PART A
ADDENDUM 2
The colonisation of
Australia; six self-governing
colonies
KEY CONCEPTS
■
■
■
■
■
Starting with the creation of a convict settlement at Botany Bay, Australia was colonised by Britain
under doctrines of European law that allowed European powers to ‘plant’ colonies in faraway lands.
Since the British saw Australia as ‘practically unoccupied’, the rule was that the colonists brought
English law with them, as far as it was applicable to the colony, and the colonies were subject to
legislation specifically directed to them enacted by the British Parliament.
The colony of ‘New South Wales’ originally constituted the whole eastern half (or more) of Australia.
Over time, Tasmania, Victoria and Queensland were progressively separated from it and colonies were
independently founded in Western Australia and South Australia.
As their populations grew, and transportation of convicts ceased, the colonies were allowed progressively
greater degrees of self-government by the British authorities, culminating in the establishment of
bicameral parliaments and ‘responsible government’ in each of the colonies.
As the colonial governments already had a Governor and a Supreme Court, most of the provisions of
the Constitution Acts establishing responsible government dealt with the Constitution and powers of
the parliaments, a feature which is still reflected in the modern state Constitutions.
2.1
Context and overview
Part A:
Addendum 1
can be
viewed at <www.
palgravemacmillan.
com.au/law/
constitutionallaw>.
Part A: Addendum 1 tracks the history of the concepts that are reflected in
modern constitutional practice and in the Commonwealth Constitution. In this
chapter we backtrack a little and study the establishment of very undemocratic
governments in the Australian colonies and then note the slow development of
constitutional systems and governments—which were highly advanced democracies by the standards of the nineteenth century.
1
CONSTITUTIONAL LAW
2.2
The right to colonise, as stated and
practised by Europeans
From the late fifteenth century onwards, European powers colonised nearly
all of the rest of the world. Under modern international law, this ‘planting’ of
colonies would now be seen as a series of unlawful invasions, but under the
international law that was recognised by the European powers at the time—
i.e. the international law that was being developed among themselves with no
consultation with the rest of the world—the colonies were recognised as the
lawful possessions of the colonisers.
Though the ‘conquered/settled’ distinction noted below is generally referred
to in discussions of ‘the law of colonisation’, as if it is the whole of that law,
there is a prior issue: how and why was it lawful to colonise at all? Even the early
theorists of human rights—Francisco de Vittoria (1483–1546?), Gabriel Vasquez
(1549?–1604), and Franciscus Suarez (1548–1617)—all managed to find some
justification for Christian nations to send missionaries to ‘heathens’, to plant
trading-posts in their lands and to reply with force if the ‘heathens’, tried to expel
the missionaries and traders. Colonising practice went rather beyond this—the
European explorers would ‘plant the flag’, claim the land as a possession of their
king, queen or prince, possibly enter into a one-sided treaty with some of the
locals, enforce the claim by force of arms, protect the missionaries and then
exploit the country for its mineral or agricultural wealth. Once the Spanish and
Portuguese had started the process, getting an empire was a matter of ‘keeping up
with the Joneses’ (in this case, the Habsburgs and Braganzas) for other European
nations. France, Germany, England, the Netherlands and Belgium all established
overseas colonial empires and Russia expanded its boundaries across Siberia.
Given that nothing except defeat by another European power was going
to stop the Europeans from establishing colonies, the question was what
legal system would apply in a colony. In theory, as stated by both continental
Europeans and the English, there were two options. As stated by Holt CJ for the
Court in Blankard v Galdy (1693) Holt KB 341; 90 ER 1089, they were as follows:
lst, In case of an uninhabited country newly found out by English subjects,
all laws in force in England are in force there; so it seemed to be agreed.
2dly, Jamaica being conquered [from the Spanish, who had colonised it
first], and not pleaded to be parcel of the kingdom of England, but part of
the possessions and revenue of the Crown of England, the laws of England
did not take place there, until declared so by the conqueror or his successors.
The focus on whether all the detailed laws of England applied rather obscures
the central constitutional doctrine: that it was absolutely taken for granted
that the United Kingdom Parliament had the power, as the Parliament of the
Empire—the ‘Imperial’ Parliament—to make laws for these faraway places. Even
the rule about conquered colonies was qualified by the phrase ‘until declared so’
and, indeed, the effect of the Blankard v Galdy decision was disputed in other
2
PART A
ADDENDUM 2
decisions about Jamaica1 and in 1728 an Imperial Act2 confirmed the reception
of English law. The Parliament could make laws authorising the creation of
colonies and laws regulating how they were to be governed, in general outline
or in the most detailed particulars, whether they were conquered, ceded or
settled. We will meet examples of such laws applying to Australia throughout
the rest of this chapter.
As to the reception of English law, or the continuation of the previous law,
a study of practice reveals a most untidy application of the theory. England had
started its colonial adventures a century later than Spain and Portugal. There was
a tragic false start when the colonists left on Roanoke Island (in what is now
North Carolina) in 1587 could not be found a year later, but between 1607 and
1733 the English established the 13 colonies that later became the United States
of America, as well as other colonies in the Caribbean. [After 1701 the colonising
power was Great Britain, but English, Scottish and Irish colonists still took
English law with them.] The rule about conquered colonies was indeed applied
where England took a colony over from an earlier European coloniser. In Ceylon
and South Africa, taken from the Dutch in 1795 and 1803 respectively, much of
the Roman–Dutch law still remains and in Quebec civil matters are regulated
by French-style civil law. In possibly the only case of colonisation of genuinely
unoccupied land, Bermuda, the settlement rule was applied.
The untidiness occurs in all of the colonies that were founded by the British
in lands occupied by non-Europeans. In most of these colonies there was no one
instantaneous act of conquest; a settlement would be founded on the coast and
English, Scottish and Irish settlers would slowly spread inland—conquest by
infiltration, one might call it. In some places the English/British entered into a
treaty with the previous inhabitants or their rulers. In others, the locals watched
the slow infiltration of the British and tried to stop it by force when it was too
late. Some of the treaties were honoured and some were not. In many places,
some elements of the local ‘personal law’ were left undisturbed while the English
lived under their own law. As a broad generalisation, how much indigenous
law and land title was left in place tended to depend on whether the locals had
things that the English could recognise as ‘civilisation’—cities, princes, palaces,
armies and agriculture3.
Shortly before the colonisation of Australia, the significance of agriculture,
or cultivation, was emphasised in the work of Emmerich de Vattel. In The Law
of Nations (1760) he wrote:
The cultivation of the soil [is] an obligation imposed by nature on mankind.
Every nation is then obliged by the law of nature to cultivate the land that
has fallen to its share; and it has no right to enlarge its boundaries, or have
1 Campbell v Hall (1770) 1 Comp 204.
2 1 Geo II c 1, s 22. Note that until the 1870s British Acts did not have short titles and are properly cited, as here, by ‘regnal year’ and
‘chapter’ number; the short titles used below were either given by the Short Titles Acts 1892 and 1896, or have been conventionally used
by historians.
3 See Stuart Banner, Possessing the Pacific; land, settlers, and indigenous people from Australia to Alaska (Harvard University Press, 2007). In
An Australian Legal History (Law Book Co, 1982), Alex Castles makes the point, on p 15, that it was ‘the Crown’ (the executive government)
that made the decision as to whether to treat a territory as conquered or settled (or, though he does not say so, as something in between).
3
CONSTITUTIONAL LAW
recourse to the assistance of other nations, but in proportion as the land in
its possession is incapable of furnishing it with necessaries.
From this he concluded that the ‘industrious and closely confined’ nations
could take possession of a part of the lands of those who lived only by hunting
and their flocks or where there were only ‘erratic nations with a scanty population’ in a vast country.
William Blackstone started giving the lectures that became the Commentaries
on the Laws of England in 1758 and published the first volume in 1765, so it
seems likely that he was influenced by Vattel when he wrote the following
passage:
Plantations or colonies, in distant countries, are either such where the
lands are claimed by right of occupancy only, by finding them desart and
uncultivated, and peopling them from the mother country; or where, when
already cultivated, they have been either gained by conquest, or ceded to
us by treaties. … [I]t has been held, [citing Blankard v Galdy] that if an
uninhabited country be discovered and planted by English subjects, all
the English laws then in being, which are the birthright of every subject,
are immediately there in force. But this must be understood with very
many and very great restrictions. Such colonists carry with them only so
much of the English law, as is applicable to their own situation and the
condition of an infant colony … But in conquered or ceded countries,
that have already laws of their own, the king may indeed alter and change
those laws; but, till he does actually change them, the ancient laws of the
country remain, unless such as are against the law of God, as in the case
of an infidel country.
Note the replacement of ‘uninhabited’ in the Blankard v Galdy formulation
by ‘desart and uncultivated’, and the omission of Vattel’s qualification that the
colonisers could take only part of the country. The use of this language gave the
government an even better excuse than before to plant colonies in a land like
Australia, which was certainly sparsely settled and was not under cultivation in
an extended way.
Soon after Blackstone’s work was published, Britain managed to alienate the
American colonists (i.e. the free ones) by taxing them without allowing representation in the Parliament and by forbidding expansion of settlement into the
‘Indian lands’; they rebelled in 1776. (As a distinct later phase of the revolution,
they had also developed the federal Constitution noted in Part A: Addendum 1.)
Before independence, Britain had not only allowed the American colonists to
import African slaves (again, following Spain’s example), but had also sent at
least 50,000 (possibly as many as 120,000) British convicts there. So the British
government had its gaols and prison hulks overflowing, and needed somewhere
else to send its convicts. Fortunately, Captain James Cook had recently explored
the east coast of Australia. One of his homesick sailors had remarked that the
coast somewhere north of Cape Howe reminded him of south Wales, so Cook,
allowing nostalgia to override geographic discrimination, named the whole
4
PART A
ADDENDUM 2
east coast New South Wales. Cook reported that Australia was very sparsely
populated and that ‘the Natives know nothing of Cultivation’. According to the
theories of the 1780s, this was just the place for the British to plant some new
colonies.
Therefore, when colonial Governors were sent out first to New South
Wales—and later to the other directly-founded colonies, South Australia and
Western Australia—they were not instructed to make treaties with the indigenous people or to negotiate for the purchase of a part of their lands, as Vattel
would have suggested. They were instructed to take possession of the land in
the name of the King or Queen and to then grant or sell estates in the land to
appropriate settlers, who then held feudal-sounding ‘estates in fee simple’, or
lesser estates like leases, from the King or Queen, just as in Britain.
Those who actually discussed matters with Aboriginals after settlement
reported that they had a relationship with the land quite like that of the
British—as to the lack of cultivation one said ‘they live on it and enjoy the
pleasures of the chase as do the rich of our nation’4. However, when the British
planned one more colony, in South Australia, the Letters Patent issued under
the South Australia Colonisation Act5 stated that the area ‘consists of waste and
unoccupied lands which are supposed to be fit for the purposes of colonisation’ in virtually the same breath as they declared ‘that nothing in these our
Letters Patent contained shall affect or be construed to affect the rights of any
Aboriginal Natives of the said Province to the actual occupation or enjoyment
in their own Persons or in the Persons of their Descendants of any Lands
therein now actually occupied or enjoyed by such Natives’6. How these were to
be reconciled nobody said—presumably the Aboriginal Natives were expected
to do as Joseph Banks had predicted and ‘speedily abandon the Country to the
New Comers.’
In Cooper v Stuart (1889) 14 App Cas 286 the Privy Council held that New
South Wales had been ‘practically unoccupied, without settled inhabitants or
settled law, at the time when it was peacefully annexed to the British dominions’ and that therefore the law of England had ‘become from the outset the
law of the colony’7. Since the case arose from a dispute between two white
men about land in the eastern suburbs of Sydney, and involved an issue about
how much of the law about the enforceability of covenants was applicable in
the colony, it is perhaps understandable that no Aboriginals were invited to
intervene and no evidence about their relationship with the land was admitted.
However, it was an oddly casual way to have any latent dispute about the
mode of settlement, and possible indigenous claims to recognition of prior
occupation and ownership, authoritatively dismissed (at least for the next
103 years).
4 George Robinson, Protector of Aborigines, quoted in Banner, n 3 above.
5 4 & 5 Will IV c 95.
6 See <http://foundingdocs.gov.au/item-sdid-38.html>. Nearly all of the Acts and documents relating to colonisation are available on
this site.
7 Cooper v Stuart (1889) 14 App Cas 286.
5
CONSTITUTIONAL LAW
It might be suggested that the issue of the mode of colonisation is irrelevant
to a text on constitutional law. Constitutional law is the study of the powers
of courts and legislatures and executive governments. As noted above, the
dominant rule, regardless of the type of colony, was that the Imperial Parliament
could impose whatever laws and legal system it chose on a colony, so we might
have the same constitutional setup even if Australia had been, admittedly, conquered. The point is, however, that we might not have. If the settlement of
Australia had been less dismissive of the presence and the rights of the indigenous people, some of the rules about their rights may well have come to be
embodied in constitutional documents or to be seen as constitutional in a less
formal sense. (As, indeed, the decision in Mabo v Queensland [1992] HCA 23;
(1992) 175 CLR 1 can be seen as changing the way that Australian law and
society are ‘constituted’, in a broad sense, though it is not generally thought of
as a ‘constitutional’ case.8) The organs of government would probably still be
much as they currently are, but there might have been some differences in their
make-up and their powers might well have been different. There might even
have been territories with an indigenous majority, as there is in Canada.
However, things did not happen that way. So the rest of this chapter will discuss the white settlement of Australia, the imposition of a
British style of government on the colonies and the eventual formation
of the Commonwealth of Australia, with, as is usual, the presence of the
indigenous people consigned to the background—because that is the way
it happened. Whether the prior occupation of the land by, and the current
status of, the indigenous people should now be more formally recognised in
the Constitution is the subject of debate at the time of writing and will be
discussed in the final chapter.
2.3
The foundation and early development
of the colonies, to the attainment of
responsible government
Though the rights of the prior inhabitants were ignored, there were certain
expectations about the rights of British settlers. Counsel’s opinion, provided
to the Secretary of State in 1818, first recited the usual rule—that the law of
England was in force in ‘settled’ colonies to the extent that it was applicable—
and then added:
the invariable usage in all such cases has been to require the Governor to
convene an Assembly elected by the freeholders within the colony; and thus
the colonists have lived under the Constitution of England, varied only so as
to meet the new circumstances under which they have been placed …9
8 One significant exception to the latter proposition is the Chief Justice; see French CJ, ‘Native Title—A Constitutional Shift?’ University
of Melbourne Law School Lecture Series, 24 March 2009, at <www.highcourt.gov.au/speeches/frenchcj/frenchcj24mar09.pdf>.
9 Quoted in RD Lumb, The Constitutions of the Australian States, 3rd ed, 1972, University of Queensland Press, p 9.
6
PART A
ADDENDUM 2
However, ‘New South Wales’, which originally meant all of the continent to
the east of longitude 135°E, was started as a penal settlement, so it took some
time for the ‘invariable usage’ to be followed. While Australian constitutional
development was happening, events in Canada and New Zealand were forcing
the Colonial Office10 to re-evaluate its ideas of the proper constitutional arrangements for a colony. The effect was that government of this ‘greater New South
Wales’ developed through four stages: from autocratic rule by a governor to
responsible government (see Part A: Addendum 1.3.5) on the British model11.
The other independently-created colonies, Western Australia and South Australia,
each had only a brief autocratic-rule stage but progressed through the other three.
Colony
First British
Settlement
Foundation
(or separation
from NSW)
Partlyelected
Legislative
Council
Commencement of
Constitution Act with
bicameral Parliament
First meeting
of Legislative
Assembly/House
of Assembly
New South
Wales
18 Jan 1788
(Kurnell)
26 Jan 1788
(Sydney Cover)
1842
16 Jul 1855
22 May 1856
Tasmania
South 1803
North 1806
12 Dec 1825
1851
24 Oct 1855
2 Dec 1856
Western
Australia
1826
18 Jun 1829
1870
21 Oct 1890
30 Dec 1890
South
Australia
28 Dec 1836
28 Dec 1836
1851
25 Oct 1856
22 Apr 1857
Victoria
1803
temporarily;
1834
1 Jul 1851
1843 as part
of NSW; 1851
23 Nov 1855
25 Nov 1856
Queensland
1824
6 Jun 1859
1843 as part
of NSW
6 Jun 185912
22 May 1860
Figure 2.1
Formation of the Australian colonies and the transition to responsible government
Stage 1: personal rule by the Governor
Sydney started in 1788 as a penal settlement—a gaol ruled by a military dictator,
albeit a dictator who was well-intentioned and responsible to a far-away government, which expected basic standards to be observed. In the absence of any
legislative body, it was assumed that the statutes of England applied as long as
they were ‘applicable to [the colonists’] situation and the condition of an infant
10 Technically, the colonial division of the War and Colonial Office until 1854 and after that, the Colonial Office.
11 In The Government of Victoria (Macmillan, 1891) Dr E Jencks refers to three stages, counting the period until the creation of a partelected legislature (i.e. stages 1 and 2) as one stage. However, while citing Jenks on p 3, on p 12 Lumb (n 9, above) describes the reforms
of 1823–5 as ‘a turning point in the autocratic rule of the Governors’. It seems, therefore, that he would have agreed with the splitting of
Jenks’s first stage into two.
12 Queensland’s first effective Constitution was the Order in Council of this date.
7
CONSTITUTIONAL LAW
colony’ and, for the immediate needs of the colony, the Governor-cum-chief
gaoler-cum-military commander could issue General Orders and ordinances.
Some doubt has been expressed about the validity of this practice; Jeremy
Bentham labelled the colony an ‘immense [and] uninspectable Bastile’ and
thought the whole setup was unconstitutional13, but in English law ‘unconstitutional’ was merely a term of disapproval on idealistic grounds—laws could
not be declared invalid on that ground14.
During this first period, British settlement of Tasmania (then known as Van
Diemen’s Land) had begun—in the Derwent Estuary in 1803 and at Launceston
in 1806. At first it consisted essentially of outposts for convicts, but free settlers
arrived in significant numbers from 1817. For a while, the north and south each
had a Lieutenant-Governor responsible to the Governor in Sydney, but from
1813 there was just the one Lieutenant-Governor in Hobart. It remained part
of New South Wales until early in stage 2.
Stage 2: Governor aided and mildly restrained by an appointed
Legislative Council and Executive Council
In 1823 the New South Wales Act prescribed that the Governor must appoint a
Legislative Council to help him make laws (though until 1828 only the Governor
could propose Bills and even after that he could veto them). In 1825 a new
Commission was issued, which forced the new Governor (Darling) to appoint
an Executive Council to advise him in his executive decisions. As Lumb says,
it was at this point that New South Wales ‘became a colony in the real sense’,
rather than a mere penal settlement15. The Act also authorised the separation of
Van Diemen’s Land from New South Wales and in 1825 this was put into effect,
with the new colony having a nominated Legislative Council and Executive
Council, advising someone who was called Lieutenant-Governor but who was
effectively the Governor.
Western Australia (known for its first couple of years as the Swan River
Colony) was settled in 1829. (The western boundary of the theoretical ‘New
South Wales’ had been moved to 129°E in Governor Darling’s Commission, so
Britain now claimed the whole continent.) Legislative and Executive Councils
were appointed in 1832, so the autocratic stage had only lasted two-and-a-half
years. South Australia was created as a separate colony, on territory carved out
of New South Wales, in 1836. From its foundation, the Governor could make
laws with the concurrence of the Chief Justice, Colonial Secretary, AdvocateGeneral, Resident Commissioner or any two of them, so South Australian government began at ‘stage 1.5’, followed by the more standard stage 2 (appointed)
Legislative and Executive Councils in 1842.
During this stage, English settlement of Queensland and Victoria began.
Queensland was the third of the colonies to start life as a convict settlement,
13 A Plea for the Constitution, 1803 (often cited as A Plea for the New South Wales Constitution) (Waugh and Cox, Sydney 1856).
14 Legal historians have since argued that the prerogative powers of the king were sufficient to fill in the gaps in statutory power—see
the summary of the debate in RD Lumb, n 9 above, pp 5–6.
15 Lumb, n 9 above, p 23.
8
PART A
ADDENDUM 2
which was established at Redcliffe in September 1824 but moved to Brisbane
after three months. Transportation of convicts ended in 1839 and the area was
officially opened to settlement in 1842, though a few graziers had squatted on
the Darling Downs from 1840. Settlement of Victoria was started by adventurers with no authorisation from the government—Edward Henty at Portland in
1834 and John Batman at Melbourne in 1835. This prompted the government
in Sydney to declare the ‘Port Phillip District’ open for settlement and to
send a police magistrate in 1835, followed by a Superintendent (effectively a
Lieutenant-Governor) in 1839. But the status of these settlements was merely
as the Moreton Bay District and Port Phillip Districts of New South Wales until
1850 and 1859 respectively.
It was during this stage that each colony acquired a Supreme Court. The
Supreme Court of New South Wales was established by Imperial Letters Patent
(known as the Third Charter of Justice) in 1823. A First Charter of Justice was
issued for Tasmania in 1823 and a second in 1831. South Australia was deemed
to have a Supreme Court from the beginning in 1826 (hence the reference to a
Chief Justice, above) and Western Australia created its own by statute in 1861.
The Port Phillip and Moreton Bay Districts had resident judges of the Supreme
Court of New South Wales before separation, so the setting up of separate
colonial Supreme Courts for Victoria and Queensland followed upon separation
in 1850 and 1859 respectively.
Stage 3: a partly-democratic Legislative Council
The Australian Constitutions Act (No 1) 184216 provided that the New South
Wales Legislative Council would be expanded in size and that two-thirds of its
members should be elected (by males with a certain amount of property). The
Governor was the real executive leader and still had a real power to refuse assent
to legislation (a power that had not been exercised by a monarch in England
since 1703) and the Council had control over the appropriation of some revenue
while the Governor had control over other revenues, but it was a step towards
democracy.
For a while, ‘greater New South Wales’ was the only colony to attain this stage
(Victoria and Queensland were still the Port Phillip and Moreton Bay Districts
of the greater colony and had to send elected representatives to the Legislative
Council), but the Australian Constitutions Act (No 2) 185017 provided for the
separation of Victoria and that its initial Constitution should provide for a
two-thirds-elected Council, like that of New South Wales. It further provided
that the existing stage 2 Councils of Tasmania and South Australia could amend
their Constitutions to add elected members and that Western Australia could
have a two-thirds-elected Council on reaching a certain population. (A similar
provision for Queensland was made unnecessary by the course of events.) As
we will see below, in the colonies other than New South Wales, these ‘stage 3’
16 5 & 6 Vict, c 76; cited in some sources as the New South Wales Constitution Act 1842.
17 13 & 14 Vict, c 59; cited in some sources as the Australian Colonies Government Act 1850.
9
CONSTITUTIONAL LAW
Councils were only intended to exist as a brief transitional step to a bicameral
Parliament and responsible government.
2.4
The ‘reception’ of English law
In the early American colonies, there was a theory—still used to explain the law
today in some states—that the colonies inherited the English common law but
not English statutes18. However, by the time of the colonisation of Australia, the
theory that was applied within the Colonial Office, and by colonial judges, was
that the common law and statutes of England, as of some ‘reception’ date, were
received into the law of the colony, so far as they were applicable to the situation
of the colony. In ‘theory’, as far as there was a consistent theory, the proper
reception date seems to have been when the new colony acquired some form
of legislative body, even if it was only a Legislative Council with members
nominated by the Governor—i.e. at the transition from stage 1 to stage 2.
Certainly this was what Sir Francis Forbes thought, and he was the Chief Justice
of New South Wales19.
However, any general rule of English law could be changed by statute—
and sometimes even by executive decision. For New South Wales (the original
‘greater’ New South Wales), the question was settled by s 24 of the Australian
Courts Act 182820, which prescribed that applicable English Acts were received
up to the date of the passing of the Act (i.e. 25 July 1828). For Western Australia
and South Australia, the reception dates are taken to be the dates of proclamation of the colonies—18 June 1829 and 28 December 1836 respectively.
From these dates on, laws passed in the United Kingdom Parliament (that
were intended to apply only to England) no longer applied in the respective
colonies as part of the ‘received’ law. However, the sections of the two Australian
Constitutions Acts authorising the establishment of the ‘stage 3’ Legislative
Councils gave legislative power to the Councils, ‘provided always that no such
law shall be repugnant to the law of England’, and clearly Acts that were intended
to apply to a colony, or to the Empire generally, still did so. The colonies were
still very colonial.
2.5
Responsible government—an idea
whose time had come
In the 1840s and early 1850s, developments in Canada and New Zealand had
forced the Colonial Office to adopt a more ‘hands-off ’ approach to colonial
government. Some of the Canadian maritime provinces had had fully-elected
18 William B Stoebuck, Reception of English Common Law in the American Colonies (1968) 10 Wm & Mary LR 393.
19 JM Bennett & Alex C Castles, A Source Book of Australian Legal History (Law Book Co, 1979) p 269.
20 9 Geo IV c 83.
10
PART A
ADDENDUM 2
assemblies since the 1750s or 1770s, but the Governor still had control of daily
administration and the budget as well as a power of veto over proposed laws.
This caused conflict—the elected leaders of the legislature claimed that they
had a popular mandate but the law was on the side of the Governor. After the
American Revolution, the British had been wary of giving too much independence to its colonies, in case they too might seek independence. However, that
did not stop the colonists in both Upper and Lower Canada (Ontario and
Quebec) from staging rebellions in 1837–8. After the British had put down the
rebellions (and ‘cleverly’ deported some of the leaders to New South Wales so
they could spread their subversive ideas) they appointed Lord Durham to report
on the causes of the discontent. His report, in 1839, suggested that the best way
to keep colonists loyal was to give them not less, but more independence. The
report is now widely referred to as ‘a sort of Magna Carta for representative
self-government’21.
However, for the first few years after the union of Quebec and Ontario
into the Province of Canada (another, much less inspired, recommendation
of Lord Durham) the old conflicts between a representative assembly, aspiring
to control the government, and a near-autocratic Governor applied, as well as
in the maritime provinces. There was a series of deadlocks over ordinary Bills
and, most importantly, appropriation Bills, during which the Canadians pressed
their demand for ‘responsible government’ (and, as seen earlier in Part A:
Addendum 1.3.5, had to explain to the British what they meant by the phrase).
Eventually the British accepted their demands; in November 1846 Earl Grey,
the Colonial Secretary, wrote to the Lieutenant-Governor of Canada saying that
he should make it clear ‘that any transfer of political power from the hands of
one party in the province to those of another is the result not of an act of yours
but of the wishes of the people’22 [as manifested in the assembly]. From then
on, the various Canadian Governors appointed ministers and members of the
Executive Council according to their support in the ‘lower’ House and acted
on their ‘advice’, though it was accepted until the 1930s that in rare cases the
Colonial Office might instruct them to uphold the interests of the Empire over
the wishes of local politicians. A similar standoff between an elected assembly
and an old-style Governor occurred in New Zealand between 1854 and 1856,
with a similar ‘surrender’ by the Governor in early 1856. It had become the
norm that on achieving a certain stage of economic development, a colony (at
least, one with a white-settler majority) would be allowed to have responsible
government.
So the Australian Constitutions Act (No 2) 1850 set the scene for responsible
government in all the Australian colonies. After it had made the provisions for
separation of colonies and for the institution of ‘stage 3’ Councils noted above,
it provided in s 32 that, subject to various conditions, each ‘stage 3’ Legislative
Council could amend its own Constitution to provide for a bicameral legislature.
There was no express mention of a transition to responsible government, but,
21 Original source unknown. It appears on many websites, some of which cite each other.
22 Constitutional Documents of Canada, p 496 (available on the web at <www.canadiana.org/view/9_03428/0523>).
11
CONSTITUTIONAL LAW
thanks to the struggles of the Canadians and New Zealanders, it was assumed
(by 1855 if it had not been quite clear in 1850) that that would come with
bicameralism.
Though the colonies were trusted to draft their own Constitutions, the section provided that any such Bill would be reserved for Her Majesty’s pleasure
and laid before both Houses of the UK Parliament for 30 days before assent
could be given, which meant that the British government would have time to
advise Her Majesty whether to assent or not. However, the ‘Home’ government
took only technical objections and forced only minor amendments and the
Constitution Acts of New South Wales, Victoria, Tasmania (renamed from Van
Diemen’s Land in early 1855) and South Australia all commenced to operate in
1855–623. Queensland was separated from New South Wales in 1859 and was
given a close copy of the New South Wales Constitution by Order in Council;
the Parliament re-enacted it (with minor amendments) as the Constitution Act
1867 (Qld). Western Australia had to wait a while longer (convicts had been
sent there from 1850 to 1868, at the colonists’ request, and the population and
economy grew slowly) but it achieved a two-thirds-elected Council in 1870 and
a bicameral Parliament and responsible government in 1890. Western Australia
then created a complication, which has persisted to the present day, by supplementing the Constitution Act 1890 with further provisions in a Constitution
Act Amendment Act 1899.
2.6
Features of the colonial Constitutions
The post-1855 Constitution Acts24 of the colonies had some minor differences,
but many common features. The common features will be emphasised below,
with some references to the differences. Since each colony already had a Governor,
appointed by Commission and given Royal Instructions, and a Supreme Court,
the Constitution Acts were, and largely still are, mostly about the re-constitution
of the legislatures, with incidental references to the powers of the Governor and
the tenure of Supreme Court judges. (We will see below that the Commonwealth
Constitution is quite different—it deals with the creation of, and the grant of
powers to, each of the arms of government at some length.) Although all of the
Constitution Acts except the two Western Australian ones have been replaced
by later Acts, the later ones preserve many of the features of the originals.
Consequently, although the anti-democratic Councils have been reformed, the
rest of what follows still describes the current state Constitutions.
23 Constitution Act 1855 (NSW), Constitution Act 1855 (Tas), Constitution Act 1855 (Vic), Constitution Act 1856 (SA). Technically the
New South Wales and Victorian ones, and later the Constitution Act 1890 (WA) were enacted as Schedules to Imperial Acts, whereas
the South Australian and Tasmania ones were enactments of their own Parliaments. The significant thing is that they were all enacted
by the authority of the UK Parliament, whether directly or indirectly.
24 To be cited in footnotes below simply as CA [Year] (State)
12
PART A
2.6.1
ADDENDUM 2
Bicameral parliaments
The obvious difference between the new parliaments and the old councils was
the addition of a new, more democratically-elected House, called the House
of Assembly in South Australia and Tasmania and the Legislative Assembly in
the other colonies. Laws were to be made by the Assembly, the Council and the
Governor—i.e. a Bill had to be passed by both Houses and receive royal assent
from the Governor (subject to ‘reservation’ requirements discussed in Part A:
Addendum 2.6.2).
The Assemblies were elected by male residents with, at first, a small property
qualification, which was removed in most cases in the first few years under the
Parliaments’ power to amend their Constitutions (see Part A: Addendum 2.6.2).
However, a residential qualification remained, which disfranchised itinerant
workers (of whom there were many in the nineteenth century) and vagrants.
Even in colonies where indigenous men were theoretically eligible to enrol (e.g.
South Australia), not many found it possible to do so.
The Legislative Councils were another story. The new Constitutions had
been drafted by the old Legislative Councils, which consisted of prosperous men
from the pastoral, professional and business interests in the colonies. They were
concerned to create an ‘upper’ House that would exercise a ‘wise and conservative control upon the otherwise unfettered democratic tendency of the Lower
House’25. Two different mechanisms were adopted. In New South Wales the old
pattern, of the Governor nominating members for life, was continued. Seen
by its promoters as a conservative device, this had the weakness that, once the
convention was adopted that the Governor would nominate members on the
Premier’s advice, it therefore became possible for a government facing opposition in the Council to swamp (or ‘stack’) the Council with new members to
ensure the passage of legislation. Queensland copied the appointed-members
pattern from New South Wales (as the New South Wales Constitution Act 1855
had directed) and in 1922 the Council was swamped with a ‘suicide squad’ who
voted the Council out of existence. The more complicated story of the reform
of the New South Wales Legislative Council will be told in Chapter 15.
In the other states the drafters opted for another conservative mechanism—a
property qualification for voters and a higher property qualification for candidates; as Waugh says, ‘in modern terms’ the Victorian drafters ‘created a house
of millionaires’26. The weakness in the property qualification rules was of course
inflation. Even in the case of Victoria—where a member needed to own property
worth 5,000 pounds and a voter property worth 1,000 pounds, or to be paying
300 pounds per year on a three-year lease—the right to vote or be a candidate for
the Council eventually fell within the reach of working-class people. However,
this took a long time to happen; for many decades there were conflicts between
the Houses over reformist legislation. Some of the Constitution Acts had provisions ‘entrenching’ the rules about the Councils (see Part A: Addendum 2.6.2).
25 John Waugh, ‘Framing the First Victorian Constitution’, 1853–5 (1997) 23 Mon ULR 331 at 344.
26 Ibid 348.
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CONSTITUTIONAL LAW
There was originally no provision for the resolution of deadlocks in any
of the colonial Constitutions, though some were added later (see Chapter 15).
The state politicians who drafted the Commonwealth Constitution were acutely
aware of the possibility of deadlock from their own experiences and therefore
included s 57 in the Constitution.
2.6.2
A section of a
Constitution
or other Act is
said to be entrenched
when there is a special
rule, more onerous
than the usual rules
for passage of laws, for
amending it.
The rules
referred to
above, making
it harder than usual to
amend the ‘entrenched’
provisions of an Act.
27
28
29
30
31
14
General legislative power
Each of the parliaments was given a general power to make laws for the
respective colony. The power given by the two Australian Constitution Acts
to the old Legislative Councils had been ‘to make laws for the peace, welfare
and good government of the colony’, and this phrase was copied into the new
Constitutions of New South Wales, Queensland and South Australia. The
Victorian drafters simply said ‘a power to make laws in and for the said colony
in all cases whatsoever’. The Tasmanian drafters neglected to include any such
phrase, leading some27 to describe it as incomplete. If legislative power is not to
be inferred from the fact that it is a parliament (the distinguishing feature of a
parliament is that it makes laws, after all), it can be seen as being carried over
from the authorisation in the Constitutions Act (No 2) 1850, ss 14 and 32. By the
time the Western Australian Constitution Act was being drafted, the emphasis
in grants of law-making power had shifted from welfare to order, so its power
was (and is) ‘to make laws for the peace, order and good government’ of the
colony/state28 (compare the Commonwealth Constitution, s 51). As we will see
in Chapter 15, this is a general power, unlimited by topic, unreviewable as to
whether the laws actually are for the peace of the state, and, despite early doubts,
extending to the making of extraterritorial laws.
In case it was not clear that such a wide power extended to amending
the Constitution under which the Parliament had been elected, each of the
Constitutions, except that of Tasmania, spelled that out. However, some provisions were entrenched. This is not a particularly technical term—it is simply a
metaphor for saying that it was made harder than usual to amend by requiring
that amendments had to be passed in a special way (later known as a special
manner or form). The most common provisions to be entrenched were those
defining the constitution of the Houses themselves. In New South Wales such
laws had to be passed by two-thirds of the members of the Assembly and a
majority in the Council29 and in South Australia30 a two-thirds majority in both
Houses. In Victoria they needed an absolute majority (i.e. a majority of all the
members, not just those present for the vote) in both Houses31. In Queensland
the restriction applied only to laws making the Council elective; any such law
See, eg, Lumb, n 8 above, p 44.
CA 1890 (WA) s 2.
CA 1855 (NSW) s 40.
CA 1856 (SA) s 34.
CA 1855 (Vic) s 60.
PART A
ADDENDUM 2
would require a two thirds majority in both Houses32. In many cases, such Bills
also had to be reserved for Her Majesty’s assent, sometimes after a minimum
period of tabling in the British Parliament. In Western Australia there were no
special requirements for changing the Constitution of the Houses (they were
added later), but laws to change the financial provisions, including the unique
s 70 discussed below, had to be reserved33.
2.6.3 Executive power, parliamentary control of
finance and responsible government
As noted above, the Constitution Acts said nothing about the creation of the
Governor’s office or granting executive power to the Governor—that was all
assumed. Read without knowledge of the development of responsible government, they could even look as if the Governor still did the governing. All, for
example, provided that no tax or appropriation Bill could be passed unless it
had been recommended by the Governor. The real effect of this will be discussed
below.
The sections that made it clear that power had now been passed to whoever
controlled the majority in the ‘lower’ House were of two types. There were
provisions for parliamentary control of government finance; that all revenue
was to be paid into a consolidated revenue fund, to be appropriated for the
Public Service of the Colony34, and that Bills for appropriating any part of
the revenue must originate in the Assembly. Victoria added that such Bills could
be rejected but not amended by the Council. As noted in Part A: Addendum 1.3.5,
this is the means by which Parliament took control of government in Britain.
The other ‘giveaway’ was in the sections that referred to the appointment of
public servants. S 37 of the Constitution Act 1855 (NSW) was typical:
37 The Appointment to all Public Offices under the Government of the
Colony … shall be vested in the Governor, with the Advice of the Executive
Council, with the Exception of the Appointments of the Officers liable to
retire from Office on political Grounds … which Appointments shall be
vested in the Governor alone.
Decoded, this means, first, that ordinary public servants were officially
appointed by a document signed by the Governor ‘advised’ by the Executive
Council, but that he was merely ratifying a decision made by the Cabinet or a
public service body. The mysterious ‘Officers liable to retire from Office on political Grounds’ were the ministers—and the ‘political grounds’ on which they were
liable to retire were that their party had lost an election, or that they had lost the
confidence of the Assembly, or their party, mid-term. The need, noted above, for
a Governor’s message recommending an appropriation was not intended to keep
32 CA 1867 (Qld) s 9.
33 CA 1890 (WA) s 73.
34 See, eg, CA 1855 (Vic) s 45.
15
CONSTITUTIONAL LAW
the Governor in charge; in fact it kept the ministers, who advised the Governor
to send the message, in charge of spending. This sets up a system of dual control
of spending—spending without parliamentary appropriation is unlawful, but
the Parliament cannot appropriate money without a recommendation from the
executive. If the executive is to take the blame for budget blowouts, it cannot be
forced by, say, a temporary alliance of the opposition party and independents
to spend money for purposes of which it does not approve.
Although the idea that the government was now responsible to the Assembly
was expressed opaquely, everyone who knew of British practice since 1720, or
who had heard of Earl Grey’s despatch to the Lieutenant-Governor of Canada,
knew what the new Constitution really meant. The ministers ran the government
and the Governor was a figurehead or rubber stamp, except in governmental
crises, when he became extremely important. We will consider the Governor’s,
or Governor-General’s, role in a crisis in Chapter 5.
2.6.4
Tenure of the judiciary
The Constitution Acts did not have provisions saying ‘There shall be a Supreme
Court’, because in each case there already was a Supreme Court. What they did
was to confirm that the principle of the Act of Settlement 1701 now applied to
the Supreme Courts. For example, the Constitution Act 1855 (NSW) provided:
38 The Commissions of the present Judges of the Supreme Court of the
said Colony, and of all future Judges thereof, shall be, continue, and remain
in full force during their good Behaviour …
39 It shall be lawful, nevertheless, for Her Majesty, Her Heirs or Successors,
to remove any such Judge or Judges upon the Address of both Houses of the
Legislature of this Colony.
That is, apart from the somewhat more democratic Parliaments, the
Constitution Acts set up a replica of the British system of government in the
colonies. The colonial governments were still subservient to the ‘Imperial’
Parliament and government but, as Part A: Addendum 2.7 shows, the amount
of real interference by the ‘Home’ authorities steadily decreased after the 1850s.
2.7
The ‘CLV Act’—theoretical subordination
but substantial independence confirmed
The grants of legislative power to the bicameral parliaments (Part A:
Addendum 2.6.2) did not contain the reservation in the earlier grants (Part A:
Addendum 2.4) that new laws could not be repugnant to the law of England.
It therefore seemed that the colonial parliaments could now make laws that
were so repugnant, unless they conflicted with an ‘Imperial’ law that expressly,
or by necessary implication, applied to a colony or colonies or generally to the
16
PART A
ADDENDUM 2
Empire. Despite apparent general agreement in the Colonial Office and the
British Law Officers that the above principle was correct, there were doubters.
The principal doubter was Justice Boothby of the South Australian Supreme
Court, of whose judgments it was said ‘there seemed to be no limit to the
laws declared invalid through careless drafting or repugnancy’35. In response to
pleas from the South Australian government, the British parliament passed the
Colonial Laws Validity Act 1865 (the ‘CLV Act’). As far as colonial powers were
concerned, it had a negative section:
2 Any colonial law which is or shall be in any respect repugnant to the
provisions of any Act of Parliament extending to the colony to which such
law may relate, or … to any order or regulation made under authority of such
Act … shall be read subject to such Act, order, or regulation, and shall, to the
extent of such repugnancy, but not otherwise, be and remain absolutely void
and inoperative.
and a positive section:
3 No colonial law shall be or be deemed to have been void or inoperative
on the ground of repugnancy to the law of England, unless the same shall
be repugnant to the provisions of some such Act of Parliament, order, or
regulation as aforesaid.
Reading the two sections together, s 3 was saying that a colonial law would be
invalid if and only if it was repugnant to one of the laws mentioned in s 2—i.e.
those that ‘extended’ to the colony. Willes J held in Phillips v Eyre (1870) LR 6
QB 1 that this applied to those statutes (or orders made under them) that were
‘applicable to the colony by express words or necessary intendment’. Though
there was quite a number of such Acts, the general threat to colonial powers
posed by Boothby J’s decisions was negated and the Act was, for a time, seen as
a ‘charter of colonial independence’.
Some specific controls remained. Section 5 of the Act confirmed that the
general grant of power to a representative colonial legislature extended to laws
‘respecting the constitution, powers, and procedure of such legislature’, but then
added a proviso:
provided that such laws [i.e. those respecting the constitution, powers and
procedure of the legislature] shall have been passed in such manner and
form as may from time to time be required by any Act of Parliament, letters
patent, order in council, or colonial law for the time being in force in the
said colony.
As noted in Part A: Addendum 2.6.2, many of the new Constitution Acts
required that laws affecting the constitution of the Assembly and/or Council
must be passed in a special ‘manner or form’. Some of those requirements
involved special majorities and some involved reservation of Bills for the
Queen’s assent. In the twentieth century, drafters who wanted to ‘entrench’
35
Bennett & Castles, n 18 above, p 408
17
CONSTITUTIONAL LAW
provisions in state Constitutions learned to fully exploit the possibilities of s 5,
but the nineteenth century restrictions were less entrenched than they looked—
the clauses imposing the need for the special majorities were not themselves
protected by the same special requirement (what we would now call ‘double
entrenchment’). By the time of the Conventions to draft the Commonwealth
Constitution, the Victorian Premier, Duncan Gillies, was able to report that:
although at one time there was a provision that amendments could only be
made by a clear majority of both branches of the legislature, this having been
once amended amendments now come under the ordinary law of legislation,
which merely requires a simple majority.36
(In fact, as we shall see in Chapter 15, the more effective source of entrenchment
of the anti-democratic Councils was the self-interest of their members and the
lack of a deadlock-resolution mechanism—a House invented to give veto rights
over legislation to the wealthy may not generally be expected to approve a Bill
reforming itself.)
As to the requirements for reservation, the Premier observed:
All [the Parliaments] have to do is to repeal that portion of the Constitution
Act which requires an alteration of that section to be reserved for
her Majesty’s assent. Once repeal that section, and you do away with
everything.
In London, the Colonial Office had been showing a more permissive attitude to the colonials; when Bills were reserved for the Queen’s assent, hardly
any objections were raised, even if the Bill was removing the requirement for
reservation in future cases. The Constitution Act 1890 (WA) had had a unique
provision in s 70, reserving 1 per cent of the revenue for the benefit of the
Aboriginal inhabitants of the colony. Although this clause had been included at
the insistence of the Imperial government, reflecting a belated ‘imperial concern
for the welfare of the indigenous inhabitants of the colony in the face of the
deprivations caused by white settlement’37, when the clause was repealed by the
Aborigines Act 1905 (WA), it received assent in London.
By the 1890s it seemed that the colonial parliaments could enact anything
they wanted to; at the Federation Conference in 1890 Sir Samuel Griffith (then
Premier of Queensland) claimed that the colonies ‘have been accustomed for
so long to self-government that we have become practically almost sovereign
states, a great deal more sovereign states, though not in name, than the separate
States of America’38. And then the colonies federated.
36 National Australasian Convention, Debates, 18th March 1891.
37 Peter Johnston, ‘Waiting For The Other Shoe To Fall: The Unresolved Issues in Yougarla v Western Australia’, conference paper at
<www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/mdocs/87_PeterJohnston.pdf>.
38 Australasian Federation Conference, Debates, 10th February 1890.
18
PART A
ADDENDUM 2
Chapter summary
Australia was colonised by the British (who brought English law with them) under the
European doctrine of colonisation. As applied in Australia it allowed the European settlers
to ignore the land rights and laws of the indigenous people. The colony of New South
Wales was founded as a convict settlement and its boundaries at one time included all
of Australia, except Western Australia. Tasmania, Victoria and Queensland were separated
from it and South Australia was independently founded on land excised from it. The
colonies evolved from, in most cases, a military government to self-government under
an English-style system of responsible government.
Masterclass
REVIEW QUESTIONS
1 (This one is a long-term project, not to be attempted in a week.) Read Banner’s
Possessing the Pacific and, assuming the British were going to colonise Australia
anyway, ask yourself whether the approach of regarding the continent as ‘practically
unoccupied, without settled inhabitants or settled law’ was the only possible one,
given settlement practices that occurred elsewhere. What other approaches to
indigenous land ownership and recognition of indigenous law could have been taken?
2 Find a copy of your state’s Constitution Act as it was originally enacted in the 1850s,
(or 1867 for Queensland or the two Acts of 1889 and 1899 for Western Australia), and
also find a copy of the Act or Acts in its, or their, latest consolidated form. Identify the
similarities and differences. Does the history above explain the amount of similarity?
FURTHER READING
Stuart Banner, Possessing the Pacific; land, settlers, and indigenous people from Australia to
Alaska (Harvard University Press, Cambridge, Massachusetts, 2007).
Alex Castles, An Australian Legal History (Law Book Co, Sydney, 1982).
Gerard Carney, The constitutional systems of the Australian states and territories
(Cambridge University Press, Port Melbourne, 2006).
RD Lumb, The Constitutions of the Australian States (University of Queensland Press,
St Lucia, 1991).
19