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§ 244. “But a Proposed Law Shall Not be Taken.”

This part of the section embraces a compromise, with reference to the originating power, which was recommended by the Legislative Assembly of Tasmania. The Tasmanian amendment, drafted by the Hon. Inglis Clark, Attorney-General of that colony (now Mr. Justice Clark), was founded on the practice recognized by the House of Commons, and thus explained by May:—

“The claim to exclusive legislation over charges imposed upon the people was formerly extended by the Commons to the imposition of fees and pecuniary penalties, and to provisions which touched the mode of suing for fees and penalties, and to their application when recovered; and they denied to the Lords the power of dealing with these matters. The rigid enforcement of this claim proved inconvenient; and in 1849, the Commons adopted a standing order, based on a resolution passed in 1831, which gave the Lords power to deal, by bill or amendment, with pecuniary penalties, forfeitures, or fees, when the object of their legislation was to secure the execution of an Act; provided that the fees were not payable into the exchequer, or in aid of the public revenue; and when the bill shall be a private bill for a local or personal act. And the Commons also agreed to another standing order, whereby they surrendered their privileges so far as they affected private and provisional order bills sent down from the House of Lords, which refer to tolls and charges for services performed, not being in the nature of a tax, or which refer to rates assessed and levied by local authorities for local purposes. The practical result of these standing orders is a waiver by the Commons of their privileges with respect to pecuniary penalties in public and in private bills. Fees imposed in a public bill can only be dealt with by the Lords provided they are not paid into the exchequer; whilst it is competent for the Lords by a private bill to impose fees and tolls for rendered services, and to authorize the levy of rates to be assessed and levied by local authorities for local purposes.” (May's Parl. Prac. 10th ed., p. 547.)

“I am quite prepared to go in the direction indicated by the amendment of Mr. Inglis Clark, which not only makes things a good deal more definite, but is a step beyond the Bill of 1891, by way of making the legislative machinery work more smoothly, and securing to the Senate that degree of individuality in matters of this kind, of which it would be a scandal to deprive them through some matter of construction.” (Mr. E. Barton, Conv. Deb., Syd., 1897, p. 474.)

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