THE H.B. TRIBUNE SATURDAY SEPTEMBER 27, 1930 DOMINIONS’ LEGISLATIVE POWERS

Hawke's Bay Tribune, Volume XX, Issue 239, 27 September 1930, Page 4

THE H.B. TRIBUNE SATURDAY SEPTEMBER 27, 1930 DOMINIONS’ LEGISLATIVE POWERS

No doubt those who have taken any interest in the subject will have been wondering why the Queensland Government was so long in instituting the prosecution that is to test tho guilt or innocence of Mr. Theodore, ex-Premier of that State, in connection with the “scandal” of the Mungana leases. We were told some weeks ago of tho passing by the State Legislature of the special Act requisite to authorise the prosecution. The further delay, is explained by one of to-day s messages, which states that this Statute has now received the Royal assent. This brings us to one of the matters that will engage the attention of the Imperial Conference which opens next Wednesday, that is, the constitutional legislative authority of the self-governing Dominions. At the Conference of 1926 a committee was et up to investigate the legal position and to submit recommendations as to what changes should be made in it. These recommendations wore some little time back interestingly discussed by Professor J. H Morgan, K.C., a leading authority on constitutional law.

He points out that the principal flaw . in the late Lord Balfour’s formula about “equality of status” among the Governments of tho Empire adopted at the earlier Conference lay in its failure to recognise the legislative supremacy of the British Parliament. “The Imperial Parliament,” he avers, “has power—-it has always had it—to legislate for the whole of the Empire. The Constitutions of the great Dominions are themselves Acts of the Imperial Parliament, and if and when one of its Statutes, expressly or

by necessary intendment applying to them, conflicts with a Dominion Statute, then the latter is null and voil to the extent of such conflict.” Thus, if statutory expression is to be given to the doctrine of equality of status, it is necessary to do away with the axiom that the Imperial Parliament can bind the Dominions by its legislation. In modern practice the Imperial Parliament, when passing Acts of apparent general application, has as a rule been careful to exclude tho self-governing Dominions from their operation. Not only that, but “whenever the shoe of earlier Imperial Acts applying to them has pinched the Imperial Parliament has repealed the offending Statutes.” The 1926 Committee has now gone a step further by suggesting that the Dominion legislatures shall have a general power to repeal any Imperial Act that affects them.

This involves a consideration of the Royal prerogative, as to which it is admitted that the Dominions have already power to legislate so far as its internal exercise is concerned. But, at the same time, it is not within their power to exclude the Crown as a factor in legislation. Thus, any amendment of a Colonial Constitution which attempted to abolish the Royal assent to legislation as exercised, for instance, through a GovernorGeneral would be bad. So, if the Legislature of any Dominion attempted to transform it into a republic or to set up a dictatorship the legal landmark would be overstepped. If, however, effect is given to the recommendations of the committee, then this disability would be removed, as would also be the binding of the Dominions by the Imperial legislation settling tho succession to the Throne.

But, having gone so far, Professor Morgan then proceeds to disclose what he calls a “a stupendous paradox” that is involved in the whole scheme for renouncing the supremacy of the Imperia.) Parliament. It is to be found in “the fundamental principle of our constitutional law that the Imperial Parliament can never divest itself of its own sovereignty.” Thus, what one Parliament at Westminster has done or may do another Parliament there can undo, and that, too, even if the enacting Parliament may declare its legislation to be perpetual. Quoting tho words of an eminent Canadian jurist, “No power, not even its own, can tie the hands of the Imperial Parliament.” In this way wo arrive at the singular position that although the British Parliament may, as the result of the Committee’s recommendations, empower tho Dominions to repeal all or any of its existing Statutes relating to them, it may at any time resume its power to legislate for them. The conclusion to which Professor Morgan comes in connection with this "fine point” in legal logic is that there are only two ways in which the formula of complete equality of status between the Dominion legislatures and the British can be translated into law. One would be by an Act declaring their independence such as ter minated the sovereignty of tho Crown over the American Colonies and recognised them as a foreign State. The other, almost equally revolutionary, would be to destroy the potnet legal principle of the unity and indivisibility of the Crown by constituting the Dominions separate kingdoms with separate “Crowns” united merely by a dynastic tie. There will be some curiosity felt as to how the Conference will proceed to unravel this legal tangle. But, in all probability, it will be quite content to rely upon the British Parliament never attempting to resume a power it has once expressly disclaimed.