THE NEW ZEALAND GOVERNMENT HAS NO POWER TO IMPOSE TAXES.

New Zealand Spectator and Cook's Strait Guardian, Volume II, Issue 62, 13 December 1845, Page 3

THE NEW ZEALAND GOVERNMENT HAS NO POWER TO IMPOSE TAXES.

The following important opinion given by Mr. Burg?, Q. C, one of the most eminent authorities oq colonial law, in answer to certain questions proposed will be found most important artd interesting. It is extracted from the Uobarl Totok Advertiser, Nov. 1 1 ;—; — The following queries have been submitted to Mr. Barge, Queen's Council :— ' | 1. Whether or not-New Zealand is subject to the provisions of the statute 3 and 4 Victoria, c. 62 ? and 2, Whether or not, by virtue of such statute, or any of the acts relating to New South Wales or otherwise, the Legislative Council of New Zealand ' have power to impose taxes and establish customs ? He gave his opinion as follows : — TheJCrown pottetted no authority by virtue of its prerogative, to grant the form of government now existing in New Zealand with the powers exercised tyit of .imposing taxes on the inhabitants. It can scarcely be necessary to refer to any authorities in support of the undoubted principle of constitutional law which would preclude the Crown from imposing on a J colony, acquired as New Zealand has been, any form of government which was inconsistent with the rights which the subjects of England enjoyed under the common law of England. The history tf the settlement tf the colonies in North America and the West Indies affords proof nf the uniform adoption of this principle. The Crown, therefore, did not attempt to grant suckform of government. The Imperial Parliament could alone confer on the Crown the authority to establish in New Zealand its present government to give.it the power of imposing taxes. „. Jbtifj^aid.that thelmperial, Parliament, by the act 3 andV4 Victoria, c. 62, has' granted to the Crown authorityto' establish that government, and forest it with'&ose pbweri. The question is, whether such authority has been* granted by' the act. This question' involves two subjects for consideration. The first is, whether the act 3 and 4 Victoria, c. 62, extends to New Zealand. The act gives authority to her Majesty " to erect into a separate colony or colonies any islands which now are, or which hereafter may be, comprised within and be depen* dencies of the said colony of New South Wales." And it then enables her Majesty to appoint a Legislative Council for such colony. It certainly appears that until June 1839, the Crown had not only not asserted, but had disclaimed any title to the sovereignty of New Zealand by right of discovery, fend had actually treated it as a foreign country. The acts of Parliament which' are referred to in Mr. Stephen*' inemorandutn, deal with New Zealand as a foreign ' country, and not as part of the dominions of the Crown of Great Britain. Whatever might have been the effect of that disclaimer and of those acts, if any foreign state had subsequently acquired a footing in Zealand, there was nothing in those acts which nrpfatted to preclude, or did. preclude, the Crown v. from afterwards asserting its title to the sovereignty, ' ilid'ireatfrlg New Zealand as part of its dominions, whichit might' include' in the commission granted to the.Aovjßnpr of New South Wales. '„[ IcwajKppinpftent,. therefore, for- the Crown to assert, and tht Ittten patent of June 1830, did assert,

the sovereignty of the Crown to New Zealand, by extending the Governor's former commission sfrms to include it, and I consider thatjwen by those letter* patent of June 1839, New Zealand was comprised within, and a dependency of, New South Wales. But even if the Crown did not then rest on and assert its title to the sovereignty, but intended to acquire a title the first time, or to confirm or perfect the former title by a treaty with the chiefs., ■o that it should not become part of the dominions of Great Britain, and not therefore capable of being a dependency of New South Wales until that treaty was concluded; yet it was competent for the Crown, in the commission of the Governor of New South Wales, to assign limits to which his commission 'should extend sufficiently comprehensive to include New Zealand when by that treaty it had become part of the dominions of Great Britain, and capable, therefore, of being a dependency of New South Wales. There is no' objection to the commission of a governor being sufficiently large to include in his government places expected to be, but not already acquired by the Crown. From the weight which justly belongs to the observations urged in this case, I have been induced to detail the ground on which I have formed my opinion that New Zealand, at (he time the act 3 and 4 Victoria, c. 62, was passed, was a dependency of New South Wales, was capable of being erected into a separate colony, and of receiving such.a form of government, and invested with such powers as that act gave authority to the Crown to grant. The great and difficult question to decide is, what was the extent of the authority which the act 3 and' 4 Victoria, c. 62, gave to the Crown ; or in other words, what .powers could the government, which the act authorised the Crown to establish, possess, or be entitled to exercise. The government has assumed the power of imposing taxes. Has the act given to the government, which it authorises the Crown to establish, any such power ? The act enables her Majesty to authorise any number of persons, not less than seven, including the governor, or lieutenant-governor of any such new colony or colonies, to constitute a legislative council, or legislative councils, for the same ; and that every such legislative council shall be composed of such persons as shall, from time to time, be named or designated by her Majesty for that purpose ; and shall hold their places therein at her Majesty's pleasure, and that it shall be lawful for such legislative council to make and ordain all such laws and ordinances at may be required for the peace, order, and good government of any such colony. Now, does the power to make laws and ordinances, required " for the peace, order, and good government of any such colony," necessarily include a power to pass laws imposing taxes ? It may be said that, in the commissions granted to the governors of the American and West Indian colonies, similar expressions, namely, "laws, statutes, and ordinances," for the public welfare and good government of our said province are there used in describing the laws or acts with which the legislative bodies therein constituted are authorised to enact, and that the words would in practice have included and given authority to them to pass acts imposing taxes. It is, however, to be observed, that a construction which gives that authority to those legislative bodies violate* no principle of the .common law, tut it perfectly cotttitfent with it. Thete legislative bodiet are the Governor, Council, and an Assembly elected by the freeholders of the respective districts, countitt, or towns, for which they are returned. In thit case the taxation is imposed in conformity with the principle of the common law which makes the imposition of the tax the act of the party by whom it it to be paid, or of hit representative. Independently of this consideration there are instructions which by reference become part of the commission as to the manner of raising and appropriating taxes, which makes the sense in which the above expressions were used quite evident, and fully justify the construction which they have ever received. But the 3d and 4th Victoria, c. 62, empowers the Queen to constitute quite another species of legislative body; namely, pertoti* nominated by her Majesty, and who retain their placet during pleasure. To give the same construction to these words, when they refer to a power to be exercised 1 by such a legislative body would be to adopt 'the construction, not consistent with, but insolation of a known principle of the common law, since it would authorise the imposition of taxation bjka body not the representatives of those by whom tudj taxation was to be borne. Again, the Crown hat no power to impose taxet, and, of course, could not grant any such power to its nominees, the legislative council. It is a more reasonable construction of these words to presume that, if it were the intention of the Imperial Parliament to give, by this act, to the Crown that dower with which the constitution had not entrusted tbe Crown, it would have used expressions clearly indicating that intention, and that in the absence of such expressions, the presumption is that no such intention existed. There is another principle, familiar to our law, which ought to be invoked in considering the import of the words in question, namely, that acts of Parliament imposing burden*, or taking away or varying the rights of parties, are to be considered strictly and not by implication. In the few instances in which the Imperial Parliament hat given to any body of persons, nominated by the Croum alone, the power of taxation, it has not contented itself by giving that body a power to make laws, &c, for the peace, welfare, and good government, &c, but it has added other expressions which clearly showed that the power to pass acts imposing taxes was included. Thus, in the act to make temporary provision for the government of Lower Canada, 1 and 2 Victoria, c. 9, the power is to enable such laws, &c, for the peace, &c., as the legislature of Lower Canada, aa now constituted, is empowered to make, and that all laws or ordinance! so made shall have the same force and effect as laws passed by the legislative council and assembly, and, assented: to by her Majesty, or by the governor. So in the act for,the enactment of certain laws in Jamaica, 2 and 3 Victoria, c. 26, the power given to the governor and council to revive or re-enact any of the laws of the island which should have expired •ince the 2d of November 1831, and had not been before then re-enacted, &c, by any act of the governor, council, and assembly, necessarily included an expired act which had imposed taxes. The act for the amendment of the constitution of the government of Newfoundland did not transfer the legislative power to a body nominated by the Crown, but empowered her Majesty to alter the qualification of the members of assembly. Ido not believe any' instance will be found in which by such general

word* as are used in the 3 and 4 Victoria, c. 62. Parliament has authorised the Crown to give to its nominees the power of imposing taxes on the inhabitants of a colony. . I do not consider, therefore, that the legislative counsel possessed authority,' under the act 3 and 4 Victoria, c. 62, to pass acts imposing taxes. I have formed this opinion with no inconsiderable anxiety, because I am well aware that an opinion which imputes to an act, of Parliament insufficiency and imperfections in its structure is likely to be controverted, and to be regarded with prejudice. Wiliiam Burgi. 1, Paper-Buildings, Temple, July 10, 1845.