106 PARLIAMENTS OF THE DOMINIONS [rawr III
3. This question we also answer in the affirmative, and on
the same ground of an unquestionable ‘repugnancy ’,
4. This question we answer in the negative, subject to our
observations in answer to the question next following.
5. We are unable to lay down any rule to fix the dividing
line between fundamental and non-fundamental rules of
English law, as referred to in questions 3 and 4, and our
answers thereto. It may safely, however, be stated that
no laws which do not rest upon principles equally applicable
in the nature of things to all Her Majesty’s Christian subjects
mn every part of the British Dominions can be deemed to
be such as would make a departure from them by a Colonial
Legislature void on the ground of repugnancy to the prin-
ciples of English law. We may add that we can hardly
anticipate any practical difficulty in the way of the Court
deciding the question of repugnancy, if called on so to do.
It is extremely improbable that the Colonial Legislature
would pass, that the Governor would sanction, and that the
Crown would leave to its operation any Act repugnant in
the above sense, and we think that the tribunals should not
ander these circumstances be astute to discover such repug-
nancy, but ought to disaffirm existing Acts on this ground
only in cases admitting of no reasonable legal doubt. Such
~ases, we think, are not likely to occur.
6. We think that in an Act containing various distinct
and separable provisions, one of such provisions invalid on
account of ‘ repugnancy ’ would not vitiate other portions
of the Act, which might be free from that defect.
7. We answer this question in the negative. We under-
stand the expression of the Governor, being ‘forbidden to
assent without urgentnecessity’, to referto the Royal ‘instruc-
tions’, of which a copy is enclosed in the last enclosure in
the accompanying paper, No. 511, and although the 13 & 14
Viet. c. 59. ss. 12 and 33, apply to certain Colonial Acts
the provisions of the 5 & 6 Vict. c. 76 (see ss. 11, 31), em-
powering Her Majesty to issue ‘instructions’ and the
Governor to assent in conformity with such instructions, yet
we consider such instructions to be a matter between the
Crown and the Governor, and to be to the latter directory
only. The Governor alone can judge of the urgent neces-
sity ’ in case of which, when the Statute does not expressly
require the Act to be ‘ reserved’, &c.. he is at liberty on all
beeasions to assent.
8. We see no reason to doubt the validity of the South
Australian Constitutional Act, per se, understanding thereby
