HELD UP BY HIGH COURT.

Timaru Herald, Volume CXXXIII, Issue 18760, 26 December 1930, Page 9

HELD UP BY HIGH COURT.

Mr Lang’s Thrust At Upper House. PERTINENT QUESTION OF LONDON PRESS. United Press Association—By Electric Telegraph—Copyright (Received December 25, 5.5 p.m.) LONDON, December 24. “The New South Wales judgment is an incident in a big political struggle involving the credit, not merely of the State, but of Australia,” says the “Morning Post.” “We do not know if the people of New South Wales are deeply attached to their Upper House. If they resemble the people of England, they would probably be thankful for some sort of bulwark between them and the freaks and follies of democracy, and if it can be said that an impoverished Australian State is in no condition to support two Houses of Legislature, it might be a matter of debate, which the people would prefer to lose. Mr Lang will probably attempt to appeal to the Supreme Court of Australia, though why he should shirk the way out offered by the judgment is difficult to understand, if he really wants to govern by the will of the people.” The judgment caused some surprise in Government circles. However, the only comment is to the effect that it now becomes an entirely domestic affair with New South Wales, and is taken out of the British Government’s hands, and the State Governor (Sir Philip Game) will be involved, unless the High Court upsets the judgment, in which case it will rest with him to approach His Majesty for Royal assent. MR LANG’S DRAMATIC MOVE. SYDNEY NEWSPAPER STORY. SYDNEY, December 24. A dramatic echo of the Upper House case is revealed by the “Daily Pictorial,” which states that Mr Lang has temporarily prevented the Chief Justice from becoming LieutenantGovernor. The paper says that, anticipating the time when the Government’s policy might require a more radical Lieutenant-Governor, Mr Lang countermanded the arrangements for swearing-in Sir Philip Street, by the Governor-in-Council. He intimated by the Special Premier’s minute that “the Premier did not desire that his Honour should be sworn in.” Consequently apart from the “Dormant Commission,” resting in the Chief Justiceship, New South Wales is now without a Lieutenant-Governor. Although Sir Philip Street holds a Commission from the King, this cannot become operative unless the Executive Council approves. Mr Lang’s unprecedented intervention took place two days before the Full Court, over which Sir Philip Street presided, began the hearing of the Legislative Council injunction case. With Sir Philip Street’s retirement from the Bench, his Dormant Commission would pass to his successor, whose appointment Mr Lang apparently anticipates will be made by the present Labour Government. STORY OF OFFICIAL DENIAL. KING’S COMMISSION EFFECTIVE. (Received December 25, 8.5 p.m.) SYDNEY, December 25. The Daily Pictorial’s picturesque story of how Mr Lang allegedly blocked Chief Justice Street’s way to the Lieutenant-Governorship is officially denied. It is pointed out that the Governor and Mr Lang discussed the matter, the former having said the action was unnecessary until he had visited another State, then the subject was dropped. The King’s Commission to Chief Justice Street was signed on October 1 last, and clothed him with all powers and privileges of the LieutenantGovernor’s office, exercisable at the King’s command, not at pleasure of the Premier or Ministers. Finally, it is stated, no trouble whatever had occurred, and Chief Justice Street would assume the duties automatically whenever the necessity arose. DECISION TO BE ATTACKED. MR LANG APPEALS TO HIGHER COURT. (Received December 25, 5.5 p.m.) SYDNEY, December 25. The State Ministry will appeal to the High Court against the decision of the Supreme Court, on the measure to abolish the Legislative Council, early in the new year. The Premier and his colleagues will meet to consider the recommendations of their legal advisers and the grounds of appeal. HISTORY OF DISPUTE. POWER OF PARLIAMENT. THE CONSTITUTIONAL POSITION. The Bills to abolish the Legislative Council of New South Wales, which have been passed by the Council, and are at present before the Legislative Assembly, and the demand recently made upon the Governor, Sir Philip Game, to appoint forthwith 40 new members to the Council, for which he said he did not see the necessity, concern an old constitutional dispute under new conditions. Under the Constitution (Legislative Council) Amendment Act, 1929, the Legislative Council cannot be abolished or reformed without, in addition to the required procedure antecedent to assent by the King, the approval of a referendum of the people of the State.

The Constitution Act of 1902 (section 7, part II.) stipulates:— The Legislature may by any Act alter the laws in force for the time being under this Act or otherwise concerning the Legislative Council,

and may provide for the nomination or election of another Legislative Council to consist of such members to be appointed or elected by such persons and in such manner as by any such Act is determined. Provided that every Bill passed for any such purpose shall be reserved for the signification of His Majesty’s pleasure thereon and a copy of such Bill shall be laid before both Houses of the Imperial Parliament thirty days at least before His Majesty’s pleasure thereon Is signified. The amendment to the Act, made by the Bavin Government, requiring the holding of a popular referendum before any such alteration, was passed through the State Parliament in March, 1929, and reserved for the King’s assent in the form prescribed above. Having reposed on the table of each House of the British Parliament for the requisite period, it received the King’s assent on November 5, 1929, and their finality was proclaimed in the State Government Gazette of September 24th. last. The Legislative Council, to which appointments are made by the Governor, acting on the advice of the Ministry, has 88 members. They hold office for life, without salary. Proposed Change in Constitution. The Bill to reform the Council, which was passed in November, 1929, but on which a referendum was not taken, provides that the Upper House shall consist of 60 members, to be elected at a secret ballot by members of both Houses of Parliament voting as one electoral body. At the elections of the first constitution of the Council there are to be four separate elections of 15 members, and the term of service of the first group is to be 12 years, of the second group nine years, and of the fourth three years. Thereafter one-fourth of the members are to be elected every three years. Th Bill contains provisions regarding money bills, and for preventing a deadlock between the two Houses. The referendum would have been held for approval of the reform scheme but for the late Government’s decision, with the approval of all parties, that the cost of it, in the circumstances, would have been extravagance, says the Sydney “Morning Herald.” Why the referendum was not held at the recent general election was also clearly explained. The industrial situation was, and remains critical. The Government desired not to encumber the issue with so conflicting a question as that of the revision of the State Constitution. Two Bills, one providing for the repeal of the referendum legislation, and the other providing for the abolition of that House, were introduced in the Upper House last week. The Leader of the Council, Mr A. C. Willis, said: “The Government has no intention of taking a referendum unless it is compelled to do sa What we do contend is that that part of the 1929 Act which purports to bind future Governments is bad.” Mr Lang Meets Obstacles. Proceeding, Mr Willis said it had been suggested that the non-provision for a referendum was unconstitutional. It it was unconstitutional, it was not for the House to say so. The Legislative Council Act of 1929 had apparently been framed with a view of tying the hands of a succeeding Parliament. Promises had been made, and a policy set out in which the people believed, but it had been found that the Upper House, as at present constituted, was an insurmountable obstacle to getting the money that was required for the carrying out of Mr Lang’s promises. The Opposition, who maintain that a referendum will still be necessary before the Governor can assent to the measure, and that the constitutionality of the measure will be tested in the Law Courts, have allowed both Bills to go through without a division. The question that has now arisen was foreseen when the referendum legislation was passed in March, 1929. The Premier, Mr Bavin, then expressed the opinion that it might be repealed by a subsequent Parliament, his view of the measure being expressed in the following statement: “It is, of course, quite true that it can be repealed if the country is prepared to put into office a party which deliberately announces its intention of taking away from the electors the right to vote upon the question. Hence it will be much more dificult to abolish the Legislative Council without a referendum than it is at present. It is true that the Bill does not make the abolition of the Council without a referendum finally impossible. There is no way by which this could be done, because no Parliament can tie the hands of its successors. The Bill does, however, interpose a very serious difficulty in the way of any Government which seeks to do what Mr Lang attempted to do in the last Parliament. This is all that this Bill intended to do.” [By a majority of four to one the Full Court of New South Wales called a halt to the plans of the Lang Government for the abolition of the State Government. They ruled that the-in-junction granted in the Equity Court should become permanent, and that the Abolition Bills should not be presented to the Governor for the Royal assent until the question had been submitted to the people by referendum. The Chief Justice (Sir Philip when delivering judgment, found that the Parliament of 1929 was not acting in excess of its authority in making a law providing for a referendum. A referendum of electors was unknown to the British Constitution, but in other parts of the civilised world it was a well-recognised method of ascertaining the will of the people on a question of public importance. It was also true that a sovereign legislature, such as the Imperial Parliament, could not bind its successors, but, although the Constitution of New South Wales was within limits an uncontrolled constitution, its Legislature was not a sovereign legislature. It was a subordinate legislature. “As the law stands today,” the Court held, “the Constitution of this State requires that, before the Legislative Council can be abolished, a referendum shall be taken. It also requires that any Bill for repeal of that provision shall be similarly submitted to the electors for approval before it can become law.” The only dissentient from this judgment was Mr Justice Long Innes, who held that the legislature which framed the former Government’s Act, making a referendum compulsory, had attempted to restrict the powers of appeal conferred upon it, and that the granting of an injunction might provoke an undesirable conflict between Parliament and the Courts.]