CHAPTER VII

INTERNAL AFFAIRS

PRIOR to the grant of responsible government the Imperial Government had been accustomed to scrutinize with the most minute care the various enactments of Colonial Legislatures. Their supervision was based in the main on no motive other than the legitimate desire to afford all possible aid to young and struggling communities in their attempts to legislate, and the skill of the United Kingdom often enabled the Government to point out defects of a serious character. With the grant of responsible government the duty of supervising internal affairs passed away from the Imperial Government, and, though it took some years for the change to become effective, before 1875 it was well established that folly in a law in the eyes of Downing Street was no possible ground for taking any exception to its terms. It must be remembered that there was temptation to intervene private individuals who deemed that their interests were being wrongly handled by Dominion Parliaments were very ready to appeal to the Secretary of State to prevent gross injustice being done: nor indeed were their appeals always in vain, as Prince Edward Island found in its efforts to buy out the proprietors who had been established in the island, and for whose expropriation equitable terms were demanded by the Imperial Government. The most famous case of interference perhaps on record was that in 1897 in Newfoundland. The Government of Sir W. Whiteway had found themselves in 1894 in an unhappy position: the passing of an Act regarding elections had made the practices normal in Newfoundland in the case of elections illegal, and thus the Government found that its supporters were being one by one attacked by election petitions, and found to have been illegally elected. They, therefore, in fear of further

ills, passed in 1897 a Bill (c. 28) which was, however, reserved by the Governor, and never assented to, since the result of the assent would have been to condone the very serious misapplication of public funds which was normal at Newfoundland elections, and which certainly did not deserve to be encouraged.1 But, on the other hand, the earnest attempt of a very powerful party in Newfoundland to secure the disallowance of the legislation regarding the Newfoundland railway contract,2 though supported by strong arguments, was completely unsuccessful, Mr. Chamberlain coming to the definite opinion that the matter was one which wholly concerned the Colony, and that accordingly there was no ground for refusing to give full effect to the legislation which had been passed by the Colony. He did not, however, conceal his opinion that the handing over of all the natural sources of wealth of the Colony to one firm, however distinguished, was a mistake, and to a certain extent events justified his view. The feeling against the contract was strong, and Sir R. Bond, in deference to it, modified by another agreement with Mr. Reid the terms of the contract, securing the return to the Colony of the ownership of the railway, which, however, was still to be worked by Mr. Reid, and of the telegraph system, though only at the expense of the payment of very considerable sums of money. The case, however, is important, as it shows the impossibility of a position which leads a strong party in a Colony to seek aid against the elected Government by interference from Downing Street. So decisive was this refusal, and so clear the repudiation of any intention of the Imperial Government to intervene in the internal affairs of a Dominion, that it is a matter of surprise that cases of such application have not been unknown in quite recent times; thus, for instance, petitions for the withholding of assent were presented against a New South Wales Act, dealing with the settlement of the claims arising out of the land scandals in that State under the administration of the Lands Department by Mr. Crick, and the land taxation 1 Parl. Pap., H.C. 184, 1906, p. 4.

2 Ibid., C. 8867 and 9137.

of the Labour Ministry in the Commonwealth in 1910. The point of exception taken to the latter legislation was that it struck at absentee owners, such as the land companies, with double force, and that this change of taxation was unfair, as these companies could not be other than absentees in the technical sense, and that there was some force in this argument was admitted by the succeeding Liberal Government, though it was not able to give any remedy, and by the action of the New South Wales Labour Government in removing the discrimination against absentees existing under the laws of that State. But interference in such matters would obviously be wholly absurd, and it is undesirable that it should even be open to individuals to send petitions on such questions as the Navigation Act of the Commonwealth to the Imperial Government, a position which merely tends to lead to friction.

Unfortunately, a difficulty arises in this connexion, because of the right of a British subject to petition the Crown on any matter affecting his interests. In the case of a self-governing Dominion it is clear that as the Ministry are the responsible advisers of the Governor, who represents the Crown, the petition should really be addressed to the Governor, and disposed of by the Ministry who advise the Governor what answer is to be returned. The right to petition the Crown when acted upon places all parties in an inconvenient position. The Crown must be advised what action is to be taken by his Imperial Ministers, and for this purpose they must be advised by the Dominion Government, while the Dominion Government naturally enough dislikes being asked for reports on such matters. In the ordinary instance, however, it is simple to dispose of the petition by advising His Majesty to refer the petition to the responsible Ministry concerned through the Governor, and this course is regularly adopted in the case of applications for the exercise of the prerogative of mercy in favour of a condemned prisoner. But the case of a petition for

1 Whether it exists by strict law may be doubted, but the question is not of importance. See 1 Will. & Mary, sess. 2, c. 2.

the disallowance of an Act of a Dominion Parliament cannot be met in this way, since the responsibility of disallowing rests not with the Dominion Government but with the Imperial Government. Thus the necessity of calling for a report from the Dominion Government is created, and friction is certain to be engendered over a matter which is not of Imperial importance. It is impossible to think that it is desirable on principle to retain the present practice of * petitioning the Crown if it is deemed to be desirable, and the only means of evading the present difficulty is the removal of the Imperial veto, whereupon it is easy to dispose of petitions by mere reference to the responsible ministers. The alternative suggestion that all petitioners of the Crown should be informed that their petitions will not be received if they refer to matters arising in the Dominions is open to the insuperable objection that they cut the connexion between the Crown and the subject overseas.

On the other hand, in the case of petitions for leave to sue the Crown there is nothing whatever to be said for the grave anomaly by which these petitions may be addressed to the Crown, and a fiat may be granted despite the objections of ministers. This has happened on several occasions in the case of the State of Western Australia, and there is no doubt whatever that the right of so petitioning the Crown exists in every self-governing Dominion and State, unless it has been barred effectively by statute. To this rule the only possible exception is in those cases where the basis of the law of the Dominion is not English law, as in Quebec, and the Union of South Africa. The validity of this distinction is doubtful, and rests merely on opinion, as there is no decided case which deals with it, and it is indeed a matter on which it would be difficult to obtain a legal decision, except perhaps by a special reference to the Privy Council. The point involved is whether the matter is to be treated as one of the royal prerogative, namely the right of the Crown to waive immunity to suit, or a matter of procedure introduced with the English common law. But in the great majority of cases the power need never be invoked, for while

the remedy by petition of right is one very limited in extent,1 the Dominions and States have made much more ample and generous provision in their statutes for proceedings against the Crown, so that applications to the Crown and the responsibility of Imperial ministers can seldom be of any advantage. Moreover, the possibility of such applications could be wholly prevented by the passing of local legislation barring the right whether as part of the prerogative or a rule of procedure, and it is surprising that this course has not been adopted by Western Australia, to which the position was made clear so long ago as at the Conference of 1897. It has of course been argued that the Imperial Government ought on these occasions simply to act on the advice of the local Ministry as to the propriety of the application, but this is, as in the case of the disallowance of Acts, impossible, since the Ministry are responsible for the exercise of the power of advice, and, as the matter is one of law, they are bound to act on the same principles which guide the Ministry in the United Kingdom in advising the grant or refusal of a fiat to a petition of right. Moreover, in one case at least, ministers have special responsibility if the claim is against the Imperial Government, and not the Colonial Government

in these

instances the fiat alone is the method in which proceedings can be taken, as the Dominion Acts deal with claims against the Crown in its local aspect, and not with claims against the Crown in its Imperial aspect. But this class of cases is precisely that one in which the views of the local Government are not constitutionally requisite for the guidance of the Imperial Government, though they may be valuable, and the existence of the procedure by petition of right in these cases is both proper and not open to be barred by any local Act, except in so far as the local Legislature might in theory prevent the local courts from taking cognizance of

1 It does not refer at all to torts; see Clode, Petition of Right, and Robertson, Proceedings by and against the Crown. For New South Wales see Act No. 27 of 1912. In the Cape up to 1881 a simple action could be brought against any head of a government department with the consent of the court.