General Assembly.

Lyttelton Times, Volume VI, Issue 407, 27 September 1856, Page 3

General Assembly.

REVISION OF PROVINCIAL ORDINANCES

REPORT

Of the Select Committee of the Legislative Council appointed to examine, the various Ordinances passed in the piovinces of New Zealand, with a view to the recommendation of some measure for the removal of doubts as to tho validity of such of the said Ordinances as it shall appear desirable to retain in force :— Your committee have experienced considerable difficulty in obtaining copies ot the Provincial Ordinances : they have, however, after considerable trouble and delay, succeeded in examining, with some few unimportant exceptions, all the Ordinances passed'by the Superintendents and Provincial Councils of New Zealand from the introduction of tlie Constitution Act up to the present time. Your Committee have discovered that Two hundred and eighteen Provincial Ordinances bave been passed since the Constitution Act came into operation, which they have classified as follows : — Laws affecting— I. —-Real Property ... ... ... 12 ll.—Civil Rights and Liberty of the Subject 5 lll—Trade and Commerce ... ... 2 IV. —Navigation 3 V.—Aboriginal Natives... ... ... 2 VI. —Provincial Matters... 194 218 Of these, however, some bave been disallowed and others repealed by subsequent Acts of the same Council, but your committee have drawn special attention only to such as are to all appearance actually in force. Your committee conceive that the most convenient way of laying the result of their investigation before the Council will be, first to give a general view of the subjects upon which the Local Legislatures , have enacted laws, and then to state the considerations which have influenced them in recommending the adoption of some, by giving them the validity of Acts of the General Assembly, and the rejection of others by withholding the sanction of that body. I.—REAL PROPERTY. The Ordinances which affect Real Property may be subdivided into three classes- Ist. Those which alter the laws previously in force relating to the .Registration" of Deeds. 2nd. Those which give a definition as to what is to be considered Legal Estate in Laud. 3rd. Those which authorise the sale of private lauds in cases of failure to comply with certain conditions, and as a means of satisfying certain debts which may become due to the Provincial Government. REGISTRATION OF DEEDS. The first Act under this head which attracted the attention of your committee is the "Deeds Act" of Auckland, which begins by repealing the first clause of the New Zealand Conveyancing Ordinance, Sess. 11., No. 10, and then goes on to enact (clause 5) that authenticated copies of instruments, in case the originals cannot be produced, if registered by an order of a Judge of the Supreme Court, shall acquire, by being so registered, the force and effect of an original instrument. "The' Deeds Registration Act" (also of Auckland) repeals the Land Registration Ordinance, Sess. 11., No. 9, and appears to introduce a more convenient system of Registration. " An Ordinance to regulate the management and control of streets and other things in and about* "Dunedin" (ofthe province of Otago). This Ordinance, although only incidentally;altering the law at present in force relating to Registration, neverthless interferes, to some- extent, with the rights of those who may have availed themselv.s of the advantage held out by the Registry Office, in the registration of their Deeds. This occurs in the following manner:—The Ordinance in question imposes upon the residents within a cettain district certain duties, such as repairing of foot-paths, the erecting of 'fences, etc. In case, however, any person should, neglect to fulfil the obligations tints imposed upon him, it becomes lawful for a body called the " Town Board" to cause the required work to be done at his expense; and a claim for the amount so expended, if registered by the Town Board at the Registry Office, becomes a first charge upon the property of the defaulter, taking precedence of our claim previously registered. I.F.GAI, ESTATK IN LAND. There are two Ordinances under this head—the one passed in Wellington^ and the otlrir in Nelson. The former Ordinance was passed for the purpose of providing for the management of the Public Cemetery, but it also provides for other matters, and particularly defines who is to be considered as having the Legal Estate and interest in the lands referred to. .The latter Ordinance,'Sess, II.;No. 2; (of Nelson)

professes to determine the Legal Estate in Land purchased from the New Zealand Company or from the Crown. SALE OF LAND. The Provinces of Auckland, New Plymouth, Wellington, and Nelson, have enacted laws which, in certain cases, authorise the sale of land. Ist. The Auckland Ordinance, Session 11., No. 5, which provides for the Fencing of Land, authorrises in default of payment the sale of so much of the land as may be necessary, and, in this case, a conveyance signed by the Resident Magistrate vests the fee in the purchaser. 2nd. An Ordinance of New Plymouth, Session 11., No. 9, authorises the levy of a rate for public works, and likewise authorises the sale of the land in the case of non-payment, after such a rate has been six months in arrear. 3rd. An Ordinance of Wellington, Session 111, No. 4, an Act to provide for the levying of rates for District Highways, enacts that any assessment may be made on lands liable thereto, by an elected body called the Hoard of Wardens, ibis body may then post this assessment, and six months .sifter such posting the amount so assessed, if not paid, may be levied by the sale of the land. 4th. An Ordinance of the same province and of the same Sess. (III.) No. 5, which gives the same power to the Superintendent and Executive Council of making assessments and selling the land as that conferred by the last-mentioned Ordinance on a Board of Wardens. This Ordinance, is however, confined in its operation to the Ohariu and Makara Districts. stb. Anothtr Ordinance of the same province and passed in the same Session (HI.) No. 6, an Act to amend tt.e Law relating to Thistles. Any person may, by this Act, lay an information 'that this-les are growing on unoccupied land. If the informant, after 'reasonable inquiry,' cannot ascertain the owner of this land, he may cause two notifications to be published in any newspaper of the province, and in case the owner or his agent shall not be forthcoming in one month after such notifications, the Sheriff may sell so much of the land as will satisfy ; the demand made, and cover all incidental expenses. - ■ - 6th. Nelson Ordinance, Sess. 111., No. 3. This Ordinance provides for the improvement of the Town of Nelson, by means of a Town-rate, which, if 12 months in arrear, may be levied by the sale, of the land. " - 11. ORDINANCES AFFECTING CIVIL RIGHTS AND THE LIBERTY OF THE SUBJECT. Under this head your Committee have placed five Ordinances, (Auckland, Sess. 11, No. 10, and Sess. V,, No. 14 ; Wellington, Sess, 11., No. 5, and Sess. 1. No. 26 ; Otago, Session of 1856, No. 9.) The first of these (Auckland, Sess. 11. No. 10) is the " Bribery and Treating Act" wheieby .large powers of inquiry are conferred upon certain unsworn Commissioners, which extend even to compelling a witness to criminate himself- By the 11th clause it is enacted that " no person shall be excused from answering any question on the ground that his answer "might tend to criminate such person,'' under a penalty (clauseT2) of_Uoo. 2. An Ordinance of the same province, called the ' City Building Act,' Sess. V., No 14, provides that in case any builder, in the erection of a building, shall fair to comply withjj the -grilles laid down in thisj Ordinance, ghe^mayj be call upon to enter into a bond conditioned to .correct whatever irregularity he may have committed, and on his failing-to enter into such bond, the builder.may be committed to the common gaol, there to remain without bail, until he shall have entered into the bond,'or-until the irregularity complained of shall have been corrected. 3. An Ordinance of the Province of Wellington, (Sess. 11., No. 5,). an Act to prohibit burials in the Town of Whanganui, and other places within the province. A contravention of this Act, is made a misdemeanour, to be dealt withfsummarily,?punisbable by fine aud imprisonment. Ihe term of imprisonment is limited to three months, but the amount of fine is net limited. 4. An Ordinance of the-Province of' Wellington, Sess. 1., No. 26, professes to deprive certain persons of their right to a seat in the Provincial Council, notwithstanding their possessing the qualification required by the. Constitution Act. 5. An Ordinance of the Province of Otago (Session of 1556, No. 9) also disqualifies certain persons otherwise qualified. 111. TRADE AND COMMERCE. There are two Ordinances which come under this head,almost'identical in tbeirprovisions, ( Auckland, Sess. 11, No. 2, and Wellington, Sess. 1, No. 10). Their object- to limit t' el abilities to which the members of certain partner&nips would 'under ordinary circumstances be subject. The general provisions of these Acts are as follows : —Partnerships may be ; established, consisting of two distinct kinds of partners, designated respectively as 'general ' and ' special' partners ;of these the general partners alone arc responsible for the debts of the concern,

to the fuil extent recognised by the law of partnership. The special partners, on the other hand, are only responsible loathe amount which they may respectively contribute. .Moreover, it is not required that the general partners should contribute anything at all. IV. NAVIGATION. There are three acts under this heading. Two of Auckland, Session I. No. 2, and Session V. No. -5, and of Wellington, Session If. No. 7. 1. An Ordinance of Auckland, Session I. No. 2, . provides against the desertion and other offences committed by foreign seamen. 2. An Ordinance of Auckland, Session V. No. 2, "Merchant Seamen's Act," provides remedies against desertion and other offences committed by seamen. .Sufficient remedies are already, in the opinion of your committee^ provided by an act of tbe Imperial Parliament, entitled the " Merchant Shipping Act." 3. An Ordinance of Wellington, Session 11. No. 7, is very similar in its provisions to the last mentioned Act; V. LAWS AFFECTING THE NATIVES. An Ordinance of the Province of Auckland (Session V. No. 8). amends the " Native Land Purchase Ordinance," Session VIII. No. 19, of the late Legislative Council of New Zealand, by repealing so much of that Ordinance as enacts that no person shall be convicted of any offence under the Ordinance except on the information of the SurveyorGeneral or some other officer duly authorised in that behalf by the Governor. This act consequently allows any person to lay an information under the Ordinance. 2. A Wellington Ordinance (Session 111. No. 6). This Ordinance has already been adverted to under the head of Laws affecting Real Property, and is known by the name of " An Act to amend the Law relating to Thistles." It also comes under the head of Laws affecting the Natives, inasmuch as it givjs power to the Superintendent to apply this ace to native lands over which the native title has never been extinguished. MISCELLANEOUS. Your committee would now desire to bring to your notice some .provincial Ordinances of a miscellaneous character," which they have included under the general heading of Laws affecting provincial matters." 1. An Ordinance of the Province of Auckland (Session I. No. 1). This is an ordinance to provide for the,interpretation of Acts passed by the JProvincial Council. In considering this and other interpretation Ordinances, your committee cannot divest themselves of the conviction that they are dangerous, inasmuch as laws enacted subject, to a special interpretation may acquire a meaning and an effect altogether different from those intendt-d by the framers—but with regard to the particular Act under consideration, your committee entertain a special objection to it, inasmuch as its scope and bearing are much more extensive than its title would lead one to suppose. This Act confers the power of administering oaths upon certain persons otherwise incompetent to do so, and makes it a misdemeanour to give false evidence before them. 2. -The various "Empowering Ordinances' 1 appear to your committee to give excessive powers to the Superintendents,—powers, some of which, as being specially delegated to the Governor by her, Majesty, could not be lawfully exercised by any other person, and consequently the confirmation even by the General Assembly of such Ordinances would be of no utility, because such confirmation would be invalid. Some of these laws, however, supposing that they "are not valid, have this inconvenience ; that they are calculated so to mislead ministerial officers in carrying them out, as to make their admiuistiation uncertain, and a.matter of the utmost persona^ peril to the officers themselves. ** Some Ordinances of this class, to take one instance, confer upon the Superintendent the power of appointing Resident Magistrates, thereby professing to clothe officers so appointed with the powers eonferied by a commission from her Majesty. Your committee do not conceive that the Superintendents can in any way be considered as competent, in the same manner as ihe Governor is competent, to represent Her Majesty, because these officers can in no sense be said to have received delegated powers from her Majesty, still less can they be supposed capabl • of representing the Queen in the appointment of Resident Magistrates, which power the Governor himself can only exercise provisionally. It follows therefore that, should a Justice of the Peace act under an appointment of this kind, he might be subjecting himself to all these penalties which via unwarranted exercise of power would entail. 3. Several laws have been passed by the Provincial Councils authorising the issue of debentures. Your committees have not interfered with this c^ass of laws, because, first, they are evidently valid of themselves, and therefore requite no fust her confirmation;, and secondly, because any confirmation of laws of this nature by the General Assembly might be construed into a guarantee by that body oi Provincial Loans.

4. An Ordinance of the Province of Wellington (Session I. No. 7). "An Act to establish a Medical Board, and to declare who should be deemed a qualified medical practitioner within the province." T his appears to your committee, as far as they have the means of forming an opinion upon it, -o be a very useful measure, but they have refrained from recommending it for confirmation, first, because being, as it appears to your committee, valid of itself, no confirmation is required ; but secondly, because it prof-.sses to establish new qualifications for medical practitioners, and your committee have no sufficient means of judging of the justice or in. justice of its operation. VI. PROVINCIAL MATTERS. Your'committee have now noticed the points in the Ordinances passed by the Superintendents and the Provincial Councils to which they desire specially to call attention. The remaining Ordinan- , ces appear to affect purely local interests, and without attempting to judge of the policy or impolicy of them, your committee have assumed that those who enacted them were the best judges of their practical utility. The following are some of the principal subjects with which these Ordinances deal. Appropriation Acts. Acts constituting Provincial Governments. Authorising the issue of debentures. Laws relating to the making and alteration of roads—to the establishment of ferrics —markets—to Publicans' and Auctioneers' licenses—to Police —to trespass of cattle—to scab in sheep —to education — sanitary regulations—management of provincial reserves. The great bulk of these laws are undoubtedly valid, but the legality of others may be questioned, particularly with those which create new offences. Of this kind are the different acts relating to the trespass of cattle, and the scab iv sheep, to police and sanitary regulations. Of another kind arethegreater part of those laws which provide for the levying of rates. Your committee are of opinion that the legality of these is doubtful because they extend, and therefore alter, the jurisdiction of the Resident Magistrates' Courts. This class of laws also (where they do not involve the sale of private lands) your committee have recommended for confirmat on.

Having taken a general view of the scope and tendency of the laws of provinces, your committee proceed to make some observations upon them. As regards thoselaws which deal with Real Property, your committee have carefully guarded themselves against recommending that the sanction of the General Assembly should be given, without the most mature and careful consideration, to any measure (however innocuous it might appear at first sight,) which affects in any way the title to land., Fully impressed, as your Committee are, with the fact that the present system of registration of deeds is inconvenient and objectionable, still it does not appear to your Committee desirable that so large and intricate a subject should be dealt with by any other body than the General Assembly; and your Committee entertain a hope thatduringnextsession some complete and well-considered measure will be enacted for the whole Colony.

As regards tho.=e Ordinances which define the Legal Estate in Land, your Committee conceive that they may be left to their operation, supposing they have any - force, but they would not recommend, without further inquiry, that they should be allowed to acquire the additional force of a eonSnnitory Act of the General Assembly. The last set of Ordinances affecting real property are those which authorise the sale of lands belonging, to private individuals. This authority is generally contained in Ordinances which have for their object to provide for the making and repairing of Roads and other Public Works by means of rates to be levied on the lauds benefitted by ihem. With the exception of two Ordinances (Canterbury, Sess. vi. No. 2, and Otago, Sess. ii., No. 5) all the Ordinances on these subjects have a tendency to render the tenure of laud in the highest degree precarious, particularly in the case of tho s e persons who may be at any time absent from the C o loiiy. Supposing the cisc of an owner of land in Wellington resident in England. The Highways Act of that province, Sess. ail., No. 4. would operate very harshly- It is er.sc'.ed by that Ordinance that if a body called a "Board of Wardens" fhall have made an assessment upon the irmd of any person liable to rate, and shall have posted the same, the rate, six months after such posting, may be recovered by the sale of land. Of course, in the case supposed, of a proprietor resident in England, the six months' delay in the sale of the land is nugatory for his protection, because too short for allowing of arrangements being made for paying the rate. Again under the " Act for amending the law relating to Thistles," this process of alienat'-ng private land is performed iv a still more speedy. a s well as in a harsher, manner. The effect of th.it Ordinance might be to place the lauds of absentees almost at the mercy of any person desirous of purchasing them. Tbe're is nothing to prevent such person himself causing thistles to grow upon the absentees' land, and, after going through certain forms, having v put up for sale. The persons authorised to make conveyances of lands so purchased, are generally the Resident Ma* gfstrate'or the Sheriff!

If there were no other objections to these Acts, the loose way in which the fee is vested in the purchaser, and generally the unsettled state into which all titles to land would probably be brought, appear sufficient reasons for refusing the sanction of the General Assembly to Ordinances of this nature. Your Committee 'have not recommended the Ordinances of Auckland, Sess. ii., No. 10, and Sess. v. No. 14, nor of Wellington, Sess. ii., No. 5, Sess. i., No. 2b\ nor of Otago.Sess. of 1856, No. .9, all of which deal more or less with rights which it would be most dangerous that a bare majority of any Provincial Council should be permitted to infringe. The two Ordinances' which profess to limit the liability of shareholders appear open to severalobjections. Iv the first place, they do not give sufficient security to creditors. The limitation of full liability to the general partners, coupled with the fact that these general partners are not necessarily shareholders at all, does not appear to provide sufficient checks on rash speculations. Supposing, for instance, the following case—A partnership, established upon this principle, fails in trade—the general partners being men of straw—the creditors have nothing to fall back upon except whatever sums might still remain in hand out of the contributions of the. special partners. In such a case as this, no one would be really answerable for the debts of the concern. The general partners would not be worth suing, and the special partners, having risked nothing but the amount of their liability, would escape comparatively unharmed. The creditors alone would be the real sufferers. Another objection is that the operations of these laws cannot, from their nature, be confined to the limits of the province for which they might be enaced. The limitation of liability, to possess any reality at all, must govern all contracts entered into by a firm of this nature, whether in its own province or out of it The very incidents to a contract from which a liability may arise are simply this:—Supposing the case of a.firm, subject only to a limited liability, entering.into a contract in one province, and contracting to pay in another, and that other province being that in which this system of partnership was in force ; the person with whom the firm contracted, though living under the laws of another province, where Uie system was unknown, would by means of this contract immediately become affected by the law of limited liability, and would of course receive payment only subject to the provisions of that law. But supposing that it were argued that j this law could only apply to., dealings within the I province, aud that it would have the effect of clearring a person who was living in another province from his full remedy ; if such be really the case: it is evident that" the whole system is a delusion, inasmuch as the special partners, if this were so, would gave no protection at alb except in regard to dealings strictly confined to otic province. Again, the very small amount of publicity which the provincial Ordinances enjoy, although an objection applying generally to thiskmd of legislation; becomes one of peculiar force when applied to laws professing to regulate trade. NAVIGATION. Two acts are in force relating to Discipline on board Ships—both applying to foreign seamen. The great objection which your Committee entertain to these Acts is, that those whom these Acts most nearly concerns are the very persons who are least likely to have heard of their provisions. It is hardly possible to conceive that a foreign seaman on entering the Port of Auckland woald make it his business to find out what were the special laws of the place to which he was becoming liable. Your Committee conceive that it is safer, nnd more in accordance with tho principles of sound legislation, to allow any of the disputes or grievances which may arise out of the presence of foreign shipping, to be dealt with by ordinary course of law, rather than to make special and exceptional laws in each particular port. Besides this general objection, however, your Committee feel some doubts as to the justice of some of the provisions of these Ordinances. For instance, penalties are imposed upon any person approaching.a ship after having been duly warned not to do so; and if. is cot specified what shall constitute a due warning. As regards the laws affecting the natives, your Committee do not conceive it necessary to point out how very objectionable a course it would be, to allow the provinces to legislate in the matter. Yonr Committee bave now drawn attention to all the Provindial Ordinances which appeared to tliem to require special notice, and it only remains for them to Htata the general principles which have guided them iv framing the Schedule hereto appended. Many Ordinances have been excluded from that Schedule, not because your Committee entertained any objection to them, but because from their obvious validity it was nonecessary to introduce them. Of this class aro Ordinances constituting Provincial Executives—authorising Superintendents to appoint Commissioners to inquire into various subje.-ts—App-opriation Acts, and such like. Ordinances of this nature, your Committee believe, would have uiiricceKtiiirily swelled the list. Whenever your Committee have met with Ordinances which, being purely local in their operation, might bo as*timed to express the collective wish of the community, but th.r validity of which w;is in anyway doubtful, your Committee have recommended tliem for consideration, subject always to two special exceptions:—lst. They have not recommended any Ordinances affecting in any way the law of Ileal Property. 2nd. Nor have tlioy recommended such a» appeared in any way to alter the civil lights of the community or to infringe upon the liberty of the sub- * ject.

Tho very limited publicity givon to tho Provincial Ordinances is ono reason which hns caused your Committee to look with great jealousy upon all laws involving penalties or forfeitures, except those affecting persons who might with reasonable enru become cognizant of them. Of this nature aro tho laws relating to Publicans and Auctioneers, to the Trespass of Cattle, and such laws as, from their nature, would probably be known to those whom they coucorned. Before concluding this report, your Committee- would make a remark as to the manner in which these Provincial Ordinances appear likely to affect tho Legislation of the Colony as a whole, the truth of which has, during the •course of the investigation,irresistibly impressed itself upon their minds. The conflicting nature of tho Ordinances, the partial character of their operation, and tho general feeling which seems to exist as to their force and validity, are all circumstances which, in the opinion of yonr Committee, inevitably tend, not only to create the utmost confusion and uncertainty in the administration of tho law, but also appear calculated to bring all law whatever into contempt, by doing away with those feelings of security and reliance which are so essential to the good government of tho Colony. In conclusion, your Committee would Tucommerid that the suggestions herein contained should be embodied in a Declaratory Act of tho general Assembly, confirming and legalising all the Provincial Oidinances named in the Schedule hereto appended. HENRY JOHN TANCRED, Chairman. We have not room to print the Schedule in full. The Ordinances of this province recommended for confirmation are : Sess. 1., Nos. 2. 4 ; Sess. 11., Nos. 4, 5, 7 ; Sess. 111., Nos. 1, 2, 3 ; Sess. IV., Nos. 4, 6, 7 ; Stfss. V., Nos. 1, 2; Sess. VI., Nos, 2, 3.