Sir Charles Fitzroy ‘Governor-General’ — The Act for the Government of New South Wales — The Legislative Council — Boundaries of districts — Dissatisfaction in Port Phillip — Earl Grey elected member for Melbourne — Colonial self-government — Australian Colonies Government Act — The naming of Victoria — Inauguration of self-government — Wentworth’s new constitution — His proposed house of baronets — The Victorian constitution — Responsible government.
Under the Acts passed by the Imperial Parliament in 1823 and 1828, the Governor of New South Wales and his Legislative Council made laws for the whole of Australia, exclusive of South Australia, Western Australia, and Tasmania. In South Australia, during Sir George Grey’s governorship (1842), a Council of seven members was set up, consisting of three officials and four nominees; and there was an understanding that a more liberal form of government would be instituted as soon as the population attained 50,000. Western Australia was from 1838 ruled on the same plan, there being three official and four non-official members in the Council. When the administration of Van Diemen’s Land was separated from that of New South Wales in 1825, a similar Council was appointed. These nominee Councils, though selected by the Governors, were still fairly independent in their outlook. They were usually composed of men of experience and force of character, accustomed to speak their minds. The system served the purpose until development and increase of population made a better one imperative.
Strictly, the Governor of New South Wales was until 1855 the only presiding official in Australia who was entitled to be styled Governor. In each of the other provinces a Lieutenant-Governor was at the head of the administration. The commission of Sir Charles Fitzroy (1846-55) described that descendant of Charles II as ‘Governor-General of all Her Majesty’s Australian possessions, including the colony of Western Australia,’ and the title was retained till 1861. Fitzroy and Denison (1855-61) were the only Governors of New South Wales who held the title; but it gave to them no superiority over the other Governors. The title carried no real significance until, under Federation, the Constitution provided for a Governor-General to preside over the Commonwealth.
The next important step in the constitutional history of Australia was the passing, in 1842, of the Act for the Government of New South Wales and Van Diemen’s Land, which introduced the elective principle. Very little interest was taken in this measure in the Imperial Parliament at the time when the Colonial Secretary, Lord Stanley, introduced it, and it was passed with scarcely any criticism. But it did, in truth, inaugurate a new era. It placed in the hands of the people a large share in the direction of the affairs of their country. First, it increased the number of members of the Legislative Council to thirty-six, of whom twelve were to be nominated as before, but twenty-four were to be elected. Secondly, it gave this Council power to increase its own membership, provided that the proportion of one-third of nominee members to two-thirds elective was preserved. Thirdly, while excluding convicts from the franchise, it conferred voting power upon those who had served their sentences or who had conditional pardons. Fourthly, it provided that the qualification for a vote was to consist of the possession of freehold property to a value of £200, or the occupation of a dwelling-house worth at least £20 a year. Fifthly, it prescribed that members of the Council must own freehold property to the value of £2,000, or worth £100 a year. Sixthly, it recognized that the Port Phillip District had separate interests of its own, by laying down that that province should return at least five members to the Council, and the town of Melbourne at least one.
This guarantee of a proportion of representation to the Port Phillip District was a concession to a feeling, already clearly expressed in that province, in favour of separation from New South Wales. As early as 1840, when the entire population of the district had not attained 10,000, a petition in favour of independence had been extensively signed, and a Separation Association had been formed. The British Government was well aware of this movement, but considered that the discontents of the Port Phillip people would probably be appeased by securing for them what seemed to be an adequate share of representation. The Act defined the area included within the district to be ‘a straight line drawn from Cape Howe to the western source of the river Murray, and thence the course of that river to the eastern boundary of the province of South Australia.’ In this definition the boundary differed from that prescribed in the Land Regulations promulgated in 1840, which had divided New South Wales into three districts, Northern, Middle, and Southern. The Southern, Port Phillip, District, was then defined as extending ‘by the rivers Murrumbidgee and Murray to the eastern boundary of South Australia’; and Lord John Russell, the Colonial Secretary, had by a despatch dated May 31, 1840, laid it down that the Murrumbidgee should be the northern boundary of Port Phillip. But the Legislative Council of New South Wales protested against the extensive district lying between the Murray and the Murrumbidgee, generally known as Riverina, being included; and that protest was regarded when the boundary was defined by the Act of 1842.
Some dissatisfaction was in more recent years expressed concerning the river boundary, and an endeavour was made to show that that mistake was committed when the Murray, and not the Murrumbidgee, was marked as the northern limit of Victoria. At one time legal proceedings to test the point were threatened. But skilled opinion did not encourage a contest, and the claim was dropped.
A case did arise over the western boundary of the same colony. The 141st meridian of east longitude was declared to be the boundary between Victoria and South Australia, but the means of determining longitude were imperfect when the line was drawn in 1836, with the result that Victoria took 340,000 acres more than she was entitled to get. South Australia claimed the recovery of this long, narrow strip of territory, and brought an action, which was determined by the Privy Council in 1914. It was then decided that the boundary fixed in 1836, though an error was undoubtedly made by the surveyors, was intended to be final, and should not be disturbed.
The Port Phillip people were not content with their position under the 1842 constitution. Few residents in the district were willing to accept nomination to the Council, and three of the selected representatives were Sydney men, including the vituperative Rev. Dr. Lang, who threw himself with explosive energy into the separation movement. Robert Lowe also voiced the opinion that the separationists had reason on their side. One of the principal grievances was that the revenue collected from the province was very much greater than the expenditure upon it, the balance being spent on the Sydney side of the river Murray. Between the first settlement of Port Phillip and the year 1842 it was claimed that this balance had totalled over £150,000; and Lang talked about a ‘semi-felonious abstraction of the Port Phillip revenues for the maintenance of an unnecessarily extravagant system of government.’
The dissatisfaction expressed itself in 1848 in a refusal to nominate members to represent the Port Phillip District, and in the farcical election of the Colonial Secretary, Earl Grey, for Melbourne. The electors desired to express in this way their belief that they would be quite as effectively represented in the Legislative Council by a peer, whom they knew would never take his seat, as by any local man whom they could choose. Oddly enough, the election was declared valid by the law officers, and Lord Grey was the member for Melbourne for the two years 1848-50.
These and other happenings convinced the British Government that the time was ripe for placing the Governments operating in Australia on an entirely new representative basis. The whole process of change, to be understood in its historical relations, must be considered in connexion with the Parliamentary Reform movement in England, the Chartist movement, the general liberalizing tendencies of the times, and the altered attitude of the Imperial Government towards colonies and dependencies. Lord Durham had produced (1839) his highly important Report on the state of Canada, with the consequence that complete self-government had been instituted in British North America. He laid down the principle that the only satisfactory way for the mother-country to manage large colonies was to throw upon them the responsibility of governing themselves.
Tories and Whigs alike could not at first understand how self-government could possibly be allowed if the colonies were to remain British. Even Lord John Russell, though a member of the Government which carried the Reform Bill of 1832, quailed before conceding liberal institutions to Britons who emigrated to British colonies. If the Government of a colony were to be controlled by a popular assembly, he said in 1839, ‘he could not conceive what was to become of the orders of the Imperial Government and the Colonial Governor.’ Lord North might have said the same sort of thing in the reign of George III. The idea did not occur to Lord John that no great harm would accrue if the Imperial Government and the Colonial Governors did no longer give orders; that the giving of such orders was not necessarily the expression of perfect wisdom; and that, indeed, the colonies would be better without them. But the self-governing principle was soon seen to be the inevitable one to adopt; and in 1850 it was Lord John Russell’s Government that applied it to Australia.
The measure which inaugurated the new era was the Australian Colonies Government Act, passed in August 1850 — a statute of the utmost importance. In its first section it erected Port Phillip into a separate colony, ‘to be known and designated as the colony of Victoria.’ This province was not the first portion of the British Empire to take the name of the Queen who reigned over sixty years. Two years before her accession, a number of South African settlers at Durban petitioned the British Government to annex the surrounding territory, ‘which we have named Victoria, in honour of our august princess.’ But the request was refused; and when a colony was at length recognized there, eight years later, the name Victoria had been taken by the Australian colony and the South Africans adopted the name Natal.
The suggestion that the Port Phillip District should be named after the Queen was made by the Committee of Trade and Plantations. In a report of 1849, the committee pointed out that Her Majesty’s royal ancestors had permitted the use of their names to designate provinces in the North American continent, and, ‘venturing to presume that it will be your Majesty’s pleasure to follow those precedents,’ they ‘humbly advised’ the Queen to confer the name of Victoria on this part of Australia.
The Act conferred upon Victoria a Legislative Council, two-thirds elective; and it set up similar Councils in Western Australia, South Australia, and Tasmania. But more important than what the Act actually did was what it gave the colonies power to do for themselves. By the 32nd section it enabled them to constitute legislatures, to fix the franchise to suit their own wishes, to alter their constitutions, and, in short, to clothe themselves with just such constitutional garments as would fit them best. After the passing of the Act of 1850, therefore, five Australian colonies were under the rule of partly elective Legislative Councils, with free scope to modify their form of government from time to time.
This was an entirely new departure in the relations of Great Britain and Australia. Hitherto the Imperial Parliament had reserved to itself the right to amend any Act passed by it affecting the government of these colonies. Now that power was surrendered in regard to the basic laws under which the colonies would be governed, their constitutions; subject only to the reservation that amendments of these instruments must be reserved for royal confirmation.
The Act also gave to the colonies economic freedom. They could, under section 27, impose any customs duties on imported goods, whether those goods were the manufactures of Great Britain, or of other British colonies, or of foreign countries.
It is very curious, and suggestive of reflections on the limitations of human sagacity, that none of the very eminent statesmen who discussed the 1850 constitution in the House of Commons and the House of Lords, and none who wrote and spoke about constitutional development in the colonies, had any clear perception of the manner in which it would work out. Both Gladstone in England and Wentworth in Australia were at that time distrustful of democratic tendencies and wished to provide against them. Gladstone in the House of Commons stated that he ‘wished to check democracy in New South Wales, but he wished to see it checked by stable institutions springing from the soil rather than by influences from the Crown and enactments from Downing Street.’ Wentworth, in a report which he drafted in Sydney, protested that he and those who supported him had ‘no wish to sow the seeds of a future democracy.’ A few peers perceived that the key to the future lay in the 32nd section. The giving of power to reform the constitution would, said these scared legislators, lead to making the country so governed ‘a mere democracy.’ But this group commanded less attention than did others who were interested in the position of the Church of England in Australia, in Lord Grey’s provisions for a federal form of government, in the question whether it was expedient to provide for one house of legislature or two, and in other aspects of lesser importance.
Wentworth favoured the creation of an hereditary class, carrying the titles of baronets, from whom should be selected an upper house of legislature. ‘Why,’ he asked, ‘if titles are open to all at home, should they be denied to the colonists? Why should such an institution as the House of Lords, which is an integral part of the British constitution, be shut out from us?’ But his idea found no support either in Australia or in Great Britain. The ‘bunyip aristocracy’ was, indeed, scouted in Sydney with an explosion of ridicule and indignation which induced Wentworth to drop it; and it is interesting to note that one of the most vigorous opponents of the hereditary baronets proposition was young Henry Parkes — hereafter to become the most commanding figure in the politics of the colony.
Since 1850 the Australian people have worked out their own problems of government. The date when this era commenced and the highly important changes which occurred in the life of Australia a little later are closely connected. The gold discoveries of the fifties brought to the shores of this country an immense tide of immigration; and a large proportion of the immigrants were men whose minds had been influenced by the recent reform and revolutionary movements in Europe, or had actually participated in them. Gold drew English Chartists and Irish repealers, participants in the French, German, Belgian, and Hungarian revolutionary upheavals of 1848, Polish and Spanish insurrectionists, Italian nationalists, a great and mixed crowd of political enthusiasts, dauntless champions of lost causes, visionary idealists and fervent exponents of utopian theories — drew them all as the moon draws the waters — and set them to scratch for shimmering fortunes upon the beds of the creeks of Bathurst, amongst the quartz veins of Ballarat, and the auriferous gravels of Bendigo. To a people thus augmented was entrusted the responsibility of working systems of government in accordance with popular wishes.
The colonies very soon applied themselves to bringing about complete responsible government. New South Wales was the pioneer under the leadership of Wentworth. Throughout his life he had striven for the establishment of free representative institutions, and now he was to see many of his hopes realized.
The Act of 1842 had not given to New South Wales, as the Act of 1850 had given to the other colonies, power to remodel the constitution, but the Colonial Secretary, in response to a remonstrance drawn up by the Legislative Council (a strongly worded document, which denounced the ‘systematic and mischievous interference’ of an ‘inexperienced, remote, and irresponsible Department,’ the Colonial office) had invited the Council to draw up a new constitution and submit it to the Imperial Government. In response to this invitation a committee was appointed in June 1852, with Wentworth as chairman, to prepare a constitution; and this committee drew up the scheme upon which the New South Wales constitution was based. It was as far as possible a copy of the British constitution — and it was with the object of making it a still closer copy that Wentworth suggested the establishment of an hereditary House. ‘The model, the type, from which this great charter has been drawn,’ he said in an eloquent speech, ‘is, in the language of Canning, the envy of surrounding nations and the admiration of the world.’ It was the task of the builders of this instrument of government to reduce to precise terms the system which, as operating in Great Britain, was not contained in any single document, but was a pile of precedents and a tally of practices, described in text-books and scattered over innumerable records.
Two houses of legislature were established — a Legislative Council consisting of members nominated by the Crown (that is, by the Governor of the Colony acting on the advice of his ministers) and holding their seats for life; and a Legislative Assembly elected by the votes of people possessed of freehold property worth £100, or who occupied a house for which they paid not less than £10 per annum in rent, or who paid not less than £40 a year for board and lodging. Parliaments were to last not more than five years. The executive government was entrusted to a Cabinet, the head of which usually bore the title of Premier and Colonial Secretary.
The Legislative Council of New South Wales was reformed in 1934. The nominated House then ceased to exist, and a new Council was instituted, consisting of sixty members, one-third of whom retire annually. The members are not elected directly by the people, but by a constituency consisting of the whole of the members of the Council and the Assembly. The term for which a member of the Council is elected is twelve years. This new system was approved by a majority of the people of New South Wales, at a referendum in May 1933.
The Act of 1855, which embodied the new constitution for New South Wales, did not contain any clause expressly providing for ‘responsible government,’ but the Legislative Council of the colony, in sending the measure to London to be passed as an Act of the Imperial Parliament, accompanied it by a series of resolutions, which described the principles upon which it was desired that the constitution should be worked. One of these resolutions laid it down that the Ministers composing the Executive, or Cabinet, should possess the confidence of Parliament, and should be dismissed from office whenever Parliament signified that it had lost confidence in them. This was the essence of ‘responsible government.’ Another of the resolutions expressed the desire that the Parliament of New South Wales should ‘form as close an approximation as possible to the constitution of both Houses of the Imperial Parliament.’ Thus it was intended that the practice of the Imperial Parliament in regard to the responsibility of the Government to the elected house of Parliament should be adopted in New South Wales. The first Premier and Colonial Secretary under responsible government was Stuart Alexander Donaldson, whose government took office in June 1856.
Victoria in 1853 was invited by the Secretary of State for the Colonies to prepare a constitution which would confer responsible government. A committee appointed in September 1853 was able to make use of the work which had been done by Wentworth’s committee in New South Wales. Their draftsman was William Stawell, afterwards Chief Justice of the colony, and their measure provided for a governing system on lines similar to those followed in the older colony, except that Victoria preferred an elective rather than a nominee Legislative Council. The members of that house were to be elected for ten years, and must possess property to the value of £5,000, or returning an income of at least £500 a year. The electors had to be persons possessed of freehold property to the value of £1,000, or £100 a year; but the Council franchise was also conferred upon graduates of universities, ministers of religion, lawyers, doctors, and naval and military officers regardless of the amount of their property. The new Victorian constitution came into force in 1856. The first Premier under responsible government was William Clark Haines.
South Australia prepared a scheme of responsible government in 1853, and it was brought into operation in 1857. It granted life tenures to the members of an existing nominee Legislative Council, but took power to make that house elective at the end of ten years if the House of Assembly passed a bill for that purpose. The head of the first ministry under responsible government was Boyle Travers Finnis. Tasmania also attained responsible government in 1856, with Colonel W. T. N. Champ as Premier. The development of Western Australia in the same salutary direction was clogged by her wilful adherence to the convict system, and she was the last State in Australia to place herself on an equality with the sister States. When the Imperial Government was first approached with a view to securing responsible government for Western Australia, the Secretary of State for the Colonies, Lord Derby (1883), was of opinion that the northern part of the colony ‘would be likely to form a separate colony at an early date,’ and was not inclined to place so large an extent of territory under the government of a Parliament meeting at Perth. A nominee Legislative Council had been established in 1830, and in 1870 this Council had been enlarged by admitting twelve elected members, in addition to six nominated members. But public opinion had ripened in the intervening years, though there was a large section of the inhabitants who were averse from a change to responsible government. Fuller discussion, however, brought the majority to the view that Western Australia should come into line with the other Australian States, and that it should ‘remain one and undivided.’ A Constitution Bill was prepared by the Council in 1889, was passed by the Imperial Parliament in 1890, and came into operation in the same year. John Forrest was the first Premier, and he continued to hold the office until he entered the Federal Parliament in 1901.
Ernest Scott, A Short History of Australia, London: Oxford University Press, 6th edition, 1936, pages 198-209