Chapter 2
The Government
Minority Government
As the constitutions operative from 1843 to 1855 reserved ultimate authority in so many dominant matters of government to the discretion or initiative of the governor or crown, it has been common to describe the governor and the officials and nominated members associated with him as the government. Not that the elected legislative council members were necessarily in opposition to all or even most of the governor’s acts 1, but the reality of power lay legally outside the Legislative Council. A combination of governor, executive council, bureaucracy and judiciary lay beyond the legislature’s control, even in payment of their salaries and expenses. Added to this were the nominee members: the officials were relied on to represent and support the governor’s policy and the non-official members were expected in general to do likewise 2
. Although not a member of the legislature and with his nominee potential supporters theoretically outvoted in the Council by elected members, the active and reserve powers of the governor enabled him to control at least the basic administration and operation of the Colony. With the augmentation of nominee votes by those of elected members swayed by personal or sectional interests, this basic level of control could be extended to a much wider scope of government, as the constitution framers had expected.
Where he was unable to mobilise sufficient support in the legislature to avoid loss of an official bill, or to oppose successfully a private member’s bill, the governor had the ultimate sanction of reservation, which even if not upheld in London, still set the offending act aside for an extended period 3. Not of course that this expedient could be used indiscriminately. Nor did the governors wish to interfere in matters of dispute in local administration other than to prevent gross mismanagement or discrimination, and importantly, attempted intrusions into the royal and vice regal prerogatives, which became a strong point of contention in the early trials of strength under the 1842 constitution 4. It needs to be recognised that the governors were required to administer the Colony to its greatest benefit short of any detriment to the imperial interest 5. After allowing for the resentments which governors had to wear through their necessary administration under restrictive constitutions, and their own personal limitations, it would be unfair to accuse them of not seeking to achieve that greatest benefit. The shortfalls were largely seen from the viewpoint of aggrieved sectional interests, and given the oligarchic proclivities of the elected majority 6, their criticisms of the minority government were not necessarily the criticisms of the colonists at large 7.
The governors and their executives were part of a rough parallel to the British sovereign council and ministers, whilst the blended legislative council doubled as Commons and Lords in an attempt to avoid stalemates between democratic and conservative interests 8. But there were real differences. The limits to the sovereign’s power were unwritten but fairly well explored; the governors were without significant limitation other than in specified legislative and judicial areas established by the Acts of the British parliament 9. The sovereign acted on advice in council from her ministers who were responsible to parliament; the governor might overrule advice from salaried heads of department who were also dependent on his patronage 10. The hotly disputed Civil List further insulated both governor and his client executive from representatives’ sanctions, added to which his monopoly of money bills and land revenues left little leverage to compel responsibility to colonial interests. Pre-responsible government governors represented imperial responsibility and interests, and acted as a restraint on local irresponsibility or sectional dominance 11. They were required to consult their executive council on all important matters, but although this set ground rules for executive decisions to be made in council, overriding directions also held the governor personally responsible for his acts 12.
So much for the official position of the governor. The men themselves were varied in their approach. Gipps had tasted dissent from his pre-1843 nominated legislative council 13: he expected general unofficial nominee support in the blended council and a certain amount of opposition from the elected members, but hoped to be able to mobilise an adequate combination of nominee and sectionally interested elected member votes to be able to gain the public appearance of colonial support for his administration 14. But on the matter, of official support he was uncompromising. These men were his executive arm of government and his appointed employees, and consequently, in the fashion of employers of his time, he expected explicit support and obedience on threat of removal 15. But dominant and uncompromising on principle as Gipps was, he was neither an autocrat nor a fool convinced of his own infallibility. The executive council was an obviously useful coordination and review vehicle which enabled Gipps to clarify and validate his own views, and to enlist the complicity and support of his principal department heads and his ally Bishop Broughton, prior to the public steps of introducing bills or issuing proclamations and opinions 16.
As much as Gipps strove to seek an understanding or accommodation with the elected members of the council 17, his dual responsibilities of guardian of imperial interests and of equity for all sections of the Colony brought him in violent conflict with members who resented continued imperial interference in local affairs and equitable obstacles to their sectional interests 18. The administration of Governor Gipps became the unifying factor for otherwise uneasy political bedfellows who, having vested interests at stake and no responsibility for executive government, were able to construct a credible opposition which the governor saw as having ‘the sole object of extending its power’ by stretching the bounds of the constitution 19. Gipps reciprocated.
FitzRoy was of a different ilk. Naturally more permissive, expected by the Colonial Office to minimise friction, and relieved of the enmity of the politically dominant squatting interest by the impending lease tenure settlement 20, he was able to take a more compromising attitude and rely on his departmental heads for much of the government’s executive action 21. His Instructions still made him finally responsible for his administration’s acts 22, but the conciliatory approach of both governor and legislative council 23 diverted bitterness against the imperial master from FitzRoy to the enthusiastic and progressive Lord Grey who was then assuming the mantle of imperial control. FitzRoy’s administration is most noteworthy for his avoidance of local political confrontation, being content to appear wherever possible as supporter of colonial interests rather than imperial controller of the Colony 24.
The constitutions of 1842 and 1850, together with the similar Commissions and Instructions which directed Gipps and FitzRoy, allowed for the governor to assume nearly as much final authority as he wished. Gipps chose the course of taking authority to the limit in controlling what he saw as irresponsible elements 25, FitzRoy elected conciliation and avoidance of involvement, leaving the ‘Grey viper’ 26 to bear the odium of imperial unpopularities, and also allowing landed interests to dominate politics without challenge 27. Even in his post-1851 role as governor general of the Australian colonies, he omitted to use those admittedly untested powers in the settlement of intercolonial disputes 28. The administration of Governor Denison from 1855 was one of greater energy 29, but with the bill for the enactment of responsible government before the imperial parliament, political issues in New South Wales were largely dormant awaiting the new constitution which would officially translate the governor from local ruler to local arbitrator, and so remove the option of autocratic control.
Unlike that of the new elected members, the position of nominee members was well established during the twenty years preceding the blended Council. The introduction of elected members did provide complications, as did the possibility and reality of elected officials, ex-officials and ex-nominee members. Recognising the problems of a potentially hostile elected majority, Stanley wished to encourage both the election of departmental heads and ex-official members to bolster the core of support for the governor 30. Gipps himself had no illusions on what he expected from not only his official nominees but also from elected Surveyor-General Mitchell, who was reminded that his official loyalties should outweigh his electoral obligations 31. With non-official nominees, although he disclaimed any suggestion of requiring loyalty pledges 32, and upon occasion liked to be able to point to some principled opposition as demonstration of their independent representation of responsible colonial interests 33, Gipps was bitter enough when he found himself persistently opposed on issues where he badly needed support 34.
As the official nominees were both part of the government and part of the patronage system which lay in the hands of Colonial Office and governor, their options in exercising freedom of argument and voting were limited to such conscience issues as the Lang prayer proposals or disagreement on the tactics of handling or avoiding more substantive issues. As heads of department and the nearest in office to a minister of state which existed in the Colony, they had their very specific responsibilities and interests in promoting and defending their part in government, and in mutual solidarity in support of each other and their patron and leader, the governor. The voting record consistently demonstrated this public cohesiveness, with such exceptions as Commander of the Forces O’Connell’s waywardness on the district council bill in 1843 drawing agonised disbelief from Colonial Treasurer Riddell, and wry comment from the elected benches on his landed interests 35. The only real option open to the official nominee who found himself with a conflict of conscience was to absent himself from the Council, a practice discouraged by Gipps 36, who ensured a strong turnout for major government issues.
For the non official nominees there was some flexibility. As the representatives of colonial interests in the old Council, they had not hesitated to use both argument and vote in the furtherance of those interests, or to rally to or oppose governor and government 37. However the nominees of 1843 were not the active force of earlier days: their leading light was missing – Macarthur the casualty of his own electoral miscalculation and refusal to take the second prize of a proffered nomination 38, whilst cousin Hannibal had more successfully opted for the uncompromised independence and licence of elected membership 39. Of the original six in 1843, three had landed interests, two represented commercial interests and one represented professional interests 40. Lowe replaced the bankrupt Jones late in 1843, carrying strong expectations of the governor that he would bring a much needed lift to the government’s lacklustre performance in the Legislative Council 41. Elwin and Icely were consistent supporters of the government line, as was Lowe until his realisation that he needed the unambiguous freedom of elected membership sparked his move towards independence from the government cause 42. Berry was irregular of attendance and voting allegiance, while Blaxland sided positively with his friend Wentworth against the government, a situation from which Gipps attempted to salvage some profit by citing him as an example of the community benefits of unofficial nominees 43. Yet even from those who voted for him, the governor received scant support. As well as being uncohesive and leaderless, their underlying sympathies often lay with their elected fellows, and their loyalties to the government were spiritless 44. Hamilton openly stated that he voted from a sheer sense of duty and resigned when, after three years he could no longer bear that obligation 45.
In this environment, the officials and non officials were substantially on the defensive against an elected group which largely represented the landed economic interests in the Colony 46 and as well contained the most active and vociferous members, anxious to make their own mark and further their perceived interests. The governor and heads of department were the administrators of a constitution which was under strong and widespread criticism that was difficult to counter. It is not hard to fathom their colourless performance, which was upstaged so easily by men with grievances to parade and reputations to make or sustain. In the adversary situation which persisted through the rest of Gipps’ term, this contest for political influence 47 overshadowed the basic work of effective legislation and administration which was achieved by the Legislative Council, and supported the popular conception of government and opposition.
The advent of Governor FitzRoy’s more conciliatory approach to the politically divisive issues, at a time where the all important squatting regulations were being resolved to the benefit of the majority of elected councillors who had squatting interests, brought a distinct change in the pattern of alignments in the Council 48. With the elected members becoming less preoccupied with the governor and more interested in their own divisions on other local sectional issues, the nominee members were freed from their previous state of siege and the necessity to hang together. It is interesting here to note in Table 1 the principal interests of the nominee members at different periods; the effect of this increasing rural-public service bias will be examined more closely in subsequent chapters.
Primary Interest |
1843-47 |
1848-50 |
1851-55 |
| Public Service | 7 |
6 |
16 |
| Commercial | 3 |
1 |
2 |
| Professional | 4 |
1 |
1 |
| Rural | 5 |
5 |
10 |
| Total | 19 |
13 |
29 |
Table 1 - Interests of NSW Legislative Council Nominated Members 1843- 1855 49
Even when the regular opposition to government was reduced to a mere rump of its former anti-Gipps coalition, the nominees continued to vote fairly consistently as a bloc, perhaps the more easily as the odium attached to supporting the governor’s position had been shifted to the Colonial Office for its apparent intransigence in settling the transportation, separation and responsibility issues quickly to the satisfaction of the Colony 50. But even FitzRoy and Denison’s lower key administrations needed a hard core of support in the legislature around which to rally a favourable public image and legislative majorities. In general, non-official nominees were still expected to and actually delivered that support 51. This support increased, if anything, as the final term of the blended council wore on, including some remarkable efforts at turnout and solidarity – even to the extent of the official nominees showing their confidence on official salaries and confidence votes by not attending, safely leaving the voting leadership to the non-official members 52.
References
1. It is too easy to count the disputes in the Council: but a count of the successes inconspicuously shown as ‘question put and passed’ in the Votes and Proceedings shows 146 bills were passed of the 193 presented in the first term from 1843 to 1847, of which approval was witheld on seven and 11 were reserved for imperial consideration (Sydney Morning Herald 6 October 1847 p2 Editorial rounds this figure to 140 with 11 reserved, however see V&P NSW LC 1843-7).
2. HRA I.XXIII, p788 Gipps to Stanley of 13 September 1844.
4. From 1843-7 only 11 of 140 bills were reserved (qv), but Gipps’ sticking point is clearly enunciated in HRA I.XXIV, p249 Gipps to Stanley of 13 February 1845.
5. CO 381/55 Instructions (AJCP PRO 1038 f15, 78).
6. Sydney Morning Herald 11 October 1843 p2 New Legislature; V&P NSW LC (1853) vol 2, p119-120.
7. HRA I.XXIV, p250, 428 Gipps to Stanley of 13 February, 2 August 1845.
8. PP (1849) XXXV, p36; see also Note 12 to Chapter 1.
9. CO 381/55 Commissions (AJCP PRO 1038 ff 3, 106, 154).
10. The deficiency was acknowledged by the Privy Council Select Committee in 1849, but caution preserved a compulsory civil list (PP (1849) XXXV, p 44).
11. These responsibilities are enunciated in CO 323/77 Rogers to Merivale of 6 September 1854 (AJCP PRO 2957 ff 184-5) and PD (1855) 3rd Series CX, p1118,
12. CO 381/55 Instructions (AJCP PRO 1038 f12, 83-4, 162-3).
13. Roe Quest for Authority p44.
14. V&P NSW LC (1843) 3 August 1843 p2.
15. HRA LXXIII, p 708-9 Gipps to Stanley of 27 July 1844 (separate); a position clearly supported in XXIV, p163 Stanley to Gipps of 1 January 1845.
16. Melbourne Constitutional Development p280-1.
17. V&P NSW LC (1843) 3 August 1843 p2; 29 July 1845, p4.
18. Molony Architect of Freedom p4.
19. HRA LXXIV, p 249 Gipps to Stanley of 13 February 1845.
20. HRA I.XXV, pp 432-8 Enclosure to Grey to FitzRoy 30 March 1847.
21. R. Therry Reminiscences of Thirty Years’ Residence in New South Wales and Victoria Sydney reprint 1974, p376-80; S.G. Foster Colonial Improver Melbourne 1978, pp 100-1; Molony Architect of Freedom p71.
23. V&P NSW LC (1846) vol II, p68, 199
24. Knight Illiberal Liberal p146-9; J.M. Ward Early Grey and the Australian Colonies 1846-1857 London 1958, p281.
25. HRA I.XXIV, p249-50, 252 Gipps to Stanley of 13 February 1845.
26. HRA I.XXV, pp 170-1 FitzRoy to Gladstone of 19 August 1846; Empire 8 April 1852, p2 Editorial.
27. Foster Colonial Improver p108-111
28. Ward Earl Grey and the Australian Colonies p277-280
29. A. Powell Patrician Democrat Melbourne 1977, p58.
30. HRA I.XXII, p 244-5 Stanley to Gipps of 5 September 1842 (private).
31. HRA I.XXIII, p 725 Parker to Mitchell of 6 August 1844.
32. HRA I.XXIII, p 788 Gipps to Stanley of 13 September 1844.
33. V&P NSW LC (1843) 3 August 1843, p 2: his ‘Gentlemen of independence’; HRA I.XXIII, p310 Gipps to Stanley of 1 January 1844 (separate).
34. HRA I.XXIII, p254 Gipps to Berry of 12 December 1843; p705,709 Gipps to Stanley of 27 July 1844 (No 159 and ‘Separate’).
35. Sydney Morning Herald 11 December 1843, p2 Domestic Intelligence.
36. HRA I.XXIII, p 708-9 Gipps to Stanley of 27 July 1844 (separate).
37. So Gipps’ oblique complaint that the Council ‘neither affords to the Governor ... the assistance he has a right to expect of it; nor does it give to the Acts of his Government the support of the People’. (HRA LXIX, p 719 Gipps to Glenelg of 1 January 1839).
38. HRA I.XXIII, p 43 Gipps to Stanley of 18 July 1843 (No 112).
39. HRA I.XXIII, p 43 Gipps to Stanley of 18 July 1843 (No 112).
40. HRA I.XXIII, pp 44-5 Gipps to Stanley of 18 July 1843 (No 113).
41. HRA LXXIII, p 216 Gipps to Stanley of 10 November 1843 (No 183).
42. Knight Illiberal Liberal pp 73-4
43. HRA LXXIII, p 310 Gipps to Stanley of 1 January 1844 (separate).
44. HRA LXXIII, p 310 Gipps to Stanley of 1 January 1844 (separate).
45. Sydney Morning Herald 10 August 1844, p3 Legislative Council, Hamilton; this was nothing new for him (Ward James Macarthur p152).
46. HRA I.XXIII, p42 Gipps to Stanley of 18 July 1843 (No 112); XXIV, p250 Gipps to Stanley of 13 February 1845.
47. See Note 19; this contest for control spilt over into FitzRoy’s administration, regardless of the less tempestuous relations (HRA I.XXV, p607-8 Grey to FitzRoy of 29 May 1847).
48. J. Forrest ‘Political Divisions in the New South Wales Legislative Council 1847-53’, JRAHS vol 50 Part 6 (Dec 64), p483.
49. Australian Dictionary of Biography vols 1-6 passim; various other major references listed in the Bibliography.
50. Sydney Morning Herald 5 October 1848, p2 Editorial; HRA I.XXVI p 610 FitzRoy to Grey of 22 September 1848; V&P NSW LC (1851) vol I Draft Petitions on General Grievances, p4.
51. Forrest ‘Political Divisions’ p484-6.
52. V&P NSW LC (1852) 3 August 1852; (1854) 1 August, 22 September 1844.