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and 14 Vic. C. 59, by which the district of Port Phillip either by prior command or by subsequent had been erected into a separate colony, separate Legis ratification. If an action is brought by a foreigner lative Houses with enlarged authority and functions. in an English court for an alleged wrong, and it is The preamble recites that purpose and no other. By proved that the act complained of is an act of the Constitution Act the Governor is not compelled to state, the Court is state, the Court is deprived of jurisdiction to assent to any bill on Her Majesty's behalf, and any bill inquire into its legality, although the same act to which he gives his assent my within a limited time if done to a British subject, might have given him a be disallowed by Her Majesty. Her veto cannot be con- clear right of action. It is disputable whether an act tested, and when she asserts it she acts by the advice of of this description can be committed within her Majher responsible Ministers at home. (See 5 and 6 Vic., esty's dominions. Mr. Justice Stephen thinks that it C 76, s.s., 31, 32, 33 and 40 7 and 8 Vic., C. 74, S. can. But at any rate it is essential to its character 7 13 and 14 Vic., C. 59, SS. 12 and 32; 18 and 19 that it should be committed against one who is not at Vic., C. 55, S. 3.) As to the classes of bills to which the time a British subject; and that it should be the Governor can only assent provisionally, their opera-sanctioned by Her Majesty as head of the state, reption being suspended until the signification of Her resenting it in its relations with foreign powers. Mjesty's pleasure thereon, or to which he must Attorney-General contended that the exclusion of absolutely refuse the Royal assent, must be guided aliens from Victoria was a local matter, that her by the instructions which he receives from the home Majesty's Ministers for the colony were entitled to adGovernment. By his instructions the Governor vise Her Majesty with regard to local matters, and is now explicitly prohibited from assenting to any that, as they had sanctioned the act, she must be sup.bill inconsistent with obligations imposed upon posed to have known of it and sanctioned it also. Her Majesty by treaty. Up to the present But from its very nature an act of state, in whatever time the Legislature of this colony never place it may be done, must be an act of imperial concould and cannot now, pass into law any bill in- cern, of which the immediate consequences may fall consistent with obligations imposed upon Her Majesty upon the whole empire. The wrong having been saneby treaty; for the Governor cannot lawfully assent in tioned by the Sovereign, or by the body in whom reHer Majesty's name to any such bill until his sides the supreme authority with regard to internatinstructions are altered. I am speaking generally, ional relations, has been done by the state itself, and and quite without reference to the treaties of Nan- can only be redressed by war if the state declines king and Tien-sing, of which I possess no copy, and I to afford satisfaction. With respect to such an act, do not know what obligations are imposed upon Her Her Majesty's home Ministers alone can advise Her; Majesty by either of those treaties. But supposing Her Ministers for Victoria cannot directly, or indiany treaty now to subsist between the Crown and any rectly; and necessarily therefore their knowledge any foreign state, whereby Her Majesty is obliged to cannot be accepted as her knowledge, nor their sancpermit the subjects of such state in time, tion as her sanction. How can her Majesty of peace, to enter Victoria, upon due sanction an act of state for Victoria observance of any conditions imposed upon their and repudiate it for the rest of the empire; entry by any statute having legal force in and if she cannot repudiate it for the rest of the Victoria, that treaty cannot be violated by colonial empire. how can it be called local to Victoria! legislation. If ministers here can dispense with the toria is not a state by herself; she is only a component Governor and act directly on Her Majesty's behalf, part of a great empire. and in fact against her will they can, without resorting to legislation lawfully break in her name treaty which the colonial Parliament has been restrained from breaking.

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I come now to the second question, whether the defendant's act in preventing the plaintiff from landing was an act of state. It is admitted of course that his act was approved of by the Minister of Customs and his colleagues. The second question is quite distinct from the first, although partly depending on similar arguments. An act of state, according to Mr. Justice Stephen's definition, is some act injurious (by which I understand him to mean "hurtful," and not necessary "wrongful") to the person or property of some one who is not at the time a subject of Her Majesty and which has been done by a representative of her Majesty's authority, civil or military, and has been sanctioned by Her Majesty

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Before quitting this branch of the subject, I would advert to the case of Buron e. Denman (2 Exh. 167,) cited as establishing as a conclusion of law that when the knowledge of Ministers is proved the knowledge of the Crown must be assumed. The action was tried at the bar, and Parke, B., summing up for the Court, told the jury that if the Crown, with the knowledge of what had been done, ratified the defendant's Act by the Secretary of State, or the Lords of the Admiralty, the action could not be maintained. From his summing up as reported, but which may have been abridged in the report, he must, as it appears to me to have directed the jury not that they were obliged but that they were at liberty to infer the Crown's knowledge of the Act from the evidence of its having been known to and proved by, two Secretaries of State and the Lords of the Admiralty, who, in the due discharge of their duty, would communicate it to the Sovereign ;

My judgment is

and the jury found that the Crown knew of the Act. rogative or statute to restrain him. If the effect of the summing up in Buron v. Denman for the plaintiff. is what I understand it to be, then, notwithstanding that the knowledge of Ministers has been conclusively A'BECKETT J.—Having had the advantage of reading proved, or has been admitted, evidence might be re- the judgment of my brother Holroyd, and agreeing ce ved to show that the Crown did not, in fact, possess with him that the right to exclude aliens is not exercisthat knowledge. It is not, therefore, a conclusion of able in this country, and that their exclusion in the law that her Ministers' ratification is Her Majesty's instance before us cannot be defended as an act of state, ratification. It is only a presumption, liable to be I think it unnecessary to repeat at length the reasons for coming to these conclusions, or to refer in detail to the acts of Parliament and other documents already My judgment in this case is not affected by the noticed, by which they are supported. I confine my legality or the illegality of the presence of the plaintiff judgment to these two points, as they are sufficient for in the port of Mebourne. But as the point has been the decision of the case, and I will briefly state the debated and the judgment of others may be affected by grounds on which I proceed, it, I desire to express my views upon the construction

rebutted.

of the Chinese Act 1881. There can be no mistake Assuming that the right to exclude aliens subsidised about the object of the Legislature in passing that act. in England, as part of the Royal prerogative, when our They desired to diminish the influx of Chinese immi- Constitution Act was passed, I can find nothing in the grants into this colony; and this object they endeavored Act, or in the system of government which it originated, to accomplish in two ways. In the first place, they authorising the exercise of this right by the advice of limited the number of Chinese that might be carried on Ministers in Victoria. It was argued that the authority board any vessel into any port in Victoria in propor- must be given, because responsible government was tion to the tonnage of the vessel, allowing one immi-given, as if the phrase "responsible government" had a grant only to every 100 tons. Secondly, they imposed definite comprehensive meaning, necessarily including on all Chinese immigrants arriving in any vessel from the power in question. The phrase has to my mind no parts beyond Victoria, and desiring to land at any port such force. Responsibility ray attach to persons havor place in the colony, a poll-tax of £10, to be paid by ing powers strictly limited, and its existence does not the master of the vessel to the proper officer of customs indicate the extent of the authority from which it arises. before permitting the immigrants to land, or making For this we must look to the terms in which the any entry at the Customs. Breaches of both these en-authority was conferred. That is to say, to the act of actments are punishable in the manner which the act Parliament establishing the system and to the docuprescribes; but there is a significant and designed dis-ments delegating powers to the Governor who adtinction between the two in respect of the persons on ministers it to ascertain whether, by express words or whom the liability for a breach is cast. The master of necessary implication, the right to exclude aliens has any vessel permitting any immigrant to land or escape been given. from his vessel at any port in Victoria before payment

of the poll-tax, is liable to a penalty of £50 for each offence, in addition to the amount of the tax. This is a question of legal construction, in which Any we cannot be assisted by the speeches or despatches of immigrant attempting to evade the tax is liable to a penalty of £10, or in default to 12 months' im-statesmen, and, considered in this aspect, there seems prisonment, unless the penalty be sooner paid. On to me to be little difficulty in answering it in the the other hand, for every immigrant imported negative. The power is not expressly delegated, and excess of the tonnage limitation the the delegation of a power which might seriously disturb foreign relations, with which we were not intended to interfere, cannot reasonably be inferred.

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master, or charterer of the vessel is liable to penalty of £100; but the immigrant, who is powerless to prevent either master, or charterer from violating the Treating this right of exclusion as a branch of the law, is not liable to any penalty. The master who prerogative unless it has been delegated to the reprepermits a Chinaman to evade the poll-tax and the sentative of the Crown in Victoria, it is a matter on Chinaman who evades the tax are equally offenders which it would be useless for Ministers in Victoria to against the law. When a master brings into port more tender him advice, and they cannot, advise Her immigrants than the law allows he is also an offender: Majesty directly as to its exercise. Certainly they but the Chinese immigrants in such a case are innocent cannot exercise the prerogative for themselves. The passengers and not offenders. They are legally here as implication of assent by the Crown from their confar as they are concerned, although they may have been tinuance in office can only arise as to the facts which illegally brought here by others. If the poll-tax be Ministers can lawfully do as such. If they assume paid, or legally tendered (for legal tender when refused to exercise powers which are not vested in them, there is equivalent to payment), the act permits the Chinese can be no legal implication of Royal assent. immigrant to land, and his landing is lawful, there Ministers, for instance, had engaged the Victorian being no other legal force, arising either out of pre- navy in a war of their own making, the Court would

If

not assume assent to this war by the Queen or by the Governor from the fact that they continued in oflice.

The conclusion that the Government of Victoria has not the right to exclude friendly aliens in times of peace seems to me to dispose of the defence that the act complained of was an act of state, and therefore not actionable by an alien on the grounds set forth in the case of Buron v. Denman. An act of

15th Sept. 1888

it powers outside or beyond the exact terms of the grant itself.

Victoria is a colony by settlement, and it is common knowledge that the settlers brought with them so much of the law of England as could be made applicable to local conditions.

grant or charter of

In respect of all further privileges there is ample state must be something which is competent for the authority for saying that we must see what are the state to do. In the case of a sovereign state, no privileges bestowed by the question as to its competence can arise, but it is Government. otherwise with a Government entrusted with only very limited powers, such as our own, and we have to consider whether the thing done was within its powers. If something done within its powers in flicted injury upon an alien, its being an act of state might debar him from redress in our court, although conditions to the proper doing of the thing had not been observed, but where the Court sees that the thing done was not within the powers of the Government under any conditions, it cannot be regarded as

an act of state.

The Imperial Act 18 and 19 Vict., cap. 55, enabled Her Majesty to assent to a bill amended by the Legislature of Victoria to establish a constitution in and for the colony of Victoria. The preamble refers to the 13 and 14 Victoria, cap. 59, which was an act for the better government of Her Majesty's Australian colonies By that act Victoria became for the first time a separate colony. The preamble states that it was expedient that the district of Port Phillip, now part of the colony of New South Wales, should be elected into a separate colony, and that further provision should be made for

For these reasons I think the plaintiff entitled to the Government of Her Majesty's Australian colonies. judgment.

WRENFORDSLEY, J.-Following the five judgments which have just been given by their Honours, I propose to confine the observations which I am left to make to the two questions of constitutional law which appear to me to form the only grounds for a decision in this case

It was admitted at the bar that the acts complained of had not been ratified by any order of council or by any sanction of the Governor. In considering the effect of this plea, it is required that we should ascertain what is the actual status of the Government of Victoria. It has been submitted on the part of the defendant that the acts in question were done by Her Majesty's responsible Ministers for Victoria, and that the prerogative right, now vested in the Crown, to keep out aliens, applies. It is not necessary to discuss the question raised on behalf of the plaintiff, that if such a prerogative right was at any time vested in the Crown it has become obsolete. Speaking for myself, I am of opinion that the prerogative right of the Crown to keep out aliens does exist, although its exercise may, by the custom or legislative action of modern times, be subject to the control of Imperial Ministerial responsibility.

The act of constitution is the local act of 19 Vict. It was assented to by Her Majesty in Council (pursuant to the provisions of the Imperial Statute 18 and 19 Vict., cap. 55) on the 21st July, 1855, and came into operation on the 23rd November, 1855. It was included in the Imperial Act as Schedule 1.

The Imperial Act was accompanied by a despatch from Lord John Russell, who was then Secretary of State for Colonies, dated 20th July, 1855; and although the Act of Constitution to which he refers must be held to speak for itself, it is nevertheless useful to see what opinion was then expressed by that very constitutional Minister when, as the head of the Colonial Office department, he assisted as a Secretary of State to give this colony a separate and constitutional existence. "No alteration," he says, has been made in any of the provisions, which are simply of a local character. He adds "It has been the conviction of Parliament that the Legislature must itself be trusted for all the details of local representation. But the responsibility for its introduction will rest, as it ought to do, with the members of the Council, by whom it was in all substantial points prepared and discussed." The Secretary of State then proceeds to deal separately with the proposals which appear to refer to the rights of the Crown. "But those portions of the provincial enactment which controlled and gen-regulated the future power of the Crown as to the reeither servation and disallowance of colonial acts, and as to the instructions to be given to Governors respecting them, have been omitted by Parliament. These portions were clearly not of a local character, but

I now proceed to consider to what extent the eral prerogative rights of the Crown have been granted or lessened by the act of constitution. not aware of any authority to the effect that in a settled colony like Victoria the act of constitution carries with

I am

In order to meet an observation made in the course

regarded the connection of the colony with the body his commission, and being only the officer to execute of the empire." These are very marked words. In the specific powers with which that commission clothes the first place he speaks of the provincial enactment, him." as distinguished from an act of the Imperial Parliament; next, he refers to the instructions to be given to Governors, and then he points to the connection of the colony with the body of the empire. I do not see how that connection, at all events in respect of external relations, could be maintained without a strict reservation of all Imperial or Crown rights.

The despatch included an intimation to the effect that the Governor would receive a fresh commission and instructions amended in certain particulars, which the system of Government then introduced rendered it necessary to change. I have endeavoured to consider very carefully the several powers and provisions conferred by the Act of Constitution, and fail to see that they go further than to provide for a perfect scheme for local Government, limited to its internal relations. When I say a perfect scheme, I mean a system of responsible self-government, complete within itself so far as representative institutions of a popular character can be said to be perfect. All the privileges of Parliament were to be defined, and all enabling powers incident to such a form of Government were conferred. I do not see, however, that by any rule of construction the rights so given can be extended. On the contrary, the responsibility which was to be attached to the formation of the body which was to represent the executive power applicable to such a form of legislature was left to the Responsible Council for the time being, and such a responsibility and such a power could not have included a discretion to deal with the external relations of the newly formed community. It seems to me that the then existing circumstances of the colony precluded the exercise of such an extraordinary power. Seeing that the developement of such a grant of local government must have required at the time that protection from all foreign influences which could only be obtained by the due reservation of prerogative rights.

It seems to me that the proper construction of the Act of Constitution is still further assisted by a reference to the amended instructions which have been issued to the Governor, and I refer more particularly to those which are now in force in this colony. But before I refer to the exact terms of the instructions I wish to point out what is the legal status of a Governor in a court of law. We must be careful not to confound what may be an expression of popular courtesy with a legal definition. Lord Brougham in, Hill v. Bigge 3 Moore P.C. 465, and which is cited in the comparatively recent case of Musgrave v. Pullido, says :-"If it is said that the Governor of a colony is quasi Sovereign, the answer is that he does not even represent the Sovereign generally, having only the functions delegated to him by the terms of

of the argument, I would add that, for the purpose of this decision I deem a Governor to be an officer acting under express power from the Crown, and certainly, in the case of a colony possessing representative institutions, he only represents the prerogative of the Crown in respect of thuse instances which are directly included in the terms of his commission, and I do not find any enabling words in the Commission to justify any other conclusion. He is an accountable officer, to act according to such instructions as may from time to time be given to him. By paragraph 7, he may act in opposition to the Executive Council, but subject to the obligation of reporting the grounds for so doing. Paragraph 9 is the most applicable to this case, for he is not to give assent to any bill the provisions of which shal appear inconsistent with obligations imposed on the Crown by treaty; nor any bill of any extraordinary nature and importance, whereby the prerogative, or the rights of property of Her Majesty's subjects not residing in the colony, or the trade and shipping of the United Kingdom and its dependencies may be prejudiced. Then follows the power to use or exercise the prerogative right to pardon under the conditions which are mentioned. These expressions and exceptions suggest, as it seems to me, a clear and intended reservation of the rights of the Crown; and certainly with respect to all external relations the power vested in the Crown is strictly preserved. If this view is incorrect, then I fail to see the substituted authority in which the prerogative right which is contended for in this case is vested. As I have already intimated, I do not think it exists in Her Majesty's Ministers in this colony under any form of grant conferred by the Act of Constitution; nor can it be said to exist in the Governor, who, as I have said, is an officer duly appointed by the Crown, and on whom rests the obligation of reporting to the Secretary of State any breach which may occur, either of his instructions or in the exercise of the Act of ConstituThis view is well supported by authority. Mr. Chitty, in his work on the prerogatve, at page 34, says:-"The Governor is substantially a mere servant of the Crown, appointed by commission under the Great Seal. The criterion for his rules of conduct are the King's instructions under the sign manual." And so, with respect to the status of the colony, the same authority, at page 32, proceeds to say :-"In every question therefore which arises between the king and the colonies respecting the prerogative, the first consideration is the charter granted to the inhabitants. If that be silent it cannot be doubted

tion.

but that the king's prerogatives in the colony are precisely those prerogatives which he may exercise in the mother country." In the case of the Lord Bishop

of Natal (3 Moore P.C. 148) Lord Westbury as Lord Chancellor, said: "After a colony or settlement has received legislative institutions, the Crown (subject to the special provisions of any act of Parliament) stands in the same relation to that colony or settlement as it does to the United Kingdom." Dwarris is an authority on this subject. He says (page 909) : -- Comparatively few of the statutes passed in the colonies receive the direct confirmation of the king It is clearly understood that so long as the prerogative is not exercise the act continues in force under the qualified assent which is given by the Governor in the colony on behalf of the king.

no opinion with respect to the fitness of this limited view of its constitution and Government to the obligations which may arise from the emergencies which are incident to all forms of government.

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I now wish to refer, very briefly, to the further question which has been raised by this plea, to the effect that the acts done amounted in law to an act of state. In the much altered condition of this colony since the Act of constitution I can well understand that circumstances might at any time justify the exceptional action which is involved in of state. Mr. Justice Stephen, in his work on the criminal law in England, thus defines an act of I arrive therefore at the conclusion that the status state :-" It is an act injurious to the person, or to of this colony is of a much more limited character the property of some person who is not at the time than is suggested by the words of the plea. In of that act a subject of Her Majesty, which is done describing it I adopt the language of Baron Parke, by any representative of Her Majesty's authority, (Keilley v. Carson 7 Jur). That case had reference civil, or military, and is either sanctioned or ratified to the powers of a House of Assembly in a settled by Her Majesty." In view of the exceptional circolony, and in the course of his judgment he said :-— cumstances of this case, as set out in the plea, it may They are a local legislature with every power be that authority might be found to justify the action reasonably necessary for the proper exercise of their of the local Government, supposing that the act of the functions and duties, but they have not the same Government was a matter still existing for ratification exclusive privileges which the ancient law of Eng- by the Crown. I can understand many acts conland had annexed to the House of Parliament." And sistent with colonial policy, which, although in a sense here I wish to repeat a question which I put once hostile to a foreign power, would nevertheless not bfore during the progress of the arguments in this be acts involving questions of peace or war. Let it be assumed that the Government of ing this I refer to acts done against ill-doers as a Victoria, in the exercise of the prerogative right class, and not to acts done as against a friendly state. which is claimed did some act which ultimately I apprehend, it would in such a case rest with that state proved to be against the comity of nations, and that to put its own interpretation on the meaning of the act the Imperial Government had to deal with it with complained of, as also to assert its own rights. And, diplomatic indemnity with reference to the present case, such a state would had to be paid, who would pay it, this colony doubtless take into consideration representations of a or the Imperial Parliament? I confess I see great diplomatic character which would have for their difficulty of a practical nature if the Government of object to show the exceptional position of this colony, this colony is to be held free to act in respect of the its vastness and material prosperity, its distance from high prerogative power which is claimed, or to be at the parent state, its isolation from European concerns, liberty, as a delegate of the Imperial Government, and the remote application of Imperial treaties to its within the meaning of the case of the Secretary of external relations. I can imagine circumstances State in Council for India v. Kamachee Boye Sahaba happening when such repro entations would be useful (13 Moore, P.C. 22) to pledge the Imperial Govern- to this colony, but I am of opinion that they could ment to obligations of an international character. It only be made by the Imperial Government. I need seems to me, however, that notwithstanding this not, however, pursue this subject further, because the view there does exist in this colony a form of Govern- act in question has not been in any sense ratified or ment consistent with a full grant of representative confirmed by any competent authority, and it follows institutions, limited, no doubt in the application of that, in my opinion, the plea, so far as it seeks to raise prerogative rights, but possessing ample power with the constitutional question, has not been sustained. respect to all internal administration.

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I think it passes the droit public enterne, and I use the ex pression in order to distinguish its legislative powers from the droit public externe, In other words, this colony did not, as a state, receive any recognition from the Imperial Government, with respect to its existing connection with the mother state, but I think that for the purpose of all necessary intercourse with other countries, the rights of the Crown have been sufficiently reserved. In saying this I express

Judgment for plaintiff with damages, if any, to be assessed, and costs to be taxed.

Solicitors for plaintiff, Clererdon and Westley: for defendant, The Crown Solicitor.

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