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Separation from New South Wales and Government in the Crown Colony of Victoria 1851-1855
The Imperial Australian Constitution Act [No.2] of 1850 (13 and 14 Vic., c.59) was enacted following an enquiry 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] of 1850 (13 and 14 Victoria c.59) and the Victorian Constitution Act of 1851 (New South Wales Act 14 Vic., 47) provided for the separation of Victoria from New South Wales from 1 July 1851 and the establishment of a Legislative Council. 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 instruction 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 Lands and Survey Departments 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, e.g. 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). (See Sweetman p.129-137.)
During the 1851-1855 period 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 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 to 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 (from 1855 the Collector of Customs was restyled 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.
Executive Council members during the 1851 to 1856 period were also appointed from the principal officers of the administration and there was considerable overlap in Legislative and Executive Council membership. The Executive Council comprised the Colonial Secretary, Attorney-General, Treasurer and Collector of Customs from 1851-1855. An additional member, the Auditor-General was appointed in 1854. In the transitional period 1855-1856, after the granting of self government and provision by the Victorian Constitution Act 1855 for new legislative arrangements under a system of responsible government, and before the dissolution of the old Legislative Council in March 1856, the memberships of the Legislative and Executive Councils coincided, except for the Commissioners of Police and the Goldfields who sat in the Legislative Council only and the Senior Military Officer who, for this period only, was a member of the Executive Council (Sweetman p.73-81). La Trobe worked closely with his Executive Council, however Governor Hotham who succeeded La Trobe in June 1854 did not and at times acted against the advice of the Council.
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).
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 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 Victorian 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 Officials in Parliament Act 1859 extended these provisions by specifying that all Ministers of the Crown should 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 Victoria c.55, proclaimed on 23 November 1855), and the consolidated Constitution Act Amendment Act 1958 (No.6224). Under the Constitution Acts 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. Until 1986 they defined classes of bills to be reserved for royal assent. They also provide for the Governor to grant pardons, make grants of Crown land, and 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 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 Legislative Council (VA 471; 1975 Act, sections 15 and 16; 1855 Act, section I). The Governor does not sit in Parliament, but exercises the royal prerogative of assenting to bills as the Crown's representative, with the exception, until 1986, of those bills reserved for royal assent which included bills which altered the Constitution, affected the Governor's salary or pension entitlements, or were required to be reserved by a post-1907 Act of the State Parliament (as provided in the Imperial Australian State Constitution Act 1907). The Governor summons and prorogues Parliament and has the power to dissolve the Legislative Assembly and, in cases of deadlock between the two Houses, the Legislative Council (1975 Act, sections 8 and 66 (2); 1855 Act, section XXVIII). The Governor can also recommend amendments to bills presented for royal assent (1975 Act, section 14; 1855 Act, section XXXVI).
Apart from money bills, legislation can be initiated by any member of either House, although in practice almost all bills are introduced by Ministers as a result of policy decisions taken in Cabinet.
The Constitution establishes Parliament's financial control over the imposition of taxes, consolidated revenue and its appropriation for public purposes. Money bills - those imposing taxes and appropriating revenue - must originate in the Legislative Assembly and may be rejected, but not amended, by the Legislative Council (1975 Act, sections 89-93, and 1855 Act, sections LV, XLIV-V, XLVII re controls over consolidated revenue; 1975 Act, sections 62-65, and 1855 Act, sections LVI-LVII re taxation and appropriation bills). The Governor must recommend taxation and appropriation bills to the Assembly (1975 Act, section 63) and issues warrants to the Treasurer for expenditure of consolidated revenue (1975 Act, section 93; 1855 Act, section LVIII).
Parliament is considered to hold supreme power in the system, but there are limitations on its legislative powers. Until 1986, under the provisions of the (Imperial) Colonial Laws Validity Act 1865, the legislative powers of the State Parliaments were subject to limitations relating to repugnancy to British Law (Lumb p.114-115). These limitations were removed with the passing of the Australia Acts 1986. The Commonwealth of Australia Constitution Act 1900 distributes legislative powers between the Commonwealth and States and prohibits the States from making certain kinds of laws. A State law may be constitutionally invalid because it is inconsistent with a valid Commonwealth law. The constitutional validity of any given Act is determined by the Courts (Judiciary) and hence, in this sense, Parliament in Victoria does not have sovereign power (Sawer, 1972, p.17).
Ultimate executive power, the power to execute or apply the laws made by Parliament, is vested in the Crown and is formally exercised by the Governor, as the Crown's representative, generally with the advice of the Executive Council. The Constitution provides for the appointment by the Governor of a specified number of officers from the Legislative Assembly and Legislative Council as Ministers of the Crown. These Ministers are also appointed as members of the Executive Council (1975 Act, sections 50-51; section XVIII of the 1855 Act, which provided that four of the seven responsible officers of Government or Ministers of the Crown be members of Parliament, was replaced by the Officials in Parliament Act 1859, the original basis for the current provisions regarding the appointment of Ministers and members of the Executive Council). The Governor acting on the advice of the Executive Council is given numerous powers under Acts of the Parliament, for example, to make Orders-in-Council and regulations, to appoint and dismiss public officials.
Judicial power - the power to make judgments about the constitutional validity of laws, their application and interpretation in particular cases, and the application of laws in settling disputes between persons, society and individuals, government agencies, and public officials and persons -is vested in the Courts (VRG 4). The Constitution ensures the independence of the judiciary by providing for the permanent appointment of judges by the Governor with the advice of the Executive Council, and for their salaries and pension entitlements. The only lawful means of removing a judge is by the Governor acting upon an address of both Houses of Parliament (1975 Act, sections 75 (5) and 77; 1855 Act, section XXXVIII).
Constitutional Conventions and Cabinet Government
As indicated above there is debate as to the essential characteristics of Victoria's system of government which has been variously termed Westminster, Cabinet and Responsible Government. The structure and practices of Victorian government are in part defined by statute and in part derived from constitutional conventions, customs and understandings which have evolved in Britain, America and Australia.
Key features of the system include institutions such as Cabinet, political party structures, lines of accountability and power relationships which, though part of the system of government, are not governed by statute.
In Victoria the Governor, as the representative of the Crown, generally exercises his/her legislative and executive powers on the advice of and through the Ministers of the Crown (who form the Cabinet) in their capacity as members of the Executive Council; thus in reality the exercise of formal powers by the Governor with the advice of the Executive Council gives effect to Cabinet and Ministerial decisions - Lumb p.734.
Reserve Power of Governor
Although the Governor generally exercises formal power only, in certain circumstances he/she may exercise discretionary power, e.g. in cases of political or constitutional crises if there is doubt about whether the Ministry has Parliamentary support, the Governor may not take the advice of the Executive Council in relation to the dissolution of Parliament. This "reserve power" is supported by clause VI of the Royal Instructions, but the exact nature of the "reserve power" is not defined and there are no rules regulating the exercise of this power. Some writers such as Dr. H.V.Evatt have argued for a formal statutory statement of the conventions governing the relationship between the Crown, Ministers and Parliament and for rules to be made to regulate and safeguard the use of the "reserve power" (Rose p.44).
Formation of Government
Following an election the Governor invites the Parliamentary leader of the political party or coalition of political parties commanding a majority in the lower house, in Victoria the Legislative Assembly, to form the Government. By convention a Government holds office only while it retains the majority support of the legislature. On losing that support the Chief Minister or Premier is expected either to hand in the resignations of his/her Ministry or to recommend a dissolution and general election, a request which the Governor may refuse, particularly if an alternative leader can demonstrate that she/he can command a legislative majority. The Premier may recommend a general election at any time within the maximum term of the legislature and if she/he commands a majority in the Legislative Assembly, it is likely that this advice will be accepted by the Governor.
In Victoria all Ministers are members of Cabinet (VA 2989) and by virtue of the authority accorded to it, Cabinet is the vehicle through which the actions of the Executive are determined. Cabinet considers policy and legislative proposals that are brought before it by sponsoring Ministers who are held to be responsible for these proposals. All Ministers receive copies of all Cabinet documents including submissions, agenda and decisions.
Collective responsibility is a convention of cabinet government and decisions are binding on all Ministers who are expected to first resign if they wish to criticize any of those decisions publicly. Decisions of Cabinet have no legal status and no force until they have been put into effect by individual Ministers providing the necessary administrative direction or until they have been endorsed by the Governor-in-Council or embodied in an Act of Parliament.
The strict confidentiality of Cabinet discussions is a second convention of cabinet government. In Victoria, officials do not attend Cabinet meetings and the Parliamentary Secretary of the Cabinet acts as minute taker and prepares a draft record of Cabinet decisions which is approved and signed by the Premier. However officials from the Cabinet Office do attend meetings of Cabinet Committees and record the decisions of those Committees.
Matters likely to be considered by Cabinet include:
all major and/or politically sensitive or significant policy issues, including new policy items and variations to existing policies;
matters which have a significant impact on the employment situation - both public and sector;
proposals which cross the boundaries of ministerial responsibilities but cannot be handled outside of Cabinet - there may be a need for joint submissions;
proposals requiring legislation - both new Bills and amendments to existing Acts;
action regarding reports of Parliamentary Committees, or Cabinet Committees, including Cabinet Task Forces;
matters likely to have a considerable impact on relations with Commonwealth, local and other State governments, the labour movement, employer groups, significant lobby groups, etc. and on community relations;
expenditure and revenue proposals (normally considered in the Budget context); and
(Michael Consolo in Freedom of Information Bulletin, December 1988).
The Prime Minister of the Commonwealth and the Premiers of the States "agreed on the taking of certain measures to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation". (See Australia Acts (Request) Act 1985 (No.10203)).
The Australia Acts were designed to terminate the power of the Parliament of the United Kingdom to legislate for Australia, that is to make laws having effect as part of the law of the Commonwealth, a State or a Territory of Australia, and to remove any remaining limitations on the legislative powers of the states. The Acts provided that neither the (Imperial) Colonial Laws Validity Act nor the common law doctrine of repugnancy should apply to state laws made after the commencement of the Acts and expressly repealed sections 735 and 736 of the Imperial Merchant Shipping Act 1894 in so far as they formed part of the laws of a state. The Acts also removed the remaining avenues of appeal from Australian Courts to the Privy Council, making the High Court of Australia the final court of appeal for all Australian Courts.
A major change effected by the Australia Acts concerned State Governors in whom were vested all the Queen's powers and functions in respect of the State, other than the appointment and dismissal of the Governor, though when personally present in a state, the Queen is not precluded from exercising any of Her powers in respect of the State. The Governor of a state is now able to consent to all laws enacted by the Parliament of the state and is no longer required to withhold consent from certain types of Bills or to reserve any Bill for the signification of Her Majesty's pleasure. The Acts provide that advice to the Queen on the appointment and dismissal of Governors and in relation to the exercise of the Queen's powers and functions may now be tendered directly by the Premier of the state and have thus ended the anachronistic requirement that such advice be provided by United Kingdom ministers. The Acts also terminated the residual executive powers of the United Kingdom Government with respect to the States.