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The Pamphlet Collection of Sir Robert Stout: Personal Volume

Case for Reference to Law Officers of the Crown

Case for Reference to Law Officers of the Crown.

A question has arisen between the Legislative Council and the House of Representatives of New Zealand, upon which the opinion of the Law Officers of the Crown in England is sought to be obtained. The Legislative Council amended a page 74 Bill by striking out a clause. The House of Representatives insisted that the Bill was of that class in which the Legislative Council is, by constitutional usage, debarred from making amendments.

The facts of the case are as follows: Under various Acts for regulating the public revenues of New Zealand, certain principal branches of revenue—viz., the duties of Customs, Post Office, stamps, &c.—are thrown together, and form the consolidated revenue of the colony, out of which the annual supplies for the public service are appropriated.

By "The Payments to Provinces Act, 1870" (of which a copy is herewith), certain capitation allowances, determined according to the population of each province, were made payable to the respective provinces of New Zealand out of the consolidated revenue for a period of seven years, the amount payable to each province being fixed on a gradually descending scale, varying in amount according to the population in the respective provinces each year. In the current year the rate per head of the population payable under such Act would have been £1 18s.

In the same Act was also contained a provision that, in every year [unclear: Caring] the same period of seven years, a sum of [unclear: £5] should be paid out of the consolidated revenue to the provinces, in the ratio of their respective population, for distribution amongst the various Road Boards within such provinces, according to a scale fixed by the Act.

In the same session (1870) another Act was passed, intituled "The Immigration and Public Works Act, 1870" (a copy of which is herewith), whereby provision was made for various subjects—viz., the construction of railways, immigration, the construction of water-races on goldfields, the purchase of lands from the Natives, the extension of telegraphs, the formation of roads in the North Island.

And by another Act of the same session (1870), intituled "The Immigration and Public Works Loan Act, 1870" (a copy of which is herewith), authority was given to the Governor to raise by loan £4,000,000, to be applied in the way prescribed by the schedule to the Act—viz.,— page 75
£
For Railways 2,000,000
Immigration 1,000,000
Construction of roads in North Island 400,000
Waterworks on goldfields 300,000
Purchase of land in North Island 200,000
Extension of telegraph 60,000
Unapportioned 40,000
£4,000,000

The amount was authorized to be raised by issue of debentures, the charge for interest and sinking fund not to exceed 6 per cent., and the same were to be a charge upon the consolidated revenue.

The 14th section provided that the "moneys raised under the authority thereinbefore contained should and might, subject to the provisions thereinafter contained, and to the provisions contained in 'The Immigration and Public Works Act, 1870,; be issued and applied to the purposes mentioned in the Act, and no other; and, as to purposes mentioned in the said schedule, should be issued and applied in sums not exceeding the amounts in the said schedule respectively provided."

It was further provided by the 19th section that, in the event of the Imperial [unclear: parliament] passing an Act to guarantee any loan [unclear: tubed] by the Colony of New Zealand for all or any of the purposes for which the loan thereby authorized might be applied, the Governor, or any such Agents as might be appointed under the Act, might raise any portion of the loan, with such guarantee, upon and subject to all or any of the terms, conditions, and stipulations expressed in such Act of the Imperial Parliament; and the Governor or such Agents as aforesaid was further empowered to enter into any such contract or arrangement as he might think fit with the Lords Commissioners of Her Majesty's Treasury in England, with regard to any portion of the loan, and the guarantee thereof; and, in and by any such arrangement or contract, the Governor or such Agent as aforesaid might fix the order of priority of charge on the Consolidated Fund of New Zealand which the loan so guaranteed, or any part or parts thereof, should take with relation to any other part or parts of the loan; and in and by such page 76 arrangement might provide for the transmission to England and investment of the sinking fund (if any) of the loan so guaranteed, provided that such contract or arrangement was not inconsistent with the purposes for which such loan was authorized to be raised.

In the session of the General Assembly just passed (1871) the Government introduced into the House of Representatives a Bill intituled "The Payments to Provinces Bill, 1871 "(a copy of which is herewith), the object of which was to alter the financial arrangements between the colony and the provinces, to reduce the amount of capitation allowance payable out of the consolidated revenue from £1 18s. per head to 15s. per head, and, in lieu of the £50,000 per annum payable under the Act of last year out of the consolidated revenue to the provinces for the service of the Road Boards, to apply £100,000 out of the moneys authorized to be raised by the loan under the Immigration and Public Works Loan Act, and which are referred to in the Bill as "the Public Works Fund," to the provinces for distribution amongst the Road Boards, "to be expended by them in the construction of new roads, bridges, and culverts, and in the maintenance thereof, for one year, and the completion of such works commenced last year as were not yet finished." And there was added in the Bill, as sent up to the Legislative Council from the House of Representatives, a clause which has given rise to the question now raised, upon which the opinion of the Law Officers of the Crown in England is requested The clause was as follows:—

28. Notwithstanding anything herein contained, it shall be lawful for the Minister for Public Works, if he think fit, on the application of the Superintendent of any province, to expend any sum not exceeding one-half of the money to be allotted to such province for the year ending the thirtieth day of June, one thousand eight hundred and seventy-two, under section eleven of this Act, in payment of or in repayment to such province of the cost of permanent public works in such province: Provided, however, that, except in the County of Westland, such works shall have been authorized by any Act of the Superintendent and Provincial Council of the province now in force.

The Legislative Council objected to this clause. Accordingly, they expunged the clause, and the Bill in this amended form, and with some other unimportant amendments, was returned to the House of Representatives.

page 77
The House of Representatives returned the Bill, with reasons for disagreeing from the amendments of the Legislative Council in clauses 14, 15, 28, and 29, as follows:—

That the above clauses relate to the appropriation and management of money, and that the Legislative Council has not power to alter or expunge such clauses.

The Legislative Council replied as follows:—

At this late period of the session it would be impossible for the two branches of the Legislature to discuss with the requisite deliberation the important question of privilege raised by the House of Representatives. But the Council desires briefly to state its views of the question thus raised.

The present Bill, so far, at least, as concerns the application of the Immigration and Public Works Loan authorized to he raised last year, is not, in their opinion, a Bill of Aid or Supply. It imposes no new burden on the people, nor alters any existing burden, nor is it a grant of money by way of Supply.

The Colonial Parliament last year authorized a very largo loan to be raised on the credit of the colony, to be expended strictly and exclusively on immigration, railways, and other public works and undertakings specified in the Act.

It is proposed by the present Bill to divert a part of the money so to be raised to other objects of a cognate character, and to that extent the Legislative Council is prepared to concur in the proposed measure. But it is proposed, further, to authorize the Governor to pay over one-half of the amount so to be diverted to the provinces.

Such an application of the Immigration and Public Works Loan authorized to ho raised last year is not, in the opinion of the Council, right or consistent with the engagements upon the faith of which Parliament last year consented to raise the loan.

The Legislative Council claims the right to exercise its own judgment upon that point. The concession of that right would so narrow as practically to destroy its proper functions as a legislative body in dealing with questions of a similar character, which come before them in a great variety of forms. For the foregoing reasons the Legislative Council earnestly trusts that the House of Representatives will accept the Bill as amended by the Legislative Council.

To this the House of Representatives made a rejoinder as follows:—

That it is beyond the power of the Legislative Council to vary or alter the management or distribution of any money as prescribed by the House of Representatives; that it is within the power of the House of Representatives, by Act of one session, to vary the appropriation or management of money prescribed by Act of a previous session.

To which the Legislative Council replied by the following message:—

This Council cannot assent to the reasons adduced by the House of Representatives for disagreeing to its amendments page 78 in the Payments to Provinces Bill, and maintains that the amendments to which the House of Representatives objects are strictly within the powers and privileges of the Council to make.

The Council considers the clauses in the Bill, in their original and unamended shape, to be objectionable in principle, and in manifest violation of the spirit and intention of the Public Works Act of 1870. The Council recognizes, however, that the Bill is a portion of the general financial policy of the Government, and that its rejection at this stage might be attended with great public inconvenience.

While, therefore, still maintaining its constitutional right to make the amendments in question, it consents to abstain from the exercise of this right on the House of Representatives agreeing,—
1.To amend the Bill so as to restrict its operation to the present financial year.
2.To refer the point in dispute between the two Houses to the Law Officers of the Crown in England, upon a case to be prepared by Managers appointed by each House.

Subject to these conditions, the Council will, on being made acquainted with the names of the Managers appointed by the House of Representatives to draw up the case for reference, cease to insist upon its amendments.

Whereupon the House of Representatives accepted the terms by the Legislative Council, and transmitted the following message to the Legislative Council:—

The House of Representatives have considered the reasons adduced by the Legislative Council for refusing to concur in the reasons of the House of Representatives for objecting to the amendments of the Council in the Bill intituled "The Payment to Provinces Act, 1871."

The House have concurred in the first proposition of the Legislative Council respecting the operation of the Bill, and have agreed to the following clause, to stand last clause of the Bill:—

"This Act shall continue in operation until the first day of July next, and no longer."

On consideration of the second proposal of the Legislative Council, the House of Representatives have agreed to the following resolution;—

"That this House will concur in the proposition of the Legislative Council that the opinion of the Law Officers of the Crown be obtained on the question whether, in accordance with the practice of the Imperial Parliament, the amendments made by the Council are within its functions, having regard to constitutional usage and to the powers conferred on the Council by 'The Privileges Act, 1865; and that Mr. Speaker, Mr. Brandon, and the Hon. Mr. Fox be appointed Managers to meet Managers on the part of the Legislative Council to prepare a case for the purpose. Such opinion to be taken with a view to assisting the Legislature in future action, but not to be binding on either House."

page 79
To this the Legislative Council replied by the following message:—

The Legislative Council have waived their amendments in the Bill intituled "The Payments to Provinces Act, 1871," and have agreed to the following clause to stand as the last clause of the Bill:—

"This Act shall continue in operation until the first day of July next, and no longer."

Also, the Legislative Council have appointed the Hon. the Speaker, the Hon. Mr. Sewell, and the Hon. Mr. Mantell as their Managers to meet the Managers appointed by the House of Representatives, to prepare a case in accordance with the resolutions agreed to by the House of Representatives, in accordance with the suggestions of the Legislative Council, contained in Message No. 84, of the 13th November.

Another distinct question has been raised as to the constitutional powers of the Legislative Council under an Act passed in the year 1865, intituled the Parliamentary Privileges Act (a copy of which is herewith).

By the 4th section of the Act of 1865 it is enacted that—

The Legislative Council or House of Representatives of New Zealand respectively shall hold, enjoy, and exercise such and the like privileges, immunities, and powers as, on the 1st January, 1865, were held, enjoyed, and exercised by the Commons House of Parliament of Great Britain and Ireland, and by the Committees and members thereof, so far as the same are not inconsistent with or repugnant to such and so many of the sections and provisions of the Constitution Act as at the time of the coming into operation of this Act are unrepealed, whether such privileges, immunities, or powers were so held, possessed, or enjoyed by custom, statute, or otherwise; and such privileges, immunities, and powers shall be deemed to be and shall be part of the general and public law of the colony; and it shall not be necessary to plead the same, and the same shall in all Courts, and by and before all Judges, be judicially taken notice of.

The only unrepealed clause in the Constitution Act which touches this question is the 54th, by which it is enacted that it shall not be lawful for the House of Representatives or the Legislative Council to pass, or for the Governor to assent to, any Bill appropriating to the public service any sum of money from or out of Her Majesty's revenue within New Zealand, unless the Governor, on Her Majesty's behalf, shall first have recommended to the House of Representatives to make provision for the specific public service towards which such money is to be appropriated."

The opinion of the Law Officers of the Crown in England is requested upon the following points:— page 80
1.Whether, independently of "The Parliamentary Privileges Act, 1865," the Legislative Council was constitutionally justified in amending "The Payments to Provinces Bill, 1871," by striking out the disputed clause (clause 28)?
2.Whether "The Parliamentary Privileges Act, 1865," confers on it any larger powers in this respect than it would otherwise have possessed?
3.Whether the claims asserted by the House of Representatives in their messages to the Legislative Council are well grounded, or what are the proper limitations thereof?

Henry Sewell.

W. B. D. Mantell.

F. D. Bell.

A. de B. Brandon.