands under the provisions of the same Bill dependent upon their assuming the form of Crown grants or of those instruments in the nature of Crown grants on which the tax or duty has been so imposed by the House of Representatives.

It is, we think, a fallacy to represent this as a case in which the Legislative Council takes upon itself to impose any tax or duty. It merely provides that a particular kind of instrument shall be necessary to produce a particular effect. It has a right to decide for itself upon the form and character of the instrument which shall be sufficient for that purpose, and it cannot be deprived of that right merely because the form of instrument which it prefers is one on which a duty may have been already imposed by law, or will be imposed if the Bill should pass—the imposition of the duty on that form of instrument being the act, not of the Legislative Council, but of the House of Representatives.

We do not agree with the argument that the 2s. 6d. per acre was not in its nature a tax or duty. But the other argument urged on the part of the Legislative Council, that the House of Representatives cannot, by imposing a tax or duty on a particular kind of legal instrument, exclude the Legislative Council from the power of originating or amending Bills relating to such instruments, seems page 41 to us to be well founded; and we see no answer to the suggestion that the privilege contended for by the House of Representatives would, in effect, be the same as if, a stamp duty "being imposed upon deeds in England, the House of Peers were thereby precluded from considering whether certain transactions should or should not be effected by deed."It has never been supposed in England that the privilege of the House of Commons as to originating taxation is attended with such consequences as this.

We have, &c.,

W. Atherton.

Roundell Palmer.

His Grace the Duke of Newcastle, K.G.

Enclosure 2.

Memorandum for His Excellency the Governor.

Auckland,

In transmitting the accompanying resolutions of the Legislative Council to His Excellency the Governor, Ministers desire to append thereto the following remarks by the Colonial Secretary and Native Minister.

Alfred Domett.

The difference of opinion as to the breach of privilege complained of by the House of Representatives evidently arises from the ambiguous mode of legislation adopted in the clause of the Native Land Bill inserted by the Legislative Council. A price fixed, virtually, for the sale of land, was imposed in the shape of a fee upon the instrument conveying the land. Considered in the latter light (as a fee, to be imposed not in respect of benefit taken, to be paid into the Public Treasury, and to be publicly accounted for) the imposition of the half-crown per acre on the certificate was evidently a breach of privilege by the Legislative Council.

Considered as a fixed uniform price of land, settled in a kind of commercial transaction between the Government or the Crown and the public as voluntary purchasers, the Legislative Council had an undoubted right to impose it.

The principle on which the exclusive right of the House of Representatives to deal with money is founded is, of course, that of the right (by some called sacred) of property. No man is to take that which belongs to another. Money taken in the page 42 shape of taxes, fees, &c., for Government purposes is to be taken only by the representatives of the people, that is, by themselves from themselves, or, in other words, it is considered not as taken but voluntarily given.

But, where the subject-matter is the fixing a sum to be taken for a full equivalent given, a mere exchange of money for a material object of barter, and where it is quite at the option of the payer to pay or leave it alone and not enter into the transaction at all, this principle of the right of property does not enter. There seems no reason, in this case, why the consent of the payers (through representatives) should be required, or why the Legislative Council should not legislate as well as the House of Representatives.

It is true another argument might be used. It might be urged that these two cases are similar in one respect, viz., that in both an equivalent for money is given, only in one case the return is in government and its advantages, or in the mental labour of the governing body, and in the other case in a material object, i.e., in land: that, where any price is to be fixed by the Legislature, both the buyers and the sellers should concur in that price, and, as the lands to be sold belong to the whole public, and the whole public may be buyers, the House of Representatives alone should fix this price. But I think this would prove too much, and limit to an extent never demanded or advocated (as far as I know) the powers of this or any non-representative branch of a Legislature.

The above is the view taken of the clause by the Chairman of the Committee of the Legislative Council. On the other hand, the Native Minister urges the following (which expresses the opinion of the House of Representatives) as the more correct statement of the character and effect of the clause under consideration.

The Bill, as originally passed, conferred on the Natives the power of selling their lands after obtaining certificates of ownership.

The amendment of the Legislative Council deprived them of this power, because by it the original certificate was made only to confer a right of leasing. Unless the certificate obtained the signature and seal of the Governor it was not, under the amendment, to confer the power of sale; page 43 and for this signature and seal a fee of 2s. 6d. was to be paid.

There are three documents conferring power of sale under the Bill as originally passed ana finally amended.

(1.)Certificate issued by the Court (after confirmation of its proceedings by the Governor), not signed or sealed.
(2.)Certificate signed by Governor and sealed with colonial Seal (for not more than twenty persons), having all the effect of a Crown grant.
(3.)Crown grants to be given in exchange for either of the foregoing classes of certificates.

A fee of 2s. 6d. was chargeable on the last two documents.

The amendment of the Council took away the power of sale from the first class of certificates, limiting it to the second class—that is, the Natives, to acquire a general power of sale, would have to pay the 2s. 6d. fee and get the second class of certificate. Looked at in this light, the Council's amendment evidently amounted to the imposition of a fee or tax, as it could not be to the Native the price of his own land. It is not a sufficient answer to say the European purchaser would really pay the 2s. 6d., because he would deduct it from the price to be paid to the Native.

And, as the Bill conferred on the Native the right of absolutely selling his land, only requiring the payment of 2s. 6d. per acre for the additional privilege of getting a Crown grant or equivalent document for it, the true opinion seems to be that the 2s. 6d. was always a tax or fee, not a price for land. In such case the amendment of the Legislative Council was a breach of privilege.

Alfred Domett.

Further Memorandum on the same Subject by the Native Minister.

I should like to add a few words to Mr. Domett's minute, that the nature of my objection may not be misunderstood.

The Bill granted an absolute right of sale of their lands to the Natives, free from any tax or fee. If European buyers were content to hold and sell under the Maori certificate and a proper conveyance of it, they could do so; but, if they preferred to come in and exchange their certificate for a Crown page 44 grant, or to get the certificate sealed, which gave it the qualities of a Crown grant, for that special advantage they were to pay 2s. 6d. an acre. Now, the Legislative Council's amendment said that no Native should sell at all unless he had paid a tax of 2s. 6d. an acre on his land to the European Treasury.

In one case, the European paid for a privilege which converted his tenure under a Maori certificate into fee-simple according to English real property law—he paid a price for his English title, and the payment of it was optional with himself. In the other, the Natives' property was taxed absolutely, since he could not sell it without paying a tax, for which he literally got nothing in return.

The promoters of the amendment knew perfectly well that such a tax was ruin to the whole working of the Bill, and, not being able to defeat it directly, they resorted to this apparently indirect mode of securing to the provinces a revenue out of land which did not belong to the provinces.

F. D. Bell.