Chapter 1
Constitutional Development
Constitutional Background
The transfer of power from the British Government to New South Wales was initially almost absolute. Governor Phillip’s commission gave him, as martial administrator, virtually total authority 1 – the viceroy of the King exercising monarchic power with the tacit approval of the British constitutional government. But whilst this was appropriate to a strategic penal station, the transition to a plantation colony required changes to recognise the free element of the society whilst still retaining provisions appropriate to the bonded 2. The inevitable restriction of the autocratic martial law powers following Macquarie’s troubled regime resulted in the 1823 Constitution’s redistribution of those powers in two directions: the sharing of local powers with a legislative council to provide a legally acceptable mechanism to enact laws and levy taxation, followed in 1825 by an executive council to synchronise vice regal and bureaucratic powers; and the reservation of legislative council appointments and legislation to Colonial Office oversight 3.
At the end of the five year term of that constitution, a combination of colonial urgings, and Colonial Office acceptance of privileges justified and earnt, resulted in an extension of the 1823 Legislative Council’s membership of five to seven nominated members to 10 to 15, with opportunity for a non-official component. In addition the Legislative Council gained control of enactment of legislation and of all revenues not derived from crown property 4. However it was notable that members were to represent interests in the Colony; popular representation was not a factor in the face of a still high proportion of ex-felons who could qualify for any franchise which was not blatantly prohibitive.
This revised constitution was to be valid until 1836 when it was presumed that increased political experience combined with social and economic development would warrant further advances. However that was not to be. A combination of denigration of the colony by the anti-transportationists, conflicting proposals from various interest groups, and subsequently the unrest in Canada made for a climate in which a beleaguered British Government continued to defer the problem by annual extensions of the old act 5. Although there were strong overtures for representative and responsible political institutions from the colony, there were also persistent aristocratic and exclusivist pressures to the contrary which played on the problems of irresponsibility in a society of felons and ex-felons 6. This argument was sufficiently powerful to delay any prospect of political advancement until a combination of the cessation of transportation in 1840 and a new ministry enabled a renewed initiative to resolve the New South Wales constitutional impasse.
Colonial policy in general was in a state of flux from American revolutionary times. Indeed, it had always been and continued to be the subject of continuing debate up to the present, with periodic peaks of self-examination and opposing views on control and disengagement based on a variety of philosophical and expedient grounds. However, by the close of the 1830s, the evils of prevarication and neglect had been brought to a head by the North American problems. Whether or not the Durham Report was the real catalyst 7, by the 1840s the Colonial Office had established some clarity of approach to the government of the colonies. In fact, reestablished would be more accurate, as it simply reaffirmed the seventeenth and eighteenth century habit of allowing expatriate Englishmen to govern themselves after the fashion of the home country. But now it had a practical difference in modifying political institutions to the capacity of the country to handle them rather than simply allowing the unsuccessful hollow images of those of the United Kingdom 8. This policy of local self determination was codified at the end of the decade in Stephen’s postulation that colonies should as far as possible be self governed 9 and subsequent successive acknowledgements by Grey, Pakington and Newcastle that the British government would accede to properly formulated propositions from the Colony to regulate its own affairs 10.
Given this climate of acquiescence, the only real problem in getting progress in political development lay in the capacity of the Colonial Office and Parliament to digest the importunings from the Colony. And given the spectrum of opinions and self interest inherent in those approaches, together with the unavoidable transmission delays in consultations, the ultimate judgments which had to be made in London naturally erred on the conservative side, or if progressive could be condemned as out of tune with local needs, according to the view point of the critic 11. Even when the power of self amendment was incorporated in the 1850 constitution, it was given to a council dominated by sectional interests which had even less intention than the cautious staff of the Colonial Office of allowing the emergence of fully representative control.
The 1842 constitution was heralded as an experiment in finding a viable alternative to other forms in the Westminster mould which had failed in the Americas through the impasses generated by the hostility of the governor and nominated upper house to the representative chamber’s demands 12. Although Gipps could be unconcerned when consulted on the problems of a ‘blended council’ by Sir George Grey prior to departure for Sydney 13, he still had not perceived its inherent problems by 1841 after three years experience of local politics 14. His publicly expressed sanguine hopes of avoiding the inevitable governor-upper house clash with elected representatives by the expedient of a mixed house 15 missed the logical conclusion that, under a constitution which denied that mixed house authority on a broad spectrum of important matters, the governor and his executive became the permanent government. In consequence, it could be expected that the governor would bear the full brunt of the representatives’ opposition just as much as had the discredited governor-upper house coalition in the American colonies 16.
There were so many inputs to the Colonial Office containing elements which were embodied in the 1842 Act for the Better Government of New South Wales 17 that it is difficult to know which, if any, was primarily responsible. Wentworth had provided optional draft bills in the hope of their adoption for the prospective 1836 re-enactment. Forbes and James Macarthur were also closely involved in 1836 to 1838, as was the Australian Patriotic Association. And J.H. Plunkett, on extended leave for the purpose, was a regular consultant during the final drafting 18. Wherever the credits and discredits lie, the draft was forwarded to Gipps for his comment, and so received final input and general acceptance of its broad thrust from him 19.
As much as Stanley imagined that he had ‘met with the concurrence of .... the different interests in the colony’ 20 the Act, which might have been widely accepted in 1836 as a natural step in a progressive transition to responsible government within the acknowledged limitation of continuing transportation, to the dominantly free society of 1843 allowed no tangible advance in responsibility. For the price of two thirds elected members in an expanded legislative council, it actually withdrew from the authority of the Council that third of the budget which could virtually ensure independence of the government from colonial pressure – the Civil List which financed governor, bureaucracy and judiciary 21. Adding to this the continued reservation of crown lands and their revenues, the governor’s monopoly on the introduction of money bills, his right of referral of legislation to the imperial parliament and the imposition of his favoured district councils which had been rejected by the old Council 22, there was little to persuade the independent of mind or the aspirants to power that this Act was a useful step forward. Even from a moderate standpoint, previous delays had lost the Colony the chance of a third intermediate period of political transition and education at a time when such an unadventurous step might have been acceptable, but now that the Colony was positively out of the penal stage, the broad majority of colonists generally considered themselves entitled to the same political rights and privileges as their counterparts in Britain 23. And even though there was some satisfaction among the landowning aristocracy that, although the franchise was too low, there had been no precipitation into the anarchy of democracy, the land issue was a strong point of contention 24.
In all, the pace of free immigration and economic development in New South Wales over the previous five years had far outgrown the more limited colonial aspirations which had filtered through to influence the compilers of the 1842 Act. Consequently, that anachronistic constitution became the centrepiece of a contest for power, with both governor and elected members manoeuvring to stretch or circumvent its provisions to extend their authority and influence.
The 1850 Constitution
The tensions which arose in struggles for supremacy within the 1842 Constitution spurred pressures for further change. From Governor Gipps’ state of siege perspective, the experiment of a blended council had failed: perhaps military force would be needed to maintain control, and the partly elective membership should return to a fully nominated one for at least another decade 25. Although the more conciliatory approach of Governor Fitzroy from 1846 enabled the elected members to divert much of their energies to struggles between themselves over local sectional and regional issues, the underlying contentions of land, revenues, immigration and transportation still kept alive the question of legislative responsibility.
In the new Secretary of State for the Colonies, Earl Grey, the Colony found a constitutional enthusiast, though not necessarily one whose views were identical with their own, as their experience with him dating 26 from 1831 over land sales and district councils had foreshadowed Grey’s proposed package, derived from Stephen’s New Zealand model, contained a little of everything for almost everyone, but in so doing failed to satisfy any significant interest groups. The blended legislature experiment was to be supplanted by a bicameral system on top of the moribund district council base, with a super-structure of a federal assembly; the Assembly franchise was to be indirect through the district councils, with a nominated upper house 27. New Zealand did not want this piece of constitutional sophistry 28 nor did New South Wales, except that the Port Phillip District would have taken virtually anything to secure separation from Sydney rule 29. Apart from the basic objections to the constitution’s detail, there was an underlying rejection of Colonial Office tinkering with the Colony’s political structure without seeking input from the colony – a reaction which began with the first rumours of the change 30 and continued vociferously when the proposals were published 31.
Grey was sufficiently flexible to seek a means to both vary and bolster his proposals by passing the problem to a Privy Council Committee of which he and Stephen were active members. It accepted the general thrust of colonial objections and sidestepped the variety of local opinion by proposing retention of the existing political structure, with a proviso for the Colony to propose its own constitutional change, and suggesting that legislation for internal matters, such as local government and some control of the civil list, be vested in the local council 32. This much was a step forward, particularly for Port Phillip District, South Australia and Van Diemen’s Land which were to have similar constitutions, but the old grievances of withholding of responsibility for all internal matters was raised in parliament, and drew bitter reaction in New South Wales 33.
Once again, the inability of the Colonial Office to interpret correctly the diverse advice which emanated from colonial and London interests led to a compromise which gave considerably less than colonial expectations had built up to. Although Australia Felix’s separation, extension of the franchise and a strengthening of legislative council responsibility constituted some advance 34, these were so well anticipated as to be already accepted. The fairly universal verdict was that New South Wales had achieved no advance, and that work on a responsible constitution should recommence immediately 35. But whilst agreement on the transfer of power from imperial to colonial hands was a fairly universal commodity, the distribution of that power within New South Wales was a matter for widespread dispute.
With the provision in the 1850 constitution, that the Colony could legislate for electoral and structural change subject to Crown approval 36, came the corollary that this change would be proposed by a legislature which was dominated by the squatting and conservative interests. Indeed, the 1852 select committee was quite unambiguous in its proposals to erect a nominated upper house which would control democratic excesses in an elected lower house and inhibit electorate changes away from the dominant rural preference. Yet although these constitution makers were concerned to preserve ultimate oligarchic control, they were equally determined to bring revenues, budget and land under colonial legislative determination, and gain the repeal of British parliamentary acts which impinged on local affairs. In consonance with this approval, the governor was to cease acting as imperial agent, and instead be responsive to advice from colonial ministers 37.
Dispute within New South Wales over the nature of upper house membership brought the proposed legislation to a standstill 38. A second select committee on constitution bills in 1853 was reinforced by Colonial Office acceptance of local responsibility 39, but was undisposed to take Newcastle’s hint of a partly elected upper house, preferring instead the much ridiculed idea of entry by hereditary title. It also felt secure, behind such a potential bastion of conservatism, to extend the lower house electoral franchise to as low as a £10 rental qualification; and although the hereditary entry clause was defeated, this was a sufficiently bizarre diversion to allow the easy substitution of a nominated upper house 40. The Colony’s legislature made its proposal to the British parliament where, over objections against perceived excesses of democracy, oligarchy and independence 41, the bill became an Act without essential curtailment of the proposed transfer of local responsibility to the Colony 42. The complementary repeal of other imperial acts followed.
The unusual unanimity within New South Wales was strongly persuasive on the imperial cabinet and parliament to accept the Act. Other factors which influenced British acquiescence were the Colony’s capacity to support itself financially, and the strong safeguards against popular excesses in the constitution’s electoral and legislative provisions 43. The unanimity was based on the transfer of power and patronage from London to Sydney, but on the electoral and legislative provisions there was considerable divergence of local opinion, both then and later. However, with the blended legislative council dominated by property interests, it was inevitable that these battles would have to be fought after the elections under the new constitution’s extended franchise were over. So the period from 1843 to 1855 was one in which interests held unassailable control of the political arena, and responsibility lay with the imperial government and its representative in New South Wales. Local responsibility was for the future.
References
1. Historical Records of New South Wales vol I, Sydney 1892, pt 2 p62-7.
2. Times 8 July 1823, p2 Parliamentary Intelligence.
3. 4 Geo IV, cXCVI s24, 27, 30; HRA I.XII, p109 Instructions dated 17 July 1825.
4. 9 Geo IV, cLXXXIII s20, 21, 27; HRA I.XIV, p265-6, 269 Murray to Darling of 31 July 1828.
5. 6&7 Wm IV, cXLVI; 1 Vic, cXLII; 1&2 Vic, cL; 2&3 Vic, cLXX; 3&4 Vic, cLXII; 4&5 Vic, cXLIV.
6. J.M. Ward James Macarthur, Colonial Conservative 1798-1867 Sydney 1981, p80.
7 . W.P. Morrell British Colonial Policy in the Age of Peel and Russell Oxford 1930, p16, 97.
9. Both principle and practice were clearly enunciated in the Grey-Stephen Privy Council Committee Report of 4 April 1849 (PP (1849) XXXV, p35).
10. HRA I.XXV, p703 Grey to FitzRoy of 31 July 1847; CO 202/60, Pakington to FitzRoy of 14 December 1852 (AJCP PRO 682 f416-7); CO 201/453, Newcastle to FitzRoy of 18 January 1853 (AJCP PRO 637 f404).
11. Australian 12 October 1842, p 2 Editorial; Sydney Morning Herald 11 October 1842, p2 Editorial; HRA I.XXVI, p146 FitzRoy to Grey of 6 January 1848.
12. Sydney Morning Herald 24 February 1843, p2 Legislative Council.
13. Ward James Macarthur p74-5.
14. HRA I.XIX, p719-20 Gipps to Glenelg of 1 January 1839; XXI, p185-6 Gipps to Russell of 13 January 1841.
15. Sydney Morning Herald 25 February 1843, p2 Editorial.
16. Secretary of State Stanley was certainly clear on the governor’s ‘unusual power ... to counteract ... the absence ... of a second Chamber’ when forwarding the Act (HRA I.XXII, p241 Stanley to Gipps of 5 September 1842) and Gipps felt the reaction after short experience (HRA I.XXIII, p311 Gipps to Stanley of 1 January 1844).
18. A.C.V. Melbourne Early Constitutional Development in Australia Brisbane 1963, pp 233-43; Ward James Macarthur p82-3, 116-8; J.N. Molony An Architect of Freedom Canberra 1973, p 43.
19. HRA I.XXI, p185-6 Gipps to Russell of 13 January 1841.
20. HRA LXXII, p238-9 Stanley to Gipps of 5 September 1842.
22. 5&6 Vic, cLXXVI s29, 31, 34, 41; HRA I.XXI, p186 Gipps to Russell of 13 January 1841.
23. Sydney Morning Herald 11 October 1842, p2 Editorial; HRA I.XXI, p 186 Gipps to Russell of 13 January 1841 (No 34).
24. J.M. Ward Colonial Self Government, The British Experience 1759-1856 London 1976, p 170.
25. HRA I.XXIII, p640 Gipps to Stanley of 10 June 1844 (confidential); XXIV, p253 Gipps to Stanley of 13 February 1845 (No 34).
26. PD (1841) 3rd series LVII, p982; Ward Colonial Self Government p153-4.
27. New South Wales Government Gazette (1847) vol 2, Sydney 1847, p1434.
28. CO 209/51 G. Grey to Grey of 3 May 1847 (AJCP PRO 1211 f 263).
29. Sydney Morning Herald 5 May 1848 Legislative Council Supplement, p2 Mr. Darvall.
30. Sydney Morning Herald 1, 6 October 1847, p2 Editorials.
31. HRA I.XXVI, p151-3, 214 FitzRoy to Grey of 6 January, 2 February 1848; Maitland Mercury 12 January 1848, p2 Editorial; Sydney Morning Herald 4, 5, 6 May 1848 Legislative Council Supplement; 10 May 1848 Legislative Council.
32. PP (1849) XXXV, p37, 40, 44.
33. PD (1850) 3rd series vol CX, p1182; V&P NSW LC (1850) 27 August 1850.
34. 13&14 Vic, cLIX s1, 4, 18,
35. CO 201/450 FitzRoy to Grey of 18 June 1851 Enclosure No 1 (AJCP PRO 634 f 213).
37. V&P NSW LC (1852) vol I, p 479 Report from the Select Committee on a Constitution for the Colony.
38. Melbourne Constitutional Development p396-7.
39. CO 202/60 Pakington to FitzRoy of 15 December 1852 (AJCP PRO 682 ff 411-2); CO 201/453 Newcastle to FitzRoy of 18 January 1853 (AJCP PRO 637 f 405); V&P NSW LC (1853) vol II, p177, Report from the Select Committee on the New Constitution.
40. C. Pearl Brilliant Dan Deniehy Adelaide 1972, p21-3, 25; Molony Architect of Freedom p88.
41. CO 323/77 Rogers to Merivale of 6 September 1854 (AJCP PRO 2957 f182, 184); PD (1855) 3rd Series vol CXXXVIII, p1993-4, 2008; vol CXXXIX, p105, 107.
43. CO 202/60 Pakington to FitzRoy of 15 December 1852 (AJCP PRO 682 f396); PD (1855) 3rd Series vol CXXXVIII, p 2009-2010; vol CXXXIX, p102.