|Description of this FunctionDescription of this Function|
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 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 (VRG 23) 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 1865 Imperial Colonial Laws Validity Act, 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. The Commonwealth of Australian 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). 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 Ministers of the Crown be members of Parliament, was replaced by the 1859 Officials in Parliament Act, the original basis for the current provisions regarding the appointment of Ministers as 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 judgements 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).
Delegated Legislative Powers; Subordinate Legislation; Enacted Law; and Unenacted Law
Parliamentary legislation is not the only source of law. Geoffrey Sawer (in The Australian and the Law, Penguin Books, Ringwood Vic. 1972 p.18-21) described the sources of law in the following terms:
Anglo Australian law is divided into two main parts, first enacted law and secondly unenacted law.
Enacted law is law made by parliaments, and by legislative authorities acting under the authority of parliaments. The laws made directly by parliaments are technically called Acts of Parliament, and are commonly called statutes. It is a general principle of the constitutional system that only parliaments have general authority to make laws; any other body claiming authority to make laws needs to point to a statute giving such authority, but we shall shortly see that the Courts are in a sense exempt from this principle. The laws made by subordinate legislative authorities under parliamentary grant of power are known as Orders in Council, regulations, rules, bylaws and various other names.
Regulations and bylaws are the commonest titles for laws made by central executive and local government authorities respectively.
Unenacted law is made by the Courts without direct parliamentary authority:
The unenacted law is often called the "Common Law". Strictly speaking, the Common Law is that part of the unenacted law developed in three particular English Royal Courts called the Queen's (or King's) Bench, Common Pleas and Exchequer. There were other Royal Courts such as the Court of Admiralty which created a good deal of law concerning shipping and the Court of Chancery, which created the system called "Equity"....
In the nineteenth century, the Parliament at Westminster legislated to abolish the many historical superior Courts, merging them in a single set of Courts - the High Court of Justice. In the final stage of this process (1873-5), the Judicature Act also "merged" or "fused" all the various kinds of unenacted law, in particular Common Law and Equity, with express provision in the latter case that where the inherited rules of the two systems conflicted, those of Equity should prevail. Victoria, Queensland, South Australia, Western Australia and Tasmania soon adopted this reform in full.
It is a general principle of the constitutional system that enacted law prevails over unenacted law. In this sense, parliament has the last say. However, it is unreal to differentiate too sharply between enacted and unenacted law, because a great deal of enacted law necessarily comes to the courts for case by case application and interpretation, and during this process the judges often apply the concepts of the unenacted system, or read into the legislation meanings which did not occur to its makers, or extend the legislation so as to exclude cases which the legislators wanted to cover.
Constitutional Conventions and Cabinet Government
Key features of the system of government in Victoria are derived from constitutional conventions, customs and understandings which have evolved in Britain, America and Australia, as well as from formal constitutional law. The system operates through institutions, such as the Cabinet (VA 2989), political party structures, lines of accountability and power relationships, that do not form part of the legal form of Government at all and are informed by notions of the doctrine of separation of powers and the need for checks and balances. Characteristic features of what is variously termed "Westminster", "Cabinet" or "responsible government" that are based on constitutional convention rather than formal law include:
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.73-4.
The Chief Minister - known in Victoria as the Chief Secretary or Premier -is elected by a ballot of the parliamentary members of his/her party.
The Ministers of the Crown (Cabinet) form the Government and are appointed from the members of Parliament belonging to the political party or coalition of political parties commanding a majority in the lower house -in Victoria the Legislative Assembly; they are considered to be collectively and individually responsible to Parliament and through the Parliament to the electorate.
The bureaucracy, which forms part of the Executive arm of Government, is distinct in status (being a meritocracy) from the Ministers, who have final authority over it; bureaucrats being responsible to the Ministers who in turn are responsible to the Cabinet and through the Parliament to the electorate; thus is established the accountability of the whole administration through the Ministers to Parliament and the people.
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.
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.
Subordinate legislation includes:
Authority to make delegated legislation is granted within Acts of Parliament by provisions conferring statutory powers on certain bodies (including Governor in Council, Ministers, local authorities, public utilities, Judges, University Councils and public bodies).
The Subordinate Legislation Committee Act 1956 (No.5991) provided for the establishment of a joint committee of the Legislative Council and Legislative Assembly, to review and report on regulations which: appear not to be within the power conferred by the Act; require elucidation; unduly trespass on rights previously established by law; unduly make rights dependent upon administrative and not judicial decisions; and which contain matter that should properly be dealt with by an Act.
Until the passing of the Subordinate Legislation Act 1962 (No.6886:reprinted to No.6/1991) the Statute Law of Victoria contained a variety of provisions relating to the tabling of regulations in Parliament, the posting of regulations to members and the publication of regulations, as well as a variety of procedures relating to the disallowance of regulations by Parliament.
The 1962 Act introduced standard procedures with respect to subordinate legislation. In particular the Act determined that all regulations, rules and legislative instruments, other than those made by a local authority or a body with limited jurisdiction, be known as "statutory rules". The Act also determined that these statutory rules be numbered, printed and published by the Government Printer, and that notice of the making of statutory rules be published in the Government Gazette. Statutory rules were also to be presented to Parliament and could be disallowed by resolution of Parliament. The Committee thereafter reported on many unsatisfactory features in the content and drafting of regulations as well as reviewing the procedures introduced by the 1962 Act. The Committee could also report to each house of Parliament regarding the disallowance or amendment of a statutory rule.
In 1982 the Subordinate Legislation Committee was incorporated into the Legal and Constitutional Committee and the scrutiny of delegated legislation was conducted by the Subordinate Legislation Subcommittee.
Further control of subordinate legislation was introduced with the passing of the Subordinate Legislation (Review and Revocation) Act 1984 (No.10169). This Act introduced:
sunset provisions for statutory rules whereby a maximum life span of ten years became applicable to all rules, and rules made prior to 1 Jan 1962 were immediately revoked
guidelines for the preparation and content of statutory rules
cost-benefit analysis of proposed regulations in the form of a regulation impact statement
legal review of the clarity, validity and compliance of statutory rules a requirement for statutory rules to be readily available for purchase or inspection
provisions for statutory rules to be exempt from the review process in particular cases.
The review powers of the parliamentary Legal and Constitutional Committee were broadened by the 1984 Act to include review of validity, legal desirability, compliance with guidelines, need and justification, financial and social implications, equity, issue of Premier's certificates and other matters.
With the passing of the Parliamentary Committees (Amendment) Act 1992 the Scrutiny of Acts and Regulations Committee superseded the Legal and Constitutional Committee in the scrutiny of regulations.
Although the control of subordinate legislation is primarily a function of Parliament, various aspects of the function have been conferred by the Acts on Cabinet Ministers and hence on agencies within their portfolios.
The Attorney-General (VRG 19) can declare any instrument of a legislative character to be a statutory rule and can also declare, on the advice of the Legal and Constitutional Committee that a statutory rule is not of a legislative character and therefore not subject to the provisions of the Act.
The Attorney-General shall also, in consultation with the Legal and Constitutional Committee, prepare and issue guidelines with respect to the preparation and content of statutory rules and, through the office of the Chief Parliamentary Counsel, Attorney-General's Department (VA 2825), has responsibility for reviewing proposed statutory rules and advising on clarity, validity and compliance with guidelines.
Responsibility for the economic review of proposed statutory rules, in the form of the regulatory impact statement process has, since the provisions came into effect on 1 July 1985, been transferred through the following portfolios:
VRG 23 Treasurer 1985 - 1988/89
VRG 82 Industry Technology and Resources 1988/89 - 1989/90
Pursuant to the 1984 Act the Premier (VRG 50) is able to certify that in special cases the public interest requires that the proposed statutory rule should be made without complying with the provisions within the Act which require the preparation and review of a regulatory impact statement and which require review by the Chief Parliamentary Counsel. Responsibility for the issue of Premier's Certificates commenced when the regulatory impact statement provisions came into effect on 1 July 1985 and has remained with the Premier throughout.
Sources used in compiling this account include:
The Constitution of the Australian States (4th Edition, University of Queensland Press, St. Lucia, 1977).
Australian Government Today 18th edition, Pitman Publishing, 1987.
The Australian and the Law Revised Edition, Penguin Books, Ringwood Vic., 1972.
Constitutional Development of Victoria 1851-6 Whitecombe and Tombs, Melbourne, 1920.
Location of Records
Significant holdings of the records of Parliament are in the custody of the Public Record Office. See also List of Holdings 2nd edition 1985, section 11.0.0.