THE GOLD DUTY.

New Zealand Times, Volume XXX, Issue 4429, 31 May 1875, Page 3

THE GOLD DUTY.

The following important opinion by Mr. Stout, late Provincial Solicitor of Otago, on the powers of Provincial Councils to evade the Constitution Act, the Gold Duty Act, 1870, and the Customs Regulations Act, has been submitted to the Otago Council, and printed in the report of its proceedings. We quote from the Guardian :

The Colonial Secretary, on the 19th instant, addressed a communication to the Superinten* dent, informing his Honor that the Colonial Government had been advised “ that the appropriation by the Provincial Legislature of Otago of a sum of money sufficient to refund to the miners a portion or the whole of the gold export duty levied on the province could not be held to be illegal,” and “that the passing of such a vote would not be held to affect the validity of the Appropriation Ordinance which covered it.” The late Provincial Solicitor (Mr. Stout) having been requested by his Honor to indicate how or under what condition the gold duty could be refunded, assuming that the Provincial Council voted the money, furnished the following memo.; — “I have perused the letter from the Hon. the Colonial Secretary, of date May 19, in reference ‘to the legality of the Provincial Legislature of Otago appropriating a sum of money sufficient to refund to the miners a portion or the whole of the gold export duty levied in the province,’ which your Honor has referred to me. The letter states that the Colonial Government is advised that such an ‘ appropriation could not be held to be illegal.’ I may state that the question submitted to me last session was whether there was any risk in including such a sum in an Appropriation Ordinance, and that I then thought there was. My opinion was based on what I conceived then to be the illegality of such a proceeding; and notwithstanding the advice tendered to the Colonial Government, my opinion is unchanged. In my opinion such a vote would be an act in fraud of the Gold Duty Act, 1870. The powers of Provincial Councils are, I need hardly point, limited by the Constitution Act (15 and 16 Vic 3, 92.) The 19th section declares that it shall not be lawful to make or ordain any law or ordinance for, amongst other purposes, the ‘ imposition or regulation of duties of Customs to be imposed on the importation or exportation of any goods at any port or place in the province.’ The Gold Duty Act provides : ‘ There shall be paid to her Majesty, her heirs and successors, the following duty upon gold, that is to say, at the Customs, previous to exportation from Hew Zealand, &c., and by the 9th section the duties are to be collected, &0., under the provisions of the Customs Regulation Act,’ &c. I understand, by the letter of the Colonial Secretary, that the Government have been advised that it is not illegal for a Provincial Legislature to vote public money to certain residents in the province in order that they may pay a Customs impost. This principle being recognised, I do not see where the powers are to be curtailed. Should a Provincial Legislature determine that it would be beneficial for the province to have ex. gr. all the import trade of the colony, it might, I presume, vote a sum of money to be paid to importers in order that goods might be imported at half the usual duties. Or again, should the Colonial Legislature decline to sanction a Land Bill containing provisions for speedy settlement, or such as the Provincial Legislature deemed so, the Provincial Legislature could vote money, purchase the lands, and then frame its own land law. Were it to do either of these acts, it would not be more ‘illegal’ than to do what the Colonial Government have been advised cannot be ‘held to be illegal.’ And one might see in New Zealand the strange spectacle of each province having different Customs regulations. This would be granting, in my opinion, powers to Provincial Legislatures which were not contemplated by the Constitution Act. X need not state that in order to contravene the provisions of a statute it is not necessary to expressly repeal them; it is enough that they are evaded. Seeing, however, the opinion now expressed in the Colonial Secretary’s letter, I am at a loss to know why the Governor’s assent was refused to the Otago Gold Duty Repayment Ordinance, 1874. This Ordinance was an Appropriation Ordinance. It also provided that the gold should be ‘ the produce of the province,’ and duty paid -within the province. And yet it has been disallowed. I understand now that the Appropriation Ordinance containing an item ‘ repayment of gold duty,’ will not be objected to, and that, although special conditions are not annexed to this repayment in the Ordinance itself, it could not be held to be illegal. It seems to me to amount to this—if the Provincial Legislature annex conditions the Ordinance will be disallowed, but if they exercise no discretion, and leave the matter to the Executive, the apparent illegality vanishes, and the repayment becomes legal and constitutional." Ido not attempt to explain such an anomaly. “ I may also point out that the very fact of last year’s special Appropriation Ordinance to meet this gold duty repayment being disallowed, showed that my doubts as to its legality were not without foundation, and that the Provincial Legislature did wisely in not jeopardising the Appropriation Ordinance proper. “ How, or under what conditions, the province is to make arrangements to repay the gold duty I do not know, except that each person who pays duty at the Custom-house is called upon to make a declaration that the gold has been produced or obtained in the province. The method hinted at in the Colonial Secretary’s letter of July 26, 1874, would, in my opinion, open the door to fraudulent practices which no'police system, however perfect, could control. The true remedy is in the Colonial Legislature interfering ; but, as the Provincial Legislature can, in the opinion of the law advisers of the Colonial Government, pass the necessary laws, I presume there will have to be included in the Appropriation Ordinance a, grant of money, and then a separate Ordinance be passed, detailing the conditions in which it must be paid. Should your Honor desire it, I shall draft the necessary Ordinance, adhering as I do, however, to my opinion that it is illegal and unconstitutional in any Provincial Council dealing with this Customs impost.”