Untitled

Wellington Independent, Volume I, Issue 53, 4 March 1846, Page 3

Penalties and Forfeitures imposed by the "Arms Importation' Ordinance," Session 6, No. 1. 3. Every person who shall import, or bring int° the Colony, any arms, gunpowder, or other warlik c stores, (whether the owner thereof or no',) and who shall wilfully and knowingly, and contrary to the provisions of any tuch proclamation, as aforesaid, land or dispose of, or came or permit to be landed, or otherwise disposed of, such arms, gunpowder, or other warlike stores, or any {art thereof, shall for every such offence forfeit and pay any sum not exceeding .£SOO, to be recovered in a summary way. And any arms, gunpowder, or other warlike stores, which shall h'vs been imported and larded, or otherwise disposed of, contrary to the provisions of any such proclamation, as aforesaid, shall be forfeited to her Majesty, and may be seized by any Justice of the Peace, or Peace officer, or by any officer of her Mejesty's Custom?, or by any pfrson duly authorized and appointed in writing by his Ex* cellency the Governor. 4. The Master or Person commanding the ship or vessel in which such arms, gunpowder, or other warlike stores, shall have been imported, if he shall wilfully and knowingly, and contrary to the provisions of any such proclamation as afaresaid, lud, or dispose of, or cause or permit to be landed, or otherwise disposed of, such arms, gunpowder, and other warlike stores, or any part thereof, shall also, for every such offence, forfeit and pny any mm not exceeding £500, to be recovered in a summary way. And upon conviction of any such Master or Person, such ship or vessel, with all her furniture or apparel, shall be forfeited to her Majesty, and may be seized by any Justice of the Peace, or Peace Officer, or by any Officer of her Majesty's Customs, or by any person duly authorized and appointed by his Excel* lency the Governor. 5. Every person who shall wilfully and knowingly, and contrary to the provisions of any such Proclamation as aforesaid, sell or dispose of any arms, gunpowder, or other warlike stores, shall for every such offence forfeit and pay any sum not ex» ceeding to be recovered in a summary way ; and nil arms, gunpowder, and other warlike etore* so unlawfully sold or disposed of, shall te forfeited to her Majesty, and may be stized in manner hereinbefore provided.

Question submitted for the Opinion of th; Attorney and Solicitor-General, and Sir Tlnmas Wilde ; and Opinion thereon : — j 'Whether, for the reasono assigned by Mr. Burge, or lor any other reason, there is any bufficient ground to deny that the Legislature of Ntiw Zealand, as constituted under the Act S and 4 Vie. c. 62, and her 'Majesty's charter of 16ih. Koyember, 1840, is competent to enact laws imposing duties and taxes on her Maj , sty's tubjects inhabiting tin New Zealand Islands. We are of opinion that the Legislative Council of New Zealand, created by her Majesty's charter of the 10th November, 1840, has competent authority to pass an Act imposing duties and taxes upon the Q leeu'a subjects inhabiting that colony. Although the Legislative Council is created by the Queen's charter, the authority to impose taxes is derived from the statute of 3 and 4 Vie. c. G2 ; and in order to form a correct judgment as to the extent of the authoiity intended to be granted by the Legislature, it is proper to consider the object of the statute and circumstances under which it parsed. The statute authorized the Crown in its discretion to erect into an independent colony, any dependencies of the colony of New South Wales ; and by sec. 3, authority was also given to the Crown to constitute a Legisluive Council in any such newly created colony, and power was given to the Council to make and ordain all such laws and ordinances as should be required for the peace, order, and good government of the new colony, the laws not being repugnant to the lav/ of England, but subject to certain directions contained in ihe statute,' which are immaterial to tha question submitted to us. At the time this ftstuta passed, New Zealand ■was a dependency of New South Wales, and was subject to the legislative authority of a Council nominated by the Crown, under the authority of y Gcio. IV. There had been a previous statute, passed in 4 Geo. IV. c. 9, by 'which it was enacted t<) be lawful for his Majesty to constitute a Council, and (hat such Council thould have power and authority to make laws and ordinances for the peace, welfare, and gooJ government of the colony, not beint; repugnant to th laws of England, nor to certain other matters therein contained* That statute, in s. 27, provided and enacted that no tax should be imposed by the Council upon the vessels trading with the colony or the dependencies thereof, nor upon goods imported or exported, uor any other tux, except Only such as should bs neutssary for local purposes. This clause of restriction operates as a legislative exposition that by the previous words a general power of taxation had been conferred, otherwise this restriction v/as nugatory and useless. The statute 4 Geo. IV. expired on the 3lst December, 1829 ; and on the 25th July, 18-28, the 9 Geo. IV. c. 83 passed, which recited that it was expedient to repeal the before-mentioned statute 4 Geo. IV.. but we do not find that in fact it was jcpealed, but it seems to have been left to expire ; and by the 9 Geo. IV. c. 83, s. 20. a new power is given to the Crown to create a Council for New tiouth Wales and its dependencies; and by s. 2.1, the same power is given to that Council as had been corifurrad on the Council 4 Geo. IV., and containing in b. 25 a restriction of the power to taxalion for local purposes, but omitting the restraint in regard to taxation upon exports and imports ; and New Zealand was subject to the legislative authoiity of the Council appointed under the 9 Geo. IV. at the time the 3 and 4 Vie. passed. The Council appointed under the 9 Geo. IV. was in no respect a representative body, and the only power of taxation given to the Council v comprised in the words above quoted ; and it is manifested by s. 25 (the restrictive clause), that the Legislature had intended to give the pjwer of taxation by the previous general words, otherwise, as before stated; the restriction would have been nugatory and useless. Th.3 object of the statute 3 & 4 Vie. c. 62, was, as before stated, to enable the Crown to erect into an independent colony any of the dependencies of New South Wales, and as appears I y the recital, to appoint a Legislative Cuuncil of the same character as that which existed in New South Wales, and to the powers of which New Zealand was then subject, and for the same purposes; that is, to make laws and ordinances for the peace, welfare, and good government of the colony to be newly created ; and power is given to the New Zealand Council to be nominsted by the Crown, in precisely .the same words as those which had conferred the power of taxation upon the Council of New South Wales. We therefore are of opinion, that the power to make laws and ordinances for the peace, order, and good government of the colony of New Zealand, conferred upon the Council (he power of taxation for local purposes. In some statues a power to impose taxes has been given to local legislatures in express terms in addition to general words, such as those contained in ihe statute in question; and in other statutes, after the use of similar general jvords, a restriction has been inseited limiting the power to impose taxes to certain specified purposes. But we think that the pjwer to impose taxes has always been deemed to be conferred by, and comprised u-ithin, the same words as are used in the 3 & 4 Vie. c. 62, or words of similar import, and that such power has been generally exerased without being questioned ; and we are of opinion, that such words are usual, apt, and proper wo.ds to confer the power. We are alsa of opinion, that Ihe construction of such words is not governed nor in any respect depend upon the nature of the constitution of the legislative body to which they are applied, but that they equally confer the power of, taxation upon a legislative body nominated by the Crown under the authority of an Act of Parliament, as they bestow upon a legislative body which may possess more or less of a representative character. We haie duly couaidjred the opinion of Mr. Burge, with all tiieii.-i.pect due to the authority of that gen<leman, bafoie we arrived at the conclusion we have st.t d. We agree wi.h Mr. Burge, that in determining upon the au.hority of the legislature of New Zealand, the point to hi considered is the uoiist.-ujiiun of the statute of 3 & 4 Vie. c. 62, but we cannot concur in lbs opinion that the c.,n»truction of the statute is at all affected by the principles of the cjoiniim Lw to which lie i\jfeis. The power con e.ie.J by the statute in 7 be well ol'ected from .what ii theiein derlnred t> be the olject of ihe enac"inent, wLi .1) was the general government of the colony, and from the Lu.ua o -e in which thj au-

ihoiity of ihe council is expressed. If the construction of the words of thd statute in regard to tiie power of taxation was, as suggested by Mr. Uurge, to depend upon the lepresenttit.ve chuiacter of the legislative body to which they might itf.-r, such v rule would in its application lead to questions of no slight difficulty, as to how little or how much of the principle of representation being imparted to the boily wouM entitle the words U the larger or more limited construction. We think that the o'uject and intenti ;n of the Legislature, as they are to be collected from the statute, require that the statute should be constructed t» confer the power upon the council njW go. verning New Zealand, of imposing taxes and duties for l-ical purposes ; and with due deference, we do uot think that the reasons assigned by Mr. Burge, nor any other that occur to us, furnish any well founded doubt upon the subject. (Signed) Frederick Tiiesiger, Pirz Kov Kelly, Thomas Wilde, Temple, July 30, 1845.