the same character as in the case of Victoria or New South APP. VIII. Wales.

The Act of 1863 referred in the preamble to the doubts as to the validity of the South Australian Acts, and enacted in general terms that all laws theretofore passed by any colonial legislature with the object of declaring or altering the constitution of the legislature or of any branch thereof, or the mode of appointing or electing the members of the same, shall be deemed to have had effect, as if the legislature had possessed full powers of enacting laws for the object aforesaid, and all formalities prescribed in respect of the passing of such laws had been duly observed.

This confirmation seems limited by the terms or objects of the laws confirmed. But the Colonial Laws Validity Act of 18651, by s. 7, declared all South Australian Acts previously passed to have been valid.

The result is that some of the powers of the South Australian Legislature may still depend upon the imperial Acts before the Colonial Laws Validity Act 2, as, for instance

(a) The power of altering electoral districts and the number of members (s. 11 of 1850);

(b) The general legislative power of the Legislature of South Australia (ss. 14 and 15 of the Act of 1850);

(c) The power to impose customs duties (s. 27).

Regard being had to the condition of the law, it is not surprising that mistakes have been made. Resort has been had to the imperial Parliament, on several occasions, to confirm colonial Acts held invalid because either not reserved or otherwise not complying with the law 3.

In Tasmania (the name given to Van Diemen's Land in Tasmania. 1853), the legislative council, appointed under the Act of 1850 (s. 7), in pursuance of s. 32, passed in 1855 the Constitution Act of that year (18 Vict., No. 17), which has since been supplemented by 48 Vict., No. 54, and 49 Viet., No. 8.

That Act established a parliament, both houses of which are elective, and regulated the electoral districts and the mode of election.

The Constitution Act of 1855 was not specially confirmed by an imperial statute, as in the case of New South Wales

128 & 29 Vict. c. 63. See App. V.

"It might be argued that the oath to be taken by members of the two houses of the South Australian Legislature depends upon ss. 25 and 26 of the Act of 1842, and that the validity of South Australian Acts may be affected by the non-observance of those sections.

3 In 1862, 25 & 26 Vict. c. 11; in 1863, 26 & 27 Vict. c. 84 ; in 1865, 28 & 29 Vict. c. 63; in 1894, 56 & 57 Vict. c. 72.

APP. VIII. and Victoria, and consequently the remarks applying to South Australia apply also to Tasmania.

Western

The difficulties with respect to the validity of South Australian Acts do not appear to have been actually raised in the case of Tasmania; but the confirming Act of 18631 was passed in general terms, and therefore would apply to Tasmanian as well as to South Australian Acts. The Act of 1865, s. 7, did not however apply to Tasmanian Acts.

In Western Australia the legislative council was estabAustralia. lished under the Act of 1850 (s. 7), on the petition of not less than a third of the householders. But this council did not exercise the powers conferred by s. 32 of the Act of 1850 until the year 1889, when they passed a Bill for a Constitution Act, which was reserved and was not to come into operation until such portions of the Acts of 1842, 1844, and 1850, as were repugnant to it, had been repealed.

The Queen was authorized to assent to the Bill by an imperial Act of 18902, by which (s. 22) such portions of the above-mentioned imperial Acts of 1842, 1844, and 1850, as are repugnant to the scheduled Bill, are repealed.

But the same section applied the provisions of the Acts of 1842 and 1850 as to the Royal Assent to a disallowance of Bills and their reservation in terms similar to those used in the case of Victoria in 1855.

The Act (s. 5) authorized the Legislature of Western Australia to alter or repeal any of the provisions in the scheduled Bill in the same manner as any other laws of the colony, subject to the conditions imposed thereby.

The Queen assented to the scheduled Bill, which thus became the Constitution Act. Under it (s. 73) the parliament of the colony has full power to repeal or alter any of its provisions, subject to the proviso that any change in the constitution of the legislative council or assembly should not be effected unless the Bill was passed with the concurrence of an absolute majority of the members of each house; and also that any Bill for the election of a legislative council, which either is passed before the expiration of six years from the first summoning of it, or interferes with the operation of ss. 69 to 72, and the schedules (i. e. the civil list charges, and certain pensions to ex-officials) should be reserved.

It also (s. 2) gave full power to the legislature to make 1 26 & 27 Vict. c. 84.

2 53 & 54 Vict. c. 26. This Act followed closely the imperial Acts of 1855, authorizing the Queen to assent to the Constitution Acts of Victoria and New South Wales.

laws for the peace, order, and good government of Western APP. VIII. Australia, and gave it all the powers and functions of the then subsisting legislative council.

The effect of the imperial Act of 1890, followed by the Statute Law Revision Act, 18931, is that the enactments of the Act of 1850 conferring powers on the Legislature of Western Australia are repealed, and the powers of the legislature of that colony depend (except for the Colonial Laws Validity Act, 1865), entirely upon the Constitution Act of 1890.

The position, therefore, of Western Australia is precisely similar to that of New South Wales above mentioned.

land.

Queensland differs from the other Australian colonies in Queensthat it was not made a colony until after 1850, and is not mentioned by name in the Acts of 1842, 1844, or 1850, nor indeed in any Act except the Act of 1861 (which confirms the Letters Patent establishing it), and never had a nominee or legislative council.

2

The Acts of 1842 (s. 51) and 1850 (s. 34) gave the Queen in Council power (as above mentioned under New South Wales) to erect into a separate colony any territories forming part of New South Wales and lying north of the thirtieth degree of south latitude.

The Constitution Act of New South Wales (s. 46) provided that nothing in that Bill should prevent the Queen from altering the boundary of the colony on the north in such manner as to Her Majesty might seem fit; and s. 7 of the Imperial Act of 18555 provided that the Queen by Letters Patent might erect into a separate colony any territory separated from New South Wales by such alteration of the northern boundary.

The Act of 1842 (s. 52) authorized the Queen, in creating the colony, to establish a nominee council.

The Act of 1850 (s. 35) provided that the legislature which might be constituted in any such new colony under the Act of 1842, should have power to establish a legislative council, and in effect should have the same power, and be subject to the same enactments of the Act of 1850, as the colony of Western Australia.

The Act of 1855 directed that the Queen, in establishing the colony, should by Letters Patent or Order in Council provide for the government of the colony, and for the • See p. 284.

156 & 57 Vict. c. 54.

2

24 & 25 Vict. c. 44.

The reserved Bill scheduled to 18 & 19 Vict. c. 54, and assented to by the Queen under the power conferred by that Act.

5 18 & 19 Vict. c. 54.

APP. VIII. establishment of a legislature therein, in manner as nearly resembling the form of government and legislature which should be at such time established in New South Wales as the circumstances of such colony would allow, and full power was to be given by the Letters Patent or Order in Council to the legislature of the colony to make further provision in that behalf.

Thus the power given by each Act of creating a new colony was accompanied by a power to create in that colony a legislature of such character as at the date of the Act was existing in New South Wales.

Moreover, the New South Wales Constitution Act of 1855 was altogether repealed as to Queensland by an Act of the Queensland Legislature (32 Vict., No. 39).

In 1859, Letters Patent of June 6 were made, creating certain parts of the colony of New South Wales into the colony of Queensland, and an Order in Council, dated June 6, 1859, was made for the government of the colony and the establishment of a legislature 1.

But the form of government and legislature so established did not in all respects resemble the form of government and legislature at that time established in New South Wales, and consequently doubts arose as to the validity of the order. These doubts were removed in 1861 by an imperial Act 2, which (s. 4) repealed the provisions of s. 7 of the Act of 1855, requiring the form of government and legislature to be the same as that established in New South Wales.

If a legislative council had been established in Queensland under s. 35 of the Act of 1850, ss. 12 and 32 of that Act would have applied, and consequently all Acts subsequently passed by the legislature of Queensland would have been subject, as respects the reserved Bills, to the provisions respecting those Bills of the Act of 1842, i.e. ss. 30-33 and 40.

As no legislative council was ever established under s. 35 of the Act of 1850, any application of the provisions of the Act of 1842, in respect of reserved Bills, to the legislature of Queensland must depend upon the Letters Patent and Order in Council and not on any statute.

But it may be questioned whether the repeal by the Act of 1861 of that part of s. 7 of the Act of 1855, which required the legislature in any new colony to be similar to that of New South Wales, did not exclude the legislature from the provisions as to reserved Bills of the Act of 1842.

1 See Stat. R. & O. Rev., vol. vi. pp. 54, 55.

24 & 25 Vict. c. 44, s. 3.

INDEX

U 3