PARLIAMENTARY PAPERS.

New Zealand Times, Volume XXIX, Issue 4150, 9 July 1874, Page 3

PARLIAMENTARY PAPERS.

IMPORTATION OF STOCK PROHIBITION. CORRESPONDENCE WITH THE VICTORIAN GOVERNMENT. [concluded.] Sir James Fergusson, Bart., to Sir G. F. Bowen. Auckland, May 27. Sib, —After the correspondence that has passed between us -with reference to my despatch addressed to your Excellency on the 25th November, 1873, I regret to have to add to it ; but, as from the receipt of your first reply I have abstained from any discussion with you of - tho- cn 7TIU oh as had been made personal to myself, I cannot help transmitting also to your Excellency the reply of my Ministers to the memoranda of yours, which reflected upon the consistency of their conduct equally with the propriety of the course which I had taken upon their advice. I have, therefore, now the honor to transmit to your Excellency a copy of a memorandum (27th April, 1871), addressed to me by the Premier, and have only to add that my present residence here, and my necessary absence from time to time in remote districts, has occasioned unavoidable delay in its being forwarded. Memorandum by the Premier of New Zealand. The Premier has had under his consideration the despatch of His Excellency the Governor of Victoria arid the memorandum of the Chief Secretary of Victoria, both of which are herewith returned, with the recommendation that copies be supplied to the Colonial Secretary’s Department for use, if necessary.The remarks of the Chief Secretary have already been anticipated in a former memorandum on the subject, addressed to His Excellency. It was.therein explained that it was through accident the Premier discovered the ilegal nature of the proclamation, and at once drew His Excellency’s attention thereto. In ignorance of the illegal nature of the proclamation, the Colonial Secretary thanked the Chief Secretary of Victoria for the consideration shown by his Government. The Premier in his memorandum equally recognised that consideration, whilst regretting it was followed by a concession to pressure inconsistent with regard to legal requirements. In short, the Government of New Zealand would have no right to complain of the proclamation if it was legal, nor of recourse to the Victorian Parliament to enable it to be legally made. But, in the absence of its being legally made, they have the same right to complain of it as Great Britain would have of an illegal proclamation excluding its stock from the Colonies.

Respecting the despatch of the Governor of Victoria, the Premier has the honor to remark that the Government of New Zealand have never imagined that the Governor of the Colony was liable to be instructed by any r.e but Her Majesty’s Ministers. _ Sir W. Denison, during the latter part of his service, was Governor-General only in name, if, indeed, his commission so styled him. It was, no doubt, competent to Sir W. Denison to explain his views on the subject of Constitutional Government, and from a Governor of his experience, such expressions would naturally be received with respect; but verbal advice and counsel of the kind cannot be incorporated into the system of Colonial Government, at least as far as New Zealand is concerned. There would be no limit to the liabilities arising from such recollections ; not that there is anything to object to in the Governor of Victoria’s recollections of Sir W. Denison’s views. They obviously do not apply to the case in’ point. If Sir W. Denison had been consulted concerning the case of a Governor inadvertently signing an obviously illegal proclamation, he would probably have advised that the error should be immediately rectified, no matter who called His Excellency’s attention to the mistake he had made. He certainly would not have resented another Governor’s addressing him direct on the subject, instead of through the Secretary of State. Julius Vogel.

The Chief Secretary, Victoria, to the Colonial Secretary, New Zealand. Melbourne, May sth.

Sir,—l have the honor to inform yon that the despatch of Sir James Fergusson of the 12th March, forwarding the memorandum of Mr. Vogel of the 11th March, has been referred by His Excellency the Governor to his responsible advisers. X purpose in this case (as in all previous correspondence) to restrict communications upon intercolonial matters to the proper Ministers of the respective' Colonies ; and, taking this principle for my guidance, I desire to inform you that, acting upon the advice of his Ministers, and following the precedents of Governor-General Sir W. Denison, and of the other Governors of the Australasian Colonies, the Governor of Victoria declines to become, in any way, a party to the grave innovation on the well-known principles of Parliamentary Government, and in the constitutional usage so long established (on the English model) in Australia and New Zealand, which Mr. Vogel, by his own admission, has advised His Excellency Sir James Fergusson to make in his despatch of the 25th November last. However, Sir James Fergusson, jn his later despatch of the 20th February, has signified that he agrees that the official correspondence between Victoria and New Zealand should hereafter, as heretofore, pass through tho ordinary channels. All future communications, therefore (except respecting matters involving Imperial interests), in order to insure action being taken on them by this Govermnent, should be addressed directly, in the usual form, by the Colonial Secretary of New Zealand to the Chief Secretary of Victoria. You are, of course, aware that Sir James Fergusson took exception to certain terms which I used in a Ministerial memorandum addressed to Sir George Bowen in reference to a despatch which His Excellency had received from Sir James Fergusson, relating to the prohibition of the importation of diseased cattle, &c., into Victoria. The tone_ and language which Mr. Vogel has thought it not unbecoming in him to assume, m an official memorandum, towards tho Governor, the Ministry, and the Law Officers of this Colony, would alone render it difficult to follow the indirect mode of correspondence advocated by him, unless and until he shall have withdrawn imputations which can only be pronounced unwarrantable. Moreover, it is to be observed that Mr. Vogel’s arguments imply that, in Intercolonial questions and controversies, every Governor is to be guided, not by the advice of his own Responsible • Ministers and Law Officers, but by those of another, and it may be, as in this case, an opposing Colony. _ It need scarcely bo pointed out that if this theory were admitted in principle, or accepted in practice. Parliamentary Government would virtually be at an end, and a Colonial Governor would be acting, not by the advice of his responsible advisers, but in opposition thereto, and would thus assert a position which haa never been hitherto suggested, and which X

should assume Mr. Vogel and his colleagues, as Responsible Ministers, would decline to concede.

As a further proof of the undesirability of indirect correspondence, I would observe that Mr. Vogel does not offer any explanation of the fact that the same mail which brought Sir James Fergusson’s despatch of the 25th November to Sir - George Bowen, accusing the Victorian Government of aggressive and illegal conduct towards New Zealand, brought also an official letter from yourself, as Colonial Secretary of that Colony, courteously thanking the Victorian Government for its action in the very matter of which Mr. Vogel advised the Governor of New Zealand to complain direct to the Governor of Victoria.

No public advantage can be derived from continuing this correspondence ; otherwise, in reply to Mr. Vogel’s memorandum, I might point out how the very friendly course adopted by Victoria has not been appreciated by him. Still, although it remains with the Government of Victoria to adopt a course which we are almost challenged by our own colonists to adopt, and which is within the law, viz., to issue a proclamation more effectually carrying out the agreement of the Conference at Sydney, this Government will take no course which could in any way serve to justify the imputations so unwarrantably made against our action.

I will therefore conclude by assuring you, on behalf of my colleagues and myself, that, provided we are addressed in the proper and constitutional form, we shall always, in the future, as in the past, be glad to consider favorably and promptly any communication from the Government of New Zealand, and to co-operate with it in promoting the interests of both Colonies.

The Chief Secretary', Victoria, to the Colonial Secretary', New Zealand. Melbourne, May 11. ■ Adt'erting to my letter to you of the sth 1 iG™ the honor to inform you that the Governor of Victonahas reterraTTO—rmr- - Excellency’s responsible adidsers the further despatch on the same subject, addressed to him on the 13th April ultimo by the Governor of Nerv Zealand. I observe with much satisfaction that Sir James Eergusson “accepts unreservedly” my assurance that the Government of Victoria, while asserting the well-known principles and usages of Parliamentary Government as applicable to Intercolonial correspondence, had no intention whatever of showing any Yvant of respect to His Excellency’s office, or discourtesy towards himself personally. Here, I Yvould gladly close this correspondence ; but it seems to me absolutely necessary to make some remarks on the concluding paragraphs of the despatch now under acknowledgment, lest it should be supposed in any quarter that the Victorian Government assented to the doctrines therein promulgated. With every respect for Sir James Eergusson I am bound to make the observation that it appears to me he has altered his views of the 20th February, and adopted the theory propounded by Mr. Vogel in his Ministerial Memorandum of the 11th of March ultimo. In his despatch of 20th February Sir James Eergusson writes as follows : “ These expressions appear to me to be somewhat inconsistent with my own acquaintance with the principles of Parliamentary Government, inasmuch as they impute to the Head of such a Government personal fault, while expressing avowedly the sentiments of his Responsible Ministers. I might, or rather my Ministers might, as well have accused your Excellency (i.c., the Governor of Victoria) personally of faults with reference to the proclamation to which your name was appended, or to a speech which you had delivered to your Parliament.” In other words. Sir James Eergusson in this despatch contends that it would be equally absurd to hold the Governor of Victoria responsible for the proclamation issued by the advice of his Ministers, as to hold the Governor of New Zealand responsible for the despatch Yvritten by the same advice, and on the same subject. On the other hand, in his despatch of 13th April, Sir James Eergusson, though still contending that he is not responsible for the despatch, follows Mr. Vogel, and argues that the Governor of Victoria is personally responsible for the proclamation in question. It need only be remarked that this Government entirely repudiates this doctrine, and that this argument strikes at the very root of Parliamentary and Responsible Government, as established in these Colonies. With regard to the correspondence between the Secretary of State and the Governor of New South Wales, in 1868-69, referred to by Sir James Eergusson, it rrill be found on reference that it has no application or force Yvhatsoover in connection with the case under consideration. It has already been pointed out, in my letter of the sth instant, that the personal opinion of . a law officer in New Zealand does not prove that a proclamation made in the Colony of Victoria, or elsewhere, is either legal or illegal; and had any of your colonists felt aggrie\’ed and disputed our proclamation in question (if so advised), they had a ready remedy by the ordinary process of law. Finally, it is someYvhat difficult to understand Yvhy the name of the Secretary of State as a referee should have been imported by Sir James Eergusson into the discussion of an affair of purely Colonial concern,"and for their conduct in which the Victorian Government is responsible to the local Legislature.

The Colonial Secretary, New Zealand, to the Chief Secretary, Victoria. Wellington, June 31. Sir, —I have the honor to acknowledge the, receipt of your letters on the subject of the representation made by the Governor of this Colony to His Excellency the Governor of Victoria respecting the illegality of the proclamation made and published in the Government Gazette of Victoria on the 24th of October last.

When, in your letter No. 5001, of date 31st October, 1873, you were good enough to explain why it was that your Government was obliged to take the course of prohibiting the landing in Victoria of stock from New Zealand without first communicating their intention of doing so to the Government of this Colony, it was felt that you had acted in the matter under pressure which it was difficult to resist, and the Colonial Secretary had the pleasure of conveying to you his sense of the consideration shown for the interests of New Zealand. But Dr. Pollen was not then aware that in making that proclamation the Governor of Victoria had exceeded the power conferred upon him by the Act of the Parliament of Victoria, intituled an Act to amend the Laws relating to or affecting Public Health \ and that his action had inflicted an avoidable injury upon this Colony. When this discovery was made by Mr. Vogel, who, as well as Sir James Ecrgusson, was then at a distant part of the Colony, he at once moved His Excellency to take action in the matter, adopting, thus, the most direct course in order to its ratification. The question that has been raised by this proceeding, namely, whether an act, known to be illegal, of the Governor of a British Colony injuriously affecting the interests of another Colony is a matter of Imperial concern, is of extreme importance. It is conceivable that disputes between Colonies might arise, for the settlement of which the intervention of the Imperial Government would be necessary, and ought to be welcomed. New Zealand, which has uniformly maintained the amount of independence winds- the Constitution permits, may probably regard its relation to the Empire in a different light, from that of other Australasian Colonies, and it is to be hoped will never give way to fretfulness or impatience because of the exercise of powers which legitimately remain in the hands of Her Majesty’s Government ; but, on the contrary, will continue to regard the existence of these powers, and thenexercise upon fitting occasion, as being necessary for its protection. In this case there is no room to doubt that the prohibition of the importation of cattle, &c., from New Zealand into Victoria had not the sanction of the law the law empowering the Governor in Council to make_ such orders as may be necessary to prohibit the introduction into Victoria of sheep, cattle, or

Bwine from any country in which disease

known to exist; but no infectious or contagious disease existed amongst stock in New Zealand, at that time or since, and the condition upon which alone power to make such a proclamation legally was given was wanting ; when, moreover, it appeared that this illegal act was done under pressure from the Government of another Colony, which the Colony of Victoria was avowedly unable to resist, and was intended to punish New Zealand because its Legislature declined to make the necessary legal provision for carrying out its share of the compact entered into, conditionally, by its representatives at the Conference/ and when this illegal prohibition was seen to extend, not to New Zealand alone, but to all the dependencies of the Empire other than the Australian Colonies, it seemed an occasion not unfitting for the direct intervention of the Governor as an Imperial officer. I trust that this explanation of the action of the Govermnent in this matter may be accepted as satisfactory. I agree with you in thinking that no public advantage can be derived from continuing this correspondence. I gladly accept and reciprocate your assurance of friendly cooperation in promoting the interests of both Colonies ; and I earnestly hope that, in the future, no occasion may arise, on either side, upon which a departure from the usual proper and constitutional form of communication between the Governments of Victoria and New Zealand may become necessary or excusable. I enclose Mr. Vogel’s memorandum on your letter, and also the opinion of the AttorneyGeneral of this Colony on the whole subject.— I have, &c.,

William H. Reynolds, (in the absence of the Colonial Secretai-y). ENCLOSURE. In returning you the letter of the Chief Secretary of Victoria, of the sth of hi ay, referred to me by you, I can only express regret that that gentleman has been betrayed into the use of expressions which, on consideration, -r-have.no doubt ho will regret. I agree, Aim tiu. uwu. * •——■ —— proposition to “ restrict communications upon Intercolonial matters to the proper Miuistere of the respective Colonies but there still remains the right to consider that any official act, obviously illegal, of the Governor of a Colony affecting another Colony is a matter of Imperial concern. By accident, I discovered that the legality of the action taken by the Governor of Victoria was challenged by a correspondent m one of the newspapers of that Colony, and I was subsequently advised that the proclamation was illegal, and obviously so; and, in consequence, deeming the matter one of Imperial concern, I moved His Excellency Sir James Eergusson’s attention to it, who at once municated with the Governor of Victoria on the subject. I understand the Chief Secretary to argue that if a Governor is to be communicated with in this manner he is asked to take advice of Ministers and law officers not his own. This seems to me rather a far-fetched view. The real question depends upon whether or not the action complained of is legal or illegal; in either case, the Governor is able to consult his own Government, X am freeto admit thatif there is reasonable room to doubt the alleged illegality, it would be better to make the subject one of discussion between the Governments; but when the illegality is beyond all question, as in the present case, it seems to me fairly a matter of choice by the Government suffering injury as to which course promises the most ready redress. It is hardly necessary now to discuss the question of the legality of the proclamation, for although the Chief Secretary upheld it, in the memorandum of which Sir James Eergusson complained, it was subsequently revoked, and, I believe, the Chief Secretary informed a deputation, which waited upon him on the subject, that fresh legislation was required to enable such a proclamation to be made. I observe that the Chief Secretary, in his letter under consideration, states that he has the power " within the law, to issue a proclamation more effectually carrying out the agreement of the Conference.” Xdo not think that this Government have any objection to offer to such a proclamation, if it be within the law. Events have shown that the action proposed by the resolution carried at the Conference was unnecessary, and have justified the course taken by our Parliament. One, if not two other Colonies have abandoned the prohibition in respect to the northern part of the Australian continent, so that the whole prohibition appears now to be useless. But if the Chief Secretary thinks otherwise, I am not aware that this Government have any objection to offer to a legal proclamation. I have further to observe that there has been an assumption throughout that New Zealand 1 failed to cany out the resolution adopted at the Conference. This is not the case, for it trill be observed by the resolution of the Cou- , ference (a copy of which I append) that the ‘ representatives of the various Colonies only i engaged “to introduce into their several Legis- ' latures such measures as might be necessary to j cany out this object.” The Govermnent of ! New Zealand did this, and supported the ‘ measure.

The Colony thus literally followed the resolution. Two at least of the other Colonies— New South Wales and Victoria —did not. Instead of doing so, they issued proclamations which, as I am advised, were illegal. The law gave to the Governor of Victoria the power to prohibit the introduction of cattle from places where disease was known to exist. Professing to exercise this power, but not pretending that disease in stock existed in all the countries of the world but the Australian Colonies and New Zealand, the proclamation prohibited the introduction of stock from all countries but from the Colonies excepted. It is nothing to us that that was obviously an excessive use of the power possessed, excepting that it shows that the Colony of Victoria, instead of complying with the resolution of the Conference to obtain legislative powers, if necessary, preferred to issue an invalid and consequently an ineffective proclamation. But what New Zealand has to complain of is, that though it is admitted in the proclamation prohibiting importation from other countries, that New Zealand is free from disease, yet importation was prohibited from New Zealand by another proclamation, made in the exercise of a power which could only be legitimately exercised if disease existed. The terms of the first proclamation made clear the vice of the second. r

The recital, too, that the proclamation was issued because New Zealand did not carry out 1 an agrsomoni, iv«o no* vruljr ou nliaura rounds,tion for the proclamation in a legal point of view, but offensive to a Colony that invariably does carry out its engagements. It is to be observed, also, that the doubtful nature of the original proclamation makes the matter essentially an Imperial one. For Great Britain, its dependencies, and foreign countries, are wronged besides New Zealand, and the foreign treaties of the Empire are infringed ; and if these do not constitute matters of Imperial concern, the Colony of Victoria regards its relations to the Empire in a different light from that in which those relations are regarded in New Zealand. Tins Colony has uniformly maintained the amount of independence the Constitution permits it, but it has never given way to a fretful impatience at the exercise of the powers which legitimately remain in the hands of Her Majesty’s Government. I am sorry that I have been the means Of wounding the sensibilities of the Chief Secretary. Whilst disclaiming any intention or desire to do so, I have still to repeat that it seems to me impossible the Government of New Zealand can relinquish the right to regard as a matter of Imperial concern any action of another Colony which illegally affects New Zealand. Julios Vogel.