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Enclosure 1 in No. 9.
PROCEEDINGS of the Executive Council with respect to Regulations for the Collection of
Extracts from Minutes No. 53/53 and 53/55, dated respectively the 1st and 22d
His Excellency the Governor-General.
The Honourable the Commander of the Forces.
The Honourable the Attorney General.
The Council having again had under their consideration the question partially proceeded with on the 11th and 17th ultimo, as to the measures necessary for the protection of the revenue in reference to dutiable goods brought across the frontier from Victoria and South Australia, adopt the following recommendations subject to the opinion of the Crown Law officers on the point hereafter referred to.
(1.) An officer of Customs with a sufficient establishment should be stationed on the northern bank of the Murray where the boundary line between New South Wales and South Australia cuts that river.
(2.) The officer so to be appointed will demand payment of the duty of customs on all dutiable goods brought by water or otherwise from South Australia, if intended for consumption in New South Wales; but in respect of any such goods intended for consumption in Victoria, then a bond must be entered into with two sufficient sureties that the goods shall not be introduced into New South Wales. Such bond to remain in force until a receipt be produced from the proper officer of the Victoria government, that the duty payable in that colony has been duly paid and the goods landed for consumption therein, or until it be shown to the satisfaction of the New South Wales Custom House officer at the frontier, that the goods have been brought back for re-introduction into the colony of South Australia, and that the same are re-introduced accordingly. In either such cases the bond is to be cancelled.
(3.) In all cases in which goods are returned or sent to either of the adjoining colonies, a drawback will be allowed of the full amount on proof being afforded to the satisfaction of the proper officer of the New South Wales duty having been paid on the goods so returned or introduced.
(4.) A custom house should be established at Albury, and a custom house officer appointed, to whom all duties on goods liable to duty on their introduction into this colony should be paid.
(5.) The benches of magistrates and establishments of police throughout the line of frontier should be requested to render every assistance in their power to the customs' officers in the protection of the revenue.
(6.) Public notice should be given of the regulations for the payment of the duties in both the cases referred to.
Before these recommendations are acted on, however, the Council advise that they should be referred to the Crown law officers in order that they may report whether the proposed arrangements are such as can be legally sustained under the present state of the law; and if not whether the difficulty can be remedied by any law which it is competent to the legislature of this colony to pass, or by the legislatures of New South Wales and Victoria acting in concert? The attention of the Crown law officers should especially be directed to a doubt which has suggested itself to the Council, namely—
Whether customs duty can be legally enforced in New South Wales in respect of goods whilst being conveyed on the waters of the Murray, which divide the colonies of New South Wales and Victoria and are common to both.
Clerk of the Council.
Enclosure 2 in No. 9.
Extract from Minute No. 53/55, dated November 22, 1853.
Present, same as Minute No. 53/53.
REFERRING to the proceedings on the 1st instant, his Excellency the GovernorGeneral lays before the Council a letter from the Honourable the Attorney-General and the Solicitor-General, conveying their opinion as to the legality of the arrangements proposed by the Council for the collection of customs' duty on goods brought across the frontier from the neighbouring colonies of Victoria and South Australia.
2. From this report the Council learn that as between South Australia on the one hand, and the two colonies of New South Wales and Victoria on the other, all goods
Encl. 1 in No. 9.
Encl. 2 in No. 9.
M. 11. 606.
brought along the course of the Murray from the westward to the eastward of the 141st degree of east longitude (that being the boundary to the eastward of the former colony) are liable to duty, that, but for and until the separation of Victoria, that duty would have belonged to New South Wales. That for the reasons assigned by them the Crown law officers are of opinion that in strictness of law the whole of the stream to the eastward of the 141st degree of east longitude continues to form part of the territory of New South Wales, although it would not be convenient to act fully up to that interpretation; and finally, that there is no doubt of the authority of the two legislatures of New South Wales and Victoria to pass Acts, with proper words of comity for putting this matter on a satisfactory footing.
3. The council thereupon advise that their former recommendations be carried into effect, so far as relates to the steps to be taken for the collection of the revenue at Aldbury; but that the arrangements having reference to goods brought from South Australia be deferred until their next meeting.
4. The perusal of the report of the Crown law officers has, however, suggested to the council that there are some matters connected with the navigation of the Murray, which can be satisfactorily provided for only by the interposition of Parliament, and they accordingly advise that a representation to that effect should be made to Her Majesty's Government, with the view of obtaining an Act of Parliament which will confer on the colonies of New South Wales and Victoria concurrent jurisdiction in all matters civil and criminal occurring on the waters of the Murray, and will, at the same time, empower the legislatures of the two colonies to pass local Acts in concert, for regulating all such matters.
(Signed) MICHAEL FITZPATRICK, Clerk of the Council.
Enclosure 3 in No. 9.
THE Honourable the Attorney-General and the Solicitor-General to the Honourable the Colonial Secretary, reporting on Minute of Proceedings of Executive Council with respect to regulations for the collection of duty on goods brought across the frontier.
Attorney-General's Office, Sydney, November 22, 1853.
WE have the honour to acknowledge the receipt of your letter of the 17th instant, No. 791, transmitting the enclosed Minute of the proceedings of the Executive Council with respect to regulations for the collection of duty on goods brought across the frontier; and requesting, by direction of his Excellency the Governor-General, that we will report whether the arrangements therein proposed are such as can be legally sustained under the present state of the law, and if not, whether the difficulty can be remedied by any law which it is competent to the legislature of this colony to pass, or by the legislatures of New South Wales and Victoria acting in concert; and especially calling our attention to a doubt which has suggested itself to the Council, namely, whether customs' duty can be legally enforced in New South Wales in respect of goods whilst being conveyed on the waters of the Murray, which divide the colonies of New South Wales and Victoria, and are common to both.
2. In reply, we have the honour to report that the boundary which divided New South Wales from South Australia, was established before the erection of Victoria into a separate colony. It then ran across the Murray, so as to include within New South Wales the entire channel of that river to the eastward of the 141st degree of east longitude.
3. It is clear, therefore, that as between South Aurtralia on the one hand, and the two colonies of New South Wales and Victoria on the other, all goods brought along the course of the river from the westward to the eastward of that crossing place of that line must be liable to duty; and it is also clear that, but for and until the separation of Victoria, those duties would have belonged to New South Wales.
4. The question then comes, how does the separation of Victoria affect the question?
As the colony of New South Wales originally included the whole channel of the Murray to the eastward of the 141st degree of east longitude, and as the Act of 13 and 14 Victoria, cap. 59, in erecting Victoria into a separate colony, makes "the course of "that river" the boundary of Victoria, without expressly giving to that colony any portion of the area forming its channel. We are much inclined to think that, in strictness of law, the whole of the stream continues to form part of the territory of New South Wales. If this be so, there can be no question of the right of this colony to demand duties of customs at the point at which the South Australian boundary crosses the river; though, with respect to Victoria, it would be doubtful whether such duties could be demanded anywhere, except at the place at which goods might be landed on the Victoria side of the river.
5. Still there would be great inconvenience in the demand by this colony of duties upon all such goods, because they would have to be returned in the shape of drawbacks upon such of the goods as were afterwards landed in, that is to say, re-exported to Encl. 3 in No. 9 Victoria.
6. It appears, therefore, to be highly desirable that simultaneous Acts should be passed by the Legislatures of New South Wales and Victoria, for putting this matter upon a satisfactory footing.
We have no doubt of the authority of the two Legislatures to pass such Acts, with proper words of comity. This we think clearly follows from what is said in the first and second paragraphs.
7. The tariff's in the two colonies being different, there may be very considerable difficulties in the way of a settlement of this question, and on that ground, as well as on others, it may be impossible to carry out the requisite official arrangements with economy. These, however, are difficulties of a practical rather than a legal character, and may be better disposed of by the customs departments of the two colonies, and by their respective Executive Governments, than by us.
COPY of a DESPATCH from Governor General Sir C. FITZROY to the
Duke of NEWCASTLE.
Government House, Sydney, December 29, 1853.
MY LORD DUKE,
I HAVE the honour to transmit an authenticated transcript accompanied by printed copies of an Act (No. 41) passed by the Legislative Council of this colony in its recent Session, intituled " An Act to confer a Constitution on New South Wales, and to grant a Civil List to Her Majesty," which, in the course of my duty, I have reserved for the signification of Her Majesty's pleasure thereon.
2. I also transmit a copy of the usual report of the Crown Law Officers of this Government and a copy of an address from the Legislative Council requesting me to forward to your Grace the draft of an Act of Parliament, as being, in the opinion of the council, a fit enactment to give validity to the Constitution Bill, embodying certain resolutions stating their opinion that this bill is an embodiment of all the rights for which the present house and preceding Legislative Councils have for years past been contending, and will, when passed into law, redress all the grievances enumerated in the petitions to Her Majesty and to both Houses of Parliament adopted by the House on the 5th of December, 1851."
3. I now proceed to report upon those clauses of the Act which I deem it desirable to bring particularly under your Grace's notice.
4. The first clause provides that there shall be in place of the Legislative Council now existing, one Legislative Council, and one Legislative Assembly to be severally constituted and composed in the manner prescribed in a subsequent clause No. 4.
5. The second clause specifies the bills on imperial subjects which may be reserved for the signification of Her Majesty's pleasure.
6. The third clause relates to the mode in which the Governor's right to reserve a bill, or Her Majesty's right to disallow a bill is to be determined.
7. The fourth clause provides that the members of the Legislative Council shall be appointed by Her Majesty or by the Governor in Her Majesty's name, and with the advice of his Executive Council, and refers to other matters relative to the appointment of that body.
* Page 21 of Papers on the Australian Constitution, presented to both Houses of Parliament by Her Majesty's command, 1st July 1852.
Dec. 29, 1853.
* Page 62.
8. The fifth clause limits the duration of the appointments of the members of the first Legislative Council to be appointed under this Act to five years, but provides that all future members to be summoned thereto shall hold their seats for life.
The next clause which appears to call for special notice is the 45th, which provides for the continuance of the judges in the enjoyment of their offices during good behaviour, notwithstanding any demise of the Crown. The following (46th) clause, however, makes it lawful for " Her Majesty, her heirs, or successors to remove any such judge or judges upon the address of both Houses of the Legislature.'
10. The fifty-third clause defines the boundaries of the colony, reserving to Her Majesty the right of altering the boundary to the north in such manner as to Her Majesty shall seem fit, and of detaching from the colony that portion of it which lies between the western boundary of South Australia and the 129th degree of east longitude, reckoning from the meridian of Greenwich.
11. The fifty-seventh clause provides a civil list of 64,300l. to be paid yearly to Her Majesty for defraying the expenses of the several services named in the schedules A, B, and C, annexed to the Act on condition, as declared in the following clause (5th), that all the revenues of the Crown be surrendered to the colony.
12 The fifty-ninth clause provides for the pensions of the judges and of such others of the present incumbents of office who may be required to retire from their offices on the introduction of a responsible Government. In the case of the judges, that they are to be entitled to demand to the amount of seventh tenths of their actual salaries on permanent disability or infirmity, or after fifteen years service, and that so far as the present judges are concerned, every three years' service in any judicial office in this Colony, other than the office of a judge of the Supreme Court, shall be equivalent to one year's service as such Judge of the Supreme Court. In the case of the officers liable to retire, that they shall be entitled to pensions or retiring allowances to the full amount of the salaries respectively received by them at the time of the passing of this Act. The division on the third reading of the bill was 27 ayes, 6 noes as will be seen by a reference to enclosure 9.
13. Your Grace will perceive from the foregoing summary that the points principally insisted on in your Grace's confidential Despatch of the* 4th of August last have been carefully guarded and liberally provided for; and I can only in recommending this Act for Her Majesty's favourable and gracious consideration-in order that the royal assent may be given to it at the earliest possible period-repeat the words used by me in my closing address to the legislative council when I prorogued that body on the 22d instant,-namely, that in my opinion the Act has been framed with an anxious desire to assimilate the constitution of this colony, as far as local circumstances permit, to that of the mother country, which, perfected by the experience of ages and the light of modern political science, has achieved for Her Majesty's subjects the most complete system of liberty-consistent with order and good government— which is enjoyed in any part of the world.
14. In order that your Grace and Her Majesty's Government may be in possession of the fullest information in my power to render with respect to a measure of such vast importance to the future welfare and interests of this colony, and one which I am convinced is eminently calculated to perpetuate its connection with the mother country. I have annexed to this Despatch the documents enumerated in the annexed schedule, which will show the great diversity of the opinions which prevailed with respect to the mode of constituting the legislative or upper chamber by the opponents of the nominee principle of appointment.
The Duke of Newcastle,
I have, &c. (Signed)
SCHEDULE of Enclosures in Sir Charles A. Fitzroy's Despatch, No. 165, 1853.
Authenticated transcript of the Act 17 Vict. No. 41.
2. Report of the Crown Law Officers.
3. Address from Legislative Council 21st December 1853.
CHAS. A. FITZROY.
4. Report of the Select Committee of the Legislative Council appointed to prepare a ne w constitution, with the divisions of the committee. (This Report will be found printed at Page 15.)
5. Petitions for and against the bill.
6. Debate on the second reading of the bill, and division.*
7. Summary of the various schemes proposed for formation of an upper house.* 8. Debate on third reading of the bill, and division.*
Enclosure 1 in No. 10.
ANNO DECIMO SEPTIMO VICTORIA REGINE.
By His Excellency Sir Charles Augustus Fitzroy, Knight Companion of the Royal Hanoverian Guelphic Order, Governor General of all Her Majesty's Australian Possessions, and Captain-General and Governor-in-Chief of the territory of New South Wales and its dependencies, and Vice Admiral of the same, with the advice and consent of the Legislative Council.
An Act to confer a Constitution on New South Wales, and to grant a Civil List to
Encl. 1 in No. 10.
WHEREAS by the thirty-second clause of the Imperial Act, passed in the Session Recital of 32nd clause holden in the thirteenth and fourteenth years of the reign of her present Majesty, intituled of 13 & 14 Vict., "An Act for the better Government of Her Majesty's Australian Colonies," it was among other things enacted that notwithstanding anything therein before contained, it should be lawful for the Governor and Legislative Council of this colony, from time to time, by any Act or Acts, to alter the provisions or laws for the time being in force under the said Imperial Act or otherwise, concerning the election of the elective members of such Legislative Council, and the qualification of electors and elective members, or to establish in the said colony, instead of the Legislative Council, a council and a house of representatives, or other separate legislative houses, to consist of such members, to be appointed or elected by such person and in such manner as by such Act or Acts should be determined, and to vest in such council and house of representatives, or other separate legislative houses, the powers and functions of the Legislative Council for which the same may be substituted: And whereas it is expedient that the powers vested by the said Act in the said Governor and Legislative Council should be exercised, and that a Legislative Council and a Legislative Assembly, as constituted by this Act, should be substituted for the present Legislative Council, with the increased powers and functions herein-after contained: Be it therefore enacted, by his Excellency the Governor of New South Wales, with the advice and consent of the Legislative Council thereof, as follows
I. There shall be in place of the Legislative Council now subsisting, one Legislative Parliament Council and one Legislative Assembly, to be severally constituted and composed in the of New South Wales.. manner hereinafter prescribed; and within the said colony of New South Wales Her General powers of the Majesty shall have power by and with the advice and consent of the said council and Assent to Bills. assembly to make laws for the peace, welfare, and good government of the said colony, in all cases whatsoever; and all such laws being passed by the said council and assembly, and assented to by Her Majesty, or assented to in Her Majesty's name by the Governor of the said colony, shall be valid and binding to all intents and purposes within the said colony: Provided that all bills for appropriating any part of the public revenue for imposing any Taxation and Appronew rate, tax, or impost, subject always to the limitation contained in clause sixty-two priation Bills to of this act, shall originate in the Legislative Assembly of the said colony, and further that originate in Assembly. all bills affecting any imperial subject may in the discretion of the Governor for the time Subjects. being be reserved for the signification of Her Majesty's pleasure thereon, and if assented to by such governor in the first instance, on behalf of Her Majesty, may be disallowed by Her Majesty in the manner and within the period herein-after limited.
Bills affecting Imperial
II. The bills on imperial subjects which may be reserved for the signification of Her What Bills may be Majesty's pleasure, or which, after being assented to by the Governor in Her Majesty's reserved for the signame, may be afterwards disallowed by Her Majesty within the period herein-after speci- Majesty pleasure. fied, are as follow; that is to say :
1. Bills touching the allegiance of the inhabitants of this colony to Her Majesty's
2. Bills touching the naturalization of aliens.
3. Bills relating to treaties between the Crown and any foreign power.
These documents, consisting of a pamphlet entitled "Speeches in the Legislative Council of New South Wales on the second reading of the Bill for framing a new constitution for the colony, printed by Thomas Daniel, York Street, Sydney, 1853," and of lengthy extracts from the "Sydney Morning Herald" newspaper of date the 6th and 22d December 1853, are in consequence of their voluminous nature omitted to be printed.