The Prime Minister, whose attention I have called to the fact that a petition in this matter addressed to Your Excellency had been forwarded, through inadvertence, to the Governor of Victoria, will, doubtless, take steps to prevent any future deviation from the established practice.

On the question submitted, I beg to express my opinion that the prerogative of pardon for offences against the Constitution or the laws made thereunder is exercisable within the Commonwealth by the Governor-General, to the exclusion of the Governors of the States.

The prerogative of pardon is part of the executive power of the Commonwealth exercisable by the Governor-General as the Queen's representative under section 61, and one of the powers and functions of the Crown assigned to the Governor-General in pursuance of section 2 of the Constitution of the Commonwealth.

The assignment of a prerogative, which within the United Kingdom may not be delegated to a subject, should, I think, be clear; but the sections cited refer to the Governor-General only. Under a Federal system, the Crown, representing the Commonwealth and the State as distinct and separate sovereign bodies, 'is to be regarded not as one but as several juristic persons' (Municipal Council of Sydney v. The Commonwealth 1 C.L.R. at 231; see also Claflin v. Houseman 93 U.S. at 136). The Governor-General represents the Crown for the purposes of the Commonwealth; the Governor for the purposes of the State. Apart from inferences from the theory and text of the Constitution, it would clearly be inexpedient to make the same prerogative exercisable by two unrelated representatives of the Crown who, with or without the advice of responsible Ministers, may in the same matter differ as to its exercise. A co-ordinate jurisdiction liable to become so inconvenient in exercise should be clearly shown to exist; but the words of the Instructions to the Governor-General, and of the Letters Patent constituting the office of Governor of the State of Victoria (both of 29 October 1900), from which only, if at all, it can be inferred, seem to admit of no other reasonable construction than that the power of the Governor-General is exclusive.

The Instructions (paragraph VIII) empower the Governor-General to grant a pardon for 'any crime or offence against the laws of Our Commonwealth'; the Letters Patent (paragaph IX) authorize the Governor to grant a pardon 'When any crime or offence has been committed within the State, against the laws of the State, or for which the offender may be tried therein'. Were the words 'or for which the offender may be tried therein' not contained in paragraph IX of the Letters Patent, there could, I think, be no opening for doubt as to the meaning of the Letters Patent. The laws of the Commonwealth, though 'binding on the courts, judges, and people of every State' (covering clause 5), are not laws of the State. The distinction between the laws of the Commonwealth and the laws of the State is apparent in Chapter V of the Commonwealth Constitution and in legislation (Judiciary Act 1903-1907, section 71).

So far as courts represent the Crown, or the prerogative of pardon can be said to be judicial, State courts with Federal jurisdiction represent the Crown of the Commonwealth. A meaning consistent with this theory, and which Your Excellency suggests, can be given to the words 'or for which the offender may be tried therein', if they are read as applying to offences against, not Commonwealth or State laws, but Imperial laws of which, in Australia, State courts only should have cognisance.

The considerations contained in Your Excellency's memorandum, and in the opinion of the Attorney-General of the State, seem to me to place beyond doubt that the prerogative of pardon for offences against the Constitution and the laws made thereunder is exercisable only by the Governor-General.

[Vol.7,p.271]