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The Pamphlet Collection of Sir Robert Stout: Personal Volume

Memorandum Regarding the Powers of the Legislative Council and House of Representatives in New Zealand

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Memorandum Regarding the Powers of the Legislative Council and House of Representatives in New Zealand.

The recent decision of Her Majesty's Privy Council on the questions submitted to it by the Legislative Council and Legislative Assembly of Queensland, regarding the power of the former to deal with money Bills, cannot fail to be of interest to every British colony. The value of the judgment of this Court of last resort in the Empire is enhanced by the fact that it is the opinion of able politicians and renowned lawyers. The following were the members of the Judicial Committee that pronounced on the points in dispute, namely: Lord Spencer (President), Lord Herschell, (Chancellor), the Duke of Richmond and Gordon, Lord Aberdare, Lord Blackburn, Lord Hobhouse, and Sir Richard Couch. The questions submitted to the Court were two—

First, whether "The Queensland Constitution Act, 1867," confers on the Legislative Council powers co-ordinate with the Legislative Assembly in the amendment of all Bills, including money Bills?

Second, whether the claims of the Legislative Assembly, as set forth in their message of the 12th November, 1885, are well-founded?

The message of the Legislative Assembly appears in the Appendix, where also will be page 2 found the other documents referred to the Judicial Committee. (See Appendix No. 1.) To these questions the Lords of the Committee replied that the first should be answered in the negative, and the second in the affirmative. Thus the contention of the Legislative Assembly was accepted in full.

The Constitution Act of Queensland has the following sections bearing on the subject:—

Section 1. There shall be within the said Colony of Queensland a Legislative Council and a Legislative Assembly.

Section 2. Within the said Colony of Queensland Her Majesty shall have power, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, welfare, and good government of the colony in all cases whatsoever: Provided that all Bills for appropriating any part of the public revenue, for imposing any new rate, tax, or impost, subject always to the limitations hereinafter provided, shall originate in the Legislative Assembly of the said colony.

Section 18. It shall not be lawful for the Legislative Assembly to originate or pass any vote, resolution, or Bill for the appropriation of any part of the said Consolidated Revenue Fund, or of any other tax or impost, to any purpose which shall not first have been recommended by a message of the Governor to the said Legislative Assembly during the session in which such vote, resolution, or Bill shall be passed.

These clauses in the Queensland statute are similar to certain clauses in the New Zealand Constitution Act. Section 32 of 15 and 16 Vict., cap. 72 (called the Constitution Act), provides,—

There shall be within the Colony of New Zealand a General Assembly, to consist of the Governor, a Legislative Council, and House of Representatives.

And section 54 is similar to section 18 of the Queensland Constitution Act. There is, however, in New Zealand an Act called "The Parliamentary Privileges Act, 1865," passed by the General Assembly of New Zealand; and section 4 of that Act is as follows:—

The Legislative Council and House of Representatives of New Zealand respectively, and the Committees and members thereof respectively, shall hold, enjoy, and exercise such and the like privileges, immunities, and powers as on the first day of January, one thousand eight hundred and sixty-five were held, enjoyed, and exorcised by the Commons page 3 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 said 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.

An interpretation, though not judicial, has been passed on this Act by Lord Coleridge and Sir George Jessel (the late eminent Master of the Rolls). I shall refer further on to the conflict which arose between the Houses, and which led to the obtaining of the opinion of Lord Coleridge and Sir George Jessel, who were then the Law Officers of the Crown in England, being respectively Attorney-and Solicitor-General. They stated that they were of opinion that" The Parliamentary Privileges Act, 1865," did not confer on the Legislative Council any larger powers in respect of money Bills than it would otherwise have possessed. They thought that the Act was not intended to affect, and did not affect, the legislative powers of either House of the Legislature in New Zealand. Todd, in his "Parliamentary Government in the British Colonies," page 479, assumes that the opinion given by these eminent lawyers was a direct and unimpeachable settlement of the point at issue.

It may, however, be interesting to trace what has happened in New Zealand regarding the claim of the Legislative Council to alter or amend money Bills.

The first session of the first Parliament was assembled on the 24th May, 1854, and it concluded on the 17th August, 1854, Parliament being prorogued on that day to the 31st August, page 4 1834. On that date the second session began. No Appropriation Bill was passed during the first session. The struggle for Responsible Government and the dealing with the waste lands of the Crown were the two questions that mostly occupied the attention of both Houses during the first session. In the second session an Appropriation Bill was passed. The Council claimed the right on that occasion to amend this Bill. The Hon. Major (afterwards Colonel) Kenny, indeed, considered that the estimates should be laid before the Council, and the Speaker urged that, even if the Council had no power to amend the Bill, yet that a copy of the estimates should have been furnished for the consideration of the Council.

The Council went into Committee on the Bill, and an amendment was moved by the Hon. Mr. Whitaker (now the Hon. Sir Frederick Whitaker) to the following effect:—

To strike out, after the words "out of the," the following words: "revenue arising from taxes, duties, and imposts levied within the colony, and which are hereby raised by Act of the Assembly, except such portions thereof as shall by an Act of the General Assembly be declared to be otherwise applicable."

The title of the first Appropriation Bill was as follows: "An Act to provide for the Appropriation of the Public Revenue of New Zealand." The preamble was as follows:—

Whereas, by an Act made and enacted in the Parliament holden in the fifteenth and sixteenth years of the reign of Her Majesty Queen Victoria, intituled "An Act to grant a Representative Constitution to the Colony of New Zealand," it is amongst other things enacted that, after and subject to the payments to be made under the provisions therein contained, all the revenues arising from taxes, duties, rates, and imposts levied in virtue of any Act of the General Assembly, and from the disposal of waste lands of the Crown, shall be subject to be appropriated to such specific purposes as by any Act of the said General Assembly shall be prescribed in that behalf, and that the surplus of such revenue which shall not be appropriated as aforesaid shall be divided among the several provinces in the like proportions as the gross proceeds of the said revenue shall have arisen therein respectively; but no specific provision has been made by the recited Act page 5 for the appropriation of Her Majesty's revenue levied under and by virtue of ordinances made and enacted by the Legislative Council of New Zealand before the passing of the said recited Act: And whereas it is expedient that the revenue arising from the disposal of the watte lands of the Crown, and from such revenues as aforesaid, should be appropriated in manner hereinafter mentioned.

The enacting clause was—

Be it therefore enacted by the General Assembly as follows.

The amendment moved by the Hon. Mr. Whitaker was carried by the Council, and the Bill as amended was forwarded to the House of Representatives, and after debate it was agreed that a Conference on the amendment should be asked; and after Conference it was agreed that certain amendments should be made in the Bill. These amendments were the same in substance, though not in words, as had been recommended by the Legislative Council. The amendments were,—

That in the thirteenth line of the prcamble the words "that portion of," and the words "arising from the duties of Customs" in the thirteenth and fourteenth lines, be struck out, and the words "duties of Customs" in the seventeenth lino be expunged, and the word "revenues" inserted instead.

In clause 1 the following words after "out of" in the first line be struck out, "the said duties of Customs," and the following inserted in lieu thereof: "Her Majesty's revenue arising from the Post Office, duties of Customs, and fees and fines of the Supreme Court, now levied within the colony."

In clause 2, the words "Customs and land" in the sixth line be expunged.

These amendments were accepted by both Houses. The Legislative Council passed several resolutions regarding this Appropriation Bill, with the object of guarding their rights (if any) and of declaring that the course adopted in the passing of this the first Appropriation Bill was not to be deemed a precedent. The resolutions were as follows:—

1. That the honourable member bearing the message with the Appropriation Bill inform the House of Representatives that the detailed estimates have not accompanied that Bill, and that whatever course may be hereafter followed in reference to Supply Bills, whether called upon either wholly to accept or wholly to reject, the Legislative page 6 Council is desirous it should be understood that the course now taken is not to be considered as a precedent.

2. That, under these circumstances, the Legislative Council have agreed, with extreme reluctance, to an Act winch places large sums of money at the absolute disposal of the Executive Government, the particular mode of appropriating those sums not having been prescribed by the Act.

Resolved—(1.) That, as the Bill for appropriating the public revenues was not introduced into the Legislative Council until the 15th September, and as the Assembly is to be prorogued on the 16th instant, this Council has no alternative but either wholly to reject the Bill or to agree to it in the form in which it has been transmitted to them by the House of Representatives.

(2.) That, in consenting to pass the Appropriation Bill for 1864-55 without alteration of any of the sums voted by the House of Representatives, the Legislative Council have regard solely to the maintenance of the civil establishment of the colony, and desire in no way to prejudice any right to alter or amend the annual Appropriation Bill or any other measure for raising or disposing of the public revenues.

(3.) That, although the Act for granting a Representative Constitution to the colony of New Zealand contains no provisions for limiting or restricting the power of the Legislative Council to alter or amend any legislative measures whatever which may be submitted for their consideration, the question has nevertheless been raised whether the Legislative Council would be justified in making any alteration in a measure of Supply, or whether, by analogy to the British Constitution, the Legislative Council of New Zealand must not either wholly accept or wholly reject every such measure.

(4.) That, in order to avoid the evils which would result from any conflict of opinion between two of the branches of the General Assembly as to the nature and extent of their respective constitutional rights, all doubt upon the subject should be at once and authoritatively set at rest; and that, with a view to that object, His Excellency the Officer Administering the Government be respectfully moved to bring the question under the consideration of Her Majesty's Imperial Government.

(5.) That a copy of the preceding resolutions in reference to the right of the Legislative Council in respect of measures of Supply be forwarded to His Excellency the Officer Administering the Government, and that His Excellency's attention thereto be respectfully requested.

The House of Representatives made no reply to these resolutions, and the Council and the House were prorogued the next day.

In pursuance of the fourth and fifth of the above resolutions, His Excellency the Officer Administering the Government forwarded to the Right Hon. the Secretary of State for the Colonies a despatch, inquiring whether the Legislative Council would be justified in making any page 7 alteration in any measure of Supply which had been voted by the House of Representatives, or whether, by analogy to the British Constitution, the Legislative Council must either wholly accept or wholly reject every such measure. The Secretary of State (Sir G. Grey) replied as follows:—

The question raised by your despatch is one of great importance in itself, and touching on the very first principles of English constitutional law. In this country it has been the undisputed practice, as affirmed by the resolution of the House of Commons of the year 1678, that Bills of Supply ought not to be changed or altered by the House of Lords. It is quite true that the New Zealand Constitution Act contains no provisions to the same effect, but it appears to me that the analogy of the English Constitution ought to prevail, the reason being the same when the Upper House is not elected by the people; and in Canada, where the Constitutional Act is similar in this respect to that of New Zealand, the Lower Assembly has hitherto exercised without dispute the same privilege in regard to money votes as the British House of Commons.

This despatch was dated the 25th March, 1855.

In 1855 the Parliament met on the 8th August, and continued sitting until the 15th September. An Appropriation Bill was passed, and the Council again, to guard its rights, passed a resolution as follows:—

That any proceeding of the Legislative Council in reference to "The Appropriation Act, 1855," shall not form any precedent for a future session.

There seems to have been no question raised between the Council and the House on any question of Supply or money Bills.

In 1856 the Appropriation Bill was passed without any attempted amendments or any protest, although the Council discussed certain provisions in the Bill regarding the increase of the salaries of the Ministers.

In 1855-56 the form of the Appropriation Bill was the same—namely, a recital and a statement out of what the revenue was to be paid.

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In 1856 provision had to be made for extending the Appropriation Bill.

There was no meeting of Parliament in 1857.

In 1858 the House met on the 10th April, and sat until the 21st August. An Appropriation Bill for 1857—58 was passed, and an Appropriation Bill for 1838—59. No amendment was attempted to be made in either of the Bills by the Legislative Council. In 1858 the form of the Act was altered: there was no preamble to the Appropriation Bill, and the Act began at once at the enactment clause. The appropriating clause was also different. It was,—

There shall and may be issued and applied towards making good the Supply granted to Her Majesty for the service of the year 1858-59, in addition to the sums mentioned in the Civil List Act and other Acts, the sum of seventy-two thousand six hundred and sixteen pounds and ten shillings out of the ordinary revenue, to be appropriated towards or for the purposes hereafter expressed.

The Legislative Council amended the Surplus Revenue Bill, which was strictly a money Bill. The amendment was made in the schedule, and was assented to by the House of Representatives without any objection.

There was no meeting of the Assembly in 1859.

In 1860 the Parliament met on the 30th July, and was prorogued on the 5th November. The Appropriation Bill was passed through all its stages by the Council without any amendment. The New Zealaud Loan Bill, however, was amended by the Council, and the amendment was assented to by the House of Representatives; but the House was careful to provide that the amendment accepted was in furtherance of the provisions in the Bill. The amendment was accepted in the following words:—

Resolved, That the amendment made by the Legislative Council, it being in furtherance of the intentions of the House and to render the clause consistent.

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The Debenture Bill of 1860, which was also a money Bill, was amended, and the amendment accepted by the following resolution of the House:—

That the amendments made by the Legislative Council be adopted, they being for the purpose of rectifying a clerical error, and in furtherance of the intentions of the House.

The Appropriation Bill was in the same form as that of 1858.

In 1861 the Appropriation Bill was passed without any amendment, and no question was raised regarding any Supply Bill.

In 1862 a provision was inserted by the Legislative Council in "The Native Lands Act, 1862."

The amendment made was adopted by the House, but the following resolution was passed:—

That the amendment of the 17th clause of the Native Lands Bill made 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 was returned to the Assembly by the Governor, who proposed that the words added to section 17 by the Legislative Council should be omitted, and that a 10-per-cent. ad valorem duty on the transfer of Native Lands should be imposed. The proposal of the Governor was accepted by both Houses. The Legislative Council, however, appointed a Committee to consider and report whether the amendment made by the Council was a breach of the privileges of the House of Representatives, and also, at the option of the Committee, to prepare a case 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.

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The Committee reported in favour of a case being submitted for the opinion of the Law Officers; and His Excellency the Governor, Sir George Grey, forwarded the case proposed by the Council to His Grace the Duke of Newcastle to obtain the opinion of the Law Officers of the Crown. There was a memorandum by Mr. Domett setting forth the view entertained by the House of Representatives, and also a memorandum by Mr. Dillon Bell (now Sir Dillon Bell), the Native Minister, on the same subject. These documents appear in Appendix No. 2.

The opinion of the Law Officers of the Crown in England, Sir W. Atherton and Sir Roundell Palmer (now Lord Sclbornc), was given on the 9th April, 1863, and stated that the Legislative Council was within its rights in making the amendment. I have set out the opinion at length. (Sec Appendix No. 2.) It will be noticed that these eminent lawyers did not assert the Legislative Council had any authority the House of Lords did not possess, but that the amendment made did not directly impose any tax.

Mr. Hugh Carleton, who was Chairman of Committees of the House and had been Acting-Speaker, submitted the question to Mr. T. E. May (afterwards Sir T. E. May and Lord Farn-borough). He took a different view from the Law Officers. Mr. Carleton forwarded their opinion to him, but still Mr. May saw no reason to alter his views. The correspondence was presented to the House in 1864 by Mr. Carleton, and ordered to be engrossed in the Journals of the House. (See Appendix No. 3.)

In 1864 the Parliament was a very short one. It met in Auckland on the 24th November, and page 11 was prorogued on the 13th December, 1864. No question was raised regarding any Bills of Supply.

In 1865 the form of the Appropriation Bill was altered, there being a preamble as follows:—

Whereas it appears by messages from His Excellency Sir G. Grey, Knight Commander of the Most Honourable Order of the Bath, and Commander-in-Chief in and over Her Majesty's Colony of Now Zealand and its dependencies, and Vice-Admiral thereof, and by the estimates accompanying the same, that the sums hereinafter mentioned are required to defray certain expenses of the Government of this colony and of the public service thereof, and for other purposes, for the year ending on the thirtieth day of June, one thousand eight hundred and sixty-six: be it therefore enacted, &c.

A similar preamble appears in the Appropriation Act of 1866. Neither in 1865 nor in 1866 did any question arise in either House about any Supply Bill.

In 1867 the form of the Appropriation Bill was altered, it taking the form adopted by the other colonics, as a grant of Supply to Her Majesty. It may be noted that in New Zealand the statutes are unlike, in form of their enacting clause, to those of the other colonies. In the other colonies—take, for example, Canada, Victoria, New South Wales—the legislation is by Her Majesty the Queen by and with the consent of the Legislative Council and Legislative Assembly, &c. In New Zealand it is the General Assembly that passes the laws. The General Assembly is the Governor and the two Houses, but not Her Majesty.

In 1867 the Appropriation Act had the following preamble:—

Most Gracious Sovereign,—We, your Majesty's most dutiful and loyal subjects, the House of Representatives of New Zealand in Parliament assembled, towards making good the Supply which we have cheerfully granted to your Majesty in this session of Parliament, have resolved to grant unto your Majesty the sums hereinafter mentioned, and do therefore most humbly beseech your Majesty that it may be enacted, and be it enacted, by the General Assembly of New Zealand in this present Parliament assembled, and by the authority of the same, as follows.

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And this form has been continued up to the present time. This amendment in the form of the Appropriation Bill gave rise to no discussion—indeed, it does not seem to have been noticed by the House or Council.

In 1867 no question of privilege arose between the two Houses.

In 1868 the subject of the privileges and the constitution of the Council was discussed. The Hon. Mr. Holmes moved that a Committee, consisting of the Hon. the Speaker, the Hon. Major Richmond, C.B., the Hon. Dr. Pollen, the Hon. Colonel Kenny, the Hon. Mr. Johnston, the Hon. Mr. Lee, and the mover, be appointed for the purpose of exactly ascertaining the powers and privileges of the Council, with a view to the modification of its constitution. This Committee made a very lengthy report.

The report was referred back to the Committee, and a further report was brought up on the 21st August, and both reports were adopted on the 26th August. As the question of amending the constitution of the Legislative Council may possibly come early before Parliament, these reports are well worthy of consideration. They deal, not only with the powers of the Council, but with its constitution, and with amendments deemed necessary to promote its greater usefulness. (See Appendix No. 4.)

The adoption of the report gave rise to considerable debate, which appears in Hansard, Vol. III., pp. 9—18. No question arose on the Appropriation Bill, nor regarding any other money Bill.

In 1869 a very long and elaborate report was prepared by the Hon. Sir John Richardson and the Hon. Dr. Menzies on the privileges of the Council. (Sec Appendix No. 5.) The investigation dealt with— page 13
(1.)As to the powers conferred on the Council by the Constitution Act and by any subsequent legislation.
(2.)As to the powers hold or exercised by law, rule, or usage by the House of Lords and the House of Commons respectively.
(3.)As to the powers conferred on the chief colonies of Great Britain under constitutional government by any Constitution Act and legislation, and as hold and exercised by the Legislature of the United States of America.

There was no question between the Council and the House on any Bill in this year.

In 1870 no question arose between the Houses as to any money Bills.

The next serious question that arose in connection with the privileges of the House was raised in 1871.

In that year a Bill termed "The Payment to Provinces Bill"was before the Legislature, and the Legislative Council amended the Bill by striking out clause 28 and making other alterations in the 14th, 15th, and 29th sections. The Bill as amended was returned to the House of Representatives, and the House disagreed with the amendments, the reason being given as follows: "That the clauses [unclear: 11,] 15, 28, 29, relate to the appropriation and management of money, and that the Legislative Council has not power to alter or expunge such clauses."On this message being forwarded to the Legislative Council, the Council referred it to the Standing Orders Committee, who brought up a report on the subject which was adopted by the Council.

Managers were appointed to draw up reasons for insisting upon their amendments; but the report was not agreed to, and another was adopted. (Sec Appendix No. 6.)

The House of Representatives adopted resolutions on the subject, which are embodied in the case submitted to the Law Officers. (See Appendix No. 6.)

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The result was that both Houses agreed to make the Act only temporary—viz., till July, 1872—and to submit the question to the Law Officers of the Crown of England.

The case submitted to the opinion of the Law Officers appears in Appendix No. 6, as well as the opinion. The despatch by Earl Kimberley conveying the opinion was presented to the Council by message from the Governor, and ordered by the Council to be entered in its minutes.

In 1872 a Customs Bill, called the "Drawbacks Bill,"was amended by the Legislative Council. The penalty, instead of being left in the Bill as it passed the House of Representatives, at £200, was amended by placing the words "not exceeding"before it. The Council also altered the procedure of the Customhouse officers in the seizing and detaining of goods supposed to be contraband. The alterations were brought before the House; but the Speaker ruled that the amendments were of a nature that could be made by the Legislative Council, and, after an adjournment of the question, the House agreed to the amendments made.

In 1873 the constitution of the Council was again discussed. This arose in consequence of a statement made in the Governor's Speech at the opening of Parliament that a measure would be laid before Parliament to initiate a reconstruction of the constitution of the Legislative Council.

A motion on the subject was proposed by the Hon. Mr. Waterhouse; it was amended, and ultimately lost. A Bill called "The Legislative Council Temporary Appointment Bill"was introduced into the Council and shelved, the page 15 Council agreeing, without a division, that it should be read that day six months.

There was no question raised between the Houses on any Bill in 1873; nor were there any differences between the Council and the House.

No question arose between the Council and the House of Representatives in 1874 or in 1875 on any Supply Bill.

In 1876 the Rating, Counties, and Municipal Bills were all amended by the Council; and, as the limit of rating and borrowing was interfered with by the Council, it is doubtful if the House of Commons would have allowed the House of Lords to amend the Bills in the manner in which the House of Representatives allowed the Council to do without protest.

In 1878 an important question was raised as to the power of the Legislative Council to alter a Bill providing for the construction of railways. This Bill was called "The Railways Construction Act;"it was an Act to provide for the construction and extension of railways; and the question was whether amendments could be made in the Act by the Council. The matter was fought very keenly. There were two Conferences between the Council and the House. The Speaker of the House ruled that the Bill was a money Bill, and could not be altered by the Legislative Council. The 3rd clause of the Bill, the Speaker stated, amounted to an appropriation clause.

The Managers agreed to the following course: that the clause should be amended, the Ministry recommending the Governor to forward a message to the House suggesting a proviso being added to clause 3. The report of the Managers appears in Appendix No. 7.

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This course was taken, and a message was sent down to the House by the Governor. The House agreed to the amendment on the ground that it was in furtherance of the wishes of the House.

The Hon. Mr. Hall (now Sir John Hall) pointed out that, as the Council had forwarded a message to the House of Representatives, stating that they had agreed to the Bill only on the reception of the report of the Managers of the Conference, the position contended for and obtained by the Council as to their power to alter the Bill had been established.

In the Public Works Appropriation Bill, which was headed with the usual address to Her Majesty as a Supply Bill, the 17th section authorized the construction of railways, and was to be deemed a special Act for that purpose. This 17th section was called in the Council a "tack,"and there is no doubt that it had been put in for the purpose of enabling the Government to go on with the railways if the Railway Construction Bill did not become law. This was so stated in the Council by the Colonial Secretary, who, however, offered on behalf of the Government to advise His Excellency to send down a message to strike out the 17th section. A question as to the power to do this was raised by the Attorney-General (Sir R. Stout), and the Speaker of the House of Representatives ruled that, as this was a Supply Bill, he could not give it up to the Government until all the grievances of the House were redressed and until all the other Bills had been assented to; and, as a Supply Bill was different from other Bills, it not being in the possession of the Government of the day, they could not advise His Excellency to recommend an amendment of it. The result was that page 17 this 17th section remained in the Bill, and was not struck out.

In 1881 a Pensions Bill was introduced by the Hon. Mr. Shrimski in the House of Representatives. The Legislative Council proposed to strike out clause 6 in the Bill, and a very long debate and controversy arose in consequence between the two Houses. The Premier (the Hon. Sir J. Hall) wished to assert that the Council had power to make the amendment made; but the Speaker (Sir M. O'Rorke) held a different opinion, and made a long and able statement on the subject, which appears in Hansard, Vol. XL., pp. 455,456. (See Appendix No. 8.)

The Council insisted on its amendment, and appointed as Managers the Hon. Sir F. Whitaker, the Hon. Mr. Acland, and the Hon. Mr. Waterhouse, to draw up reasons for insisting upon their amendment. (See Hansard, p. 515, Vol. XL.)

The House of Representatives replied to these reasons by arguing the matter with the Council. (See p. 527, Vol. XL., Hansard.)

The Council offered to accept clause 6 if it was not made retrospective. The Hon. Sir F. Whitaker moved,—
1.That the complications which have arisen in the proceedings in the Pensions Bill render it desirable that the whole subject should be referred to the Standing Orders Committee to search for precedents, to consider the matter carefully, and report fully to the Council without delay, and that it be so referred.
2.That a message be sent to the House of Representatives informing them that the proceedings in reference to the Pensions Bill appear so unusual and complicated that the Council have referred the whole subject to the Standing Orders Committee to search for precedents, to consider the subject carefully, and report without delay to the Council.

This was done because of some dispute which had arisen as to the position of the Bill. A Select Committee dealt with the matter, and page 18 their report appears in Hansard, Vol. XL., p. 797.

The question of the Pensions Bill was submitted by the Agent-General to Sir T. E. May (see Appendix No. 9); and the view of the Speaker was upheld.

In 1886 two important questions were raised regarding the power of the Council—
1.In dealing with rates, could the Legislative Council alter, for example, the limit of the rate proposed to be authorized to be levied by Municipal Councils?
2.Could the Legislative Council interfere with the rates that were to be levied by Harbour Boards on vessels!

In the first case the House passed a resolution stating that the Council had no power, and it was a breach of the privileges of the House, to amend the rate. The Council had reduced the rate of 1s. 3d. to 1s. The Council waived its amendment. The Harbours Bill had been introduced in the Legislative Council, and when it reached the House of Representatives certain amendments were made by the House, one increasing the rating-power of Boards so far as levying dues on ships were concerned. The Council objected to the increase of the rate, and amended the amended Bill. The House of Representatives refused to allow the Council's amendment, alleging that their privileges had been interfered with. There was a Free Conference held, but that Conference could not agree. Another was appointed, and ultimately the Conference agreed to recommend the Ministry to advise His Excellency, if the Bill were passed, to send down a message suggesting an amendment in the rating-power, by limiting it. This was not mentioned in the report from the page 19 Conference, the Managers simply reporting that they had agreed to the Bill; but an undertaking was given by a Minister that the Government would recommend His Excellency to send down the amendment. The Bill was passed, and an amendment was sent down by message from the Governor, and agreed to by both Houses.

The power of the Legislative Council to throw out a Bill which provided for the remission of taxation was discussed in the House. A Bill proposing to abolish the export duty on gold had often been before Parliament. On more than one occasion the Legislative Council had laid the Bill aside. The right of the Council to do this was challenged by Mr. Pyke, and a Committee was appointed, consisting of Major Atkinson, Mr. Conolly, Mr. Fergus, Colonel Fraser, Mr. Montgomery, Mr. Seddon, Mr. Guinness, Mr. Pykc, and the Minister of Mines, to search for precedents. The Committee reported as follows:—
Your Committee, having diligently searched for precedents and inquired into the usages and practice of the Imperial Parliament, to which the General Assembly of New Zealand is an analogous body, possessing and exercising the same rights and privileges, have the honour to report as follows—
1.That the right of granting aids and supplies to the Crown is in the House of Representatives alone, as an essential part of its constitution; and the limitation of all such grants as, to matter, manner, measure, and time is in it only.
2.That, although the Legislative Council has exercised the power of rejecting Bills of several descriptions relating to taxation by negativing the whole, yet the exercise of that power by the Council has not been frequent, and is justly regarded by the House with peculiar jealousy, as affecting the right of the House of Representatives to grant the supplies and to provide the ways and means for the service of the year.
3.That, to guard for the future against an undue exercise of that power by the Legislative Council, and to secure to the House of Representatives its rightful control over taxation and supply, the House has in its own hands the power so to impose and remit taxes and to frame Bills of supply that the right of the House as to the matter, manner, measure, and time may be maintained inviolate.page 20
4.That this power may be exercised in accordance with the practice of the House of Commons, initiated in 1861, and since continued, by embodying in one Bill the whole or any part of the financial arrangements of the year.

No action was taken on this report, but another Bill, providing for a gradual reduction in the gold duty, was introduced, and passed by the House of Representatives. This Bill was also laid aside by the Council. No steps were taken by the House.

It will be seen, from what has taken place between the Legislative Council and the House of Representatives, that the differences that have arisen parallel almost the history of the conflict between the two Houses in England regarding supply Bills. In the early days of the Parliament the Lords were allowed to amend the supply Bills without much objection, and greater latitude was granted in dealing with local taxing Bills than is now allowed by the House of Commons. In 1671 (see Appendix No. 10), and again in 1678, the Commons took a firm stand on their privileges regarding supply, and since then the House of Lords has not ventured to interfere with any Bill of supply.

So far as New Zealand is concerned, no Appropriation Bill has been attempted to be interfered with by the Legislative Council since the first Parliament. The question as to whether a particular Bill was one of supply has often been raised; but, whenever it could be shown that a Bill or clause of a Bill dealt with supply, then the power of the Legislative Council to alter or amend it has always been challenged.

The powers of the Lords to deal with the levying of rates, even though they were of local character, has been denied, the only concession being given that the Lords should have the right of altering private Bills. Since "The Native Lands Act, page 21 1862,"the power of the Council to alter the rating clauses of a Bill has not been specifically raised till last session, when, as I have already stated, the House of Representatives insisted that the Legislative Council had no power to deal with the imposition of rates even by local bodies. It was not until 1860 that the House of Commons passed the clear and explicit resolution, which was moved by Lord Palmerston,—

1. That the right of granting aids and supplies to the Crown is in the Commons alone, as an essential part of their constitution; and the limitation of all such grants, as to the matter, manner, measure, and time, is only in them. 2. That, although the Lords have exercised the power of rejecting Bills of several descriptions relating to taxation by negativing the whole, yet the exercise of that power by them has not been frequent, and is justly regarded by this House with peculiar jealousy, as affecting the right of the Commons to grant the supplies and to provide the ways and means for the service of the year. 3. That, to guard for the future against an undue exercise of that power by the Lords, and to secure to the Commons their rightful control over taxation and supply, this House has in its own hands the power so to impose and remit taxes, and to frame Bills of supply, that the right of the Commons as to matter, manner, measure, and time may be maintained inviolate.

If this English precedent be followed, then the right of the Legislative Council to lay aside a Bill remitting taxation will, in future, be challenged, and possibly the plan hinted at in Lord Palmerston's resolution—a "tack "—may be adopted. Whether this resolution of the Commons was or was not a stretching of the powers of the Commons need not be debated. Writers on constitutional history have assumed it was within the power of the House. (See Todd, Vol. L, p. 459, May.)

Robert Stout.

Wellington,