As examples of public departments entrusted with powers of legislation, it will be sufficient to take a few prominent examples, such as the Board of Land and Works, the Public Service Board, the Board of Public Health, and the Victorian Railway Commissioners.

The Board of Land and Works, constituted by the Public Works Statute 1865,1 consists of not less than three nor more than seven persons, of whom one at least (the president) is a Responsible Minister of the Crown. By the Public Works Act 1890, it has very wide powers of legislation in the matter of roads and sewers. It may make by-laws for regulating the manner in which the public shall use the roads and bridges under its control, and the nature and number of the vehicles traversing them, and the speed they may make. It may make regulations for the drainage of roads and streets into sewers, and for the dimensions, manner of construction, and management of the pipes and drains communicating with the sewers, and for the assessment and collection of sewerage rates.3 Moreover, by the Land Act 1890, the Board of Land and Works is authorised to make rules and regulations for the care, protection, and management of all public parks and reserves not conveyed to or vested in trustees. The legislation of the Board is subject to the disallowance of the Governor in Council, but does not appear to require his sanction in the first instance.

The legislative powers of the Public Service Board were. conferred upon it by the Public Service Act 1883,6 and they extend to the making of regulations concerning the duties to be performed by officers in the public service, and the discipline to be enforced during such performance, as well as to the procuring and inspection of stores for the public service. But the legislation of the Public Service Board requires the approval of the Governor in Council.9

8

The Health Act 1890 confers very wide powers of legislation on the Board of Public Health, which consists of an appointed chairman and medical inspector, and seven representative members.10 In addition to the general power con

1 29 Vic. No. 289. The first appointment was under the 21 Vic. No. 31. 2 Public Works Act 1890, §§ 4 and 5. 3 Public Works Act 1890, § 15. 4 § 136. 6 46 Vic. No. 773. 9 § 14.

5 Public Works Act 1890, § 12. 7 Public Service Act 1890, § 123.

8 $139.

10 Health Act 1890, § 7.

CHAP. XXIX LEGISLATION BY PUBLIC DEPARTMENTS, 26

ferred upon it to legislate for the purposes of the Act, the Board is expressly empowered to make by-laws in the following

cases:

1. For the inspection of and enforcement of cleanliness in dairies, grazing-grounds, and other places connected with the production of milk.1

2. For the cleansing and disinfecting of streets, houses, and other places, to prevent the spread of epidemics, endemics, or contagious diseases.2

3. For the prevention of overcrowding and obstruction in public buildings, and for the prevention of fires in public buildings, common lodging-houses, licensed victuallers' premises, and boardinghouses.3

4. For the registration of plumbers and gasfitters.4

Moreover, the Board has a general power of supervision of the legislation promulgated by the local authorities under the Health Act, and may also direct the making of such legislation by local authorities. On the other hand, the Board's own legislation requires the approval of the Governor in Council, and it may be ordered by the Minister in charge of the Act to issue legislation upon the subject of public health in pursuance of the terms of any Act of Parliament.7

Finally, on this branch of the subject, we may notice the great powers of legislation conferred on the Victorian Railway Commissioners by the Railways Act 1890. The purposes for which the Commissioners may make by-laws are almost innumerable, but a few of the principal may be mentioned.

1. The prevention of nuisances and damage upon railway property. 2. The management of the wharves, piers, and jetties vested in the Commissioners.

3. The regulation of the duties and charges of persons not in the employ of the commissioners who are connected with the railway service.

4. The disposal of unclaimed goods.

5. The regulation of traffic on level crossings.

6. The regulation of the insurance of passengers by an Accident Insurance Company.8

No by-law made by the Commissioners has any force until confirmed by an Order of the Governor in Council.

This slight sketch will have indicated something of the extent of legislative powers delegated to public departments.

With regard to their relationship to the Parliament, it has to be noticed that the legislation in every case but one requires the direct approval of the Cabinet, which is, practically, a parliamentary committee. In the excepted case, that of the Board of Land and Works, the reason probably is that the President of the Board is always a Cabinet Minister. But even here, as we have seen, the Cabinet can annul the legislation, if it pleases.

Inasmuch as the Supreme Court is by the terms of the constitution kept sedulously distinct from all connection with Parliament, the powers of legislation conferred upon it stand on a somewhat different footing from those exercised by Public Departments. Unfortunately, it is impossible to state these powers as concisely as would be desirable, seeing that they have been conferred at different times and in different ways.

(a). The Supreme Court,1 with the concurrence of a majority of its members present at a meeting held for the purpose, may make and alter any Rules of Court for the following purposes―

1. Regulation of the sittings of the Court, and its judges in chambers.

2. Regulation of the pleading, practice, and procedure of the Court, the duties of its officers, and the fees and costs in the proceedings of the Court.2

All such rules are to be laid before Parliament within forty sitting days, and if within forty subsequent days either House address the Governor against them, the Governor must annul them. In the meantime, however, they are valid, unless they relate to fees, no rule relating to fees being of force until it has lain one month before Parliament and been published in the Government Gazette.3

(b). The Supreme Court may make rules respecting the admission and examination of, and fees payable by intending practitioners.

But every such rule must be sent to the Minister administering the Act and be by him laid before Parliament "without delay.". Either House may within one month after such presentation address the Governor to disallow the rule, who, if he shall think fit, may accede to the request. But the

1 For constitution and powers of Supreme Court, cf. post.

2 Supreme Court Act 1890, § 23.

3 Ibid. Under this section the rules are apparently signed by a majority of the judges, who state that the meeting at which they were made was held for the purpose (cf. Gov. Gazette, 7th Dec. 1888).

CHAP. XXIX LEGISLATION BY THE SUPREME COURT

265

rule takes effect from its promulgation by the Court, except it relate to fees, when the conditions formerly mentioned apply.1 (c). The judges of the Supreme Court may make rules for the following purposes, viz.

1. The regulation of the duties of the Registrar of Probate and Administrations, and generally for effectuating the provisions of the Administration and Probate Act 1890, Parts I. and II. 2. The regulation of the procedure and practice of the Court in all applications under the Local Government Act 1890.2 And they must make such rules as from time to time appear necessary for the following purposes, viz.

The regulation of the duties of the Registrar of Probates and Ad

ministrations under Part III. of the Administration and Probate Act 1890,3 and the carrying of the same into effect.

All such rules must be published in the Government Gazette and be laid before Parliament within ten sitting days after their promulgation.*

Finally (d), the judges of the court may make general rules and orders concerning the following matter, viz.

Application to a Court or Judge under Part IV. of the Administration and Probate Act 1890.5

All such rules and orders are to take effect from a day named therein, and must be published in the Government Gazette within one month from the making.

6

It will be observed that none of the legislation of the Supreme Court requires the confirmation of Parliament or the sanction of a Responsible Minister. In some cases the Parliament, and in others the Cabinet have discretionary powers of repeal, but in others again there is no bar to the absolute discretion of the Court."

It is only rarely that such powers of legislation are con1 Supreme Court Act 1890, § 26. Under this section the rules are apparently signed only by the prothonotary, and published by the Minister, who states that he has complied with the requirements of the section (cf. Gov. Gazette, 27th July 1888). 2 Local Government Act 1890, § 543.

3 I.e. in Foreign Probate and Letters of Administration. 4 Supreme Court Act 1890, § 27. Under this section, apparently, all the judges sign the rules (cf. Gov. Gazette, 3d April 1890).

5 Curator of deceased persons' estates.

6 Supreme Court Act 1890, § 28.

7 At the last moment, Parliament has passed an Act (the 54 Vic. No. 1199) which renders this statement no longer correct. Upon the Address of either House of Parliament, the Governor in Council may now annul any Rule of the Supreme Court; and no Rules are to take effect until they have lain for ten sitting days on the tables of both Houses, and, a week thereafter, been published in the Government Gazette.

ferred on unincorporated individuals, yet there are one or two instances of the practice. For example, the Minister administering the Constitution Act Amendment Act 1890 may make rules and regulations for the direction of deputy electoral registrars in their making of returns and forwarding of lists to the electoral registrars. And the Governor in Council may appoint any two of the judges of the Court of Insolvency, together with a law officer, to frame rules for the conduct of insolvency proceedings in and out of court.2

It is usual for writers on constitutional law to class the important enactments dealt with in this chapter under the head of administrative regulations. If by this expression it is intended to assert that great questions of principle, upon which men widely differ, are not left to be settled by this kind of legislation, the doctrine is true enough. Nevertheless it should be remembered that these duties, though performed by bodies primarily appointed for executive and judicial purposes, are truly legislative duties, and that the enactments made in pursuance of them, whether they are called "by-laws," " orders," "regulations," "rules," or "proclamations," are yet real legislation, and are perfectly distinct in character from true executive and judicial acts. They proceed by general rules, not by personal application. They are intended to affect classes and not individuals. They are not restricted within limits of locality. They are openly announced as legislative changes. Some of them have been judicially declared to have the force of Acts of Parliament. By handing them over to other authorities, Parliament does undoubtedly abandon its exclusive legislative monopoly. And it may be that in an extension of the practice we shall ultimately find our way out of the increasing difficulties of parliamentary government.

1 Constitution Act Amendment Act 1890, § 54.

2 Insolvency Statute 1890, § 12. The Chief-Justice of Victoria and any two or more judges of Courts of Mines may also frame general rules for the conduct of business in Courts of Mines (Mines Act 1890, § 285).

3 In re Gair, 10 V. L. R. (L.), 108.