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Part III. Colonial Government in Australia




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(1) New South Wales

EARLIEST STATUTORY AUTHORITY. — In 1784 the Imperial Parliament passed the statute, 24 Geo. III. c. 56, intituled "An Act for the effectual transportation of felons and other offenders, and to authorize the removal of prisoners in certain cases, and for other purposes therein mentioned." This law empowered the King, with the advice of the Privy Council, to appoint places to which felons might be transferred. By an Order in Council bearing date 6th December, 1786, His Majesty's "territory of New South Wales situated on the east part of New Holland" was appointed a place for the reception of persons within the meaning of the Act.

By letters patent and commission dated 2nd April, 1787, Captain Arthur Phillip was appointed Governor and Vice-Admiral of the territory. It was declared that the limits of his authority extended "From the north cape or northern extremity of the coast called Cape York, in latitude of 10° 37' south, to the south cape or southern extremity of the coast in latitude of 43° 39' south, and inland to the westward as far as 135° east longitude, reckoning from the meridian of Greenwich; including all the islands adjacent in the Pacific Ocean within the latitudes aforesaid." The western or inland boundary was afterwards (1827) extended to the 129th meridian. The Governor was empowered to make orders for the good government of the settlement. In the shape of ordinances, he created offences and crimes previously unknown to the law; he made regulations; he modified the application of the law of England in matters relating to police, tolls, and convict labour. His legislative powers were assumed to be founded on and justified by the prerogatives of the Crown. There is now reasonable ground for entertaining a doubt whether the Crown had authority to delegate such a power to the Governor — Mr. Commissioner Bigge's Report (1823), p. 10; Bentham's Plea for the Constitution, IV., p. 255–60; Webb's Imperial Law, p. 25.

The Judicial authority necessary for the government of the new settlement was derived partly from statute and partly from prerogative, similarly assumed to exist. The Act 27 Geo. III. c. 2, intituled "An Act to enable His Majesty to establish a Court of Criminal Jurisdiction on the eastern coast of New South Wales and the parts adjacent thereto," authorized the Crown by letters patent to erect a criminal court for the trial and punishment of treasons, felonies, and misdemeanours. This court, which was similar in its constitution to a court of Admiralty in its criminal jurisdiction, was composed of a Judge-Advocate and six naval or military officers to be selected by the Governor. There was thus ample statutory authority for


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the administration of criminal law according to a procedure suitable enough, perhaps, for a penal settlement, but not for a free community. There was no statutory authority whatever for the creation of civil courts. The Imperial authorities seem to have considered that the Crown, in the exercise of its prerogative, could constitute civil courts. By letters patent, dated 2nd April, 1787, the Crown created a court of civil jurisdiction having power to deal in a summary way with personal actions and probate and administration proceedings "according to the law of England." The civil court was presided over by the Judge-Advocate and two inhabitants of the settlement, appointed by the Governor. This civil procedure continued in operation until 4th February, 1814, when fresh letters patent were issued, formulating a new plan of administration, by which the civil and criminal jurisdictions, previously united in the Judge-Advocate, were separated. A primary civil court, presided over by the Judge-Advocate and two inhabitants appointed by the Governor, was established and endowed with jurisdiction in personal actions in which the amount involved did not exceed £50. A Supreme Court, presided over by a Judge and two magistrates, was erected and clothed with jurisdiction in personal actions in which the amount involved exceeded £50, and with general jurisdiction in equity, probate, and administration matters. Eminent jurists are now of opinion that these civil courts wore established by the Crown without any constitutional authority. The legislative power exercised by the Governor is also believed to have been equally unconstitutional. — Webb's Imperial Law, p. 24.

The Governor was endowed with almost absolute power. His rule was a despotism, tempered by his own discretion and by the knowledge that he was liable to be called to account by the Imperial authorities for any maladministration. His oath of office principally required him to observe the law relating to trade and plantations. — Jenks' Government of Victoria, p. 11. Such was the legal authority under which, on 26th January, 1788, a penal settlement was established and for many years afterwards maintained at Sydney Cove. It was not at first intended to be a colony or plantation within the ordinary meaning of those terms, viz., for the purpose of trade and cultivation — Clarke's Colonial Law, p. 1. Lubbock v. Potts, 7 East 449. Webb's Imperial Law, p. 12.

By the Acts 59 Geo. III. c. 114, 1 and 2 Geo. IV. c. 8, and 3 Geo. IV. c. 96, the Governor of New South Wales was given limited powers to impose local taxation in the shape of Customs duties on spirits, tobacco and other goods imported into the colony.

A RUDIMENTARY CHARTER. — The temporary Act 4 Geo. IV. c. 96 (1823), which became law during the governorship of Sir Thomas Brisbane, was the first legislation passed by the Imperial Parliament conferring anything like the rudiments of local self-government on the New South Wales community. It was intituled "An Act to provide until the 1st day of July, 1827, and until the end of the next session of Parliament, for the better administration of justice in New South Wales and Van Diemen's Land, and for the more effectual government thereof;" but it went a little beyond its title. The old


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Military Courts of 1787 were abolished, and a Supreme Court and Court of Appeal, on something like the English model, were authorized to be erected. The Crown was empowered to create, by warrant, a Council consisting of from five to seven persons charged with certain legislative powers of a limited character. They were to be appointed during the pleasure of the Crown; they could advise but not overrule the Governor in matters of legislation, and all laws and ordinances passed with their approval were required to be laid before the British Parliament. On 17th May, 1824, a charter of Justice, bearing date 13th October, 1823, was promulgated, creating the Supreme Court of New South Wales, and appointing Francis Forbes, Esq., to be the first Chief Justice. On 1st December, 1823, five persons were appointed members of the Council, consisting of the principal Government officials, viz., the Lieutenant-Governor, the Chief Justice, the Colonial Secretary, the Principal Surgeon, and the Surveyor-General for the time being. On 17th July, 1825, the Council was re-constituted and increased to its full number of members, including three private persons, residents of the colony.

Up to the passing of the Act 4 Geo. IV. c. 96 (1823), Van Diemen's Land was a dependency of New South Wales. By sec. 24 of that Act the Crown was authorized to proclaim Van Diemen's Land a separate colony independent of New South Wales. The history of New South Wales and Van Diemen's Land (afterwards Tasmania), as constitutional colonies, begins with the Act 4 Geo. IV. c. 96, which was their first charter of Government.

The Act 9 Geo. IV. c. 83 (25th July, 1828), intituled "An Act for the Administration of Justice in New South Wales and Van Diemen's Land, and for the effectual government thereof," was the second constitutional charter of Australia. It was passed during the governorship of Lieutenant-General Sir Ralph Darling. It re-enacted the main provisions of the temporary measure and made better provision for the administration of justice. The civil and criminal jurisdictions of the courts were amended and improved, power being given to the respective Legislative Councils to introduce trial by jury in all criminal cases. It contained the well-known section (24), which enacts "That all laws and statutes in force within the realm of England at the time of the passing of this Act (not being inconsistent herewith, or with any charter, or letters patent, or Order in Council, which may be issued in pursuance hereof), shall be applied in the administration of justice, in the courts of New South Wales and Van Diemen's Land respectively, so far as the same can be applied within the said colonies; and as often as any doubt shall arise as to the application of any such laws or statutes in the said colonies respectively, it shall be lawful for the Governors of the said colonies respectively, by and with the advice of the Legislative Councils of the said colonies respectively, by ordinances to be by them for that purpose made, to declare whether such laws or statutes shall be deemed to extend to such colonies, and to be in force within the same, or to make and establish such limitations and modifications of any such laws and statutes within the said colonies respectively, as may be deemed expedient in that behalf."




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Another interesting and important section of this Act was sec. 20, in which it was recited that "it may be necessary to make laws and ordinances for the welfare and good government of the said colonies of New South Wales and Van Diemen's Land, and the dependencies thereof, the occasions of which cannot be foreseen, nor without much delay and inconvenience provided for, without entrusting that authority for a certain time, and under proper restrictions, to persons resident there." It was also recited that "it is not at present expedient to call a Legislative Assembly in either of the said colonies." It then proceeded to enact "That it shall and may be lawful for His Majesty, his Heirs and Successors, by warrants under his or their sign manual, to constitute, and appoint in New South Wales and Van Diemen's Land respectively, a Council, to consist of such persons resident in the said colonies respectively, not exceeding fifteen nor less than ten, as His Majesty, his Heirs and Successors, shall be pleased to nominate."

The Governors of the colonies of New South Wales and Van Diemen's Land, with the advice of the Legislative Councils so created, were authorized "to make laws and ordinances for the peace, welfare, and good government of the said colonies respectively, such laws and ordinances not being repugnant to this Act, or to any charter or letters patent or Order in Council which may be issued in pursuance hereof, or to the laws of England." This included certain limited powers of levying customs and excise taxation for local purposes, but it conveyed no control over the waste lands of the Crown. No proposed law could be passed by either of these Councils unless it was first laid before such Council by the Governor of the colony. The members of these legislative bodies held their seats at the pleasure of the Crown, and they had no control over the administration, which was exclusively vested in the Governor.

At this time the official staff of the New South Wales Government consisted of a Chief Justice, an Archdeacon, a Colonial Secretary, an Attorney-General, a Collector of Customs, an Auditor-General, a Principal Surgeon, and a Surveyor-General. These appointments were made by the Imperial Government. During this period we find some of the earliest traces of a colonial Executive Council, a body which subsequently acquired in the Australian colonies a position analagous to that of the Privy Council in England. In the Commission appointing Sir Richard Bourke Governor of New South Wales (25th June, 1831), he was authorized to nominate an Executive Council. This Council consisted of such of the leading government officials as the Governor thought fit to consult with in matters of local administration. — Jenks' Government of Victoria, p. 17.

FIRST REPRESENTATIVE LEGISLATURE. — The third important charter regulating the Government of New South Wales was 5 and 6 Vic. c. 76 (30th July, 1842), passed during the Governorship of Sir George Gipps. It was intituled "An Act for the Government of New South Wales and Van Diemen's Land," but it principally concerned, and was for the benefit of, New South Wales. The Legislative Councils established by previous Acts were purely nominee and irresponsible bodies. This Act established, for the first time in Australia, a legislature


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partly, but not wholly, representative in its character. It was enacted that there should be within the colony of New South Wales a Legislative Council to consist of 36 members, 12 of whom were to be appointed by Her Majesty and 24 elected by the inhabitants of the colony. The Governor with the advice and consent of the Council was authorized to make laws for the peace, welfare and good government of the colony, including the power to impose duties of customs, provided that such laws were not to be repugnant to the law of England; nor were they to interfere with the sale or appropriation of lands belonging to the Crown or with the revenue arising from the same. Bills imposing duties of customs had to be reserved for the Queen's assent. The Council was to be presided over by a Speaker elected by itself. There was to be a session of the Council once every year, and every Council was to continue for five years from the day of the return of the writs and no longer, subject to be sooner dissolved by the Governor. Power was given to the Governor to establish, by letters patent, district Councils for the purpose of carrying on local government in such counties or other divisions of the colony as he might deem fit. Elective members of the Council were required to be the owners of freehold land of the clear annual value of £100, or of the capital value of £2,000. They had to be chosen by the votes of electors being owners of freehold land of the clear capital value of £200, or householders occupying dwellings of the clear annual value of £20. This Act also contained provisions relating to the giving or withholding by the Governor of the Royal assent to Bills passed by the Council, the disallowance of Bills assented to by the Governor, and the assent to Bills reserved by the Governor, and enacting that the Queen, by the advice of the Privy Council, or through one of her principal Secretaries of State, might convey instructions to the Governor for his guidance.

This Act did not grant to New South Wales the system known as Responsible Government. The Governor was still his own prime minister, and the heads of the Departments and other public officers still continued to receive and hold their appointments from the Crown; their tenure of office depended, not on their possession of the confidence of the Legislative Council, but on the pleasure of the Crown represented by the Governor. Although it was only a half measure and an instalment of political freedom, it marked the dawn of a new system. It contained the feeble germs of Representative Government, whence has since sprang the splendid fabric of the Parliamentary institutions in Australia. It was the first concession made by enlightened British statesmen to the growing wealth and importance of the Australasian colonies. Limited as were the provisions of this Constitutional Act, meagre as were the liberties conferred, it was nevertheless drawn on lines capable of development and expansion with the growing wants and aspirations of the young community. The Council was built partly on the representative principle, and the qualified electors of the colony had the predominant power of constituting twenty-four members, as against twelve nominated by the Crown. The new Council was opened by Sir


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George Gipps on lst August, 1843, and among the elective members were — William Charles Wentworth and William Bland, for the city of Sydney; John Dunmore Lang, Charles Nicholson, Thomas Walker, among the members for the District of Port Phillip (now Victoria); Charles Cowper, Richard Windeyer, George Robert Nichols.

The next important charter of Representative Government in Australia was 13 and 14 Vic. c. 59 (5th August, 1850) intituled "An Act for the better government of Her Majesty's Australian colonies," and commonly known as the Australian Colonies Government Act. The Bill, of which this Act was the outcome, was first introduced into the House of Commons in June, 1849. The two main objects of the Act were the separation of the Port Phillip District from New South Wales, and the establishment in all the colonies of an improved system of Provincial Government. The Legislative Council, erected in New South Wales by the Act of 1842, was not materially disturbed. Its powers were in some respects increased, and the franchise on which its representative members were elected was liberalized.

The Governor and Legislative Council of New South Wales were empowered to increase the number of members of that body, subject to the condition that one-third of its members were to be, nominated by Her Majesty and the remaining members to be elected by the inhabitants of the colony. The property qualification of electors was reduced in the case of freeholders from £200 to £100, capital value, and in the case of occupiers of dwellings from £20 to £10 per annum. The qualification of members remained as under the Act of 1842.

Two new powers were conferred on the Governor and Legislative Council by this Act, which they did not possess by the Act of 1842. The Governor, with the advice of the Council, was authorized to impose and levy duties of Customs on the importation of goods, wares and merchandise imported into the colony from any part of the world, subject to the limitation that no differential duties could be imposed (see. 27). There was no provision requiring Customs Bills to be reserved for the Queen's assent; and all doubts whether such reservation was still necessary were afterwards removed by the declaratory Act 29 and 30 Vic. c. 74. Power was given to the Governor and Legislative Council, in common with the Governors and Legislative Councils of the other Australian colonies, to alter the qualifications of electors and of members as fixed by the Act, or to establish, instead of the Legislative Council, a Council and a House of Representatives, or other separate legislative Houses, to be appointed or elected by such persons and in such manner as should be determined, and to vest in such Houses the powers and functions of the old Legislative Council, provided that such Bill should be reserved for the signification of the Queen's pleasure (sec. 32). The Council was still unable to pass laws repugnant to the law of England or relating to the sale and appropriation of the waste lands of the Crown, which continued to be dealt with under Imperial Legislation (sec. 14).

The Act 13 and 14 Vic. c. 59 was forwarded by Earl Grey to Governor Fitzroy, accompanied by a despatch dated 30th August,


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1850, in which the Secretary of State explained the views of the Home Government. The Act reached the colony on llth January, 1851, and was immediately proclaimed. In June following Governor Fitzroy received a commission under the Great Seal appointing him Captain-General and Governor-General of all Her Majesty's Australian possessions; a commission appointing him Governor of New South Wales; and three separate commissions appointing him Governor of the colonies of Van Diemen's Land, South Australia and Victoria respectively; also commissions for the appointment of Lieutenant-Governors of Van Diemen's Land, South Australia and Victoria, together with warrants delegating to the Governor of New South Wales and the Lieutenant-Governors of the other colonies the power to nominate non-elective members of their respective Legislative Councils. Each commission was accompanied by royal instructions.

On 8th April, 1851, the Legislative Council of New South Wales, under the leadership of Mr. W. O. Wentworth, adopted a report of its select committee, which protested against the new Constitution Act on the grounds that it did not place the control of all revenue and taxation entirely in the hands of the Colonial Legislature; that all offices of trust and emolument should be filled by the Governor and Executive Council, unfettered by instructions from the Secretary of State for the Colonies; and that plenary powers of legislation should be conferred on the Colonial Legislature. It concluded by "solemnly protesting against these wrongs, and declaring and insisting on these our undoubted rights; we leave the redress of the one and the assertion of the other to the people whom we represent and the legislature which shall follow us." — Tregarthen's Australian Commonwealth (1893), p. 139.

An Electoral Bill for New South Wales was passed increasing the number of members of the Council from 36 to 54, of whom 36 were to be elective members and 18 nominee members. An Electoral Bill for Victoria was passed providing that the Legislative Council of that colony should consist of 30 members, 10 nominated by the Crown and 20 elective.

DEMAND FOR RESPONSIBLE GOVERNMENT. — A new election of the Legislative Council of New South Wales, on the liberalized franchise, then took place. The newly-constituted Council affirmed the opinion of its predecessor and passed a resolution that it was "prepared upon the surrender to the Colonial Legislature of the entire management of all our revenues, territorial as well as general, in which we include mines of every description, and upon the establishment of a constitution similar in its outline to that of Canada, to assume and provide for the whole cost of our internal government, whether civil or military." In a despatch addressed to Governor Fitzroy, dated 15th December, 1852, Sir John Pakington, the Secretary for the Colonies, stated that Her Majesty's Government had been greatly influenced by the considerations arising from the extraordinary discoveries of gold in the Australian colonies, which had imparted new and unforeseen features to their political and social conditions. Such a state of affairs had no parallel in history, and in all human probability there would be an advance in,


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the population, wealth and material prosperity, with a rapidity unprecedented. Her Majesty's Government had further observed with satisfaction the general order and good conduct which distinguished the behaviour of the multitudes attracted to the gold deposits, and they were also bound to recognize the firmness and good judgment of the local authorities. With this evidence before them Her Majesty's Government could not but feel that, whilst it was more urgently necessary than before to place the full power of self-government in the hands of the colonies, it was equally plain that the extraordinary increase in wealth and prosperity testified to their fitness to regulate their own affairs. In reply, therefore, to the desire expressed hy the Legislative Council of New South Wales in favour of a Constitution similar in its outlines to that of Canada, it was the wish of Her Majesty's Government that there should be established, in each colony, a new legislature on the basis of an Elective House and a Legislative Council nominated by the Crown or appointed subject to the approval of the Crown. Upon the receipt of such a constitutional enactment, framed by the existing Councils, with civil lists for the payment of salaries of permanent officers attached, the Imperial Government would undertake forthwith to propose to Parliament such measures as would be necessary to carry into effect the entire arrangement, viz.:- (1) By the repeal of the Land Sale Act, under which the sale of lands was vested in the Imperial authorities, and could not be regulated by colonial legislatures; and (2) by the requisite alteration in the Constitutional Act of 1850 with the schedules annexed thereto. It was added that the civil lists should provide permanent appropriation for the maintenance of the salaries of the principal officers of Government, such as the Governor, heads of departments, judges, &c. "It is my wish," concluded Sir John Pakington, "that the change should be speedily and satisfactorily effected."

THE NEW CONSTITUTION. — On the receipt of Sir John Pakington's despatch a committee was appointed by the Council to draft a Constitution. Of that committee Wentworth was one of the leading spirits. By the terms of the Enabling Act 13 and 14 Vic. c. 59 s. 32, the Governor, with the advice of the Legislative Council, had been authorized to establish in the colony, instead of the Legislative Council, a Council and a House of Representatives, or other separate Legislative Houses, to consist of such members to be appointed or elected by such persons and in such manner as might be determined, and to vest in such Houses the powers and functions of the Legislative Council for which the same were substituted. The Select Committee appointed to frame a new Constitution were not contented to establish a bi-cameral legislature capable of exercising only the powers and functions of the old Council. They considered it necessary that the new legislature should have "increased powers and functions;" and the Bill drafted by them was designed to confer on the new legislature increased powers and functions. In so doing the framers of the Constitution acted in excess of the authority conferred by section 32, and they ran the risk of the Royal assent being refused. This was what actually occurred to the first Constitution framed by the Legislative Council of South Australia. Nevertheless the leaders of political


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thought in New South Wales, believing that the measure of power granted by the Constitutional Act of 1850 was not sufficient to meet the requirements of the colony, proposed that the new legislature should have an express and enlarged grant of powers and functions, without reference to the limitations of the Act of 1850.

The opening section of the Bill provided that there should be, in place of the Legislative Council then subsisting, a Legislative Council and a Legislative Assembly, and that Her Majesty should have the power, by and with the advice and consent of the said Council and Assembly, to make laws for the "peace, welfare and good government of the said colony in all cases whatsoever." Members of the Legislative Council were to be nominated by the Governor with the advice of the Executive Council. The first nominees were to hold their seats for five years only, but subsequent nominees were to be appointed for life. The members of the Assembly were to be chosen by the electors upon the franchise prescribed in the Bill. Section 45 specially enabled the legislature so constituted to impose and levy duties of Customs. Section 47 provided that all revenue should form a consolidated fund to be appropriated by the legislature in the manner directed. Two other sections conferred power to amend the Constitution, subject to certain conditions; another section declared that, subject to provisions therein contained, the legislature could make laws regulating the sale and disposition of the waste lands of the Crown. The final section stipulated that the Bill should not have any force or effect until inconsistent Imperial Acts were repealed and the entire management and control of the waste lands of the colony were vested in the proposed legislature. These grants of powers may be thus summarized:-

1. To make laws in and for New South Wales in all cases whatsoever.

2. To impose taxation, including duties of Customs.

3. To appropriate revenue.

4. To legislate concerning the waste lands of the Crown.

5. To amend the Constitution of the Council and Assembly subject to certain conditions.

Accompanying these grants there were certain restrictions:-

1. That duties were not to be levied on supplies for Her Majesty's land and sea forces.

2. That no fiscal and commercial laws should be passed inconsistent with treaties concluded by Her Majesty with any foreign power.

3. That no differential or preferential duties of Customs should be imposed.

4. That all Bills for appropriating any part of the public revenue or for imposing any new rate, tax or impost should originate in the Legislative Assembly.

5. That it should not be lawful for the Assembly to originate or pass any vote, resolution or Bill for the appropriation of any part of the consolidated revenue fund to any purpose which should not have been first recommended by a message of the Governor to the said Assembly.




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The Bill contained provisions relating to electoral matters; respecting the assent of the Governor to Bills, and the disallowance of Bills by Her Majesty; also respecting the boundaries of the Australian colonies. Another section of some significance was one which provided that the appointment to all public offices, whether salaried or not, should be vested in the Governor, with the advice of the Executive Council, "with the exception of the appointments of the officers liable to retire from office on political grounds as hereinafter mentioned, which appointments shall be vested in the Governor alone." — Sec. 37.

On 21st December, 1853, the new Constitution was adopted by the Council and transmitted to the Secretary of State for the Colonies. As it contained provisions in excess of the power conferred by 13 and 14 Vic. c. 59 s. 32, the Bill could not receive the Royal assent. It was decided by the Imperial Government to strike out the clauses relating to the reservation and disallowance of Bills. In that amended shape it was made a schedule to a Bill introduced into the Imperial Parliament, entituled "A Bill to enable Her Majesty to assent to a Bill, as amended, by the legislature of New South Wales, to confer a Constitution on New South Wales and to grant a civil list to Her Majesty." Section 2 of this Bill conferred on the Parliament of New South Wales the entire management and control of the waste lands of the Crown; section 3 preserved the provisions of former Acts respecting the allowance and disallowance of Bills; section 4 preserved to the Parliament of New South Wales the power to make laws amending the Constitution, subject to the provisions contained therein; section 5 declared that the whole water-course of the river Murray from its source to the eastern boundary of South Australia should be deemed to be within the territory of New South Wales. In this shape the Bill was passed by the Imperial Parliament and received the Royal assent on 16th July, 1855. Its number is 18 and 19 Vic. c. 54, and it is now known as the New South Wales Constitution Statute, whilst the Act contained in the Schedule is known as the New South Wales Constitution Act.

The Act conferring a Constitution on Victoria was assented to on the same day. These Acts were transmitted to the respective colonies, accompanied by explanatory despatches from the Secretary of State, Lord John Russell, in which the Governors were instructed as to the introduction of Responsible Government.

RESPONSIBLE GOVERNMENT. — "That great change in our colonial system which is known as the introduction of Responsible Government was," wrote Dr. Hearn, "effected solely by a despatch from a Secretary of State. This despatch did not even affect the legal tenure of colonial offices; it merely described the circumstances in which the Crown would exercise its right of displacing at its pleasure certain classes of its servants. In the body of the Act, for example, which conferred upon Victoria its present form of government (and these remarks apply equally to the New South Wales Act) the words Responsible Minister, or any equivalent terms, never once occur. Were it not for a marginal note, which forms no portion of the Act, not even a hint would be given by this statute of the important


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changes which it was intended to effect." — Hearn's Government of England, pp. 8–9.

Sir Richard C. Baker, President of the Legislative Council of South Australia, has expressed a similar opinion as to the method and circumstances in which Responsible Government was introduced into the colonies. "Itis evident," he writes, "that the enormous power exercised by the Ministry rests on a very small legal basis, and it is curious to note that this system of Responsible Ministry, that is, of advisers, theoretically responsible to the Governor and constitutionally and practically responsible to the Parliament, was introduced into Australia simply in pursuance of a few words contained in a despatch of Sir R. Peel to one of our colonial Governors, and that it was originally introduced into Canada simply in pursuance of a conversation between Sir Francis Head and a Secretary of State for the Colonies." — Notes on the Constitution of South Australia, "Adelaide and Vicinity," p. 27.

The theory maintained by Dr. Hearn, and by Sir Richard Baker, has not been concurred in by all the leading constitutional authorities. Mr. George Higinbotham (afterwards Chief Justice of Victoria) held the view, during his official career as Attorney-General of Victoria, that the existence of Responsible Government in a constitutional colony was dependent, not upon instructions to the Governor, but on the statute law under which the Constitution was established in such colony. These principles he afterwards affirmed judicially in the great constitutional case of Ah Toy v. Musgrove (1888), 14 V.L.R. p. 349. In his opinion the Imperial statute law was the sole source of the public rights of every dependency of the British Crown possessing powers of internal self-government. Those rights could not be legally derived from the commission and instructions issued by the Crown to successive Governors of a colony. The commission and instructions were issued to the Governor by Her Majesty on the advice of her Imperial Ministers, and the powers and commands contained in those instruments were as revocable as they were grantable by the Sovereign. — Id. p. 379. It was in the Constitution Acts and other Imperial legislation applicable to the colonies that the system of Executive administration, generally described as Responsible Government, could alone be found. The increased powers of legislation conveyed to New South Wales, Victoria, and the other colonies, in and by their Constitution Acts, necessitated the far greater change introduced by the same Acts into the system of government by the application to the enlarged functions of government of the new principle of Ministerial responsibility. Mr. Higinbotham did not acquiesce in the contention of Dr. Hearn and other learned constitutional jurists, that Responsible Government could not be found in the Constitution Acts of such colonies as New South Wales and Victoria. On the contrary, he was able to find in those constitutional charters abundant evidences of the intention of their framers, ratified by the Imperial Parliament, to establish such a plan of Executive Government.

It was true that in those Constitutions the Cabinet was not mentioned; that the expression "Responsible Ministers" occurred only in the marginal note — which formed no part of the law — annexed


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to one of the sections of the Victorian Constitution (sec. 18); that mention was made of the Executive Council, but nothing was said about its legal constitution or personal composition; that the nature of Responsible Government was nowhere described; that the extent of its application was nowhere expressly declared. But the Chief Justice considered that in sec. 37 of the Constitution Act of Victoria, which was drawn on exactly the same lines as sec. 37 of the Constitution Act of New South Wales, there were provisions which assumed, if they did not originate, the operation of some plan of Ministerial Government. Both those sections declared that "The appointment of all public offices hereafter to become vacant or to be created, whether such offices be salaried or not, shall be vested in the Governor with the advice of the Executive Council, with the exception of the appointments of the officers liable to retire from office on political grounds, as hereinafter mentioned, which appointments shall be vested in the Governor alone." The Constitution Acts of South Australia, Queensland, and Western Australia contained substantially similar sections. But sec. 18 of the Constitution Act of Victoria, and sec. 32 of the Constitution Act of South Australia — amended and enlarged by subsequent legislation — contained provisions which caused those Constitutions to go much further in the direction of express recognition and actual introduction than anything in the Constitution of New South Wales. Those sections enacted that a certain number of the officers of the Governments in those colonies, for the time being, should be members of the Parliaments created by the new Constitutions. The requirement of the presence in Parliament of a certain number of Ministers in charge of public departments has been generally looked upon as one of the leading features of Responsible Government; their presence in the parliamentary arena brings them into personal contact and direct communication with the representatives of the people, who may there interrogate them on questions of public interest and express their approval or disapproval of the manner in which those Ministers conduct the government of the country.

"These provisions most plainly, in my opinion, though indirectly, give adequate expression to an intention of the Legislative Council that the principle of Responsible Government should be established by law. In contrast with this power of appointment of responsible officers which is vested ‘in the Governor alone,’ all other powers and functions are vested either in the Governor, or in the Governor and Executive Council (secs. 49, 51, and 53), or in the Governor with the advice of the Executive Council (sec. 37). The provisions in these last-mentioned sections appear to apply to cases where, in addition to the advice, assistance, and approval of the responsible Ministers, the nature of the power to be exercised seems to require that that exercise should be formally recorded or publicly announced. There is no indication in the Act that it was designed to create a single power or function in the Governor, except the power of appointing his Ministers, as a personal power to be exercised on his own individual judgment or discretion, or otherwise than in accordance with the advice of those whom he selects to advise and carry into act and operation the constitutional exercise of the powers given to him by the statute law as the


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appointee and representative of the Crown. The Imperial Government has never, I believe, even in the boldest of its attempts to interfere illegally with the Victorian Constitution, suggested that the Governor ought to exercise any of his statutory powers without receiving the advice of Her Majesty's Government for Victoria. It has only asserted for itself the right to disregard that advice, and to order the Governor, as its officer, to act in defiance of it. I think that the rule of responsibility applies to every one (if to any) of the powers of the Crown created by Statute in the Crown's representative, the Governor, and that none of them can be lawfully exercised except through and by the advice, or with the knowledge and approval, of the responsible Ministers appointed by the Governor. What are those powers? Some of them are merely formal, and their exercise and the approval of Ministers would ordinarily be a matter of course (see secs. 8 and 32). Others are of a very different nature. Thus the appointment to public offices (sec. 37), including the general control of the Public Service. is a power not only of the highest importance, but of a very large scope. Again, the power of convening and proroguing Parliament and of dissolving the Legislative Assembly (sec. 28) is one of large significance, and the exercise of it, undisturbed by any external influence, by the Ministers whom the Governor is pleased to retain in the service of the Crown as his advisers, is a matter of moment to the whole community as well as to political parties and the movements of opinion in Parliament. Sections 57 and 58 indicate, in my opinion, more clearly than all the others the intended scope and the legal and actual extent of the principle of Responsible Government established by the Constitution Act. It is from the powers of the Crown express and necessarily to be implied from these sections as well as from the powers of control over the Public Service, granted by sec. 37, that all the ordinary general functions of Responsible Government spring. From these powers the legal existence and the rightful exercise of those functions may, and, in my opinion, must be inferred. It has been seen that the Legislature obtained by the Act not only the right to dispose by legislation of the waste lands of the Crown, but also the control, for the use and benefit of the people of Victoria, by means of appropriations for specific purposes, of all the consolidated revenues derived from that and all other sources. This power covers, directly and indirectly, the whole field of Parliamentary action outside the field of general legislation." — Per Higinbotham, C.J., Ah Toy v. Musgrove, 14 V.L.R., 392–4.

On 22nd May, 1856, the first Parliament of New South Wales under the new Constitution was opened by Sir William T. Denison. The first Responsible Ministry was composed of Mr. (afterwards Sir) Stuart Alexander Donaldson, Colonial Secretary and Premier; Mr. Thomas Holt, Treasurer; Mr. (afterwards Sir) William Montagu Manning, Attorney-General; Mr. J. B. Darvall, Solicitor-General; Mr. George R. Nichols, Auditor-General; and Mr. W. C. Mayne, Representative of the Government in the Legislative Council.

AMENDMENT OF THE NEW CONSTITUTION. — The power conferred on the Parliament of New South Wales to alter the Constitution has not been very extensively exercised. The first amendment was made in


  ― 48 ―
1857, when a Bill was passed to repeal so much of the Constitution Act as required the concurrence of unusual majorities in the passing of Bills to alter the constitution of the Council or the number and apportionment of members of the Assembly. By section 15 of the Constitution the Legislature was authorized to alter the electoral districts and the electoral divisions of the Assembly, and to alter the apportionment of Representatives, provided that such alterations were passed by a majority of the Council and by two-thirds of the members of the Assembly. By section 36 the legislature was authorized to alter the law concerning the Legislative Council and to provide for the nomination or election of another Council, subject to the condition that such alteration was passed with the concurrence of two-thirds of the members of the Council and of the Assembly respectively. By the Act 20 Vic. No. 10, reserved on 20th January, 1857, proclaimed on 19th October, 1857, these unusual majorities were abolished, so that it is now competent for the Parliament of New South Wales to pass Bills to amend the Constitution in the same manner and by the same majorities of members as other laws for the good government of the colony, provided that such Bills must be reserved for the signification of the Queen's pleasure. By the Act 22 Vic. No. 20 (N.S.W.) section 20 of the Constitution Act, disqualifying ministers of religion from becoming members of Parliament — an inhibition notoriously directed against the late Dr. Lang — was repealed. By the same Act the number of members of the Assembly was increased and the qualification of the electors was lowered. By the Act 37 Vic. No. 7 (N.S.W.) the clause in the Constitution Act providing that the Assembly should continue for five years from the date of the return of the writs, subject to be sooner dissolved by the Governor, was repealed, and it was enacted that every future Assembly of New South Wales should continue for three years from the day of the return of the writs subject to be sooner dissolved by the Governor.

REFORMS. — The structure and composition of the Legislative Council of New South Wales, as established by the Constitution Act, have not since been altered; except that by the Constitution Act Amendment Act of 1890 (54 Vic. No. 1) the quorum was reduced from one-third to one-fourth of the members. There is no legal limit to the number of its members, but its average numerical strength is about 65. The qualifications of members are: male; 21 years; natural born or naturalized subject. The tenure of office is for life, or until resignation, or forfeiture by absence or other disability. There are now 125 members of the Legislative Assembly, each representing a single electorate. The suffrage is manhood; every natural born or naturalized male subject, resident twelve months in the colony and three months in an electoral district, being entitled to an elector's right for the district. No elector can have more than one vote. Every holder of an elector's right is qualified as a candidate. Members of the Assembly receive £300 a year each; members of the Council are unpaid.

ENLARGED LEGISLATIVE POWERS. — Under the provisions of Imperial Acts applicable to the colonies the legislative powers and functions of the Parliament of New South Wales, like those of the Parliaments of


  ― 49 ―
the other Australian colonies, are much larger than they appear on the face of the constitutional instruments. The Acts so applicable may be considered as contributory charters of self-government in Australia; among them may be mentioned the following:-

1. Enabling the legislature of any British possession to make provision for securing to British authors protection within such possession, and in such case authorizing Her Majesty to declare by Order in Council that so long as such provision continues in force the prohibitions contained in the Copyright Act, 5 and 6 Vic. c. 45, are suspended as regards such colony or possession. — Colonial Copyright Act, 1847; 10 and 11 Vic. c. 95.

2. Enabling the legislature of any British possession to pass laws for the punishment of offences relating to the coinage. — Coinage Offences (Colonies) Act, 1851; 16 and 17 Vic. c. 48, s. 4.

3. Enabling the legislature of any British possession to apply or adapt to any British ship, registered in such possession, any of the provisions of the Merchant Shipping Acts "which do not otherwise so apply," and providing that such law shall have effect throughout Her Majesty's dominions. — 17 and 18 Vic. c. 104, s. 288; re-enacted in the Merchant Shipping. Act, 1894, 57 and 58 Vic. c. 60, s. 264.

4. Authorizing the legislature of any British possession to repeal any provision of the Merchant Shipping Acts (other than parts thereof which relate to emigrant ships) relating to ships registered in that possession. — 17 and 18 Vic. c. 104, s. 547; re-enacted in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, s. 735.

5. Enabling the legislature of any British possession to make laws for the trial and punishment of offences committed within such possession, but resulting in death on the sea, or beyond the limits of such possession. — Admiralty Offences (Colonial) Act, 23 and 24 Vic. c. 122 (28th August, 1860).

6. Empowering the legislative authority of any colony, with the approval of Her Majesty in Council, to make laws for providing and maintaining vessels of war, and for raising and maintaining seamen for the naval defence of the colony, and for enforcing order and discipline among the men and officers whilst ashore or afloat within the limits of the colony. — Colonial Naval Defence Act. 28 and 29 Vic. c. 14, s. 3. (7th April, 1865).

7. Repealing the old common law doctrine that colonial legislatures could not pass any law repugnant to the law of England, and enacting that no colonial law shall be void or inoperative on the ground of repugnancy to the law of England, unless the same be repugnant to some Act of the Imperial Parliament applicable to the colonies. —


  ― 50 ―
Colonial Laws Validity Act, 28 and 29 Vic. c. 63 (29th June, 1865).

8. Declaring the validity, throughout the empire, of laws made by the legislature of any British possession establishing the legality of marriages contracted in any such possession, provided that at the time of such marriage both of the parties thereto were, according to the law of England, competent to contract the same. — Colonial Marriages Act, 28 and 29 Vic. c. 64 (29th June, 1865).

9. Removing doubts as to the necessity of reserving for the Queen's assent Bills passed by Australian legislatures, altering or repealing laws for the imposition of duties of customs — 29 and 30 Vic. c. 74 (6th August, 1866).

10. Enabling the legislature of any British possession to provide for the examination of, and to grant certificates of competency to, persons intending to act as master, mate or engineer on board British ships. — 32 and 33 Vic. c. 11, s. 38; re-enacted in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, s. 102.

11. Authorizing the legislature of any British possession to regulate the coasting trade of that possession, subject to the condition that all British ships shall be treated in exactly the same manner as ships of the possession, and subject to Her Majesty's treaty obligations, with respect to ships of foreign states. — 32 and 33 Vic. c. 11, s. 4; re-enacted in the Merchant Shipping Act, 1894, 57 and 58, Vic. c. 60, s. 736.

12. Confirming the Acts of legislatures of British possessions in imparting the privileges of naturalization to aliens within the limits of such possessions. — Naturalization Act, 33 and 34 Vic. c. 14, s. 16 (12th May, 1870).

13. Authorizing the legislature of any British possession to make provision for carrying into effect the Imperial law relating to surrender of fugitive criminals, from foreign countries, suspected to be in such British possession. — Extradition Act, 33 and 34 Vic. c. 52, s. 18 (9th August, 1870).

14. Enabling the Parliaments of the Australian colonies to pass laws imposing preferential and differential duties on goods, wares and merchandise, the produce of the Australian colonies. — Australian Colonies Duties Act, 36 and 37 Vic. c. 22 (26th May, 1873).

15. Enacting that where the legislature of any British possession provides for the survey of and grants certificates for passenger steamers to the satisfaction of the Board of Trade, such certificates are to be in force as if granted under the Imperial Act — 39 and 40 Vic. c, 80, s. 17; re-enacted in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, s. 280.

16. Enacting that where any force of volunteers, or of militia, or any other force, is raised in a colony, any law of the


  ― 51 ―
colony may extend to the officers, non-commissioned officers, and men belonging to such force, whether within or without the limits of the colony; and that where any such force is serving with Her Majesty's regular forces, then so far as the law of the colony has not provided for the government and discipline of such force, the Imperial law shall apply. — Army Act, 1881; 44 and 45 Vic. c. 58, s. 177.

17. Authorizing the legislature in any British possession to constitute courts to make enquiries into charges of incompetency or misconduct on the part of masters, mates or engineers of ships, or as to shipwrecks or other casualties affecting ships, in cases occurring within or outside the limits of such possessions — 45 and 46 Vic. c, 76; re-enacted in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, s.478.

18. Enacting that where the legislature of any British possession provides for the fixing and certifying of load lines on British ships registered therein, and such provision is satisfactory to Her Majesty, certificates given thereunder shall be as effective as if given under the Imperial Act — 53 Vic. c. 9, s. 3; re-enacted in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, s. 444.

(2) Victoria

FOUNDATION. — On 5th January, 1802, Lieutenant Murray, in command of the Lady Nelson, whilst exploring the great indentation in the southern coast reported by Lieutenant Grant, discovered the heads leading into an expanse of inland water, to which he gave the name of Port King, in honour of Governor King, but which the Governor afterwards altered to Port Phillip, as a compliment to his predecessor, the founder of the Sydney settlement. On 9th March, "the united colours of Great Britain and Ireland" were hoisted on the ship and on the shores of the port, a volley was fired, and the place was taken possession of in the name of King George III. On 20th January, 1803, Mr. Charles Grimes, Surveyor-General of New South Wales, entered the port in the Cumberland, explored the coast line, and ascended the Yarra as far as Dight's Falls (Studley Park). During the same year Lieutenant-Colonel David Collins was sent from England to Port Phillip in charge of an expedition, consisting in all of 400 souls, with instructions to establish a penal settlement on the shores of the port. The first ship of the expedition, the Ocean, arrived on 7th October, and the second, the Calcutta, on 11th October. Collins was not satisfied with the place, and on 27th January, 1804, with the consent of the Sydney Government, he abandoned the attempt to form a settlement at Port Phillip, and removed his charges to Sullivan's Cove, on the Derwent, Tasmania.




  ― 52 ―
The Port Phillip District was first reached overland from Sydney by Hume and Hovell, in 1824. In November, 1834, Messrs. Edward and Francis Henty established a pastoral station at Portland. They are considered to have been the pioneer settlers of the southern part of the continent. In 1835, an association was formed in Van Diemen's Land to colonize Port Phillip. On 31st May, 1835, John Batman sailed up the Yarra. In the same year John Pascoe Fawkner followed. A settlement was formed on the banks of the Yarra. On 29th September, 1837, Captain William Lonsdale arrived at Port Phillip, being appointed to act as Resident Magistrate; with him was Captain Hobson, after whom Hobson's Bay was named. Captain Lonsdale selected the site on which was built a town that afterwards grew into the city of Melbourne. On 1st October, 1839, Mr. Charles Joseph La Trobe became the head of the Port Phillip community under the title of Superintendent, a post which he occupied for fifteen years; Captain Lonsdale acted as secretary to the local Government.

In 1840, the territory of New South Wales was, for all purposes connected with the disposal of Crown lands, divided into three districts, known respectively as the North District, the Middle or Sydney District, and the Southern or Port Phillip District. The first of these Districts practically comprised all the lands north of latitude 32°, but it was expressly noted that its northern limits were not yet fixed. The second comprised nineteen counties, bounded on the north by the southern boundary of the first District and on the south by the southern boundaries of the counties of St. Vincent and Murray, "and thence by the rivers Murrumbidgee and Murray to the eastern boundary of the Province of South Australia." The third, or Port Phillip District, included all the lands to the south of the southern boundary of the Sydney District. — Jenks' Gov. of Vict., p. 40.

By the Act 5 and 6 Vic. c. 76 (30th July, 1842) New South Wales was granted a Legislative Council consisting of 30 members, 12 of whom were to be appointed by Her Majesty, and 18 to be elected by the qualified inhabitants of the colony. The old Council was authorized to divide the colony into electoral districts for the return of elective members, but the Imperial Act specially provided that the District of Port Phillip, the town of Sydney, and the town of Melbourne should be electoral districts; that the district of Port Phillip should return at least five members, the town of Sydney two members, and the town of Melbourne one member, and that for the purpose of the Act, the northern and north-eastern boundary of the Port Phillip District should be a "straight line drawn from Cape Howe to the nearest source of the river Murray, and thence the course of that river to the eastern boundary of the Province of South Australia." It was by this Act that the colony of Victoria, afterwards to be created, lost the Murrumbidgee as its northern boundary.

SEPARATION. — By the Act 13 and 14 Vic. c. 59 (5th August, 1850), intituled "An Act for the better Government of Her Majesty's Australian colonies," it was provided "that after such provisions as hereinafter mentioned shall have been made by the Governor and Council of New South Wales, and upon the issuing of the writs for the first election in pursuance thereof, as hereinafter mentioned, the territories


  ― 53 ―
now comprised within the said District of Port Phillip, including the town of Melbourne, and bounded on the north and north-east by a straight line drawn from Cape Howe to the nearest source of the river Murray, and thence by the course of that river to the eastern boundary of the colony of South Australia, shall be separated from the colony of New South Wales, and shall cease to return members to the Legislative Council of such colony, and shall be erected into and thenceforth form a separate colony, to be known and designated as the colony of Victoria." The Legislative Council of New South Wales was empowered to determine the number of members of which the Legislative Council of Victoria should consist. It was also authorized to pass an Electoral Act fixing the electoral districts for which the elective members should be returned.

The powers and functions of the Victorian Legislative Council were, by this Constitutional Act, similar to those of the re-organized Legislative Council of New South Wales and the newly constructed Councils of Van Diemen's Land and South Australia, viz., (1) to make laws for the peace, order, and good government of the colony; (2) to impose taxation, including the imposition of customs duties; (3) to appropriate to the public service the whole of the public revenue arising from taxes, duties, rates, and imposts. Her Majesty was authorized by letters patent to appoint a Court of Judicature to be styled "the Supreme Court of the Colony of Victoria." The restrictions on the powers and functions of the Legislative Council of Victoria were similar to those of the Councils of New South Wales, Van Diemen's Land, and South Australia, viz., (1) that no such law should be repugnant to the law of England; (2) that no such law should interfere with the sale and appropriation of the waste lands of the Crown within the colony; (3) that no customs duties of a differential character should be imposed; (4) that it should not be lawful for the Council to pass any Bill appropriating to the public service any sum of money for any purpose unless the Governor should have previously recommended that provision for such appropriation be made.

The qualifications of electors and of elective members of the proposed Legislative Council of Victoria were to be the same as those of the electors and elective members of the Legislative Council of New South Wales, under the Act 5 and 6 Vic. c. 76, as amended by 13 and 14 Vic. c. 59.

This Act was proclaimed on llth January, 1851. The old Legislative Council of New South Wales met on 28th March for the purpose of making electoral and judicial arrangements required to bring the new Act into force in Victoria. Two Acts were passed specially concerning Victoria. The first was 14 Vic. No. 45 (N.S.W.), which provided that "all justices of the peace, and other officials holding office or commonly resident within the Port Phillip District at the passing of the Act, shall continue to act as though the Separation Statute had not been passed, until removed or re-appointed by the Government of Victoria." The other Act was 14 Vic. No. 47 (N.S.W.), which provided that "the Legislative Council of Victoria shall consist of 30 members, 10 nominee and 20 elective."

These arrangements having been made, the old Legislative


  ― 54 ―
Council of New South Wales was dissolved and re-elected on the lower franchise. On 1st July, 1851, the writs for the election of 20 elective members of the Legislative Council of Victoria were issued. On 15th July Mr. La Trobe announced his appointment as Lieutenant-Governor of the colony. In this manner the colony of Victoria was called into existence and received the first pulsation of autonomous political life.

POLITICAL PROGRESS. — The Act of 1850, by the liberality of its provisions in creating so many new Australian Constitutions, as well as giving scope and room for the development of the best energies of the young Commonwealth, was a recognition, on the part of the Imperial Government and Parliament, of the success of the experimental legislation in British North America in 1840, and in the senior settlement of Australia in 1842. In one particular the Act of 1850 contained a very large and important grant of power to the newly-created legislatures. By section 32, it was lawful for the Governors and Legislative Councils of New South Wales, Victoria, Van Diemen's Land, South Australia, and Western Australia respectively to amend the provisions or laws for the time being in force, under the Act or otherwise, concerning the election of elective members of such Legislative Councils respectively, or the qualification of electors and elective members of the same; or to establish in the said colonies respectively, instead of the Legislative Council, a Council and a House of Representatives, or other separate Legislative Houses. The only proviso to this power was that such bills should be reserved for the signification of Her Majesty's pleasure. It was under this section that a few years afterwards the present Constitu- tion Act of Victoria was drawn up and sent to the Imperial Government for ratification by the British Parliament. This was, indeed, an important concession. It was the first grant of power to the Australian colonists to alter the form and structure of their Constitutions, subject to Imperial control. Thus were continued the foundations of Parliamentary Institutions in Australia, commenced by the Act of 1842. They were truly miniature legislatures to start with, but it was certain that their progress and development would be guided by the natural laws of growth and evolution; and time has demonstrated the elasticity and vitality of the transplanted political system of the mother country.

The new Legislative Council of Victoria, partly nominated and partly elected was convened for the despatch of business on llth November, 1851. The official members were:- Mr. W. Lonsdale, Colonial Secretary; Mr. (afterwards Sir) W. F. Stawell, Attorney-General; Mr. (afterwards Sir) Redmond Barry, Solicitor-General. Mr. C. H. Ebden, Auditor-General; and Mr. R. W. Pohlman, Chairman of the Court of Requests. Mr. J. F. Palmer was elected Speaker. In his inaugural speech to the Council the Lieutenant-Governor said:- "In now formally opening this first session, I would offer to you, and through you, to the inhabitants of the colony at large, my most hearty congratulations upon the event which, after much delay, has at length crowned your wishes. Under the provisions of the recent Imperial Act, and Her Majesty's favour, you meet here to-day


  ― 55 ―
as the representatives of the people of an independent colony of the British Empire, with power to watch over the general interests and to control your own affairs, which has hitherto been, from circumstances, in a great measure denied to you; and it is my earnest prayer to God that you may be endowed with wisdom and prudence, which are requisite for the due discharge of the important duties entrusted to you."

THE NEW CONSTITUTION. — The next important stage in the constitutional history of Australia was that which was consummated by the attainment of complete local legislative independence coupled with complete local Executive authority. The Legislative Councils, partly nominated and partly elected, together with the system of personal government, were doomed to be swept away, and to give place to a more perfect type of legislature, and to a responsible administration according to the British model. The discovery of gold, which was announced to the world a few months after the separation of Victoria from New South Wales, soon began to attract a large and ever-increasing population to the shores of Australia, and new and exciting events followed one another in rapid succession. The legislature of New South Wales took the lead in the movement for an extension of Constitutional power, and the Home Government promptly and willingly agreed to grant the reform of the Constitution asked for.

Reference has been made to, and an extract given from, Sir John Pakington's despatch to the Governor of New South Wales promising to give effect to the wishes of the Legislative Council of New South Wales, that a Constitution resembling that of Canada, based on a bi-cameral legislature, should be adopted, and suggesting that the Legislative Council should proceed to frame one. A similar despatch, dated 18th January, 1853, offering the same concessions, was received by the Lieutenant-Governor of Victoria. The Victorian Legislative Council appointed a select committee of twelve members, chosen by ballot, to consider and report on the best form of government for the colony. The committee subsequently brought up a report accompanied by a Draft Bill. On 25th January, 1854, the Bill was read a second time, committed and reported. On 24th March it was passed, and on the 28th it was reserved for the Queen's assent.

The Constitution, so sent to England, proposed to create a bi-cameral legislature, consisting of a Legislative Council, to be composed of 30 members, elected by qualified voters, and a Legislative Assembly, consisting of double that number, elected on a more liberal franchise. The Queen, with the advice and consent of this legislature, was authorized "to make laws in and for Victoria in all cases whatsoever;" to impose and levy duties of Customs; to appropriate public revenue for specific purposes. All Bills for appropriating any part of the revenue or imposing any duty, rate, tax, rent, return, or impost, were required to originate in the Assembly and could be passed or rejected but not altered by the Council. The Assembly could not originate any vote, resolution, or Bill for the appropriation of the consolidated revenue for any purpose which should not have been first recommended by a message of the Governor to the Assembly. The


  ― 56 ―
appointment to public offices was to he vested in the Governor with the advice of the Executive Council, excepting in the case of officers liable to retire on political grounds, whose appointment was vested "in the Governor alone." Sec. 37. See p. 46, supra. The Bill also contained clauses similar to those of the New South Wales Bill, relating to the assent of the Governor to Bills and Her Majesty's power to disallow the same; relating to boundaries of the Australian colonies; and providing that it should not come into force until the control of the sale and appropriation of the waste lands of the Crown within the colony should be vested in the legislature to be created. The legislature was authorized to amend the Constitution, subject to the condition that Bills altering the Constitution of the two Houses should be passed by an absolute majority in each House and should be reserved for the Queen's assent.

The Constitution, so drawn, granted powers to the proposed bi-cameral legislature in excess of the authority conferred by 13 and 14 Vic. c. 59. "In this respect the Select Committee of the Victorian Council were influenced by the same political considerations as the Select Committee of the New South Wales Council. They wished to secure under the new Constitution "other and additional powers and functions "beyond those vested in the old Council. In so doing they ran the same risk of having the Royal assent withheld. In fact it was known that, owing to the excess of powers proposed to be granted by the Constitution, the Royal assent could not be legally given, and that fresh Imperial legislation would be required in order to legalize the Constitution. The powers and functions granted by the Bill were:-

1. To make laws in and for Victoria in all cases whatsoever.

2. To impose taxation, including duties of customs.

3. To appropriate revenue.

4. To legislate concerning the waste lands of the Crown.

5. To amend the Constitution of the Council and Assembly, subject to certain conditions.

Accompanying these grants were several restrictions and other provisions relating to electoral matters similar to those embodied in the New South Wales Bill. As the Bill contained matters in excess of the powers conferred by the Enabling Act, the law officers of the Crown advised that it was not competent for Her Majesty to assent to the Bill without the authority of Parliament. In order to enable that assent to be given, a Bill was brought into Parliament, to which the proposed Constitution was added as Schedule A; amended, however, by the omission of clauses relating to the assent of the Governor to Bills, Her Majesty's power to disallow Bills, and respecting the boundaries of the Australian colonies. It was intituled "A Bill to enable Her Majesty to assent to a Bill, as amended, by the legislature of Victoria to establish a Constitution in and for Victoria." Section 1 enabled Her Majesty to assent to the Bill. Section 2 repealed Imperial Acts inconsistent with the Constitution, and vested the entire management and control of the waste lands of the Crown in the new legislature. The provisions of former Acts relating to the disallowance of Bills were preserved. The new legislature was authorized to


  ― 57 ―
repeal or alter all or any of the provisions of the reserved Bill subject to the conditions therein prescribed.

RESPONSIBLE GOVERNMENT. — The Bill was passed and assented to on 16th July, 1855; it is known as the Victorian Constitution Statute; whilst the Act contained in the Schedule is known as the Victorian Constitution Act. The new Constitution was proclaimed on 23rd November, 1855. The first Responsible Government was composed of Mr. W. C. Haines, Chief Secretary; Mr. (afterwards Sir) W. F. Stawell, Attorney-General; Mr. (afterwards Sir) C. Sladen, Treasurer; Mr. C. Pasley, Commissioner of Public Works; Mr. H. C. E. Childers, Commissioner of Trade and Customs; Mr. (afterwards Sir) A. Clarke, Surveyor-General; and Mr. (afterwards Sir) R. Molesworth, Solicitor-General; Mr. (afterwards Sir) Wm. H. F. Mitchell (without office). The Ministers were all returned to seats in the first elections for the Legislative Assembly, which took place in the spring of 1856; they met the new Parliament as a Cabinet, and resigned on the passing of an unfavourable resolution upon the subject of the Estimates, in March, 1859. Mr. (afterwards Sir) John O'Shanassy, the mover of the resolution, was then, in accordance with Cabinet practice, invited to form a Ministry — Jenks' Gov. of Victoria, p. 215.

ENLARGED LEGISLATIVE POWERS. — The Constitution of Victoria, like that of the other Australian colonies, was subsequently enlarged and improved by further grants of power, contained in Imperial Acts applicable to the colonies, of which a summary has been given, under the heading of "New South Wales," pp. 49–51, supra.

REFORMS. — By the Legislative Council (Reform) Act, 1881 (45 Vic. No. 702), the number of members of the Council was increased from 30 to 41; and by the Act 52 Vic. No. 995, passed in 1888, the number was increased to 48, distributed among the fourteen provinces. The term of membership has been reduced from ten years to six years, and the qualification of members and electors has been lowered. Members of the Council must be of the full age of 30 years, natural born or naturalized subjects, and possessed of freehold property in Victoria of the annual value of £100. Electors of the Council must be adult males, natural born or naturalized subjects, and possessed of a qualification either (1) as freeholders or mortgagors in possession of land of the annual value of £10, or leaseholders to the annual value of £25; or (2) as graduates, members of the learned professions, or military or naval officers. No property qualification is required for membership of the Assembly; members of that House are paid at the rate of £300 per annum for their services. The franchise for the Assembly is manhood; every natural-born or naturalized male subject of the age of 21, years, if resident for 12 months in Victoria and for one month in an electoral district, is entitled to be enrolled as a voter for that district. Every such person is also entitled to vote in every electoral district in which he is seised in fee of lands worth £50, or of the annual value of £5, or in which his name is entered on a municipal roll as a ratepayer. By the Act 22 Vic. No. 89 (1859), the duration of the Assembly was reduced from five years to three years. The number of members of the Assembly has been increased from 60 to 95.

CONSTITUTIONAL STRUGGLES. — Since the adoption of the Victorian


  ― 58 ―
Constitution it has been subjected to some severe strains, consequent on disputes between the two Houses respecting their powers in matters of taxation and appropriation. During those controversies questions of great Constitutional importance were raised and discussed. Among these may be mentioned the action of the Assembly in tacking the proposed new tariff to the annual Appropriation Bill in 1865; its rejection by the Council and the consequent deadlock; the insertion of the proposed grant to Lady Darling in the Annual Appropriation Bill in 1867; its rejection by the Council and consequent deadlock; the insertion of provision for payment of members in the annual Appropriation Bill of 1877; its rejection by the Council and the consequent deadlock, leading to "Black Wednesday" dismissals; the Victorian delegation to England in October, 1879, and Sir Michael Hicks-Beach's despatch of 3rd May, 1879. In that famous despatch the Colonial Secretary said:-

"I observe that the address of the Legislative Assembly of February 14th, 1878, dwells almost exclusively on the necessity of securing to that House sufficient financial control to enable adequate supplies to be provided for the public service, and it is prominently urged in Mr. Berry's letter of February 26th, in proof of the necessity for finding some solution of the present constitutional difficulty, that ‘scarcely a year passes but it becomes a question whether the supplies necessary for the Queen's service will be granted.’ But this difficulty would not arise if the two Houses of Victoria were guided in this matter, as in others, by the practice of the Imperial Parliament, the Council following the practice of the House of Lords, and the Assembly that of the House of Commons. The Assembly, like the House of Commons, would claim and in practice exercise the right of granting aids and supplies to the Crown, of limiting the matter, manner, measure, and time of such grants, and of so framing the Bills of Supply that these rights should be maintained inviolate; and as it would refrain from annexing to a Bill of Aid and Supply any clause or clauses of a nature foreign to or different from the matter of such a Bill, so the Council would refrain from any steps so injurious to the public service as the rejection of an Appropriation Bill." — Todd, Par. Gov. Col., 2nd Ed., p. 746.

(3) Tasmania

FOUNDATION. — This island, which down to the year 1853 was known as Van Diemen's Land, was, until its circumnavigation by Flinders and Bass in 1798, thought to be connected with the mainland. In 1803, in consequence of the presence of French exploring vessels in Australian waters, an apprehension was felt that the French meditated the annexation of unoccupied territory along the Australian coast. In order to remove any impression that Van Diemen's Land was unclaimed by the British nation, the Sydney Government decided to formally take possession of it. Accordingly Governor King despatched Lieutenant John Bowen to the Derwent in charge of the Albion and


  ― 59 ―
the Lady Nelson, which conveyed a number of soldiers and prisoners thither to form the nucleus of a settlement. The pioneering party anchored off Risdon Cove on the left bank of the Derwent on 12th September, 1803. In 1804, Colonel David Collins abandoned an attempt to form a settlement on the shores of Port Phillip, and removed with his charges to the Derwent. Not approving of the site chosen at Risdon Cove by Bowen, he selected another one on the south bank of the Derwent, known as Sullivan's Cove, which in after years grew into the city of Hobart, so named after Lord Hobart, the Secretary of State for the colonies. In 1804, Collins superseded Bowen as commandant of the Derwent settlement. In the same year Colonel Patterson, by direction of Governor King, planted a camp at George Town on the Tamar, but it was subsequently removed to a better situation at York Town, and eventually to the present site of Launceston. In 1805, it was decided to abandon the prison settlement on Norfolk Island, and some of the free colonists were transferred to the Derwent, where "New Norfolk" was founded.

SEPARATION. — By Section 44 of the Act 4 Geo. IV. c. 96 (19th July, 1823), intituled "An Act to provide...for the better administration of Justice in New South Wales and Van Diemen's Land," the Crown was empowered to constitute and erect the island of Van Diemen's Land into a separate colony independent of New South Wales. On the 13th October, 1823, a charter of Justice was issued by the Crown instituting a Supreme Court for Van Diemen's Land. Mr. John Lewis Pedder became the first Chief Justice of the colony. The Court was opened for business on 24th May, 1824. Pursuant to an Order in Council dated 14th June, 1825, the separation and independence of Van Diemen's Land were proclaimed. The new colony then received a Lieutenant-Governor, an Executive Council, and a Legislative Council of its own. The Governor of New South Wales was entitled the "Captain-General and Governor-in-Chief" of the eastern part of the continent, and the Lieutenant-Governor of Van Diemen's Land exercised all the powers and functions of Governor when the Governor of New South Wales was not present on the Island. The Executive Council consisted of the Lieutenant-Governor, the Chief Justice, the Colonial Secretary, the Colonial Treasurer, and the Chief Military Officer. The Legislative Council consisted of seven members nominated by His Majesty, its functions, under sec. 24 of the Imperial Act, being to make laws and ordinances for the peace, welfare and good government of the colony, provided that such laws were not repugnant to the law of England.

By the Act 9 Geo. IV. c. 83 (28th July, 1828), the Crown was authorized to re-model and improve the Supreme Courts of New South Wales and Van Diemen's Land. The remaining sections of the Act providing for the constitution, appointment, and powers of the Legislative Councils in and for both colonies, and providing for the introduction and operation of "all laws and statutes in force within the realm of England," were made applicable alike to New South Wales and Van Diemen's Land. See "New South Wales," pp. 37–8, supra.

The Act 5 and 6 Vic. c. 76 (30th July, 1842), intituled "An Act for the Government of New South Wales and Van Diemen's Land,"


  ― 60 ―
created a new Legislative Council for New South Wales, but it did not do so for Van Diemen's Land. The whole of the provisions of that Act, with several minor exceptions, were confined to New South Wales.

FIRST REPRESENTATIVE LEGISLATURE. — For their first instalment of the Representative System of Government, the people of the southern island had to wait till the passing of that important Act 13 and 14 Vic. c. 59 (1850), intituled "An Act for the better government of Her Majesty's Australian colonies." By section 7 of this Act, it was provided that the legislature already existing in Van Diemen's Land, under the Act of 1828, might establish within the colony a Legislative Council, to consist of not more than 24 members, of whom one-third should be nominated by Her Majesty and the remainder elected by the inhabitants of the colony. Upon the issue of the writs for the election of the new Legislative Council, all prior legislation relating to the constitution, appointment and powers of the old Legislative Council should be repealed. The Governor of Van Diemen's Land, with the advice and consent of the new Legislative Council so established, had authority to make laws for the peace, welfare and good government of the colony; to appropriate to the public service the whole of the revenue arising within the colony from taxes, duties, rates and imposts, and to impose duties of customs. The Council, however, could not pass any laws repugnant to the law of England, or interfere in any manner with the sale or appropriation of the waste lands of the Crown; nor could it pass any Bill appropriating to the public service any sum of money, unless the Governor first recommended that provision for the appropriation should be made (sec. 14). Section 7 of this Act was an enabling section, valuable in its immediate grant of power, but especially valuable as a precedent, showing the inclination of the Imperial Government to entrust the people of the colonies not only with representative institutions, but also with the power of drafting their own constitutional instruments. The old Council of 1828 was to establish the new Council and make arrangements for dividing the colony into convenient electoral districts. The qualifications of members and of electors for the new Council were made similar to those of the members and electors of the Legislative Council of New South Wales, under 5 and 6 Vic. c. 76 as amended by 13 and 14 Vic. c. 59.

THE NEW CONSTITUTION. — During the governorship of Sir William Denison, the new Legislative Council of Van Diemen's Land, in the exercise of power conferred by 13 and 14 Vic. c. 59 s. 32, proceeded to draft a Constitution "for the establishment of the Parliament of Van Diemen's Land." It was proposed that the new Parliament should consist of a Legislative Council and a House of Assembly in place of the existing Council. The Council was to consist of 15 members, elected by the qualified voters of the colony. The House of Assembly was to consist of 30 members elected on a more popular franchise than that of the Council. Bills for appropriating any part of the revenue, or imposing any tax, rate, duty, or impost, were required to originate in the Assembly, and the Assembly could not originate or pass any vote, resolution, or Bill for the appropriation


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of any part of the public revenue for any purpose which should not have been first recommended by the Governor to the House.

The Bill so drawn did not, on its face, disclose the powers and functions of the proposed bi-cameral legislature. For those powers and functions reference has to be made to sec. 14 of the Act 13 and 14 Vic. c. 59, which defines the powers and functions of the Legislative Council created under that Act. The bi-cameral legislature created to replace that Council could, under sec. 32, exercise only "the powers and functions of the Legislative Council for which the same may be substituted." No law-making power was ever given to this bi-cameral legislature, except by reference, and to this day the laws of Tasmania are made in pursuance of the powers given by the original Enabling Act (13 and 14 Vic. c. 59), and not by the so-called Constitution. In fact it is not a Constitution; it is a graft on, or a development of a pre-existing Constitution, viz., the Enabling Act 13 and 14 Vic. c. 59, secs. 7, 14, and 32. See Notes on the Constitution of South Australia by the Hon. Sir R. O. Baker, p. 10.

RESPONSIBLE GOVERNMENT. — The Bill so drawn, and called "the Constitution," was passed by the Legislative Council on 31st March, 1854, and was reserved by the Lieutenant-Governor for the signification of Her Majesty's pleasure. It was assented to and proclaimed on 24th October, 1856, and the first Parliament was opened on 2nd December, 1856. Sir Henry Edward Fox Young was appointed the first Governor-in-Chief of the colony under the new system of Responsible Government. The first Responsible Ministry was composed of Mr. William T. N. Champ, Colonial Secretary and Premier; Mr. T. D. Chapman, Colonial Treasurer; Mr. F. Smith, Attorney-General; Mr. J. W. Rogers, Solicitor-General; Mr. H. F. Anstey, Secretary for Lands and Works; Mr. W. E. Nairn (without office).

ENLARGED LEGISLATIVE POWERS. — At about the same time an Imperial Act was passed (18 and 19 Vic. c. 56) authorizing the legislature of each of the Australian colonies to sell, dispose of, and legislate concerning the waste lands of the Crown in the colony. In 1865 the Colonial Laws Validity Act (28 and 29 Vic. c. 63) removed the common law restriction which prevented colonial legislatures from passing any law repugnant to the law of England. In 1875 the prohibition contained in the Act 13 and 14 Vic. c. 59, preventing colonial legislatures from passing any law providing for the imposition of differential duties, was by the Australian Colonies Duties Act (36 and 37 Vic. c. 22) abolished, as far as intercolonial duties were concerned. Other Imperial Acts applicable to the colonies and enlarging the powers of the Parliament of Tasmania, in common with those of the other Australian Parliaments, are specified under the heading of "New South Wales," pp. 49-51, supra.

CHANGE OF NAME. — In the year 1853, on the acquiescence of the Imperial Government in the cessation of transportation (finally abolished in 1857 by 20 and 21 Vic. c. 3), the name "Tasmania" was generally and voluntarily adopted instead of Van Diemen's Land. A despatch from the Duke of Newcastle, giving the approval of the Colonial Office to the change, was published in the Gazette of 3rd May of that year. But it was not until an Act, 19 Vic. No. 17, was


  ― 62 ―
passed in December, 1855, that the change was legalized. This is intituled "An Act to obviate any doubts which might otherwise arise from the change in the name of the colony of Van Diemen's Land to Tasmania," and it came into operation on lst January, 1856.

REFORMS. — There are at present 18 members of the Legislative Council of Tasmania. The qualifications of members of the Council are: male; 30 years; natural born or naturalized subjects; resident three years in the colony. The tenure is six years; one-sixth of the members retiring each year. The qualifications of electors for the Council are: male; 21 years; natural born or naturalized subjects, possessed of freehold estate of the annual value of £15 or leasehold estate of the annual value of £30; or University graduates, barristers, solicitors, or medical practitioners. The qualifications of electors of the House of Assembly, of which there are 37 members, are: male; 21 years; natural born or naturalized subjects; owners or occupiers of property whose names appear on an assessment roll in the district for which the vote is claimed or who are in receipt of an income of £40 per annum, and who have continuously resided in the district for over twelve months. In the city districts of Hobart and Launceston a modification of the Hare system of preferential voting is in force. Members of both Houses receive £100 per year each.

In Tasmania the elective Legislative Council has claimed absolute equality of power with the Legislative Assembly, except in the origination of Money Votes. Not only has it claimed, but it has been permitted, to amend Tax Bills, Supply Bills, and even Bills for the appropriation of Supplies for the annual services of the Government.

(4) South Australia

FIRST STATUTORY AUTHORITY. — This province originally comprised that part of the colony of New South Wales lying between the meridians of 132° and 141° of east longitude, bounded on the south by the Southern Ocean, and on the north by 26° parallel of south latitude. By the Act 24 and 25 Vic. c. 44, a strip of territory, comprising 80,000 square miles, lying between South Australia and Western Australia, called "no man's land," was on 10th October, 1861, added to the province, thus extending its western limits to 129° east longitude, the former western boundary of New South Wales. On 6th July, 1863, the vast tract of country known as the Northern Territory, formerly a part of New South Wales, was, by letters patent, added to the province.

In 1829, Mr. Edward Gibbon Wakefield published a pamphlet under the title of "A Letter from Sydney," in which he propounded a new system of colonization, the essence of which was that the Crown should sell the waste lands of Australia at substantial prices for cash and apply the proceeds to the promotion of immigration and the making of roads. In 1831, a company was formed in England with the object of promoting systematic colonization in South Australia on the lines laid down by Mr. Wakefield. Objection was taken to giving


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legislative power to an irresponsible company, and the scheme fell through. Amended proposals were afterwards submitted to the Imperial Government, and on 15th August, 1834, the Act 4 and 5 Will. IV. c. 95 was passed, intituled "An Act to empower His Majesty to erect South Australia into a British possession or province, and to provide for the colonization thereof." This Act enabled His Majesty, with the advice of the Privy Council, to erect and establish South Australia into a British province and to authorize and empower one or more persons resident in the province to make, ordain, and establish such laws, institutions, and ordinances, to impose such duties and taxes, and to appoint such officers and to constitute such courts as might be necessary for the peace, order, and good government of the people of the province. It also empowered the King, with the advice of the Privy Council, to appoint colonization commissioners, who were to have the control of the Crown lands. Power was given to make orders and regulations for the survey and sale of the lands, and to employ portion of the money so derived in conducting the immigration of labourers from Great Britain. In the exercise of these powers the province was erected and established, and a Governor, a Judge, seven Commissioners, and other officials were appointed. The Governor, with the concurrence of the Chief Justice, the Colonial Secretary, and the Advocate-General, or two of them, was authorized to make laws and impose taxes.

Captain (afterwards Admiral Sir) John K. H. Hindmarsh, R.N., was appointed the first Governor; Colonel Light, Surveyor-General; Colonel Torrens, Chairman of the Commission in England; Mr. (afterwards Sir) James Hurtle Fisher, Resident Commissioner; Colonel Goudge, Colonial Secretary; Sir J. W. Jeffcott, Judge; Mr. Charles Mann, Advocate-General; Captain Thomas Lipson, Naval Officer; Mr. George Stevenson, Governor's Secretary and Clerk of Council. The first ship despatched to South Australia by the Commissioners was the Cygnet, which in July, 1836, arrived at Kangaroo Island, where there was a small whaling station. Among the passengers was Mr. (afterwards Sir) George Strickland Kingston, who was one of a party of survey officers. The ships Duke of York and Lady Mary Pelham, conveying immigrants, sailed in February, 1836, and arrived at Kangaroo Island in August following. Shortly afterwards the Rapid arrived with an additional survey party under Colonel Light. Not satisfied with Kangaroo Island, he searched along the main land for a site suitable for the settlement. A tract on the Torrens River was eventually selected at a suitable spot. It was called Adelaide in honour of the Queen of William IV. On 28th December, 1836, Governor Hindmarsh arrived in the Buffalo. He issued a proclamation at Glenelg, announcing the establishment of the Government. Thus began colonization in South Australia.

A CROWN COLONY. — In May, 1841, the settlement being in considerable financial difficulties, Governor Gawler was recalled, being succeeded by Captain (afterwards Sir) George Grey. The British Government decided to lend the colony sufficient money to pay its debts, to re-model the system of government and to abolish the colonization commission. South Australia then became a Crown


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colony. In 1842 the Act 5 and 6 Vic. c. 61 was passed, intituled "An Act to provide for the better government of South Australia." Her Majesty was empowered to constitute a nominated Legislative Council consisting of the Governor and seven other persons resident therein, with power to make laws for the government of the colony.

That system of government continued in force until the inauguration of a new scheme under the Constitutional Act, 13 and 14 Vic. c. 59 (5th August, 1850), already referred to. Section 7 of that Act authorized the legislature, then by law established in South Australia, to establish a Legislative Council consisting of not more than 24 members, of whom one-third were to be appointed by Her Majesty, and the remainder were to be elected by the qualified inhabitants. Section 14 gave the Governor, with the advice and consent of this Legislative Council, power to make laws for the peace, welfare, and good government of the province, and to appropriate to the public service the whole of the revenue arising from taxes, duties, rates, and imposts, provided that no such law should be repugnant to the law of England, or interfere with the sale or appropriation of the waste lands of the Crown. The qualifications of members and electors of the new Council were to be the same as those of the members and electors of the Legislative Council of New South Wales, under the Act 5 and 6 Vic. c. 76, as amended by 13 and 14 Vic. c. 59. The Council could not pass any law appropriating to the public service any sum of money unless the Governor should first recommend to the Council that provision should be made for such appropriation. On 21st July, 1851, the Legislative Council, consisting of 24 members, was constituted.

THE NEW CONSTITUTION. — In 1853 the Legislative Council of South Australia, in pursuance of the power conferred by sec. 32 of the Act 13 and 14 Vic. c. 59, passed a Bill to establish a bi-cameral legislature for South Australia, consisting of a Legislative Council of not less than 12 members to be nominated by the Crown, and a House of Assembly of 36 members to be elected by the inhabitants. The qualifications of electors and members were defined in the Bill, which, inter alia, contained a provision limiting the right of the Crown in the disallowance of Bills. The Bill was passed by the Council and reserved for the Queen's assent, which was refused on the ground that its provision limiting the Crown's right of disallowance of Bills was in excess of the power conferred in sec. 32.

On 15th August, 1855, the old Council of 1851 was dissolved by proclamation, and a new Council was duly constituted, partly by election and partly by nomination. In the meantime a copy of the Constitution which had been passed by the Tasmanian Legislative Council was forwarded by the Secretary of State for the Colonies to the Governor, Sir Richard Graves McDonnell, with an intimation that a Bill drawn on similar lines would be sanctioned. A second Bill to create a bi-cameral legislature for South Australia was then introduced into the newly-constituted Council. It provided for the creation of two elective Houses to take the place of the Council created by the Act 13 and 14 Vic. c. 59. This Bill was to be called a Constitution Act. Like its Tasmanian model, however, it conferred no law-making


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power on the bi-cameral legislature, except by reference. In order to ascertain the principal legislative powers and functions of the Parliament of South Australia, reference has to be made to the Act 13 and 1.4 Vic. c. 59, defining the legislative powers and functions of the Council for which it was substituted.

According to that Act the Parliament was authorized to make laws for the peace, order, and good government of South Australia; to raise revenue by various methods of taxation, including the imposition of duties of customs, and to appropriate the public revenue for public purposes. By the proposed new Constitution all Bills for appropriating any part of the revenue of the province, or for imposing altering, or repealing any rate, tax, duty, or impost, were required to originate in the House of Assembly. Neither House could pass any vote, resolution, or Bill for the appropriation of any part of the revenue for any purpose, unless the Governor should have first recommended to the House of Assembly that provision should be made for such appropriation. The appointment to all public offices under the Government of the province was vested in the Governor, with the advice and consent of the Executive Council, except the appointment of certain political officers, required to be members of Parliament, whose appointment and dismissal was vested in the Governor alone. After the first general election no person could hold the office of Chief Secretary, Attorney-General, Treasurer, Commissioner of Crown Lands or Commissioner of Works, for any period longer than three months, unless he were a member of the Council or of the House of Assembly. This Bill, though described as a Constitution, was in fact not a Constitution, but, like that of Tasmania, a graft on, or a development of a pre-existing Constitution. — Sir R. C. Baker, Notes on the Constitution of South Australia, "Adelaide and Vicinity," p. 10. It was passed by the Council on 4th January, 1856, and was reserved by the Governor for the signification of the Queen's pleasure. It received the Royal assent, and was proclaimed on 24th October, 1856.

ENLARGED LEGISLATIVE POWERS. — At about the time when the Bill received the Royal assent, the Imperial Act (18 and 19 Vic. c. 56) was passed, authorizing the legislature of each of the Australian colonies to sell, dispose of, and legislate concerning the waste lands of the Crown in the colony. In 1865, the Colonial Laws Validity Act (28 and 29 Vic. (1. 63) removed the common law restriction which prevented colonial legislatures from passing any law repugnant to the law of England. In 1873, the prohibition contained in the Act 13 and 14 Vic. c. 59, preventing colonial legislatures from passing any law providing for the imposition of differential duties, was by the Australian Colonies Duties Act (36 and 37 Vic. c. 22) abolished as far as intercolonial duties were concerned. A list of other Imperial Acts enlarging the powers of the Parliament of South Australia, in common with those of the Parliaments of the other Australian colonies, will be found under the heading of "New South Wales," pp. 49–51, supra.

RESPONSIBLE GOVERNMENT. — The election of members of the two new Houses took place in March, 1857. The first session of the new Parliament commenced on 22nd April, 1857, during the Governorship of Sir Richard Graves McDonnell. The first Responsible Ministry


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was formed by Mr. B. T. Finnis, Chief Secretary, and his colleagues were Mr. R. D. Hanson, Attorney-General; Colonel R. R. Torrens, Treasurer. Mr. C. Bonney, Commissioner of Crown Lands and Immigration; and Captain A. H. Freeling, Commissioner of Public Works, succeeded by Mr. (afterwards Sir) Samuel Davenport. Mr. James Hurtle Fisher was appointed President of the Council; and Mr. George Strickland Kingston first Speaker of the House of Assembly.

RELATIONS OF THE TWO HOUSES. — In 1857, a dispute arose between the two Houses of the South Australian Parliament as to their respective powers in dealing with Money Bills. A Bill to repeal certain duties of tonnage was passed by the Assembly and sent to the Council. The Council amended it as it would an ordinary Bill. The Bill as amended was sent back to the Assembly, which raised a question of privilege. The Assembly contended that the Council had no right to modify any Money Bill, but that it could only either pass or reject such a Bill. The Council replied that it had an undoubted right to amend all Bills whatsoever sent up to it by the Assembly. The dispute was eventually settled by a compromise, commonly called "the Compact of 1857," which was adopted by resolutions of both Houses. This "Compact" defines those Bills, which the Council cannot amend in the ordinary way, as being "all Bills the object of which shall be to raise money, whether by way of loan or otherwise, or to warrant the expenditure of any portion of the same," and provides "that it shall be competent for the Council to suggest any alteration in any such Bills, except that portion of the Appropriation Bill which provides for the ordinary annual expenses of the Government."

In 1881, an Act to amend the Constitution of South Australia (No. 236) was passed, which provided that "Whenever any Bill for any Act shall have been passed by the House of Assembly during any session of Parliament, and the same Bill, or a similar Bill with substantially the same objects and having the same title, shall have been passed by the House of Assembly during the next ensuing Parliament, a general election of the House of Assembly having taken place between such two Parliaments, the second and third reading of such Bill having been passed in the second instance by an absolute majority of the whole number of members of the said House of Assembly, and both such Bills shall have been rejected by, or fail to become law in consequence of any amendments made therein by the Legislative Council, it shall be lawful for, but not obligatory upon, the Governor of the said province, by proclamation to be published in the Government Gazette, to dissolve the Legislative Council and House of Assembly, and thereupon all members of both Houses of Parliament, shall vacate their seats, and members shall be elected to supply the vacancies so created; or for the Governor to issue writs for the election of one, or not more than two, new members for each district of the Legislative Council: Provided always that no vacancy, whether by death, resignation, or any other cause, shall be filled up while the total number of members shall be 24 or more;" and that "in the event of the Council being dissolved, six members shall be elected for each of the said districts, and the names of such members shall


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be placed on the roll of members for the said districts in the order provided for in Section 12 of this Act, and thereafter the several periodical retirements of members referred to in Sections 8 and 13 of this Act shall date from the day of their election." Hitherto no double dissolution has taken place under this section.

REFORMS. — By the Constitution Amendment Act, 1894 (No. 613, assented to in 1895), the South Australian Parliament granted to women possessing the necessary qualification the right to vote for members of both Houses of Parliament.

The Legislative Council of South Australia at present is composed of 24 members who are theoretically elected for nine years. Every three years eight members whose names stand first on the roll retire and are eligible for re-election. The qualifications of members of the Council are: male; 30 years; natural-born or naturalized subjects; resident in the Province for three years if natural-born, and five years if naturalized; no property qualification. The qualifications of electors for the Council are: adults; natural-born or naturalized subjects; ownership of freehold property of the clear value of £50; or ownership of leasehold estate of the clear annual value of £20; or occupation of a dwelling house of the clear annual value of £25. The Assembly consists of 54 members, elected for a period of three years, subject to be sooner dissolved by the Governor. They, as well as members of the Council, are entitled to £200 per year each for their services. Manhood suffrage for Assembly elections was adopted in 1856; and in 1895 the franchise was extended to women. Under the Electoral Code, 1896, all British subjects of the age of 21 years, inhabitants of South Australia, who have been registered upon any Assembly roll for six months, may vote for members of the Assembly. There is no plural voting; and provision is made for absent electors to poll their votes.

(5) Western Australia

FIRST STATE AUTHORITY. — During the French scare of 1826, when the French were suspected of designs to annex unoccupied portions of the Australian continent, Governor Ralph Darling despatched from Sydney a detachment of the 39th Regiment with a number of convicts, in all seventy-five persons, in command of Major Lockyer, to occupy King George's Sound, with a view to taking possession of the western part of the continent. In 1827–8, Captain James Stirling, in H.M.S. Success, surveyed the coast from King George's Sound to Swan River, and being favourably impressed with its suitability for settlement, he recommended the formation of a colony there. In 1829, Captain Fremantle, in H.M.S. Challenger, was sent to do pioneering work; he hoisted the British flag on a spot near the mouth of Swan River, which now bears his name. On 1st June, 1829, Captain (afterwards Sir) James Stirling arrived at Swan River in the Parmelia, with 800 intending settlers, from which date the history of the colony commences. Captain Stirling was the first Lieutenant-Governor, and the officials associated with him were:-


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Mr. Peter Brown, Colonial Secretary; Lieutenant J. S. Rowe, R.N., Surveyor; Mr. C. Sutherland, Assistant-Surveyor; Mr. H. Morgan, Storekeeper; Mr. W. Shilton, Clerk to the Secretary; Mr. J. Drummond, Agriculturist; and the Rev. J. B. Wittenoom, first colonial Chaplain.

In the same year the first Imperial Act applicable to Western Australia was passed, viz., 10 Geo. IV. c. 22. It was intituled "An Act to provide until the 31st day of December, 1834, for the government of His Majesty's settlements in Western Australia, on the western coast of New Holland." It will be noticed that the name "Australia," first suggested for the continent in 1814 by Matthew Flinders, is here used and for the first time sanctioned by an Imperial Act. Sec p. 33, supra. By that Act the King, with the advice of the Privy Council, was empowered to make, ordain, and to authorize any three or more persons resident within the settlements, to make, ordain, and constitute laws, institutions, and ordinances for the peace, order, and good government of His Majesty's subjects and others within the settlements.

In 1831 Captain Stirling was appointed "Governor and Commander-in-Chief of His Majesty's settlements on the west coast of Australia," and, by letters patent, Vice-Admiral, with authority from Cape Londonderry (lat. 13° 44' S.) to West Cape Ilowe, in lat. 35° S' S., and from Dirk Hartog Island (long. 112° 52' E.) to long. 129° E. He was authorized to appoint an Executive Council, to provide for the defence of the colony, to institute local government and dispose of the land according to British law. The members of the first Council were:- Colonial Secretary and Military Commander, Captain Irwin; Surveyor-General and Advocate-General, Mr. G. F. Moore; Commissioner of Civil Courts and Chairman of Sessions, Mr. W. H. Mackie; Resident Magistrates, Mr. G. Leake, Mr. H. Whitfield, Colonel J. Molloy, and Sir R. Spenser. Under the Act of George IV., a Legislative Council was formed consisting of members of the Executive Council and two nominated members, the Governor being President and Mr. (afterwards Sir) Luke S. Leake Speaker. In 1839 Mr. John Hutt succeeded Captain Stirling as Governor. For fifty years the history of the colony was uneventful except for the explorations of Major Warburton, Mr. Ernest Giles, and Mr. (afterwards Sir) John Forrest.

A REPRESENTATIVE LEGISLATURE. — By the Act 13 and 14 Vic. c. 59 (5th August, 1850) sec. 9, it was enacted "that upon the presentation of a petition signed by not less than one-third in number of the house-holders within the colony of Western Australia, praying that a Legislative Council according to the provisions of this Act be established within such colony, and that provision be made for charging upon the revenue of such colony all such part of the expenses of the civil establishment thereof as may have been previously defrayed by Parliamentary grants, it shall be lawful for the persons authorized and empowered to make, ordain, and establish laws or ordinances for the government of the said colony, by any law or ordinance to be made for that purpose, subject to the conditions and restrictions to which laws or ordinances made by such persons are now subject, to establish


  ― 69 ―
a Legislative Council within such colony, to consist of such number of members as they shall think fit, and such number of the members of such Council as is equal to one-third part of the whole number of members of such Council, or, if such number be not exactly divisible by three, one-third of the next greater number which is divisible by three, shall be appointed by Her Majesty, and the remaining members of the Council shall be elected by the inhabitants of the said colony." Under this Act Western Australia, in 1870, was granted a Legislative Council consisting of 26 members, nine of whom were nominated and 17 were elected.

RESPONSIBLE GOVERNMENT SOUGHT. — Three years after the grant of this instalment of Representative Institutions a movement was commenced in Western Australia in favour of Responsible Government as it existed in the Eastern colonies. Earl Kimberley, in reply to the first application, said: "Her Majesty's Government would not be disposed to resist any widespread and sustained desire which might prevail in the colony for Responsible Government." In 1874 a draft of a Constitution Bill was sent to the Secretary of State for the Colonies, who, however, decided that the colony was not yet ready for the change. On 9th April, 1884, the Governor, Sir Napier Broome, reported that though he saw no valid reason for withholding free institutions from the colony, after its inhabitants should have expressed a general and decided wish to take upon themselves the burden and responsibility of that form of government, he was strongly of opinion that, until such a wish was expressed, which certainly it had not been as yet, it would be a mistake to make such a great and irretrievable change. He also said that Western Australia must be separated into two parts, and that the northern portion, above the 26th degree of latitude, should remain for the present a Crown colony. On 6th July, 1887, the Legislative Council of Western Australia (1) affirmed the desirability of the concession of self-government, but (2) protested against the division of the colony. On 12th July, 1887, the Governor reported that having carefully considered the whole matter, he strongly supported the first and second of the resolutions, and gave his reasons why he had changed his opinion in respect to the suggested division of the colony in his despatch of three years previous, but added that it was only a matter of time when Western Australia would be separated into two or more colonies.

In a despatch, dated December 1887, the Secretary of State intimated that Her Majesty's Government favoured the view that, in any new constitutional scheme, the colony should be divided at about latitude 26° (or in the neighbourhood of the Murchison River); that it should be lawful for the legislature of Western Australia to regulate, by Act passed in the usual way, the sale, letting, and other disposal of the waste lands of the Crown south of that line, and the disposal of proceeds arising therefrom; and that all the regulations affecting the sale, letting, disposal and occupation of waste lands of the Crown in the territory north of that line should remain under the control of Her Majesty's Government, the proceeds of all land sales being invested at interest, to form a fund of which the principal would be reserved for the benefit of any colony or colonies, which


  ― 70 ―
might thereafter be created in such northern territory, except so far as it might from time to time be expended for the special advancement of the district in which it was raised.

PREPARATION OF A NEW CONSTITUTION. — In 1889, the Legislative Council was dissolved and a general election took place, the principal question being the introduction of Responsible Government. The new Council passed a resolution, without dissent, in favour of the proposed change. A new Constitution was then drafted by the Council. It provided for the creation of a bi-cameral legislature, composed of an elective Upper House of 15 members, and an elective Lower House of 30 members. To this legislature it was proposed to give powers and functions similar to those vested in the legislatures of the eastern colonies, including the disposition of the waste lands of the Crown. It was further provided that, notwithstanding anything in the Constitution, Her Majesty might divide the colony of Western Australia by separating therefrom any portion thereof, and either erect the same or any part thereof into a separate colony or colonies, or subdivide any colony so erected, or re-unite to the colony of Western Australia any part of any colony so created. The sum of £5,000 per year was appropriated for the benefit of the aboriginal natives within the colony, to be expended in providing them with food and clothing and in promoting their education. Pensions were provided for Sir Malcolm Fraser, Colonial Secretary; Mr. Charles N. Warton, Attorney-General; Mr. A. O'Grady Lefroy, Colonial Treasurer; and Mr. John Forrest, Surveyor-General and Commissioner of Crown Lands upon their retirement from office on political grounds.

The Bill was forwarded to the Secretary of State for the Colonies, who, on 31st August, 1888, returned it with suggested amendments - the principal being that the members of the Council should be nominated, instead of elected. The Legislative Council agreed to accept the proposed amendments, subject to the provision that after the expiration of six years, or as soon as the colony acquired a population of 60,000, the Upper House should be constituted by election, instead of nomination. The Bill was passed and reserved on 29th April, 1889. This compromise was accepted by the Secretary of State for the Colonies, Lord Knutsford, and on llth July, 1889, he moved the second reading of a Bill to enable Her Majesty to assent to a Bill for conferring a Constitution on Western Australia. One of the grounds suggested, as justifying the change, was that it was desirable that all the colonies on the Australian continent should, as soon as practicable, be placed on the same footing. Until there was uniformity of government, there could be little chance of any system of federation, to which he looked forward as a change which would largely tend to increase the wealth and strength of the colonies. The Bill was passed by the House of Lords, but it encountered strong opposition in the House of Commons, where the principal objection raised was the inadvisability of handing over such a vast area of country, viz., 978,000 square miles, to a Government responsible to only a small population, not exceeding 40,000 inhabitants. On the 26th August the Bill was withdrawn.

RESPONSIBLE GOVERNMENT. — In the next session of Parliament


  ― 71 ―
however, the Bill received the concurrence of both Houses. It became law on the 25th July, 1890; the new Constitution was proclaimed on 21st October, 1890. It is embodied in the Imperial Act, 53 and 54 Vic. c. 26. The first Responsible Ministry was composed of Sir John Forrest, Colonial Treasurer and Premier; Mr. Geo. Shenton, Colonial Secretary (succeeded by Mr. Stephen Hy. Parker); Mr. Edward Horne Wittenoom, Minister of Mines; Mr. Stephen Burt, Q.C., Attorney-General (succeeded by Mr. R. W. Pennefather); Mr. William Edward Marmion, Commissioner of Crown Lands (succeeded by Mr. Alexander Robert Richardson); Mr. Harry Whittall Venn, Commissioner of Railways and Public Works.

REFORMS. — On 18th July, 1893, the population of the colony being then beyond 60,000, the legislature of Western Australia passed an Act, 57 Vic. No. 14, to amend the Constitution, abolishing the nominee Council and substituting one elected by the qualified inhabitants of the colony.

In the session of 1899 a "Constitution Acts Amendment Act" was passed by both Houses of the West Australian Parliament, and reserved on 16th December for the Royal assent. This Act, when assented to, will introduce several important changes. Besides consolidating previous Constitution Amendment Acts, it increases the numbers of both Houses, extends the franchise for both Houses to women, reduces the period of residence in the colony necessary in order to qualify as an elector, and reduces the duration of the Assembly to three years from the date of its first meeting. The Legislative Council is to consist of 30 members, returned by 10 electoral provinces. Under this Act the qualifications of Councillors are:- Male; 30 years; a British subject, either natural-born and resident in the colony two years, or naturalized and resident for five years. Every adult person, being a natural-born or naturalized British subject, resident six months in the colony, is entitled to be registered as a Council elector in every Province in which he or she has a freehold qualification of £100 capital value, a household or leasehold qualification of £25 a year, or a Crown lease or license of £10 a year. For membership of the Assembly, of which there are to be 50 members, the qualifications are: male; 21 years; a British subject, either natural-born and resident in the colony for one year, or naturalized for five years and resident two years. Every adult person, being a natural-born or naturalized British subject, is entitled to be registered as a voter if he or she has resided in the colony for six months, and is entitled to vote after being registered for six months; and is also entitled to a property vote in every district in which he or she has a freehold qualification of £50 capital value, a leasehold or household qualification of £10 a year, or a Crown lease or license of £5 a year.




  ― 72 ―

(6) Queensland

FOUNDATION. — In 1823 Lieutenant Oxley, the Surveyor-General of New South Wales, was directed by Sir Thomas Brisbane, Governor of New South Wales, to inspect Port Bowen, Port Curtis, and Moreton Bay, in order to ascertain which, if any of them, was suitable for the establishment of a new penal settlement. In the course of his explorations he discovered a large river flowing into Moreton Bay, which he named the Brisbane, and explored for the distance of fifty miles. He was so satisfied with the country that he reported in favour of the establishment of a penal depôt on the banks of the Brisbane. In September, 1824, in company with Lieutenant Miller, who was in charge of a detachment of the 40th regiment, Oxley returned to the Brisbane River and formed the nucleus of a prison settlement, comprising thirty convicts, near the present site of the city of Brisbane. In the following year the Brisbane River was further examined by Major Lockyer of the 57th regiment. Captain Miller was the first Commandant. In 1839 it was determined to abandon Moreton Bay as a penal settlement. Sir George Gipps laid out the plan of Brisbane in 1841. On the 4th May, 1842, free settlement commenced; in the same year Captain J. C. Wickham was appointed Police Magistrate and afterwards Government Resident.

PROVISION FOR SEPARATION. — The Act 5 and 6 Vic. c. 76 (30th July, 1842) empowered Her Majesty, by letters patent, to separate from New South Wales any part of the territory of that colony lying to the northward of 26° south latitude, and to erect such territory into a separate colony or colonies. It was subsequently found that the 26th parallel was not far enough south to meet the requirements of a new colony, and by the Act 13 and 14 Vic. c. 59 s. 34 it was declared that upon the petition of the inhabitant householders of that part of the territory of New South Wales lying to the northward of the 30° of south latitude, Her Majesty might detach such territory from the colony of New South Wales and erect it into a separate colony or colonies. By the Constitution Statute and Act of New South Wales, 18 and 19 Vic. c. 54 (16th July 1855), the power previously granted to alter the northern boundary of New South Wales was distinctly preserved, and Her Majesty was authorized, by letters patent, to erect into a separate colony or colonies any territory which might be so separated from New South Wales. It was further enacted that Her Majesty, by such letters patent or by Order in Council, might make provision for the government of any such new colony, and for the establishment of a legislature therein, in manner as nearly resembling the form of government and legislature established in New South Wales as the circumstances of the new colony would permit. In 1843, the Moreton Bay settlers found themselves included in a large electoral district constituted under the Act 5 and 6 Vic. c. 76 for the purpose of returning representative members to the new Legislative Council of New South Wales. In 1851, Moreton Bay was made a separate electoral district, and was assigned one elective member in the Council of New South Wales; in 1853, it was assigned


  ― 73 ―
an additional member. When the new Constitution of New South Wales came into force in 1856 the Moreton Bay district was divided into eight electorates, returning nine members to the Legislative Assembly of New South Wales.

SEPARATION. — Petitions in favour of separation from the parent colony were signed and forwarded to the Imperial Government so early as the year 1851. It was not until 1859 that it was decided to grant a separation. On 6th June, 1859, letters patent were issued erecting the Moreton Bay district into a separate colony, under the name of Queensland, and appointing Sir George Ferguson Bowen to be Captain-General and Governor-in-Chief thereof. The boundary of the new colony was defined as a line commencing on the seacoast at Point Danger, in latitude about 28° 8' south, running westward along the Macpherson and Dividing Ranges and the Dumaresq River, to the McIntyre River, thence by the 29th parallel of S. latitude to the 141st meridian of E. longitude; on the west, the 141st meridian of longitude from the 29th to the 26th parallel, and thence the 138th meridian north to the Gulf of Carpentaria, together with all the adjacent islands, their members and appurtenances in the Pacific Ocean. The Governor was authorized to appoint an Executive Council to advise and assist him in the government of Queensland. The Constitution of Queensland was embodied in an Order in Council bearing the same date as the letters patent.

THE CONSTITUTION. — The Order in Council provided that there should be within the colony of Queensland a Legislative Council and a Legislative Assembly, with the advice and consent of which Her Majesty should have power to make laws for the peace, welfare, and good government of the colony in all cases whatsoever. The Legislative Council was to be composed of persons appointed by the Governor, subject to the proviso that not less than four-fifths of the members so appointed should consist of persons not holding any office of emolument under the Crown except as naval or military officers. The members of the Council were to hold their seats for the term of their natural lives. The Legislative Assembly was to consist of members elected by the qualified inhabitants of the colony. The Assembly was to continue for five years from the day of the return of the writs for choosing the same, subject, however, to be sooner dissolved by the Governor.

The powers and functions granted to this legislature were substantially the same as those granted to New South Wales, Victoria, South Australia, and Tasmania, and similar restrictions were imposed. With reference to the relative powers of the two Houses in financial matters, the Council could not originate any Bills for appropriating any part of the public revenue, or for imposing any new rate, tax, or impost. The Assembly could not originate or pass any vote, resolution, or Bill for appropriation of any part of the public revenue to any purpose which should not have been first recommended by a message from the Governor.

The formation of the new colony was proclaimed in the London Gazette on 3rd June, 1859; Sir George Bowen arrived in Brisbane on 10th December, 1859. The Order in Council was published in the


  ― 74 ―
Queensland Government Gazette on 29th December, 1859. The first Parliament under the new Constitution was convened for the despatch of business on 29th May, 1859. The first Responsible Ministry was composed of the Hon. Robert George Wyndham Herbert, Colonial Secretary; Mr. Ratcliffe Pring, Attorney-General; Mr. Robert Ramsay McKenzie, Colonial Treasurer; Mr. Maurice Charles O'Connell, without portfolio. The Act 24 and 25 Vic. c. 44 (22nd July, 1861) was passed to validate and effectuate the Order in Council establishing the Government of Queensland, and to remove all doubts as to the legality of arrangements made by the Crown upon the erection of Queensland into a separate colony. On 28th December, 1867, the Queensland legislature passed an act to consolidate the law relating to the Constitution of the colony. The Act begins with a long recital, referring to the Order in Council ordaining the Constitution; the Act 5 and 6 Vic. c. 76, relating to the Royal assent to Bills, the disallowance of Bills reserved, and the Governor's conformity to instructions; and the Act 13 and 14 Vic. c. 59, relating to the reservation of Bills. It then proceeds to re-enact the Order in Council, in the shape of a local statute, in which is embodied, in addition to the Order in Council, all the constitutional law of the colony passed up to that date.

RELATIONS OF THE TWO HOUSES. — In 1885 a dispute arose between the two branches of the legislature with reference to their relative rights and powers concerning money Bills. The two Houses had agreed to the following joint standing order: "In all cases, not herein provided for, having reference to the joint action of both Houses of Parliament, resort will be had to the rules, powers, and practice of the Imperial Parliament." The following questions were referred to the Judicial Committee of the Privy Council for their determination:- (1) Whether the Constitution Act, 1867, confers on the Legislative Council powers co-ordinate with those of the Legislative Assembly in the amendment of Bills, including money Bills? (2) Whether the claims of the Legislative Assembly as set forth in its message of 12th November, 1885, are well founded? The answer of the Privy Council was as follows:- "Their Lordships agree humbly to report to your Majesty that the first of these questions should be answered in the negative, and the second in the affirmative."

REFORMS. — The number of members of the Legislative Council of Queensland is about 41; their qualifications and tenure being the same as those of the members of the Legislative Council of New South Wales. The duration of the Legislative Assembly was, in 1890, reduced to three years. There are 72 members of the Assembly, returned by 61 electorates; they are entitled to payment of £300 a year each for their services. Every person qualified to vote at the election of members of the Assembly is qualified to be a member thereof. The qualifications of electors are: male; 21 years; natural-born or naturalized subjects; resident in an electoral district for six months. Owners of freehold estate of the clear value of £100, or £10 leaseholders, have the right to vote in every district in which the property is situated.




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(7) New Zealand

FOUNDATION. — In 1823, New Zealand was under the nominal protection of the Government of New South Wales, and the jurisdiction of the Supreme Court of that colony was extended to embrace the crude groups of settlements which were gradually being formed along the coasts of the islands. In 1826, Captain Herd arrived at Hauraki Gulf with sixty settlers, but he had to abandon the attempt to settle on account of the hostility of the natives. In 1831, thirteen chiefs appealed to the English Government for protection against traders and others with whom they had come into conflict. Accordingly, in 1833, Mr. James Busby was appointed Resident at the Bay of Islands, and shortly afterwards Lieutenant McDonell, R.N., was appointed to act in a similar capacity at Hokianga. European population continued to increase at the Bay of Islands until 1837, when the Government of New South Wales despatched Captain Hobson to enquire into the lawless state of affairs at Kororareka, the main settlement. No action was taken to establish a government in any part of New Zealand until 1839, when the New Zealand Company sent a colonizing expedition, under the command of Colonel William Wakefield, to Port Nicholson, where he took possession in the name of the company, fired a royal salute, and hoisted "the New Zealand flag." Other adventurers subsequently arrived at the same locality and the town of Wellington was founded.

THE QUEEN'S SOVEREIGNTY. — This action of a private company forced the hands of the Imperial Government, and it was then decided to annex the islands to New South Wales. Letters patent were prepared extending the jurisdiction of New South Wales so as to include New Zealand, and Captain Hobson was appointed Lieutenant-Governor under Sir George Gipps, the Governor of New South Wales. Captain Hobson proceded to the Bay of Islands, and Kororareka, which he named Russell, became the seat of government. Captain Hobson convened a conference of native chiefs and British subjects, at which he read his commission and a proclamation, asserting the Queen's authority in the islands and declaring that transactions in land which had not received confirmation by the Government would be considered illegal. Subsequently Captain Hobson entered into negotiations with the native chiefs of the north island, resulting in the Treaty of Waitangi being signed by a number of chiefs, ceding the sovereignty of New Zealand to Great Britain; and in consideration thereof they were guaranteed the preservation of their proprietary interests in the soil, subject to the condition that the Crown was to have the right of pre-emption — that is the first right of purchase — of all Maori lands. On 21st May, 1840, the sovereignty of the Queen over the islands was proclaimed.

SEPARATION. — By the Act 3 and 4 Vic. c. 62 (7th August, 1840), Her Majesty was empowered to erect into a separate colony or colonies any islands comprised within the colony of New South Wales. By letters patent bearing date 16th November, 1840, Her Majesty erected the islands of New Zealand into a separate colony, independent of


  ― 76 ―
New South Wales, and the Governor and certain other residents of the colony were appointed a Legislative Council with power to make laws for the peace, order, and good government thereof. The new colony was proclaimed on 3rd May, 1841. Captain Hobson was the first Governor of New Zealand, a post which he occupied until his death in 1842. He was succeeded by Captain (afterwards Admiral) R. Fitzroy. The seat of government was, on account of outrages by the natives, removed from Russell to Auckland. Governor Fitzroy was succeeded in 1845 by Captain (afterwards Sir George) Grey.

In 1846 an Act for the Government of New Zealand (9 and 10 Vic. c. 103) was passed by the Imperial Parliament. This Act contained a scheme for the division of the colony into two provinces, one styled New Ulster, comprising almost the whole of the northern island; and the other New Munster, comprising the middle and southern islands; each province having a separate Lieutenant-Governor, and a separate Executive Council charged with the administration of local affairs. For the whole of the colony there was to be a Governor-in-Chief and a Legislative Council having power to make laws of general application. This plan of government, however, did not work satisfactorily, and the operation of the Act was suspended. The movement in favour of Representative and Responsible Government made considerable progress during Governor Grey's term of office. In 1851 he recommended the Imperial Government to pass an amending law granting a new Constitution in place of that embodied in the suspended Act.

THE NEW CONSTITUTION. — On 30th June, 1852, the Act 15 and 16 Vic. c. 72 came into force in New Zealand, under which a system of provincial and general government was inaugurated. Six provinces were established, viz., Auckland, Canterbury, New Plymouth, Nelson, Otago, and Wellington, the number being subsequently increased to nine. Each province was to be ruled by a Superintendent and a provincial Council. The Superintendent was to be elected by the qualified inhabitants of each province voting as one body; each Council was to consist of not less than nine members elected by the qualified inhabitants of its province voting in districts. The Superintendent, with the advice and consent of the Council of each province, was empowered to make all such laws and ordinances as might be required for the peace, order, and good government of the province, provided that the same were not repugnant to the law of England, or to the law of the colony otherwise enacted. Generally speaking the powers and functions of the Councils were of a local and municipal character. The Superintendent could, according to his discretion, assent to a Bill passed by the Council of his province, or he could withhold his assent or reserve the Bill for the signification of the Governor's pleasure. The Act further provided that there should be within the colony of New Zealand a General Assembly, to consist of the Governor, a Legislative Council, and a House of Representatives. Members of the Council, of whom there were to be not less than 10, were to be appointed by the Queen; they were to hold their seats for life, subject to resignation, forfeiture for non-attendance, and other disabilities. The House of Representatives was to consist of not less than 24 nor


  ― 77 ―
more than 42 members, elected by the qualified inhabitants of the colony. Each House of Representatives was to continue in existence for five years, unless sooner dissolved by the Governor. The General Assembly was to have power to make laws for the peace, order, and good government of New Zealand, provided that no such laws should be repugnant to the law of England, and that Bills passed by the General Assembly should control and supersede any law or ordinance in any way repugnant thereto passed by the provincial councils. Under subsequent Imperial legislation the powers and functions of the General Assembly of New Zealand were, in common with those of the Parliaments of Australia, greatly enlarged.

Sir George Grey was, on 13th September, 1852, appointed Governor of the colony under the new Constitution; he, however, was appointed Governor of Cape Colony before the arrangements were completed for the inauguration of the new Representative system. To Colonel Wynyard, the officer commanding the Imperial troops, was assigned the important task of bringing the new machinery of government into operation.

RESPONSIBLE GOVERNMENT. — The first session of the General Assembly was opened at Auckland on 25th May, 1854. Great dissatisfaction was expressed when it was found there was no provision in the Constitution, or in the Governor's instructions, for the introduction of Responsible Government. The official members of the old Executive Council continued to hold office, although none of them were members of the new Parliament, which had no control of the Executive except by the refusal of supplies. The Constitution did not make it obligatory that official members of the Executive Council of the legislature should be members. The Governor informed the House of Representatives that he had no power to supersede the Executive Council which was in existence before the Constitution was passed. During the first three months of the session no business was done by the new Parliament. The Governor then sent a message informing the Parliament that he would urge the Imperial Government to amend the Constitution by making provision for the appointment of Responsible Ministers. The Parliament was then prorogued for a fortnight. In the meantime, four members of the House of Representatives were made members of the Executive Council. Upon the re-opening of Parliament, an amendment to the Address-in-Reply was carried, in the House of Representatives, by 22 votes to 4, declaring that the House had no confidence in a mixed Executive consisting partly of members of Parliament and partly of Government officials. The four new ministers then resigned. As the result of the action of the House of Representatives the Governor subsequently received authority from the Imperial Government to appoint Responsible Ministers, subject to the condition that the official members of the old Executive Council were to be granted pensions to which they were entitled by Imperial regulations.

In September, 1855, Colonel Gore Browne became Governor of New Zealand, and in his first message to the General Assembly he communicated the desire of Her Majesty's Government that the colony should enjoy "the fullest measure of self-government which is consistent


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with its allegiance to the British Crown," and that accordingly he would, as speedily as possible, "carry out in its integrity the principle of ministerial responsibility, being convinced that any other arrangements would be ineffective to preserve the harmony between the legislative and executive branches of the government, which is so essential to the successful conduct of public affairs." In April, 1856, the Governor commenced negotiations with one of the leaders of the House of Representatives for the formation of his first Government, with the result that the Bell-Sewell Ministry took office, which they held from 7th May to 20th May, 1856; they were succeeded by the Fox Ministry, which held office from 20th May to 2nd June, 1856, which was followed by the Stafford Ministry, holding office from 2nd June, 1856, to 12th July, 1861.

The system of Provincial Government remained in force as an integral part of the Constitution until the 1st November, 1876, when it was abolished by an Act of the General Assembly, and most of the powers and functions previously exercised by Superintendents and Councils were vested in municipal institutions of the ordinary type. In 1865 the seat of Government was, by an Act of the General Assembly, removed from Auckland, and, on the recommendation of certain commissioners, appointed by the Australian Governors at the request of the General Assembly, Wellington became the capital.

REFORMS. — The Constitution of the Legislative Council was altered by an Act which came into operation on 17th September, 1891; under which all members added subsequently to that date were appointed for the limited period of seven years instead of for life. They are, however, eligible for re-appointment. Members of the Council are paid £150 per year for their services. For membership of the House of Representatives no property qualification is required, and every adult person whose name is properly registered is entitled to vote at the election of members of the House. The House consists of 74 members, including four Maori representatives, who are paid at the rate of £240 per year. Its duration from the return of the writs was, in 1879, reduced from five years to three years, subject to being sooner dissolved by the Governor.

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