Full description Background
Separation from New South Wales and Government in the Crown Colony of Victoria 1851-1855
The Imperial Australian Constitution Act [No. 2] 1850 13 and 14 Vic.,c.59 was enacted following an inquiry by the Privy Council's Committee of Trade and Foreign Plantations into the constitutional position of the Australian colonies and in response to growing agitation in the colonies for reform of governmental structures and for the separation of the Port Phillip District (Lumb p.16-17).
Under this Act the Governor's role was further limited, but he continued to exercise ultimate executive power and significant controls over the legislature and the Colony's finances.
The Imperial Australian Constitutions Act [No. 2] 1850 13 and 14 Vic.,c.59 and the Victorian Constitution Act 1851 (New South Wales Act 14 Vic.,No.47) provided for the separation of Victoria from New South Wales from 1 July 1851 and the establishment of a Legislative Council (VA 471). Legislative power in the new Colony was vested in the Governor and the Legislative Council. The Governor did not sit in the Council, but exercised discretionary power in assenting or refusing assent to bills. The Governor could also transmit bills to the Council for consideration. The Council consisted of thirty members, ten appointed by the Governor on behalf of the Crown, and twenty elected by and from male electors who met specified property qualifications. By 1853 there were fifty-four elected and eighteen appointed members and by 1855, sixty-three elected and nineteen appointed members (including twelve elected from the goldfields following Eureka). The appointed members included official and non-official nominees. The official nominees almost invariably supported Government policy and acted in the Legislative Council on instructions from the Governor (Sweetman, p.124-125).
There were significant limitations on the legislative powers of Victoria's first Legislative Council. The control of crown lands, minerals and related revenue was outside its jurisdiction, and there were also limitations on its powers to impose taxes and appropriate revenue for public purposes (e.g. there were fixed appropriations for the Civil List and public worship). The Governor exercised considerable power over the Colony's finances and appropriations from the General Revenue were made on his recommendation. The Council could not enact laws repugnant to British laws and the courts could invalidate local legislation on repugnancy grounds when hearing a particular case. Certain classes of bills were reserved for royal assent.
The revenue of the Colony was divided into General and Territorial Revenue. The Governor with the advice and consent of the Legislative Council had power to appropriate the General Revenue, which derived from taxes, duties, rates and imposts, for local needs. The Imperial Land Sales Act 1842 5 and 6 Vic.c.36 provided that revenue from the sale of crown land formed the Territorial Revenue and reserved 50% of it for assisted immigration from Britain. The expenses of the Crown Land and Survey Department were also a charge on the Territorial Revenue. The remaining "unappropriated moiety" of this fund was expended under the direction of the Governor and Executive Council, eg. on the so-called protection of Aborigines. During the gold rush revenue from mining licences was also paid into Territorial Revenue and this became a source of agitation in 1851-1852 in the Legislative Council which lobbied the British Government for the right to manage all revenues and refused to appropriate money from the General Revenue to assist in administering the goldfields. Lieutenant Governor La Trobe was forced to use Territorial Revenue (illegally) for this purpose. In June 1852 the British Colonial Secretary authorised the surrender of the gold revenue to the Governor and Legislative Council and the use of the unappropriated Territorial Revenue by La Trobe and the Executive Council for the new demands on the administration occasioned by the gold rush. La Trobe, with the advice of the Executive Council, thenceforth transferred this unappropriated fund to the General Revenue for expenditure authorised by the Legislative Council. The new Victorian
Constitution of 1855 was to provide for parliamentary control of all revenue - the Consolidated Revenue (see below and Sweetman p.129-137).
During the period 1851 to 1855 the executive arm of government was not subject to parliamentary control and ultimate executive power continued to rest with the Governor, who was responsible to the British Government. The principal officers of the government administration were appointed and dismissed by the Governor on behalf of the British Secretary of State for the Colonies. In some cases they did sit in the Legislative Council in the period 1851-1856 as appointed members - the Attorney-General and Solicitor-General from 1851; the Colonial Secretary, Auditor-General and the Surveyor-General, Commissioners of Police and the Goldfields and Chairman of General Sessions between 1851 and 1855; the Collector of Customs from 1853 (in 1855 the Collector of Customs was restyled to become the Commissioner of Trade and Customs); the Colonial Engineer in 1854-1855 the Chief Secretary, Treasurer and Commissioner of Public Works from 1855 (Sweetman, p.73-81). However they were responsible to the Governor and the Imperial Government, not to the Legislative Council, and their executive appointments were not dependent on their retaining their seats in Parliament and the support of the majority in the Lower House, as was the case after 1855.
The Victorian Constitution Act 1855
The Australian Constitutions Act (No. 2) of 1850 enabled the Legislative Council in Victoria to legislate to alter the Colony's constitution and establish a two-house legislature, provided such bills were reserved for royal assent.
A Select Committee of the Legislative Council was appointed on 1 September 1853 to frame a new constitution for Victoria. The Constitution Bill which resulted followed Lord Durham's Canadian model of responsible government, providing for two elected Houses of Parliament with almost unlimited legislative power and financial control over all revenue and its use. The Act went beyond its enabling legislation, attempting to limit the role of the Governor in assenting to bills and providing for parliamentary control over crown land and minerals, the imposition of taxes, and all revenue - hence the term Consolidated Revenue - and its appropriation. Therefore when it was submitted for royal assent, the bill was amended (removing the limitations on the role of the Governor) and then passed as a Schedule to an Imperial enactment, the 1855 Victorian Constitution Statute 18 and 19 Vic.,c.55, which received royal assent on 21 July 1855. The Victorian Constitution Act was subsequently proclaimed on 23 November 1855.
The new Parliament comprising the Legislative Assembly and the newly constituted Legislative Council, met for the first time on 21 November 1856. The 1855 Act conferred power on Her Majesty to "make laws for Victoria in all cases whatsoever" -" by and with the advice of the Council and Assembly" (Section 1).
For both Houses there were originally gender and class (property and educational) qualifications for both members and electors, though suffrage rights were extended to include university graduates, barristers, solicitors, qualified medical practitioners, ministers of religion and retired naval and military officers. By 1857 the property qualification had been abolished and adult male suffrage had been granted for the Legislative Assembly. Adult suffrage for women was not granted for Assembly elections until 1908 and propertied women were not eligible to vote for Legislative Council members until 1908 or to stand as candidates for election to either House until 1923. Voting was made compulsory for the Legislative Assembly elections in 1926. The property qualification in respect of the Legislative Council continued until 1950. Aborigines were excluded from the electoral process until 1967. Persons deemed to be felons or lunatics were also excluded from the electoral process.
Although many of the formal structures embodied in the 1855 Constitution were similar to those in existence prior to this time, the Act contained a number of provisions which established the preconditions for the evolution of conventions that resulted in far reaching changes in the balance of power between the Governor, the principal officers in the administration (the Ministers of the Crown) and the legislature. Although the Governor continued to exercise legislative, financial and executive powers in a formal sense, he/she did so generally on the advice of the Ministers of the Crown in their capacity as members of the Executive Council. Real executive power under the new formal arrangements - and in accordance with conventions associated with the notion of responsible government - has rested with the group of Ministers (Cabinet) who hold office with the support of Parliament and are summoned to the Executive Council. Generally the Governor with the advice of the Executive Council has since 1855 exercised formal power only - in practice this formal process is giving effect to Cabinet and ministerial policy and decisions. A number of sections of the 1855 Constitution Act provided the formal basis for responsible government, including the appointment of "responsible officers" (Ministers) by the Governor with at least four of these appointments to be made from amongst the members of the Parliament (section XVIII) and the appointment of public officers by the Governor with the advice of the Executive Council. The 1859 Officials in Parliament Act extended these provisions by specifying that all Ministers of the Crown be appointed as Executive Councillors.
Formal Structure of Government in Victoria from 1855
The formal structure of Government is set down in the Victorian Constitution Act 1975 (No.8750), which re-enacted with additions and amendments the provisions of the 1855 Victorian Constitution Act (passed as a Schedule to the Imperial Act, the Victorian Constitution Statute 18 and 19 Vic.55, proclaimed on 23 November 1855), and the consolidated Constitution Act Amendment Act 1958 (No.6224). Under the Constitution Act, the Victorian Parliament has the power to repeal alter or vary the Act itself, provided that the second and third readings of amending bills are passed by an absolute majority of the members of each House.
The Governor (VA 466), represents the Crown in Victoria (1975 Act, section 6). On all official state occasions, the Governor performs ceremonial functions as the representative of the Crown. The Governor is appointed by the British monarch under Letters Patent accompanied by Royal Instructions which refer to the powers conferred on the Governor by the Constitution Act, which, until 1986, defined classes of bills to be reserved for royal assent, and which provide for the Governor to grant pardons and make grants of Crown Land, and for the Governor to act on the advice of the Executive Council (VA 2903) unless exceptional circumstances arise (clause VI, Royal Instructions). The State Government advises the monarch on the appointment of the Governor, this advice being routed through the British Commonwealth and Foreign Office until 1986 when the Australia Acts enabled the Premier to tender advice directly to the Queen.
Legislative or law making power is vested in Parliament comprising the Crown and two elected Houses, the Legislative Assembly (VA 2585) and the... truncated