ON THE LEGALITY OF THE NEW PROVINCES ACT, 1858.

A —No. 2b

7

The intention of Parliament (by the new Act) would seem to be to vest in the Legislature of the Colony the power from time to time, to constitute such New Provinces specifically as shall appear to it expedient ; the Legislature in each succeeding Session being made the Judge as to the particular emergency requiring the erection of a new Province. This power is to be used from time to time. Can the Legislature by any Act of its own deprive itself of such power or erect a permanent machinery for creating New Provinces without reference to itself? Further, the Act provides that New Provinces may be constituted by the Officer Administering the Government acting under authority of any such Act or Acts, intending thereby, as I conceive, to enable the Legislature to devolve upon the Governor, for the time being, Ministerial functions as regards the constitution of any new Provinces, but not so as to pass away from themselves the Legislative direction of determining, when and under what condition, such new Provinces shall be established. Do not the words, " Acting under authority of any such Act or Acts," limit the Governor's functions to Ministerial Acts, in pursuance of Acts to be from time to time passed for constituting new Provinces ? But the New Provinces Act has established a permanent self-acting machinery by which new Provinces are to be practically constituted by the joint action of a certain proportion of the electors of districts, in conjunction with the Governor, without reference to the Legislature Is this in accordance with the Act of the Imperial Parliament, which provides that new Provinces shall be constituted " by the General Assembly by any Act or Acts to be from time to time passed by them or by the Officer Administering the Government acting under the authority of any such Act or Acts." Again, Parliament having vested in the General Assembly, or the Governor, acting under their authority, the power of constituting new Provinces, has that power been duly executed by placing it practically in three-fifths of the electors of a district, subject to certain fixed conditions, the Governor's power being merely Ministerial, the Act obliging him to give effect to such action of the electors ? The Provinces which have been created under the New Provinces Act, have in fact been created only in obedience to and in performance of the Ministerial functions so vested iv the Governor, not in the exercise of any discretion on the part either of the Legislature or the Governor. A variety of incidental questions occur.— The New Provinces Act of the General Assembly makes ihe Superintendent eligible as a Member of Council. I understand the Law Officers in England to have given their opinion that this is not consistent with the 3, 9, 10, 11, 12, and 18 Sections of the Constitution Act, the two offices of Superintendent and Provincial Council being incompatible. If so, will not this invalidate the Constitution of new Provinces? The Law Officers are, I understand, of opinion that the powers given by the Constitution Amendment Act to repeal, alter and suspend certain provisions of the Constitution Act cannot be exercised inferentially by passing over riding Acts, but must be exercised directly and expressly. The New Provinces Act does not exercise that power passim inferentially, and not directly and expressly. Does the new Act remedy that defect? This is an important question as affecting other Acts of the General Assembly. The effect of the 4th Clause of the new Imperial Act is not clear. It enacts that the provisions of the Constitution and Constitution Amendment Acts as altered by this Act, shall apply to all Provinces at any time existing in New Zealand in like manner and under the same conditions as the same apply to the Provinces originally established by the first Constitution Act. Is the effect of this, to make the provisions of the Constitution Act (altered originally by the Ist and 2nd Sections of the new Act) applicable to all Provinces in New Zealand, new as well as old? Or does it validate the various departures from the Constitution Act made by the New Provinces Act ? e.g. The Constitution provides that the Superintendent of a Province shall be elected by the body of electors; the New Provinces Act provides that, as regards the new Provinces, the Superintendent shall be elected by the Provincial Council. How is this discrepancy to be reconciled? The 13th Clause of the Constitution Act (unalterable) gives to the Superintendent and the Provincial Council the power to make and ordain Laws and Ordinances. The 28th Clause (unalterable) provides that whenever any Bill shall have been assented to by the Superintendent as aforesaid, the Superintendent shall forthwith transmit to t'ne Governor an authentic copy thereof. The 29th Clause (unalterable) empowers the Governor within three months af:er any Bill has been received by him after its original transmission as enjoined by the 28th Clause (also unalterable) to disallow it. The 13th Clause of the New Provinces Act enables a Bill to be twice presented to and received by the Governor, and declares the limit of three months to commence from the date of the second receipt. That Clause also declares in regard to any such Bill that it shall be lawful for the Governor " to " make such amendments therein as lie may think needful and expedient, and to return such Bill with " the amendments to the Superintendent, whose duty it shall be to transmit the Bill and amendments "to the Provincial Council, and the consideration of such amendments by such Counc.l shall take " place in such convenient manner as the Council shall think fit; and on the Bill being again presented " to the Governor, either amended or not, it shall be lawful for the Governor at any time within three " months after he shall have received the same, to signify his pleasure thereon."