Highest Privilege
and
Bounden Duty
Highest Privilege
and
Bounden Duty
A Study of Western Australian
Parliamentary Elections 1829–1901
Isla Macphail
This book celebrates 100 years of the Electoral Act 1907
Western Australian Electoral Commission
Perth 2008
First published in 2008 by the Western Australian Electoral Commission
© Western Australian Electoral Commission
This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or
review, as permitted under the Copyright Act, no part may be reproduced by any process without written
permission. Enquiries should be made to the publisher.
Bibliography
ISBN 978 0 9804173 3 3
This book celebrates 100 years of the Electoral Act 1907.
Printed by State Law Publisher
Dedicated to
Imogen, John and Andrew
Politics are vulgar when they are not liberalised by history, and
history fades into mere literature when it loses sight of its relation to
practical politics.
Sir John Seeley
Political history is a special form of fiction.
David Wood
Highest Privilege and Bounden Duty
Contents
Acknowledgements ....................................................................................... xi
Abbreviations .............................................................................................xiii
Note on Quotations ..................................................................................... xv
Chapter 1: Templates .................................................................................... 1
Chapter 2: Set Up ........................................................................................ 33
Chapter 3: The S-Elections ......................................................................... 65
Chapter 4: Representative Government of Sorts ......................................... 82
Chapter 5: Dissatisfaction ......................................................................... 103
Chapter 6: Perseverance ............................................................................ 130
Chapter 7: Constitution Making ................................................................ 169
Chapter 8: Battle Royal ............................................................................. 193
Chapter 9: Responsible Government ........................................................ 221
Chapter 10: And Yet More Constitutional Tinkering… ........................... 246
Chapter 11: End Game .............................................................................. 266
Epilogue .................................................................................................... 299
Endnotes .................................................................................................... 301
Bibliography ............................................................................................. 365
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Acknowledgements
Pre-eminently I wish to express my gratitude to Associate Professor, Dr Jenny
Gregory, whose dedicated supervision of this history and unflagging support and
encouragement have helped keep it on track, and whose omniscience about
Westralian history and love of social history have undoubtedly helped the end
product become less dry and more authoritative than might otherwise have been its
fate.
I would also like to express my appreciation to professors Dr Harry Phillips, David
Black and Dr Brian de Garis for producing meticulous works of electoral and
constitutional research which have been gratefully acknowledged in many places in
the following pages; to Iain Brash for reading the sections on British electoral law
and making a number of invaluable suggestions; and to Dr Peter Johnston for
taking the time to explicate—expertly but very lucidly—several abstruse
constitutional issues.
I am beholden to almost the entire library community of Australia—but
particularly to Dr Lise Summers, Dr Joanna Sassoon and Jessica Morris at the State
Records Office of Western Australia; to the staff at the Battye and Alexander
libraries; and to the librarians at the Scholars Centre, Business Library and Law
Library at the University of Western Australia—especially UWA Reference
Librarian Ilze Jonikis whose magisterial knowledge of library databases is only
surpassed by her kindness. I am also indebted to the technical officers at the
Microfilm Collection at Edith Cowan University, Mt Lawley campus, who were
unfailingly helpful in unjamming spools for a student not even enrolled with them!
I would also like to express my appreciation to librarians Russell Hamilton, Inge
Hurst and Andrew Lewis at the Parliament of Western Australia; to Jasha Bow and
Janine Philbey at the South Australian State Electoral Office; and to Dorothy Shea
at the Tasmanian Supreme Court, for their assistance in sourcing difficult-to-obtain
statutes and primary materials.
My gratitude also goes to Susan Armstrong at the Western Australian Electoral
Commission for resolving seemingly intractable word-processing problems and
providing expert guidance on formatting and layout issues.
I wish to acknowledge the vision of a succession of Western Australian Electoral
Commissioners for commissioning (Dr Ken Evans) and supporting (Lyn Auld and
Warwick Gately) this project. Dr Evans’ desire for this history to be ‘scholarly’ and
therefore based on primary sources—which necessitated a serious commitment of
time and funding—will, it is hoped, pay dividends by encouraging other
researchers to follow up where a plethora of endnote references have left off…
Lastly, a special and heartfelt thank you to my wonderful and long-suffering
family—Jean, Greg, Imogen, John and Andrew—for their patience, love and
support. Consummatum est.
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xii
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Abbreviations
ADB
Australian Dictionary of Biography
BPP
Irish University Press Series of British Parliamentary Papers
CO
Colonial Office (England)
CSO
Colonial Secretary’s Office (Western Australia)
CSR
Colonial Secretary’s inward (received) correspondence
Hansard
Hansard’s Parliamentary Debates (Great Britain)
JP
Justice of the Peace
MLA
Member of the Legislative Assembly
MLC
Member of the Legislative Council
MP
Member of Parliament
SROWA
State Records Office of Western Australia
SRP
Swan River Papers
TLC
Trades and Labour Council
WAPD
Western Australia. Parliamentary Debates
WCTU
Woman’s Christian Temperance Union
xiii
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xiv
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Note on Quotations
Spelling in quotations has not been corrected or modernised, nor has punctuation or
capitalisation been homogenised. In addition, given the number of times it would
have appeared, ‘[sic]’ has not been inserted next to errors.
Accordingly, ‘aeconomy’, ‘explorating’, ‘encreasing’, ‘Pensylvania’, ‘conduction’,
‘shew’, ‘stopd’, ‘favor’d’, ‘in-as-much’ and so forth are not editing oversights;
furthermore, gloriously eccentric—and, indeed, absent—punctuation and
inconsistent capitalisation, have been left as found. Spacing before punctuation
marks has not been retained, however, as it is often difficult to determine
(particularly in handwritten sources) whether a space before a colon or comma is
deliberate or not.
xv
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xvi
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1
Templates
Upon the matter of regulating the suffrage depends the
destruction or salvation of States.
Montesquieu
Another New Britannia…
In one of the best-selling books of 1883, The Expansion of England, the Regius
Professor of Modern History at Cambridge University, Sir John Seeley,
sardonically observed of Britain’s Imperial policy: ‘We seem, as it were, to have
conquered and peopled half the world in a fit of absence of mind’.1 Although
Seeley’s deflating assessment was valid for a large swathe of the dominions, crown
colonies, protectorates and trading posts ruled by Great Britain, it did not apply to
Western Australia, which the British Government had founded—with great
deliberation and a barrage of correspondence and circulars—more than fifty years
previously to stave off possible annexation by other foreign powers.2 Indeed,
proposals to claim the remaining third of New Holland had been doing the rounds
of the Colonial Office for some time prior to 1829, but in the debt-riddled
aftermath of the Napoleonic Wars, colonies were regarded by many (even by
dissidents in the Colonial Office) as ‘wretched burdens’, so it was entirely
reasonable that the British Government baulked at the prohibitive cost of setting up
and maintaining yet another one.3 Notwithstanding this, the prospect that other
foreign nations—in particular Britain’s long-standing adversaries, the French—
might incur that expense, could be guaranteed to propel the British Government
into a state of decorous panic. With this in mind, Captain James Stirling and a
small group of entrepreneurial associates lobbied the Colonial Office and the
Admiralty in 1828—astutely talking up the imminent risk of French annexation
and offering to underwrite the expense of establishing the Swan River Colony in
exchange for massive land grants and a modest amount of military, governmental
and administrative support. After some predictable to-ing and fro-ing, His
Britannic Majesty’s Government acceded to the business plan; another one million
square miles of red were added to the globe; and ‘Swan River Mania’ proceeded to
give the Tory Party-splitting Catholic Emancipation Act of 1829 a run for its
money in the British press.
When the newly designated ‘Lieutenant-Governor’ Captain James Stirling and the
first tranche of Swan River Colony officials left Plymouth in February 1829 to set
up their New Britannia from scratch, the country they were leaving behind was
undergoing a period of unprecedented and often convulsive change. So much so,
that it has become an historical commonplace to label the decades following
Britain’s 1815 victory at Waterloo—‘The Age of Transition’, ‘The Age of Reform’
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or ‘The Age of Improvement’.4 (As opposed to the seemingly one-size-fits-all tag
for the rest of Europe—‘The Age of Revolution’.) Any historical review of
elections and electoral administration in Western Australia needs to be backlit by
an awareness of this profound change in the mother country because the original
political and institutional templates of the Swan River Colony were, as Sir John
Seeley observed in The Expansion of England, ‘all ultra-English’—a fact proudly
corroborated in the Report of the Committee of Correspondence on Western
Australia a few years later: ‘It is a purely British colony, where the free institutions
of England have been transplanted, and sedulously cultivated’.5
Clearly, however, the ‘free institutions’ of Old Blighty had to be pared back and
modified by the Colonial Office, and the fledgling Swan River civil administration,
to suit the quite basic needs of a small and isolated colonial settlement. Indeed, as a
rule of English law, new colonies only acquired so much English law as ‘the nature
of things will bear’, as the eminent legal authority Sir William Blackstone outlined
in his Commentaries on the Laws of England:
It hath been held 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…The artificial
refinements and distinctions incident to the property of a great and commercial
people…are neither necessary nor convenient for them, and therefore are not in force.6
The then Secretary of State for the Colonies, Lord Goderich, explicitly restated this
principle to Stirling in his Instructions and urged that:
Whatever may be the advantages, real or imaginary, of the complex Judicial Processes,
which prevail in the Courts in Westminster Hall it will be at once admitted that in Western
Australia Justice should be administered with the utmost possible degree of simplicity &
economy.7
That Stirling heeded these directions is confirmed in a rhapsodic piece of colonial
propaganda, The Colony of Western Australia: A Manual for Emigrants (1839), in
which the author, Nathaniel Ogle, has recorded that while the ‘state of the law is, as
yet, in exact accordance with the letter and spirit of the law of England, as far as it
is applicable to the circumstances of the country’, the
present advocate-general, Mr. Moore, curtailed the forms, permitted but few
technicalities, shortened declarations to the least limit, pruned of redundancies all leases,
mortgages, and conveyances, and reduced the expenses of obtaining justice and the
protection of the laws…8
The following chapter will discuss in detail how the Swan River Colony was
similarly granted a ‘Legislature…of a more simple…character’ than that back
home—i.e. small, unicameral and unelected—and a correspondingly bare-bones
civil service.9
While cut-down institutions may have been Swan River colonists’ lot, the fulldress British models were still regarded as the gold standard to which the colony
2
might one day aspire. And not just the colony. As one Imperial booster wrote
around this time: ‘it is Britain that now gives to the world the standard of all that is
excellent—it is to British manners and customs that all nations now conform
themselves’.10 Indeed, only a year after the Swan River Colony was founded,
petitioners on the other side of the continent were referring to ‘the well known
repugnance of Englishmen to settle under any form of government, which differs
essentially from the venerated constitution of their Native Country’.11 This mindset
did not change in a hurry. The celebrated British travel writer and soon-to-be
radical member of Parliament, Sir Charles Dilke, noted in 1867, after a grand tour
of Australia, the ‘singular mimicry of British forms and ceremonies in the colonies,
which is extended to the most trifling details of public life’—a tendency which had
been commented on in the Swan River Colony back in the 1840s by a new
emigrant who observed that when the locals ‘learnt that the Polka was thought
vulgar at Buckingham Palace, they had serious intentions of denying it admittance
into the ball-rooms of Perth’.12
With militantly British colonists reverencing British institutions and customs, it is
not surprising that any changes to the original models in Great Britain were
reported at considerable length in the various Western Australian and eastern
seaboard newspapers—and that such changes were deemed to be of interest and
potential relevance to the colonists.13 It also needs to be recalled that the Secretary
of State for the Colonies despatched successive British appointees—accustomed to
the latest practices and procedures dictated by Whitehall—to fill the top-level posts
in Western Australia’s Government, administration and legal system until selfgovernment was achieved in 1890. These appointees also doubled as emissaries of
change, enabling Western Australian civil servants to keep abreast of the latest
innovations in Great Britain and the Empire—including those reform measures the
colony itself was not sufficiently developed to implement.
Putting aside the Swan River Colony being a satellite community of British
subjects set up with ‘ultra-English institutions’; being regularly restocked with
British civil servants; and constantly receiving letters, books, newspapers and
journals crammed with news from ‘home’, it is also obvious that the general living
conditions, social mores and ‘temper of the times’ existing in the mother country at
the time of any colony’s foundation and early development, need to be factored
into a study of its subsequent history.14 Possibly the most extreme proponent of this
view is Louis Hartz who, in his classic text, The Founding of New Societies,
contended that colonial offshoots experienced ideological immobilisation at the
time of their fragmentation from the European ‘whole’.15 Such immobilisation,
Hartz argued, had a baleful effect on the offshoots because it constrained them to
live out a script determined at their diverse points of inception—whether feudal,
liberal or, as in Australia’s case, radical. ‘Where life is fixed at the point of origin’,
Hartz asserted, the offshoot ‘remains morally fixed’ and experiences a ‘major
problem of self-definition inherent in the process of fragmentation’.16 Only in the
past few decades of globalism (or ‘instant contiguity’ as he termed it in a later
work) did Hartz concede that the offshoots had begun to emerge from their
deterministic straight-jackets—but, he sombrely noted, ‘The exposure of the
fragment universe by the world impact of the present time, reversing the history of
the fragment, is bound to be traumatic’.17
3
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An intriguing paradox emerges in Hartz’s thesis when it is applied to Western
Australia. If fragmentation means an offshoot, ‘loses the stimulus toward change
that the whole provides’, but the fragment’s matrix is, in fact, charged by allpervasive change—is the fragment immobilised in the pursuit of change?18
Tellingly, one of Hartz’s co-writers in The Founding of New Societies, Richard
Rosecrance, maintained that in Australia’s case, her radical origins—‘formed out
of the crucible of British social ferment’—had not been sloughed off over the past
few decades:
The cultural fragment of British society implanted in Australian soil in the first half of the
nineteenth century has retained a remarkable distinctness and fixity. Its lineaments are
still discernible and its influence largely undiminished.19
It is interesting to note that Hartz’s twentieth-century ‘fragment’ thesis was
prefigured by some leading nineteenth-century colonial theorists. Lord Durham in
his 1839 report on the rebellious Canadian provinces, for example, observed in
language which foreshadows Hartz, that the French in Lower Canada had frozen at
the stage of their departure from the French mainland:
The institutions of France, during the period of the colonization of Canada, were, perhaps,
more than those of any other European nation, calculated to repress the intelligence and
freedom of the great mass of the people. These institutions followed the Canadian colonist
across the Atlantic.
…
They [the French colonists] clung to ancient prejudices, ancient customs and ancient
laws…
…
They remain an old and stationary society, in a new and progressive world. In all
essentials they are still French; but French in every respect dissimilar to those of France in
the present day. They resemble rather the French of the provinces under the old regime.20
Durham’s assessment was endorsed by the renowned British–Canadian historian
Goldwin Smith who, in 1899, dismissed the Canadian French of this period as ‘a
surviving segment of the French peasantry before the Revolution; kindly and good,
but simple-minded, uneducated, unprogressive, primitive’.21 In a similar fashion,
Sir John Seeley devoted a considerable segment of The Expansion of England to
discussing how colonies, ‘received at once a peculiar stamp from the circumstances
of the time’ of their founding—a discussion which echoed Sir Charles Dilke’s 1867
observations on the impact of differing ‘traditions of…first settlement’ on
colonies.22 Seeley, however, allowed for a greater degree of evolution in the
fragments than Hartz: ‘People cannot change their abodes, pass from an island…to
lonely sheep-walks in countries where aboriginal savage tribes still wander,
without changing their ideas and habits and ways of thinking’—a point which had
been made in the 1860s by the editor of the Perth Gazette who lamented that the
colony was:
subject to the approval or condemnation of men living sixteen or twenty thousand miles
away, nursed in an utterly different state of society, and bred in an atmosphere of usage
and precedents diametrically opposed to anything existing in a new country, where
everything has to be created and to be fashioned according to circumstances for which no
parallel exists in an old country.23
4
Tracing the history of elections and electoral administration in Western Australia
will involve an examination of ‘change’: the colony’s foundation during a period of
tumultuous change; initial changes to the start-up British templates; piecemeal, but
progressive, changes to the constitutional and electoral models implemented via
Imperial statutes at the accession of representative and responsible government;
and accelerated change in the closing decades of the nineteenth century as Western
Australians copied, albeit often in a highly selective manner, the more democratic
electoral and administrative models of the sister colonies, rather than the less
liberal models of the mother country. But to plot change, it is necessary first to
understand the features and workings of the original models. So, what was the
‘peculiar stamp’ of Great Britain in 1829, particularly in the areas of elections
and civil administration, as the country was undergoing its Age of
Transition/Reform/Improvement?
1829 Snapshot
Perhaps the most obvious point to make about Britain in 1829 is that it was in
desperate need of more reform and improvement to deal with the transition (in
reality, wholesale upheaval and dislocation) brought about by the Industrial and
Agrarian revolutions. Possibly the most reliable, and certainly most engaging, way
to tap into the conditions being left behind by the first wave of Swan River
colonists, is through scanning some of the literature, polemical writing and
published speeches from 1829. There are certainly plenty from which to choose; as
the historian Thomas Carlyle—himself a dismayingly prolific writer—commented
of this period:
Never since the beginning of Time was there, that we hear or read of, so intensely selfconscious a Society. Our whole relations to the Universe and to our fellow-man have
become an Inquiry…what Treatises on the Social Contract, on the Elective Franchise, the
Rights of Man, the Rights of Property, Codifications, Institutions, Constitutions, have we
not, for long years, groaned under!24
A useful starting-place in this mass of ‘self-sentience’ and ‘self-survey’, is a piece
of mawkish verse by Walden Fitz-John entitled, 1829, or The Present Times; A
Poem, Illustrative of the Unexampled Distresses in the Manufacturing Districts.25
Amid this poem’s overwrought heroic couplets and invocations to the ‘Spirit of
Poesy!’ (who, alas, did not respond) Fitz-John provides a confronting portrayal of
the ‘gloomy present’ in Britain:
Here Poverty, Affliction, Sorrow, reign,
Tearless Despair, inexplicable Pain!26
Like much literature of the time, the poem nostalgically refers to a ‘golden-vision’d
picture of the past’ (undoubtedly more ‘golden’ than it actually was) within the
writer’s own living memory:
When ev’ry village, ev’ry cottage smil’d,
And, with abundance, ev’ry board was pil’d;
When easy labour, e’en the poor man, gave
Life’s cheering comforts, and the means to save;
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—before cataloguing how this scene had ‘chang’d’:
…many noisy manufact’ries stand,
Like prison-houses glooming in the land,27
The landscape is polluted; Britain’s ‘free-born race’—‘Maim’d children’ and old
Waterloo heroes included—now ‘bow a slave before the shrine of trade’; and
‘WANT; ‘PENURY’ and ‘drooping MISERY’ are everywhere.28 Perhaps most
galling, the workers:
Ignobly toil, with ineffectual skill,
Life’s means to earn—and yet be wretched still!29
Although 1829 may be third-rate poetry, it is still a valuable evidentiary source: the
poem voices the experiences of the often mute—or muted—lower orders while
including an explicit warning to the upper orders to mend their ways:
BRITANNIA mourn! Put sackcloth on, and weep!
Bow down, that vengeance for thy sins may sleep!
Ere o’er thee waves Rebellion’s bloody sword,
And the full vial of Heaven’s wrath be pour’d!
And you, ye Guardians of the Public weal,
Haste, ere too late, your country’s woes to heal!30
Banker, radical reformer and founder of the Birmingham Political Union, Thomas
Attwood, in a fiery public Address in 1829 on the Distressed State of the Country,
corroborated Warden Fitz-John’s bleak depiction:
the distress is indeed dreadful. I have here a Manchester paper, which represents the
wages of labour, including parish relief, as amounting in some parts of Lancashire to only
two pence per day. I declare to you that when I first read this account my blood thrilled
with horror. Why this is not enough to maintain a dog!! And yet Government seem
disposed to suffer this state of things to go on, until hunger, and misery, and despair, shall
have destroyed, what is blasphemously called, the “surplus population!!”31
As his Address unfolded, Attwood extended Fitz-John’s critique beyond the dark
satanic mills of the ‘Manufacturing Districts’ to embrace the entire United
Kingdom: ‘to whatever part or interest of the country we turn our eyes, the same
wretched and dismal scene presents itself…a distressed and discontented
population are every where before our eyes’.32 Not surprisingly, Attwood
condemned the ‘House of Lords’ and ‘House of Little Lords’ for this ‘National
Distress’—and that ‘far greater distress which I fear is approaching’:
I do not believe that the rights and interests of the working classes, and of the inferior
classes of tradesmen, are justly and efficiently represented in Parliament.
…
The poor man can scarcely set his foot upon the earth without trenching upon a law.33
Although the immediate purpose of the meeting Attwood was addressing was to
frame a petition to Parliament requesting ‘relief’ for the national distress, Attwood
informed his audience that ultimately, ‘I am ready to co-operate…with heart and
6
hand in every just, legal, and constitutional exertion to obtain a radical reform in
their Commons House of Parliament’.34 Attwood’s fellow radical reformer, the
journalist William Cobbett, in a series of public lectures at the London Mechanics’
Institution in 1829, also denounced the ‘awful state of misery and distress’
prevailing in ‘this once great and flourishing’ country, and sheeted the blame home
to a Government which he scorned as, ‘that Lying-in Hospital of Folly’s legitimate
children…that receptacle of every strange stupidity…that Mendicity Society’.35
While such denunciations might be expected from the man who had reverently
escorted Tom Paine’s bones back from the United States, other publications from
1829 illustrate that non-radical public figures—and, indeed, some archconservatives—also feared that the United Kingdom was at breaking-point.
Thomas Carlyle, in his essay ‘Signs of the Times’, for example, observed that,
‘The time is sick and out of joint’ and highlighted, like his radical contemporaries,
one major cause of this ‘crisis’:
We war with rude Nature; and, by our resistless engines, come off always victorious, and
loaded with spoils…[but] wealth has more and more increased, and at the same time
gathered itself more and more into masses, strangely altering the old relations, and
increasing the distance between the rich and the poor…36
While deeply sceptical of much reformist agitation—Carlyle believed that the
‘Soul-politic’ was more in need of attention than the ‘Body-politic’—he still
acknowledged that ‘The deep, strong cry of all civilised nations,—a cry which,
every one now sees, must and will be answered, is: Give us a reform of
Government!’37
In striking contrast to the above texts is the poet laureate Robert Southey’s archTory apologia, Sir Thomas More: Or Colloquies on the Progress and Prospects of
Society (described by John Stuart Mill as ‘the gloomiest book ever written by a
cheerful man’).38 In the series of dialogues which comprise the Colloquies,
Southey’s reactionary mouthpieces—Montesinos and Sir Thomas More—glide
over the national distress (as they would), while drawing attention to the perils of
too much speculation ‘upon the possible improvement of society’:
Remember too how rapidly the plague of diseased opinions is communicated, and that if it
once gain head, it is as difficult to be stopd as a conflagration or a flood. The prevailing
opinions of this age go to the destruction of every thing which has hitherto been held
sacred. They tend to arm the poor against the rich; the many against the few…39
Or, as Sir Thomas More summed it up, with a palpable sense of disquietude, such
reformist speculation, ‘insults Heaven and disturbs the earth’.40
1829 was the year that Stephenson’s ‘Rocket’, amid much fanfare, won the
Rainhill time trials and established the supremacy of steam locomotion for rail
networks—thereby inaugurating the Age of Railways and ratcheting up the
Industrial Revolution. It was also the year that the Protestant ascendancy took a
body blow with the removal of the civil disabilities which had previously hobbled
Catholics. 1829 saw the founding of a raft of organisations agitating for
parliamentary reform, including Thomas Attwood’s hugely influential Birmingham
Political Union, as well as the passing of the Metropolitan Police Act, with its
7
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provision for highly visible uniformed officers. That the disaffected lower orders
had had enough, and the ruling class was coming to the sobering realisation that
suppression of the ‘swinish multitude’ would not guarantee its survival, becomes
increasingly manifest at this time.41 Clearly, Robert Southey’s panic in the
Colloquies was not misplaced—even if his advice was. In The Victorian Frame of
Mind, Walter Houghton has written that ‘From 1815 to 1850 the tension between
what Disraeli called “the Two Nations” [the rich and the poor] was almost
constantly at the breaking point’.42 However, it was in the three years following the
foundation of the Swan River Colony that Britain came the closest to ‘some great
and terrible convulsion’ since the Glorious Revolution of 1688.43
That reform was ‘on the point of changing her visage to that of Revolution’, as
Thomas Arnold put it in 1830, was an immediate threat, and everyone from
Attwood and his rowdy audience in Birmingham, to the reformer-historian Thomas
Babington Macaulay and the obstructionist patricians he pleaded with at
Westminster in the 1830s, knew that control of Parliament was the mechanism for
securing or stifling reform.44 E. L. Woodward in his comprehensive study of this
period, The Age of Reform, explains why Parliament was the main prize and
principal site of contention:
Cobbett and Hunt, with their supporters and imitators who outdid them in abuse and
indifference to public order, were right to insist that from the point of view of working
men, and of the country in general, the reform of parliament was the first condition of
reform in other spheres. Even if there had been facilities for carrying out a well-planned
administrative policy, the central authorities were unlikely to do anything unless
parliament called upon them to act, and parliament would remain unresponsive to public
opinion of a moderate kind as long as the house of commons did not properly represent
the people of England. In any case the past history and traditions of Englishmen
concentrated attention upon parliament, and a demand for the reform of the system of
election and representation took precedence over other necessary reforms.45 [Emphasis
added.]
It is to this make-or-break ‘reform of the system of election and representation’ that
this chapter will now turn—not only because the unreformed electoral system was
the model familiar to the first Swan River colonists, but also because the basic
features of the unreformed model remained intact in England despite the significant
improvements brought about by the First Reform Act of 1832. As Norman Gash
has commented, ‘there was scarcely a feature of the old unreformed system that
could not be found still in existence after 1832’; and, as many electoral historians
have noted, one of the most notorious abuses of the unreformed electoral system—
corruption—probably worsened after the passage of the Great Reform Act.46
Certainly, the Perth Gazette in its account of the 1832 British general election,
blithely reported that ‘bribery was carried on to a great extent’ and ‘serious’ rioting
had taken place.47 Indeed, it took more than another fifty years’ worth of statutes
variously extending the franchise, redistributing constituencies, reforming the
election petition process, introducing the secret ballot, and tackling corrupt and
illegal practices, before electoral law and praxis in Britain took on something like
its modern form.48 And while most electoral abuses were remedied in the eastern
colonies of Australia decades before they were in the mother country, Western
Australia, whether through Colonial Office dictate, or preference, or caution, often
tended to look to British electoral practice rather than eastwards.
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Reform of the Electoral System
In 1470 it was matter-of-factly stated by an English sergeant-at-law that ‘the
common law had been in existence since the creation of the world’.49 A somewhat
similar belief in the longevity of the elective franchise was shared by lateeighteenth and nineteenth-century parliamentary reformers—of whom the radical
Thomas Oldfield was one of the most zealous and widely published. In his
whopping three-volume An Entire and Complete History, Political and Personal,
of the Boroughs of Great Britain (which had the signal misfortune to come out in
1792, only a year before France’s Reign of Terror triggered a massive conservative
backlash against the burgeoning English parliamentary reform movement) Oldfield
reassured his readers that popular agitation to renovate the electoral system was far
from insurrectionary rabble-rousing.50 On the contrary, Oldfied insisted,
parliamentary reform was an honourable quest to return the Constitution to its
‘ancient purity’ and ‘pristine vigour’ by restoring to Britons (male Britons, that is)
the inalienable right to ‘free, equal, and entire representation of the people’ which
they had possessed since the days of pre-Roman Britain.51
Oldfield’s meticulous delving into the ‘ancient’ origins of the English franchise,
and his exhaustive analysis—by means of the ‘most incontestible, legal, and
historical evidence’—of the franchise’s consolidation under the Romans and
Saxons, before being ‘either discontinued, perverted, or corrupted…by the feudal
laws of the insidious Norman tyrant, and his successors’, is too Adam and Eve for
the purposes of this study.52 It is useful, however, to track forward to the state of
parliamentary representation in place by 1295—the date of the ‘Model’ or ‘first
regular parliament’.53 From this time, the regal summoning of representatives to the
House of Commons at Westminster took the form of writs of summons being
issued by the Clerk of the Crown in Chancery to county sheriffs (basically the
Crown appointed CEO of the counties) instructing them to organise the election of
two knights of the shire to represent the counties, and two burgesses and two
citizens to represent respectively the enfranchised towns and cities within the
county.54 The office of knight of the shire, representing as it did a huge county
electorate and, in particular, the agricultural interests of the landed aristocracy and
a generally ‘wealthy, propertied, and eminently respectable’ electorate, was
regarded as more prestigious than that of a burgess or citizen from the boroughs
and cities where the electors were often ‘less respectable, and possibly downright
scruffy’.55 Frank O’Gorman, along with other historians, has also underscored the
‘quite distinct’ electoral politics of the rural and urban constituencies—a situation
due in large part to their dissimilar franchise, or voting, entitlements.56
Initially, the county franchise extended to every free male inhabitant—a point
underscored by Oldfield’s fellow parliamentary reformer, Grenville Sharpe:
That every man, as such, if he was but an inhabitant of a county, did formerly vote in the
court of that county…at elections for the knights of the shire, seems probable by the
description of ‘very great outrageous and excessive number of people dwelling within the
same counties, &c. voting at such elections,’ as mentioned in the act of 10 Henry VI. cap.
2 which restrained the right of voting for knights to the freeholders of forty shillings per
ann. lands or tenements.57
This statutory contraction of the county franchise to forty-shilling freeholders took
place in 1430. The contraction, however, was not as restrictive as it sounds because
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‘freehold’, over time, was very loosely interpreted and encompassed leases,
annuities and mortgages based on freehold property.58 Even some posts and
property attached to the church and judiciary were held to bestow the county
franchise, with the result that owners of pews in churches, and parishioners tending
burial grounds, successfully claimed the county franchise, as did lecturers, school
masters, clerks of the peace and a chorister at Ely Cathedral.59 A House of
Commons election committee, however, drew the line at the bell-ringer, butler,
brewer, cook and gardener at Westminster Abbey.60 Despite the occasional legal
quibbles, the forty-shilling county franchise was reasonably straightforward and,
due to inflationary pressure over the centuries, a ‘very great outrageous and
excessive number of people’ had once again acquired the county franchise by the
beginning of the nineteenth century.
The borough, or town, franchise was a completely different case. Instead of a
single uniform franchise, borough charters permitted four basic categories of
entitlement—‘freeman’, ‘inhabitant householder’, ‘burgage’, and ‘corporation’—
all of which could be further differentiated by additional qualifying conditions
based on local custom. Thus, the burgage voters in the borough of Berealston also
had to pay ‘three-pence per annum’ as ‘acknowledgment to the lord’, while a huge
subset of inhabitant electors called ‘potwallopers’ had literally to ‘boil the pot’
during the election period in some boroughs.61 To further complicate the picture, a
number of boroughs permitted their electors to vote under two or even three
different franchise qualifications—to which must be added the confusion caused by
‘the many contradictory resolutions of the house of commons, respecting the right
of election’.62 Accordingly, Oldfield scornfully recounts the plight of the borough
of Boston which, with the sanction of the House of Commons, elected
representatives at successive elections under inhabitant, corporation and freeman
entitlements.63
So what constituted this hodge-podge of borough franchises that the first Swan
River colonists would have been so eye-rollingly familiar with? ‘Freeman’
boroughs granted the suffrage to those with the status of freemen—a status which
could be inherited, earned by completion of apprenticeships, purchased or acquired
through marrying the daughter or widow or a freeman—the latter category
reportedly leading to the odd sham or even coerced marriage in tight election
contests.64 Almost equally notorious, freeman status could also be granted by
corporations keen to bump up the number of compliant electors during polling.65
The Earl of Lonsdale, for instance, arranged for 1,400 ‘obedient’ miners to be
admitted as freemen to the city of Carlisle in a single day!66 The ‘inhabitant
householder’ franchise, as the name suggests, bestowed voting rights on resident
householders, and while most inhabitant boroughs insisted that these householders
also paid various church or poor rates termed ‘scot and lot’, about a quarter
allowed the vote to ‘potwallopers’ or ‘potwallers’—householders, or even lodgers,
who simply had ‘sole dominion over a room with a fireplace in it’ at which they
could boil a pot.67 As John Phillips has noted in Electoral Behavior in Unreformed
England, this effectively amounted to universal male suffrage within some
boroughs.68 ‘Burgage’ tenure was a right to vote vested in the ownership or rental
of certain houses—‘vote houses’—within the boroughs, although some ploughed
fields, barns, stables, pigeon lofts and hog-sties were also held to grant voting
rights.69 As an interesting aside, women who owned a burgage property could
10
transfer their voting rights to men—perhaps of their own political persuasion—
giving such women, as Edward Porritt has commented, the ‘most frequent, most
conspicuous, and most direct’ role in the unreformed electoral system.70 Women’s
only other overt participation in the electoral process at this time was the
occasional casting of a ‘proxy’ vote on behalf of an ‘absent male family head’.71
Finally, the ‘corporation’ franchise permitted voting rights only to the members of
the municipal corporation of boroughs: the mayor, bailiff, aldermen etc.
In the History of the Boroughs, Oldfield scours borough-by-borough through
Britain with the ruthlessness of a food critic writing for a Michelin restaurant guide
and indignantly exposes the ‘absurdity and folly of the present deranged system’ of
representation—
What constitutes a good vote in one borough, makes a bad one in another…In short, the
whole representative system is so intricate, inexplicable, contradictory, and ridiculous,
that we believe it would puzzle the whole tribe of quibblers in Westminster-hall to render
it more confused and unintelligible.72
As well as this bewildering array of fairly restrictive franchises, the representative
system was also fundamentally unrepresentative in that very few Britons held a
franchise of any description. The royal chartering, and thereby enfranchising, of
boroughs which had occurred intermittently over the preceding centuries had
frequently limited voting privileges to members of the municipal corporation—a
‘select junto’ as Oldfield dubbed them—rather than to the inhabitants at large, to
facilitate regal control of the borough.73 Subsequent renewing or remodelling of
charters by monarchs, and successive rulings of House of Commons election
petition committees (particularly after a 1729 statute toughened up the Last
Determinations Act of 1696 and mandated that henceforth the last House of
Commons’ determination regarding franchise entitlements ‘shall be final…any
usage to the contrary notwithstanding’) had also tended to whittle back the
numbers of electors in boroughs—again with the view of keeping electorates small
and manageable.74 And while challenges to last determinations were once again
permitted from 1788, after the passing of an amending statute, by this stage the
damage had been done and few affected boroughs bothered to recontest the issue.75
One of the main barriers to Britons obtaining the borough franchise, however, was
the 1707 Act of Union between England and Scotland which froze the number of
members either country could send to the British Parliament from that date.
Accordingly, cities which developed in the wake of the Industrial Revolution, but
after this date, such as Manchester, Birmingham, Leeds and Sheffield, could not
petition for representative status, and were, as Oldfield snorted, ‘as much excluded
from all share in the legislature of their country, as Pekin, or Constantinople’.76
(Oldfield should, however, have mentioned that forty-shilling freeholders who
lived in unrepresented towns and cities still possessed a county vote and, further,
that a number of industrial cities were indirectly represented by members who had
simply purchased a seat nearby.77) The obverse of this situation was that
depopulated rural towns—such as Old Sarum, Castle Rising, Midhurst and
Gatton—in which, as Edmund Burke once jeered, ‘streets can only be traced by the
colour of their corn, and whose only manufacture is in the members of Parliament’,
retained the right to return two parliamentary representatives because of their still
extant royal charters—even though their handful of remaining electors had to be
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hauled within the former town boundaries on polling day and a tent had to be
erected as a polling booth.78 To make matters worse, these ‘rotten boroughs’ were
often clumped in the ‘maritime counties of the east, south, and south-west’ of
England—an area already over-represented because they were the prosperous and
populated regions at the time of the Act of Union.79
That the town of Dunwich, which had almost completely disappeared into the
North Sea because of coastal erosion, could still return two MPs, while the
inhabitants of Manchester were unrepresented, led to the development of the facesaving doctrine of ‘virtual’ or ‘notional’ representation. Edmund Burke, the
doctrine’s main exponent, spelt it out in 1774 while standing for the (populous)
borough of Bristol:
Parliament is not a congress of ambassadors from different and hostile interests; which
interests each must maintain, as an agent and advocate, against other agents and
advocates; but parliament is a deliberative assembly of one nation, with one interest, that
of the whole; where, not local purposes, not local prejudices, ought to guide, but the
general good, resulting from the general reason of the whole. You choose a member
indeed; but when you have chosen him, he is not member of Bristol, but he is a member
of parliament.80
Or as Woodward archly summed it up: ‘the great manufacturing interests were
“virtually” represented in the boroughs controlled by rich manufacturers and
merchants, and a member for Old Sarum might be the representative of “millions in
India”’.81 (‘Virtual’ representation, as shall be seen later, would be frequently
invoked in colonial Western Australia to justify rural weighting of electorates—
electorates, which in turn, often had a city-based member.)
As outlandish as the doctrine of ‘virtual’ representation may be, equally specious
excuses were conjured up to gloss over another abuse in the British electoral
system—elective patronage, or the control of electors’ voting rights by the local
‘nobleman or opulent commoner’.82 Thus, patronage was defended as a system
which quarantined key parliamentarians from the ‘vagaries of electioneering’ (such
as Lord Palmerston who lost his seat of Cambridge in 1831 but was immediately
returned to Parliament via a nomination borough), and which enabled worthy
aristocrats of modest means to be handed a safe seat by wealthy patrons—the
nurseries of statesmen argument (and as Lord Chesterfield opined, it was ‘a
finishing part of a gentleman’s training to be in the House’).83 And notwithstanding
that the Qualifications Act of 1710 had introduced extremely high property
qualifications for most members of Parliament (£600 annual income derived from
land for a county candidate, and half of that amount for borough and city
candidates) which guaranteed that any prospective candidate was reasonably well
off, election costs could be prohibitive and deterred most but the seriously rich
from contesting a seat without the backing of a wealthy patron.84
In the History of the Boroughs, Oldfield provides a finely calibrated assessment of
the ‘open’ or ‘closed’ status of the British boroughs. At one end are the ‘open’,
‘independent’ or ‘immaculate’ boroughs such as Norwich, one of the largest cities
in England at the time, which was ‘entirely free and independent in its
representation, and is only influenced in the election of its members, by integrity,
virtue, and eminent abilities’.85 Such boroughs, however, as Oldfield lamented,
12
were in the minority. Next along the scale came boroughs like Yarmouth which
were open but possibly vulnerable: ‘This large town is independent in its political
situation; for, altho’ the families of Townshend of Honingham, and Walpole, have
some interest here, yet it is not in such a degree as to be termed an influence’.86
Then there were boroughs like Evesham which were subject to ‘partial influence’
in that one of its two parliamentary seats was under patronage, but the other was
‘open’.87 Finally, came the ‘pocket’, ‘proprietary’ or ‘nomination’ boroughs—or
‘delinquent’, ‘debauched’ or ‘obsequious’ boroughs, as the reformers were more
likely to term them—such as Higham-Ferrers, which was ‘under the sole influence,
and at the entire disposal of Earl Fitzwilliam; on which account a contest for the
representation never happens’.88 At this point it should be noted that although some
degree of patronage may have been the norm for the boroughs, it was present but
less overt in the counties. Basically, the county electorates were so populous
(Yorkshire, the largest, had around 23,000 electors at the beginning of the
nineteenth century) that as H. J. Hanham has observed, electors ‘could not be
bribed and they could not be bullied’.89 In fact, given the size of counties and the
number of electors they contained, few candidates were keen to take on the hideous
expense of contesting them and county representation was generally determined at
a meeting of ‘the leading peers and country gentlemen’ a year of so before an
election was due, with some counties conceding the nomination of one of the two
representatives to the shire’s leading aristocratic family as an ‘hereditary right’.90
While patronage may have been a pervasive element in borough politics, it was not
necessarily a consistent or stable one. Oldfield often refers to the fluctuating status
of patronage, and Joseph Grego outlines in his History of Parliamentary Elections
in the Old Days the vigorous ‘traffic of constituencies’—stretching back to 1571—
in which boroughs were treated as ‘merchantable property’ and a blue-chip
investment by well-remunerated borough-mongers.91 Of particular appeal to
potential patrons were rotten boroughs such as Old Sarum and Gatton with their
handful of electors, burgage-tenure boroughs such as Bramber with thirty-six vote
houses, or small corporation boroughs.92 With limited electors, the control of the
borough was more secure—especially as patrons took care to see that their votehouses were ‘tenanted by such only as will obey…[their] recommendation’ and
they often had sway over the election of corporation officials.93 As a consequence,
only approximately 10 per cent of burgage and corporation boroughs even went to
a contested election in the latter decades of the eighteenth century and, in those that
did, if the patron’s wishes were flouted the results could be grim.94 Oldfield, for
example, recounts the fate of the burgage-tenure electors of Wendover who voted
against their patron’s instructions only to find themselves evicted and ‘obliged to
take refuge in huts and tents’.95
It was not only the nobs, however, who engaged in borough-mongering.
Occasionally the electors of open boroughs decided that a patron was worth
acquiring if he (and very rarely she) provided enough financial sweeteners, and
accordingly offered themselves to the highest bidder. The electors of one such
‘venal’ borough, New Shoreham, enterprisingly formed a ‘Christian Club’ as a
front for their negotiations—although they were promptly disfranchised by an
incensed House of Commons when their antics were exposed by the returning
officer.96 Similarly, O’Gorman has noted that during the eighteenth century many
corporations with impoverished coffers ‘voluntarily’ opted to put themselves
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‘under the patronage of rich, local families anxious to control the representation’.97
Indeed, the sale or leasing of boroughs on the open market was rife until 1809
when Curwen’s Act made seat selling illegal, but covert seat selling continued well
after the First Reform Act of 1832, and the nomination of members to Parliament
continued apace.98 Modern historians have estimated the percentage of seats for
which a patron had the power to ‘command the return’ at the time of the foundation
of the Swan River Colony at between 30 and 40 per cent—estimates which do not
include seats that were decisively influenced by a patron.99 It is no surprise, then, to
read of radical reformer, Major Cartwright, fuming around this time of ‘members
corruptly or tyrannically imposed on the Commons in gross violation of the law,
and to the palpable subversion of the constitution’.100
When there was only one patron for a borough, candidates could sometimes drawl
as Sir George Savile did in 1780, ‘I have been elected in Lord Rockingham’s
dining-room’.101 However, when there were two patrons (unless they were prepared
to return one member apiece, which was quite a common practice to avoid the
expense of a contested election and which, as Gash has pointed out, had the
advantage of providing a form of proportional representation in the constituency),
there were some truly gladiatorial contests as the patrons battled it out to ensure
that their protégés were elected.102 In 1829 Southey adverted to this practice in his
Colloquies on the Progress and Prospects of Society—
our nobles enjoy all the advantages of their rank in this age, without any of the dangers
which formerly environed it. Their rivalry with each other expends itself at elections,
where they bleed in purse instead of person…103
Before sketching a picture of the ‘long scene of bribery, trickery, and illegality,
brute-force, and disorder’ which often convulsed contested seats, it is worth noting
that not that many seats were actually contested.104 As stated above, county
representation was usually fixed at the county meeting well before a general
election was called, with the result, as one historian has recorded, that ‘of the forty
English counties, voters in Hertfordshire alone went to the polls more than three
times during the eight general elections following 1761’—a level of inactivity
which explains why another historian has referred to the ‘prolonged electoral
coma’ of the counties.105 And as for the boroughs, although they saw more contests
than the counties—particularly in the more populous freeman and inhabitant
boroughs—they, too, were ‘plagued’ by uncontested elections.106 Indeed, a small
number of electorates did not see a single election contest for periods anywhere
between 130 years (Newton-le-Willows, Bere Alston and West Looe: 1701–1831)
and 160 years (Thirsk and Castle Rising: 1673–1832), with the borough of St
Germans not facing a poll from 1660 until it was abolished in 1832.107 Numerous
other boroughs avoided this dubious league table by submitting to the occasional
contest. However, it needs to be remembered that a considerable number of
constituencies were vigorously canvassed by candidates ‘up to, yet short of, a poll’,
and considering that electors were asked outright in a canvass which candidates
they intended to vote for, it has been quite reasonably argued that ‘participation in
an election contested in this fashion was almost indistinguishable from
participation in a contest resulting in a poll’.108
One of the principal reasons for an uncontested election was to avoid the expense
of a poll, which is understandable given that tales of corruption in contested British
14
elections are legion—patrons and candidates clearly undeterred by the stringent
common law and statutory prohibitions against it, nor electors by the bribery oath
they were often compelled to take before voting.109 As Hanham has observed of the
generally small borough constituencies: ‘Majorities in elections were small. Every
vote counted’—and until the passing of the Corrupt and Illegal Practices
Prevention Act 1883 there was no cap on the money a candidate could pour into a
campaign to secure votes.110 It should also be borne in mind that from the passing
of the Septennial Act in 1716 until its amendment in 1911, British parliamentary
elections could take place up to seven years apart—so that when an election did
occur, the voters made the most of it.111 Oldfield, for instance, recounts with relish
the tale of the Northampton election of 1768 which effectively bankrupted two of
the three earls who contested it.112 Grego refers to this as the ‘Spendthrift Election’
but, writing a century later than Oldfield, could top it by recounting the 1807
contest for Westminster—the ‘Austerlitz of Electioneering’—in which the
candidates collectively spent more than half a million pounds.113 (Sums of money
which contextualise Hanham’s observation that for some small boroughs,
particularly in Ireland, ‘elections became the most important single source of
economic prosperity’.114)
So what was money spent on in contested seats? Basically there were two
categories of costs underwritten by patrons/candidates. The first included the legal
or official costs. These spanned not only the candidate’s personal expenses in
employing a manager(s), scrutineers, check clerks and messengers; hiring
committee rooms; and paying for various advertising and printing costs and so
forth, but also the customary and, in part, statutory requirement that candidates
contesting a seat share equally all the costs and charges related to the conduct of
the poll—a requirement which remained in force in Britain until 1918.115 Thus,
candidates would have to stump up their share of all the electoral officials’ fees, as
well as the returning officer’s administrative charges, and the cost of erecting the
hustings and polling booths and providing voting tables. Then there were the
illegal costs of contesting an electorate…
For a start, outright buying of votes was prevalent, and because a pair of
representatives was elected for almost all constituencies, an elector had two votes
to cast and could be either a ‘straight’ voter (using both votes for one patron’s or
party’s candidates); a ‘splitter’ (giving one vote to either side); or a ‘plumper’
(voting for one candidate only and discarding the other vote).116 Clearly, securing
both votes would be expensive and the sums outlaid could amount to an
astronomical £150 per elector.117 Getting the large number of non-resident or ‘outvoters’ back into many constituencies was also prohibitively expensive for
candidates, as electors usually expected to be indemnified for their time away from
business in addition to being paid for their travel expenses and votes.118 Oldfield
and Grego both give accounts of candidates chartering boats to bring non-resident
freemen back to boroughs—only to have a rival candidate bribe the ship’s captain
to change course and sail the ‘election cargo’ to Norway, Holland or Belgium until
polling had closed.119 Generally, candidates and electors got away with this
outright corruption because, as the revered abolitionist (but vote-buying
parliamentarian) William Wilberforce confessed: ‘The letter of the law was not
broken, because the money was not paid until the last day on which election
petitions could be presented’.120 Another statute-evading bribery ploy was to grant
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‘loans’ to constituents—with repayment never exacted. ‘Treating’ in the form of
election feasting, open bar at the local pubs, and munificent dining in the lord’s
mansion, was also an integral part of electoral bribery notwithstanding legislation
expressly forbidding it. The extent to which electors took upscale treating for
granted is possibly best captured in an amusing incident from the 1768 ‘Spendthrift
Election’: Lord Halifax feted his would-be electors with his matured port, and
when they had swilled down the last and he was obliged to hand around his
‘choicest claret’, the ‘rabble’ rose en masse and departed vowing ‘they would
never vote for a man who gave them sour port’.121 (Not surprisingly, contemporary
artists dealing with elections spoofed the widespread gluttony involved in
treating—William Hogarth, for example, in his ‘Election Series’ painted the town
of ‘Guzzledown’, while Charles Dickens in Pickwick Papers reported the goingson in the borough of ‘Eatanswill’.) Huge sums were also spent by candidates on
hiring locals at ridiculously inflated rates as ‘canvassers, runners, clerks, scouts,
messengers, watchers’, or simply as rent-a-crowd, although after an 1827 statute
declared that the votes of anyone working for a candidate would be disqualified,
the helpers tended to be electors’ children or other relations.122 In addition,
numerous ‘worthless articles’ of local produce were frequently purchased by
candidates ‘to enlist suffrages’—again at ‘extravagant rates’.123 Finally, as a
number of historians have discussed, ‘nursing’ of electorates between elections was
also often expected and this ‘annual maintenance expenditure’ could amount to
hundreds of pounds a year.124
While not in the same league of expense, an uncontested seat could still prove
prohibitively expensive for a candidate. First, a seat was often subjected to an
extensive canvass, and sometimes multiple canvasses, usually involving
considerable treating, before a candidate could decide with confidence that an
election campaign was unnecessary. And even once the decision was made not to
campaign for the seat, the electors still expected some treating around election time
as an expression of the candidates’ good will—and failure to do so could see
enterprising electors sourcing a third candidate to force a contest.
As surreal as the above account of electoral corruption may be, it pales when
compared to stories of electoral intimidation and violence from this period. Until
the passage of the [Secret] Ballot Act in 1872, voting was ‘open’, i.e. electors stood
in front of the returning officer—the electoral officer authorised by statute to
conduct the election (the sheriff/under sheriff in the counties, and usually a local
dignitary such as the mayor or bailiff in the boroughs)—and publicly signified the
candidates for whom they were casting their votes. Voters did this collectively on
election day after the reading of the election writ and the recitation of the various
Acts against bribery and corruption by the returning officer, and the formal
nomination of, and election addresses by, the candidates. If the number of
candidates matched the number of vacancies, the electors voted them in by
acclamation; if there were more candidates than vacant positions, the candidates
with the greatest show of hands—or, less frequently, loudest shouts of support—
could technically be declared the winners on the spot by the returning officer.125
However, as the show of hands was often an ‘unmeaning farce’, particularly in
populous constituencies, with many electors raising both their hands and nonvoters among the crowd—including women and children—raising their hand(s) as
well, unsuccessful candidates invariably requested a head-count or ‘poll’.126 If this
16
occurred, the returning officer was obliged by statute to declare a poll and did so—
often immediately but, legally, up to a day or two later, with polling extending
anywhere up to fifteen days, excluding the Sabbath, in the counties (and the cities
of London and Westminster) and up to eight days, excluding the Sabbath, in the
boroughs and smaller cities, until the First Reform Act limited polling to two
days.127
With an actual poll, electors had to vote individually before the returning officer
and/or poll clerks, who administered a variable number of oaths (allegiance,
supremacy, abjuration, anti-transubstantiation, bribery and so forth) and recorded
electors’ names and addresses, sometimes their occupations and, most importantly,
for whom they voted.128 The polling venue was always set up, as directed by
statute, in ‘some open or publick place’.129 In the boroughs, this was generally on
the hustings—the raised platform usually erected in the market square from which
the candidates addressed electors during the election period—although polling
occasionally took place in the town hall, guildhall or a church; in the counties and
some large boroughs, polling booths were usually erected in front of the
hustings.130 Candidates and their entourage of attorneys, scrutineers, check clerks
and messengers, as well as any other member of the local community who chose to
be present, could witness the voter’s choice—which was then often published in
newspapers or pollbooks.131 Unquestionably, with such wholesale public scrutiny,
electors could be subjected to inordinate pressure to vote for certain candidates—
especially if they had pocketed bribes for promising to do so. Daily running tallies
were posted by the returning officer—conveniently alerting campaign managers to
the need to get out the vote or prevent the opposition candidates’ supporters from
voting. Landlords were not unknown to threaten wavering electors with ejection,
while employers had the power of dismissal.132 And anyone with means could
threaten ‘exclusive dealing’, i.e. only buying goods or services from compliant
elector-providers. In Catholic Ireland, the situation was significantly worse. In an
article called ‘Priests at the Hustings: Ecclesiastical Electioneering in NineteenthCentury Ireland’, K. T. Hoppen writes that for every landlord brandishing an
ejectment there was a priest threatening an excommunication!133 This ‘spiritual
intimidation’ apparently reached such a pitch that a priest at one election
thundered: ‘My curse as a priest, the curse of God, the curse of the Church and
people be upon you if you vote for Colonel Higgins’.134
Worse than intimidation however, was outright violence, and Oldfield, Grego and
scores of other historians have recycled tales of violent and lawless electoral
behaviour from the unreformed (and post-reform) period. As several modern
commentators have observed, there was an elaborately ritualised and almost
theatrical cast to election canvassing and campaigns—processional entries of
candidates into towns preceded by marching bands; colourful cockades, streamers
and banners to indicate party preference; bell-ringing, cannon-firing, fireworks and
bonfires during the campaign; and triumphal chairings of the victors at the
conclusion of the contest (and burlesque mock-chairings of paupers, lunatics and
animals)—which stemmed from Britain’s popular culture of festivals and
carnivals.135 And as Gash has aptly commented, such electoral ‘pageantry’
furnished, ‘One of the most potent stimulants to disorder’ because it ‘provided both
the assemblages and provocations for a rough and tumble battle’.136 As a result,
there were a number of spectacularly violent British elections—perhaps the most
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notorious being the successive electoral battles for the county of Middlesex in the
late 1760s when windows were smashed and carriages wrecked; putrid cats were
thrown at rivals; opposition supporters were viciously bashed and, occasionally,
falsely imprisoned; and innocent bystanders were killed by candidates’ ‘chairmen’
or hired thugs until—notwithstanding barricades—the ‘whole town [Brentford,
where county polling was taking place] was…a scene of blood’.137 Gash, however,
has concentrated his examples of electoral violence on the period immediately after
the First Reform Act, and tells of Middlesex-like contests in which candidates and
supporters were pelted with stones, dead animals, rotten eggs and animal
excrement, while electors were mobbed, stripped naked and kicked unconscious as
they approached polling booths.138 In fact, Gash relates, sometimes it wasn’t until
the Riot Act had been read and troops called in that the candidates’ burly
hirelings—recruited from local gypsies, pugilists and bargemen—would cease their
well-paid brutality.139 Ironically, often the most fortunate electors were those who
had been abducted by rival candidates and kept in a state of custody or ‘cooping’
until the close of polling.140
To make matters worse (sadly, yes, it was possible) it should also be noted that the
returning officer—the statutory ‘umpire between the parties’—was often far from
impartial.141 In the county constituencies the returning officer was the sheriff who
was appointed by the Crown—which clearly had a vested interest in the return of
certain candidates, and accordingly ensured ‘the existence of returning officers
favourable to themselves’, while in the boroughs the returning officer was usually
the mayor or bailiff who was occasionally an appointee of one of the local election
patrons.142 Thus, Oldfield makes comments such as: ‘one of the returning officers
was an avowed agent of Mr. Cator [the sitting member], and did, by his direction,
corrupt the electors to vote for him’ or ‘The lord of the manor is Thomas Peter
Legh, Esq. of Lyme, in this county, who has the absolute control of these electors,
as well as the appointment of the returning officer’.143 Indeed, the ‘usual
allegations’ about the corruption and partiality of some returning officers—and the
‘Artifices’ they used ‘to disqualify Legal Votes, and validate False Votes’ as part
of their statutory duty to rule on disputed franchise qualifications during polling—
had something of the ho-hum status of a police verbal today.144
Compounding the problem, each constituency was fairly autonomous in its conduct
of elections—in much the same way that Government departments at Whitehall at
the time were independent and uncoordinated. Thus, returning officers had some
discretion as to when they could call the election after receiving the precept from
the sheriff (and an early tip-off to a favoured candidate would give that candidate
an edge), and they determined where the election would take place and the layout
of the polling venue, such as one returning officer who constructed
the poll-booth in such a manner as to allow a commodious access, through the mayor’s
parlour, to the voters in the interest of Halifax and Rogers, while the agents and friends of
the petitioner were obliged to ascend by a ladder…145
They also set the hours of polling (including another dodgy returning officer who
‘proceeded all night by candlelight’); and they could shut down daily polling early
notwithstanding electors queuing to vote, as the radical candidate William Cobbett
found to his detriment during an 1826 contest.146 Returning officers could also
18
influence the duration of the entire poll by ruling on the number and type of oaths
to be administered to electors (and protracting a poll could force a less well-off
candidate to abandon the contest).147 Similarly, they could disqualify or admit
Catholics, who made up a large proportion of the population in some boroughs but
who were officially banned from voting until 1829, by insisting on or omitting the
transubstantiation and supremacy oaths.148 Until candidates were freed from
funding election costs and charges in 1918, unscrupulous returning officers could
also milk candidates under the somewhat haphazard system of user-pays fees and
charges laid out in various statutes or extorted by ‘usage and custom’.149 Not
surprisingly, blatant breaches of probity by the returning officer made up the third
most common category of election petitions, and the erring returning officer could
receive formal censure from the House of Commons and even a stint in Newgate
prison, while the election itself could be declared void, or ‘elected’ candidates
unseated.150
Notwithstanding the reported venality and violence of the unreformed electoral
scene, revisionist historians in the past few decades have convincingly argued that
the scale of electoral malfeasance has often been overstated, and that electors were
not as passive and manipulated as Oldfield and his radical colleagues despairingly
believed—particularly in inhabitant and freeman boroughs with their larger quota
of electors.151 Indeed, historians such as J. R. Vincent, John Phillips and Frank
O’Gorman, have attempted to steer electoral historiography away from the
‘entirely qualitative’ piling up of ‘anecdotes and examples’—generally ‘morbidly
preoccupied with the unsavoury aspects of “pre-reform” electoral politics’—which,
they maintain, has led to ‘neglect, contempt, and ignorance’ regarding the electoral
history of the period.152 Instead, these historians have systematically combed
through and conducted longitudinal and cross-sectional analyses of a mass of
quantitative evidence including pollbooks, canvassing lists, land tax registers, rate
books, militia rolls, probate records and census returns, and argue that electors
were savvier and more hard-nosed than nineteenth-century radicals gave them
credit for, using elections as an opportunity to extort as much as possible from
moneyed patrons including, ‘the provision of public and municipal buildings for
the borough which it otherwise might have gone without: town halls, law courts,
exchanges, schools, hospitals, libraries, gaols’.153
Phillips has also argued strongly that the influence of patronage in the unreformed
electorate has been over-emphasised and that most patrons ‘exerted only an
informal and possibly challengeable “influence” over a Commons seat’ which was
‘not completely irreconcilable with considerable electoral freedom of choice’.154
This stance is supported by O’Gorman who continues that even if electors
habitually re-elected their local gentry, elections still provided, within a context of
‘widespread political involvement’ (which also included the unenfranchised):
a periodic opportunity for a public check and report on the assiduousness of the local elite
in fulfilling its responsibilities, affording an opportunity for the neglected to complain and
for the grateful to mark their appreciation.155
Furthermore, these historians contend that electors were not necessarily dishonest
in accepting bribes in exchange for votes. O’Gorman, for example, has claimed
that ‘Voters might not vote for their interest without such attention, but it was very
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doubtful if they would vote against it whatever sum was offered’—a conclusion
reached by Vincent who has wryly observed, after his painstaking trawl through
countless pollbooks, that while money was thrown around to bribe electors,
consistent (even if sometimes inexplicable) socio-economic and occupational
voting preference patterns registered ‘from year to year and from one place to
another’—‘Tory butchers…locked in combat with Radical grocers’—suggest that
electors would have voted as they did anyway.156
Even factoring in the more positive slant of revisionist historians, the unreformed
electoral system was a disgrace; and by 1829 it was obvious that the unrepresented
middle and lower orders would not tolerate the situation much longer. The death of
King George IV in June 1830 was followed, in keeping with constitutional law, by
a general election which, rather instructively, took place against the backdrop of
the 1830 July Revolution in France which had despatched an absolutist and
franchise-restricting monarch.157 As Victorian writer Edward Lytton Bulwer
commented of these events in the following year: ‘The question of Reform came
on, and, to the astonishment of the nation itself, it was hailed at once by the
national heart’.158 Certainly, one of the key issues of the 1830 election was
electoral reform; and while the Conservative Wellington Government was returned
to office, on the opening day of Parliament Wellington torpedoed his somewhat
tenuous support in the legislature by declaring his implacable opposition to ‘any
measure’ of electoral reform: a speech fittingly described by one modern historian
as ‘a public declaration of ministerial suicide’.159 A fortnight later Wellington
resigned after a hostile vote was registered against his Government.
Wellington’s replacement was the long-standing advocate of parliamentary reform
and Whig, Earl Grey, who led a coalition Ministry of Whigs and ‘“liberal Tory”
defectors’.160 Fortunately, as Grego has remarked, Grey’s accession to the prime
ministership was also matched by ‘the advent to the throne of a more
constitutionally-minded sovereign’ in William IV.161 Upon taking office, Grey
immediately pledged his Ministry to electoral reform and commissioned a
‘Committee of Four’—reassuringly comprising three lords and a ‘Sir’—which was
tasked with drafting a Reform Bill for England and Wales, to correct:
divers Abuses that have long prevailed in the Choice of Members to serve in the
Commons House of Parliament, to deprive many inconsiderable Places of the Right of
returning Members, to grant such Privilege to large, populous, and wealthy Towns, to
increase the Number of Knights of the Shire, to extend the Elective Franchise to many of
His Majesty’s Subjects who have not heretofore enjoyed the same, and to diminish the
Expense of Elections...162
Perhaps the most noteworthy of the Bill’s provisions, however, was the proposal to
add a uniform £10 householder borough franchise to the already existing rag-bag of
‘ancient-right’ franchises—thereby enfranchising much of the (male) middle class
in England and Wales.163
The opposition of the conservative Tories, particularly in the House of Lords, to
this proposed legislation is legendary. Adding to the drama, as Valerie Cromwell
has written, was the fact that ‘The debates on the proposed Reform Bill took place
in an atmosphere of riot and threatened revolution’.164 (And whenever things
quietened down, as one radical confessed years later, agitators raised a ‘cry of
20
alarm…to keep the House of Lords and the aristocracy generally in what was
termed a state of wholesome terror’.165) It is worthwhile reading the impassioned
speeches of the famous Whig historian, reformer and House of Commons member,
Thomas Babington Macaulay, who during this period repeatedly importuned
intransigent members of both Houses to pass the Bill. Macaulay spoke from
personal experience when he denounced the ‘monstrous disproportions’ of the
English representative system, as his own seat of Calne (which comprised eighteen
voters in 1831) was once reviled at Westminster as ‘the most degraded and
rottenest, stinkingest, skulkingest of boroughs’.166 Macaulay drew to the
Conservative members’ attention that reform was unavoidable because the
electoral system no longer commanded respect and was, therefore, untenable. But,
Macaulay insisted, if members cooperated in the reform process, particularly by
harnessing the support of the propertied and respectable middle orders who
themselves were ‘most interested in preserving tranquillity’, the basic hallmarks of
the British governmental system could remain intact—therefore, ‘Reform, that you
may preserve’.167 The alternative could not be contemplated:
If this bill should be rejected, I pray to God that none of those who concur in rejecting it
may ever remember their votes with unavailing remorse, amidst the wreck of laws, the
confusion of ranks, the spoliation of property, and the dissolution of social order.168
Despite Macaulay’s end-of-days rhetoric, the Tories scuppered the First Reform
Bill at the committee stage. This precipitated a tumultuous election which saw the
Whigs returned with a massive ‘the bill, the whole bill and nothing but the bill’
mandate.
It was not, however, a mandate which the House of Lords acknowledged; and
when the Lords knocked back the Second Reform Bill, rioting and mob-rule broke
out in several major cities, and many would have shared the fears of a Mrs Bussell
who had recently written to her sons in the Swan River Colony that ‘the present
ministry are…turning the country upside down. If we do not have a revolution I
shall wonder’.169 But, as French historians still observe with bewilderment, this
didn’t happen.170 Nor did it happen when the Lords again defeated the Whigs on an
amendment to the Third Reform Bill, and Grey resigned after William IV refused
to create fifty or sixty peers of a ‘reforming persuasion’ to break the impasse.171
The ensuing disturbances of the ‘Days of May’ rattled everyone, however; and
when the Duke of Wellington was unable to cobble together an alternative
Ministry—which William IV stipulated would still be required to pass ‘extensive
Reform’—the King accepted that the game was up and promised to create the peers
as a condition for Grey resuming the prime ministership.172 The creation did not
take place: confronted with the ‘alternative’, as Sir Herbert Taylor, the King’s
private secretary, drily put it, ‘of the…Bill with an addition to the peerage or
the…Bill without it’, the Lords capitulated and passed the Third Reform Bill on
4 June 1832.173
Curiously, despite the massive conservative hostility to the Great Reform Act, it
was a very modest piece of legislation. While fifty-six rotten boroughs were
completely disfranchised, and thirty semi-rotten boroughs lost one member (with
130 of the 143 freed-up seats being redistributed to unrepresented towns and underrepresented counties in England and Wales, and the remaining thirteen going to
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Scotland and Ireland), Macaulay’s infamous seat of Calne, still had only 191
electors after the passage of the Act.174 Similarly, while the £10 householder
franchise may have enfranchised roughly half of the middle class, this only resulted
in one in five adult males in England and Wales holding the vote.175 (Separate
Reform Acts for Scotland and Ireland, which significantly increased these
countries’ total electorates, came into law in July and August 1832.176) Indeed, as
numerous commentators have observed, the British landed aristocracy still called
the shots in Parliament and elsewhere for at least another generation, and the
middle classes put their stamp on the period less through absolute numbers in the
House of Commons than through their influence on legislation passed within the
Chamber.
As for the Bill’s other stated objective of reducing the expense of elections, this
was principally effected through the requirement that electors had to be formally
registered before they could vote which enabled the polling period to be cut back to
two days. Prior to 1832 electoral rolls had not existed in England and Wales (the
single legislative attempt to introduce registers for the counties in 1788 had been
repealed within a year on the grounds that it was prohibitively expensive) and
electoral officials relied on a variety of methods to establish a would-be elector’s
eligibility including checking burgage papers, consulting freemen rolls and copies
of the land tax assessment, and administering the ‘freeholders’ oath.177 Not only
was this a tedious and time-consuming business in itself, but solicitors working for
the candidates would do their best to knock out the opposing candidates’ supporters
by interrogating them about their qualifications, demanding the administering of
additional oaths, and submitting objections to the returning officer for arbitration.
In a populous electorate all of this would take time, and explains why polling
pre-1832 often stretched to the full eight to fifteen days then permitted by law, and
why costs for candidates could be so crippling. Of course, post-1832 the process of
getting an elector’s name on to the roll in England and Wales was also unwieldy
and protracted, as solicitors working for the rival parties continued to submit
wholesale objections to the registration of non-supporters—which then had to be
resolved by a barrister at the revision court—but at least it was all sorted out in
advance, allowing for a shortened poll. In fact, registration—in combination with
an increase of polling places under the 1832 Act—was so successful in speeding up
the taking of the poll, that polling in the boroughs was further reduced to one day
in 1835.178
While the shortening of the poll may have saved candidates expense, getting—and
staying—on the roll could prove an ordeal for electors in constituencies preyed on
by unscrupulous solicitors.179 This was particularly the case for poorer workingclass electors who often could not afford to take time off from work to defend their
enrolment at the revision court (assuming that they could afford the one-shilling
registration fee in the first place and the subsequent annual renewal fee if they were
borough voters). Furthermore, going to all the trouble and expense of registering
was often pointless as many working-class electors were prevented from voting
because elections were usually held on weekdays and polling closed down, at the
latest, by 4 p.m. when they were still at work. (It was not until 1884 that moral
panic about the lower orders misbehaving ‘after dark’ at elections was sufficiently
allayed to allow the extension of polling until 8 p.m.180) While registration hassles
and expense may have been a deterrent to enrolment, they did not, however, impact
22
on the working-class electorate as adversely as the residency provisions in the First
Reform Act which disfranchised about 80,000 non-resident ancient-right voters
(out of a pre-reform borough electorate estimated at 188,000) of whom more than
half have been classified as working class.181 Moreover, as most of the ancientright franchises were no longer capable of being passed on to heirs, the proportion
of ancient-right electors fell further as time passed: in Preston, for example, 88 per
cent of males could vote in 1832, but this number had plunged to 11.6 per cent by
1851.182 As Charles Seymour has observed, the lower orders weren’t thrilled at the
prospect of having their own numbers slashed to make room for ‘as many tyrants
as there are shopkeepers’, and he quotes the following tirade from an 1832 issue of
the Poor Man’s Guardian to indicate the strength of working-class antipathy to the
new dispensation:
The bill is the most illiberal, the most tyrannical, the most abominable, the most infamous,
the most hellish measure that ever could or can be proposed…I therefore conjure you to
prepare your coffins, if you have the means. You will be starved to death by thousands if
this bill passes, and thrown on the dunghill, or on the ground, naked like dogs…183
Indeed, of working-class disaffection after the passing of the Bill, Cromwell has
aptly commented: ‘Profound disillusionment with the new house was to be one of
the spurs to the organisation of the Chartist movement’.184 And with Chartism’s
‘Six Points’ some seriously radical electoral changes were proposed: universal (i.e.
‘manhood’) suffrage, annually elected parliaments, voting by secret ballot, equal
electoral districts, the abolition of property qualifications for MPs and payment of
MPs.
Unlike the Chartists, the sponsors of the Great Reform Act were extremely
cautious in their objectives. Earl Grey admitted to having ‘a predilection for old
institutions’, and he claimed that the Bill’s ‘scope and description…[should] satisfy
all reasonable demands, and remove at once, and for ever, all rational grounds for
complaint from the minds of the intelligent and independent portion of the
community’—while his colleague, and one of the Bill’s co-drafters, Lord John
Russell, was nicknamed ‘Finality Jack’ for his subsequent assurances that the
Whigs were ‘peculiarly committed to finality’.185 The Tories agreed with the Whigs
on this point at least, with Sir Robert Peel declaring in his 1834 election Address to
the electors of Tamworth that the Act was ‘a final and irrevocable settlement of a
great constitutional question’.186 But they were all protesting too much. As many of
the Great Reform Act’s detractors had suspected, the legislation was the thin end of
the wedge; and while the Act may not have been followed by the ‘perpetual vortex
of agitation’ feared by the Tories, it was nevertheless, as modern historians concur,
‘an opening salvo, not a concluding salute’.187
Intricate, messy, lawless and inequitable as the unreformed—and reformed—
electoral systems may have been, they were the models the Swan River colonists,
whether as voters or spectators, were familiar with. In addition, some members of
the Swan River élite were related to members of Parliament and county sheriffs in
Britain and had undoubtedly been entertained by first-hand accounts of English
electioneering and election conduct—including under the new regime of the First
Reform Act.188 Governor Stirling’s father-in-law, James Mangles, for example, was
the member for Guildford from 1831–1837 and therefore spanned the unreformed
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and reformed parliaments—as did Lieutenant Bunbury’s father, Sir Henry
Bunbury, who sat in the Commons from 1830–1833 for West Suffolk along with
colonist Edward Barrett Lennard’s father, Sir Thomas Barrett Lennard, the member
for Essex.189 In the following chapters it will be seen how the Swan River
colonists, very much products of their time, petitioned for elected representation in
the year the First Reform Act was passed; and how the colony’s first election—or
rather, ‘selection’—occurred in 1867, the year that the Second Reform Act
enfranchised the British urban proletariat amid overblown rhetoric that Britain was
‘Leaping in the Dark’ and ‘Shooting Niagara’.190 In examining Western Australia’s
first elections it will be interesting to track what the colonists did with the British
electoral models that were basically the ‘default setting’ for the colony. Before
doing this, however, it is useful to survey one other British model shipped out to
the Swan River Colony—the civil service—as a striking feature of Western
Australian elections, unlike those back home, is that they so rapidly became tamed
by the bureaucracy.
The Not-So-Civil Service
In 1829 the civil service of Great (and Greater) Britain was in vastly better shape
than the unreformed electoral system—principally because a considerable amount
of administrative reform during the preceding fifty years had eradicated the worst
‘Gothic extravagances’.191 Most administrative reform in this period stemmed from
the recommendations proposed in a series of reports issued by two highly critical
commissions into the civil service (appointed in 1780 and 1785 as part of a crusade
inspired by Edmund Burke for ‘Economical Reformation of the Civil and other
Establishments’) and the findings of a follow-up House of Commons select
committee on finance appointed in 1797.192 Among the range of reforms put in
place were effective mechanisms to audit and control departmental expenditure
(existing auditing practices—via the impressive-sounding ‘Auditors of Imprest’—
had been implemented two centuries earlier); the abolition of most sinecures and
posts subcontracted to lesser-paid ‘deputies’ or ‘assistants’; the banning of placeselling; the introduction of salaries and pensions across the service to replace the
miscellany of fees, emoluments, gifts, and agencies which had hitherto supported
civil servants (and the assumption by Parliament of the responsibility for these
salaries in 1816); and the belated outlawing in 1817 of Latin and Roman numerals
in civil service documentation and accounts.193
One thing which did not change in this spate of reform, however, was patronage or
‘recruitment by private recommendation’.194 So inveterate and unabashed was
placement by patronage, that a well-remunerated civil-service position, the
‘Patronage Secretary’—usually filled by the Government’s Chief Whip—existed
within the premier department, Treasury, to coordinate and police the filling of any
vacancies and new positions for the departments under its control.195 (Patronage
only applied to new positions or vacancies, because British civil service
appointments, unlike those in America, effectively carried permanent tenure.) The
bestowal of patronage, like so much in Britain’s stratified society, operated in a
hierarchical fashion. The Minister heading up a department generally had absolute
discretion as to the disposal of the plum posts and remaining sinecures that came
up within his department. Once the top posts were bedded down, middle-ranking
officials could often dispense positions under their immediate supervision—as Sir
24
John Craig has commented: ‘it could never have been convenient to disregard
entirely the man responsible for getting work done’.196 Finally, it was established
protocol to permit compliant members of Parliament (i.e. those who voted with the
Government) to nominate constituents for lesser civil service positions—the ‘rankand-file appointments in the provinces’.197 However, the abuse of this quid pro quo
gentlemen’s agreement by MPs caused the Prime Minister, the Duke of
Wellington, to splutter forth in 1829:
Certain members claim a right to dispose of everything that falls vacant within the town
or county which they represent; and this is so much a matter of right that they now claim
the patronage whether they support upon every occasion, or now and then, or when not
required, or entirely oppose; and in fact the only question about local patronage is whether
it shall be given to the disposal of one gentleman or another.198
Rewarding political supporters and affiliates was often the major consideration in
the bestowal of civil service posts and promotions—a fact famously sent up by
Gilbert and Sullivan’s HMS Pinafore, in which the Rt. Hon. Sir Joseph Porter
KCB, the First Lord of the Admiralty, sings:
I always voted at my party’s call,
And I never thought of thinking for myself at all.
I thought so little, they rewarded me
By making me the Ruler of the Queen’s Navee.199
In particular, members of Parliament (or would-be members) often dangled the
prospect of civil service posts in return for votes. As O’Gorman has outlined:
[they] had to ensure that their constituents enjoyed a reasonable share in the distribution
of local offices. These included government posts and contracts; legal offices and
promotions; army commissions, discharges, and transfers; local places, favours, and
requests; appointments to postmasterships, tide waiterships, and positions in the Excise
among many others.200
While promising an ‘Office, Place, or Employment’ in exchange for votes or other
assistance to ‘procure the Return of any Person to serve in Parliament’ was held by
an 1809 statute to disqualify the offending candidate, and led to loss of the position
and a prohibitive £500 fine for the recipient, the Act was largely ignored or
sidestepped, and the Patronage Secretary continued to be besieged for favours for
loyal constituents for many decades.201
In addition to this political patronage, E. N. Gladden has observed that British
patronage also operated ‘as a personal perquisite’ with British patrons frequently
bestowing positions on themselves and members of their immediate family, as well
as on relations, friends and various hangers-on and connections.202 Edward Lytton
Bulwer when discussing this ‘aristocratic nepotism’ in 1833 wrote somewhat
scathingly of Prime Minister Earl Grey’s family:
what son—what brother—what nephew—what cousin—what remote and unconjectured
relative in the Genesis of the Greys has not fastened his limpet to the rock of the national
expenditure?203
Robert Newsom also supports Gladden’s view of British patronage, affirming that
it was, ‘in many instances patronage of a remarkably charitable kind’.204 A fairly
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typical example of such patronage from the 1830s is provided by the author
Anthony Trollope in his An Autobiography:
a letter reached me, offering me a clerkship in the General Post Office, and I accepted it.
Among my mother’s dearest friends she reckoned Mrs. Freeling, the wife of Clayton
Freeling, whose father, Sir Francis Freeling, then ruled the Post Office. She had heard of
my desolate position, and had begged from her father-in-law the offer of a berth in his
own office.205
An Autobiography reveals that this appointment was indeed a merciful intercession:
the Trollope family were living in self-imposed exile on the Continent to escape
hostile creditors, with the mother—the family’s bread-winner—nursing three dying
family members while churning out genteel novels to pay the bills.
This ‘personal’ quality to British patronage distinguished it from the exercise of
patronage in America at roughly the same time, where it was used almost
exclusively as ‘a currency suitable for meeting obligations due to party supporters
for their election efforts’.206 Indeed, in 1829, newly elected President Andrew
Jackson formally ratified the well-established ‘spoils of office’ system in America,
when in his first Annual Message to Congress he announced his policy of rotation
in office.207 In a nutshell, Jackson justified the ‘healthful’ replacement of incumbent
federal civil service office holders with supporters of the winning political party as
a reform measure because:
There are, perhaps, few men who can for any great length of time enjoy office and power
without being more or less under the influence of feelings unfavorable to the faithful
discharge of their public duties...Corruption in some and in others a perversion of correct
feelings and principles divert government from its legitimate ends and make it an engine
for the support of the few at the expense of the many. The duties of all public officers are,
or at least admit of being made, so plain and simple that men of intelligence may readily
qualify themselves for their performance; and I can not but believe that more is lost by the
long continuance of men in office than is generally to be gained by their experience.208
Although the right to dispense patronage was regarded as a perquisite, it was often
a troublesome and time-consuming one—with prospective or disappointed
claimants frequently harassing the patron. In 1830 Sir James Graham, the First
Lord of the Admiralty, renounced the ‘difficult and odious task of distributing
patronage’ and approved a series of appointments based on ‘merit’ and
‘efficiency’.209 He promptly received a stinging rebuke from the Patronage
Secretary who claimed that Graham’s actions had rendered him a laughing stock.210
A less contentious way of dealing with the ‘curse of patronage’—at least from the
point of view of the Patronage Secretary—was demonstrated by Prime Minister Sir
Robert Peel.211 As Woodward has outlined:
Peel was a quick-tempered man, ‘peppery’, in Gladstone’s words, but his own
justification for this coldness of manner was that he had assumed it in Ireland out of selfdefence against claimants for patronage. ‘I had early experience in that country of the
danger of saying a civil word.’212
So what sort of officers did patronage obtain for the civil service? Well, with very
few exceptions, men. But not just any men. Gentlemen. And traditionally, for the
top posts, aristocratic gentlemen.213 In his Colloquies on the Progress and
26
Prospects of Society, Southey has the following rather quaint exchange take place
on the subject of civil service recruitment in 1829:
Sir Thomas More: The younger sons of noble houses were formerly disposed of in
comfortable abbeys, if they did not take the course of rapine in the bloodier ages of
Europe, or of maritime adventure when the age of discovery arrived. They now form a
class of men whose claims cannot be overlooked by a government which is carried on
wholly by influence, and has no other means of maintaining itself. They are not indeed in
this country, either physically or intellectually, a degenerate class…Luxury has not
effeminated them, nor is it considered a point of honour for men of quality to hold
learning in contempt…
Montesinos: …literary accomplishments are now considered as hardly less essential for
persons of a certain rank in life, than it was for them formerly to be skilled in arms. They
show themselves therefore, generally speaking, as diligent and as ambitious in their
youthful studies, as those of their competitors who have nothing but their attainments and
themselves to trust to for their success in the world.
Sir Thomas More: …notwithstanding this, there is a great inconvenience in multiplying a
class of men, who, independently of personal qualifications or merits, have on the score of
their influential connections pretensions for employ and promotion in the public service,
which being, as they are, valid to a certain extent, are not easily withstood when pushed
beyond that extent, as they so frequently must be. The injurious effect of this has been felt
abroad and at home, in your army and navy, in your colonies, your diplomacy…214
This extract is fascinating not only because it features perhaps one of the first
recorded references to the ‘Peter Principle’ (promoting an officer to the level of his
incompetence), but also because it highlights the unchallenged claim the
aristocracy had to positions in the civil service; that aristocrats, by and large, were
satisfactory appointees; and, finally, that they had ‘competitors’ in the form of the
equally ‘diligent’ and ‘ambitious’ members of the middle reaches of society.
Two years later John Stuart Mill, in his ‘Spirit of the Age’ series of articles, also
acknowledged the monopoly that aristocrats had traditionally held on top
Government or administrative posts—because ‘all worldly power has belonged to
one particular class, the wealthy class’—and also, quite simply, because:
until a comparatively recent period, none but the wealthy, and even, I might say, the
hereditarily wealthy, had it in their power to acquire the intelligence, the knowledge, and
the habits, which are necessary to qualify a man, in any tolerable degree, for managing the
affairs of his country.215
Mill believed, however, that by the 1830s this situation was under challenge.
Unlike his Tory counterpart, Southey, Mill was a philosophical radical who argued
that the aristocratic class had ‘actually retrograded in capacity for government’—
presiding over ‘clumsy and slovenly’ administrations which ‘swarmed with
abuses’.216 Meanwhile, the industrious middle orders (so ably represented by the
indefatigable Mills, father and son), through its increasing financial clout and
Utilitarian fetishising of education and self-improvement (fostered by earnest
middle-class organisations such as the Society for the Diffusion of Useful
Knowledge and a smorgasbord of ‘Bibliotheques, Glyptotheques, Technotheques’
and so forth) had armed itself to take on ‘self-government’.217 As Mill bluntly spelt
it out: ‘The superior capacity of the higher ranks for the exercise of worldly power
is now a broken spell’.218
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At a rowdy public meeting at the London Mechanics Institution in 1829, the radical
reformer William Cobbett also mocked aristocratic administrations: ‘The draggings
about, which we have experienced from these clever and high-born men, are
enough to induce us to try, just to try, what some low-paid ones would do for
us’.219 Cobbett then proceeded to denounce the ‘civil list, with its very long tail, the
army, the navy, and the ordnance’ for costing the British taxpayer twenty-four
million pounds a year.220 Despite the exorbitant running costs, the annual budget of
the British civil service had been operating since 1821 under a stringent costcutting regime which had reduced operating expenses, and aimed to reduce staff, to
1797 levels.221 Indeed, many modern commentators draw attention to the
minuscule size of the British civil service in this period—Admiralty, for example,
in the throes of the Napoleonic Wars only numbered fifty-five clerical officers!222
This regime of retrenchment and frugality was, in fact, the principal reason why
Lieutenant-Governor Stirling was, as shall be seen later, severely rebuked by
Whitehall for unilaterally quadrupling the Swan River Colony’s civil establishment
in 1829.
Notwithstanding the extensive administrative reform which had taken place during
the previous half century, there were, as Cobbett indignantly pointed out, numerous
remaining abuses in the civil service. Apart from patronage blocking the
appointment of any but well-connected gentlemen, there still existed lucrative
sinecures and hereditary offices (some dating from the Middle Ages) such as the
Remembrancer of First Fruits and the Grand Falconer of England.223 Many civil
service positions of this time were, as Trollope confessed, the ‘abode of idleness, in
which the very nature of true work was unknown’.224 Departmental hours of
opening were disparate, with some offices only opening for a couple of hours a
day, and paid civil service holidays varied from forty-four to fifty-six days a
year.225 Principally, however, the civil service was derided for its red tape. Charles
Dickens in his satirical novel Little Dorrit (set in 1827) mercilessly sent-up the
civil service through the arch-administrative ‘Circumlocution Office’, whose
mission statement was ‘HOW NOT TO DO IT’, in which every action was
preceded by: ‘half a score of boards, half a bushel of minutes, several sacks of
official memoranda, and a family-vault full of ungrammatical correspondence’, and
where the public—the ‘natural enemy’—was given a fistful of forms as a prelude
to being:
shirked, put off, brow-beaten, sneered at, handed over by this highly-connected young or
old gentleman, to that highly-connected young or old gentleman, and dodged back
again...226
But then, perhaps some pity should be shown to the civil servants: their work in the
days before computers, printers, faxes and email consisted, in the main, of wall-towall copying of correspondence.
This fairly alarming picture of the British civil service relates, however, to those
very few areas of public activity that were funded by the Government and
administered by centralised departments. In fact, many areas of public concern—
including health, education, public works, sanitation, poor relief and prisons—were
run in the counties on a district or parish-by-parish basis (via 200 chartered
boroughs and 15,535 parishes) under the stewardship, and often funded by the
28
private subscriptions, of members of the local nobility and gentry.227 And even if
this decentralised set-up meant unpaid administrative work and considerable outof-pocket expenses, this was still exactly how the local ruling-class wanted it
because local government was reverently (and self-interestedly) viewed by them as
the ‘palladium of English liberties’.228 A direct result of local landowners
preferring the management of local affairs remaining under their own jurisdiction,
without central Government intervention and control, was, as Arthur McMartin has
pointed out, that they had long used their numbers in the House of Commons to
thwart ‘the creation of new departments, or the expansion of old ones’, because it
risked ‘increasing the King’s influence over Parliament by adding to the number of
“place men”’.229 While the French historian Hippolyte Taine found the quasi-feudal
governance of Britain by ‘benevolent’ upper-class amateurs in the nineteenth
century enchanteur, administrative efficiency, uniformity and accountability were
the casualties.230
Not unexpectedly, very few Britons shared Taine’s enthusiasm—perhaps most
notably in the 1830s, the Utilitarian reformer, Jeremy Bentham, who urged the
immediate creation of thirteen centralised ministries—including one for
‘Elections’.231 And just as electoral reform was effected within a couple of years of
the Swan River Colony being settled, so, too, the 1830s saw the beginning of a
move towards greater centralised control in England through the establishment of
new departments, commissions, inspectorates and boards.232 But, as systematic
coloniser, Edward Gibbon Wakefield, outlined in his colonial treatises, while
Britain might have Government and administration ‘spread…all over the country’,
in the colonies a different model prevailed.233 The challenges involved in new
settlements with often sparse and dispersed populations, Wakefield reasoned,
called for ‘Ample government’ that could best be delivered from a ‘central kind’ of
Government—and this centralised model did, in fact, prevail in the Swan River
Colony right from the beginning.234 But, again, this anticipates: the above overview
of the British civil service, circa 1829, indicates the broad contours of civil
administration—and sense of public unease at its defects—which would have been
familiar to Lieutenant-Governor Stirling and his small cadre of bureaucrats as they
sailed off to establish a miniaturised civil administration at Swan River.
The Colonial Office
Before turning to Stirling and his officials setting up their own civil establishment
at Perth, it is worth spending a final few pages looking at one particular British
civil service department—the Colonial Office in Downing Street. This Government
department was, after all, responsible—via Colonial Office appointed governors
and viceroys—for the remote-control governance of the sprawling British Empire.
The Colonial Office was typical in many ways of the civil service departments
discussed above. It was understaffed (less than twenty officers in the 1820s) and it
undertook an enormous amount of the ‘mechanical’ or ‘routine’ administrivia
condemned by the influential 1853 Northcote-Trevelyan report into the civil
service—as a former Permanent Under-Secretary, Sir James Stephen, revealed of
his time at the Colonial Office:
We should have studious and speculative men, standing aloof from mere despatch-writing
and projecting schemes of comprehensive and remote good. But…I do not know my
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Highest Privilege and Bounden Duty
alphabet better than I know that this is not the spirit of British Government and that the
ambition of every Secretary of State and his operations will be bounded by the great
ultimate object of getting off the mails.235
Highest Privilege and Bounden Duty
And as to getting off the mails, the Colonial Office dealt with 12,450 letters in
1824—many ‘documents of bulk immeasurable’—yet the ‘generally leisurely and
gentlemanly atmosphere in which business was conducted’ typified the service at
this time (much to the despair of the Swan River settlers patiently awaiting
responses to various memorials and remonstrances).236 Also in keeping with the
times, the Colonial Office was staffed, before the advent of open competitive
exams, by a fair quota of well-connected duffers, as Sir James Stephen’s
reminiscences disclose:
the majority of the members of the Colonial Department in my time, possessed only in a
low degree, and some of them in a degree almost incredibly low, of either the talents or
the habits of men of business, or the industry, the zeal, or the knowledge required for the
effective performance of their appropriate functions. [They were appointed] to gratify the
political, the domestic, or the personal feelings of their patrons; that is of successive
Secretaries of State.237
While it may seem a bit rich that Stephen deplored appointments based on
patronage when his own family did so well out of the system, it was, nevertheless,
a standing joke at the time that the Colonial Office with its conveniently far-flung
posts, ‘was largely used to find places for the troublesome members of the families
of the governing class in Great Britain’.238 (Indeed, in Vanity Fair, William
Thackeray has an English lord dispose of his lover’s husband by organising a
gubernatorial appointment for him.)
Sir James Stephen himself, however, was no duffer. On the contrary, he was
regarded as ‘one of the largest intellects of his day and generation’.239 Partly for
this reason, and partly because there was a revolving-door of secretaries of state at
the Colonial Office—twelve between 1827 and 1846, of whom many displayed
‘merely affable mediocrity’—it has been claimed that the Colonial Office, unlike
almost all the other British civil service departments, was effectively ruled by the
bureaucratic Permanent Under-Secretary (or ‘Mr Over Secretary’)—of whom there
were only five between 1825 and 1892—rather than the ministerial Secretary of
State (‘Mr Mother Country’):
No Foreign Secretary would have tolerated advice from his highest official...But in the
Colonial Office, where, on the contrary, the shaping of policy devolved on the permanent
head from an early date, three successive under-secretaries, each appointed from outside
after relevant Government experience, fully justified their choice. Sir James
Stephen…“literally ruled the colonial empire” from 1836 to 1847; Herman Merivale, who
followed him from 1848 to 1859…was a man of great distinction and energy; his
successor, Sir Frederic Rogers…likewise “governed” the colonies till 1871. Indeed,
political ministers in the Colonial Office, though three-quarters of the papers were
formally submitted to them, contributed nothing but their initials till Joseph
Chamberlain’s appointment in 1893.240
In 1850 the colonial reformer Sir William Molesworth angrily denounced Colonial
Office administration in the British Parliament as ‘government by the misinformed
with responsibility to the ignorant’.241 But according to colonial lobbyist Charles
30
Buller, the Colonial Office in fact ‘governed’ the British Empire almost
independently of Parliament:
Parliament…exercises…hardly the slightest efficient control over the administration or
the making of laws for the Colonies. In nine cases out of ten, it merely registers the edicts
of the colonial office in Downing Street…It is there that the supremacy of the Mothercountry really resides...242
Buller was scarcely exaggerating. As R. M. Hartwell has commented of colonial
legislation:
‘Only
constitutional
bills
came
regularly
before
Parliament…regulations like the Ripon land regulations, which involved a major
[Empire-wide] change in policy, had no direct parliamentary sanction’.243
While the Colonial Office may have ruled almost independently of Westminster, it
did not rule free of Whitehall. J. C. Beaglehole has described the ‘absurd
duplication’ involved with colonial legislation:
In practice acts were sent to the secretary of state, and by him referred to counsel
employed to report upon them—in order of time, Selwyn, Baldwyn and James Stephen,
jun. They were then, with counsel’s reports, forwarded to the Privy Council, which
referred them to the Committee for Trade; the legal clerk to the committee examined
them, representations pro and con might be heard, and they were returned to the Privy
Council with the committee’s recommendations; the Privy Council made a formal order
and apprized the secretary of state; the secretary of state informed the governor…244
(And this was in the good old days before colonial legislation also had to run the
gauntlet of the Colonial Land and Emigration Commission which was set up in
1840.) But it wasn’t only legislation that was subjected to this time-consuming
roundabout: even run-of-the-mill colonial business often had to be passed on to
other Government departments for input or authorisation; and, as J. J. Eddy has
noted, ‘Treasury participation was a sine qua non of almost every colonial
arrangement’ and ‘no pettifogging detail was too small for Treasury scrutiny’.245 In
Western Australia’s foundation year, for example, Governor Darling’s request for
iron bedsteads for his troops was passed to the ‘Commander-in-Chief, the Colonial
Office, the Treasury, the Commissariat, the Ordnance, and finally back to the
Treasury and Colonial Office again’.246
Undoubtedly, Thomas Carlyle summed up the feelings of many colonists when he
pilloried the Colonial Office in his Latter Day Pamphlets:
Every colony, every agent for a matter colonial, has his tragic tale to tell you of his sad
experiences in the Colonial Office; what blind obstructions, fatal indolences, pedantries,
stupidities, on the right and on the left, he had to do battle with; what a world-wide jungle
of redtape, inhabited by doleful creatures, deaf or nearly so to human reason or entreaty,
he had entered on…247
While the Colonial Office bore the brunt of the colonists’ ire for the interminable
delays, the Office itself was actually one of the more professionally run in the
country, with the meticulous Stephen instituting proper procedures for the receipt,
minuting and following up of correspondence.248 Indeed, there are numerous
memoranda in which an exasperated Stephen ‘repeatedly’ rebuked the equally
short-staffed Treasury or Board of Trade for sitting on colonial correspondence for
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Highest Privilege and Bounden Duty
over twelve months and, as Pamela Statham-Drew has pointed out, a disapproving
Stephen urged, ‘the necessity of greater promptitude and punctuality’ in Governor
Stirling’s ‘financial intelligence’.249
In the 1820s, the Secretary of State for the Colonies, Lord Bathurst, reportedly
dismissed new governors with the following farewell, ‘Joy be with you and let us
hear as little of you as possible’.250 On paper at least, colonial governors possessed
considerable power and autonomy—they were, after all, vested with the authority
to govern by Acts of the British Parliament and their Commissions and Royal
Instructions—and in practical terms, as Malcom Uren has stated, ‘With the parent
Government on the other side of the world—a year to ask a question and get an
answer’, a Governor had a lot of leeway until a despatch caught up with him.251 In
reality, however, the Colonial Office tended to regard the colonial Governor as ‘a
mere agent of Whitehall’ with ‘no independent authority’—liable to be recalled or
moved on to another post on the gubernatorial circuit at the Secretary of State’s
discretion.252 And as Stirling’s Instructions made clear, a Governor was always: ‘to
obey such Orders and Instructions as shall from time to time be given to You under
Our Signet and Sign Manual or by Our Order in Our Privy Council or by Us
through one of Our Principal Secretaries of State’.253
Various historians have outlined that this repressive system of ‘centralized
supervision and control’ by Downing Street was the Imperial Government’s
response to the loss of the American colonies—whose ‘large amount of political
freedom’ (it was generally held by the ‘metropolitan ruling group’) ‘had fostered a
spirit of democracy and independence, which in turn had caused the revolution’.254
As a result, for the next fifty years or so, the remaining, and any newly acquired,
British colonies would go short on political freedom and be rigorously policed.255
Indeed, when the Swan River Colony was established in 1829, LieutenantGovernor Stirling was answerable to the Colonial Office for almost every decision
and appointment he made—with the Colonial Office reserving the right to revoke
his determinations. Through Colonial Office despatches (sometimes worded ‘in a
tone like that in which men of sour tempers address their maladroit domestics’)
Stirling was also the conduit for directives that were often contentious and
unpopular.256 This enforced subservience did not sit well with the Swan River
colonists: within three years of foundation they were despatching petitions and
protests demanding elected representation.
32
Highest Privilege and Bounden Duty
2
Set Up
There are one or two colonies like West Australia, so
stagnant, tame, and torpid, as to have no politics.
Edward Gibbon Wakefield
Foundation
Included in the purchase price of a mobile phone today is a paperback-sized
instruction manual. When Lieutenant-Governor Captain James Stirling landed in
Western Australia to found and administer the Swan River Colony, he came with a
letter of appointment from the Secretary of State for the Colonies, Sir George
Murray, and a ‘few general instructions’—but, to his dismay, no Commission,
Royal Instructions or colonial charter.1 Still, Stirling fared slightly better than the
New South Wales Treasurer who was despatched six years earlier by the Colonial
Office without any Instructions, but who ‘comforted himself with the thought that
he could find guidance in his new post from the practice of Treasurers in other
colonies’.2 In fact, Stirling had also received a copy of Governor Darling’s 1825
Instructions as a stop-gap reference until his own ‘ample’ Instructions could be
prepared at an unspecified ‘future period’ by the Colonial Office.3 Considering,
however, that New South Wales in 1829 was a well-established convict settlement,
with a populace recently described by the British Monthly as ‘among the most
murderous, monstrous, debased, burglarious, brutified, larcenous, felonious and
pickpocketous set of scoundrels that ever trod the earth’, it is questionable how
useful Stirling found these guidelines in dealing with his fairly select band of
settlers scrambling ashore with their morocco-bound classics and pianos.4 On the
contrary, in the many ‘urgent’ despatches Stirling addressed to the Colonial Office
pleading for his ‘promised charter’ and ‘regular Commission and Instructions’, his
sense of frustration is confronting: ‘The Instructions which I had the honor to
receive on quitting England were so few and general…that on almost every subject
I am at a loss to know how to proceed’.5 Even more disturbing, Stirling suspected,
and raised several times with the Colonial Office, a fact which modern historians
have subsequently confirmed—that until he received his Commission in 1832, he
was wielding ‘unauthorized Powers’ and, therefore, ‘illegally controlling the
settlement’.6 So, how was a Governor ‘without Commission, Laws, Instructions
and Salary’, as Stirling rather testily expressed it, to proceed?7
The British Government had accepted almost from the outset that the Swan River
Colony being ‘almost as much separated from that of New South Wales, as it
would be from England…would require all the machinery of an independent
Colony to govern it’.8 Yet, despite the obvious challenges involved in effecting ‘a
Settlement upon certain wild and unoccupied Lands’ (to quote from the Act which
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Highest Privilege and Bounden Duty
eventually constituted the colony), the Government still expected all of its satellite
communities to reproduce the institutions of the mother country—‘so far as it is
applicable to their new situation & circumstances’.9 This Imperial aspiration had
been spelt out in the year prior to Swan River’s foundation by the Tory Secretary
of State for the Colonies, William Huskisson, when he welcomed the
‘establishment of institutions in…colonies similar to those of the people from
whom the inhabitants have sprung’; and the sentiment was explicitly restated (with
‘White Man’s Burden’ overtones) in 1832 by the new Whig Government’s
Secretary of State for the Colonies, Lord Goderich:
the firmest bond of union between the parent state and its Dependencies, will be found in
maintaining a general harmony between the respective Institutions, and it is becoming the
British name, thus to transfer to distant regions the greatest possible amount both of the
spirit of civil liberty and of the forms of Social Order, to which Great Britain is chiefly
indebted for the rank she holds among civilized nations.10
Establishing British ‘Institutions’ and ‘forms of Social Order’ in distant
possessions was a costly business, however, and His Majesty’s Government in
1829 was in the throes of postwar retrenchment—with the national budget failing
to balance more often than not, and the civil service, as outlined in the previous
chapter, operating with stringently pared back staffing levels and budgets.11 The
Colonial Office, with its responsibility for an expensive as well as expansive
Empire, was not exempt from the cost-cutting, and an exasperated Stirling
commented to his brother that the vacillation as to whether Britain would go ahead
and establish the Swan River Colony was attributable to ‘Colonial Office
People…trembling at the thoughts of increased expenditure’.12 Stirling, however,
had realised all along that finance would be the sticking point in his quest to found
and govern the Swan River Colony—and to forestall objections on the grounds of
expense, he had concluded the report of his ‘Explorating visit to the Western Coast
of New Holland’ with various settlement proposals that would ensure ‘there would
scarcely be any demands upon the Public Purse’.13 Stirling’s schemes were later
dismissed by the Secretary of the Admiralty, Sir John Barrow, as ‘quite fallacious’,
but this did not deter the would-be Governor from putting forward other ‘cheap and
simple’ settlement schemes to the Colonial Office and the Admiralty—even
querying in desperation if
any objection would be made to the unsupported employment of Private Capital, and
Enterprise in the occupation, and improvement of that territory; and whether we may be
permitted to form an Association, with a view to obtain a proprietary Charter, upon
principles similar to those formerly adopted in the Settlement of Pensylvania, and
Georgia.14
The British Government, however, was not about to sign over Australia’s western
third to a syndicate of independent speculators—most of whom were soon to pull
out anyway—and Sir George Murray reassured the House of Commons in 1829
that ‘it was deemed desirable to exercise a more immediate control over the
Settlement by government’.15 The entrepreneurial Stirling, however, lived to regret
the entrepreneurial settlement deal finally struck. The British Government agreed
to his ‘Experiment in Colonization on a new Principle’, i.e. the foundation of a
colony comprised of self-funded settlers who would receive massive land grants—
in proportion to the ‘Articles [and labour] which may be applicable to the purposes
of productive industry’ they brought into the settlement—but strictly limited
34
administrative and military support from the Home Government.16 This compact
may have been seen at the time as one in which ‘the Colonial Office hoped to call
the tune without paying the piper’, but it was later ridiculed by the colonial
reformer, and proponent of ‘systematic’ colonisation, Edward Gibbon Wakefield,
as ‘the best example of the worst method of colonization’.17 It was also soon the
subject of bitter letters, petitions and memorials from the colony’s settlers.
Swan River’s Civil Establishment: Penury and Patronage
In the regulations framed for ‘those Capitalists’ who proposed ‘to embark, as
Settlers, for the new Settlement on the Western Coast of New Holland’, the British
Government made it unmistakably clear that official costs would be kept to the
minimum in establishing its latest colonial acquisition:
His Majesty’s Government do not intend to incur any expense, in conveying Settlers to
the new Colony on the Swan River; and will not feel bound to defray the expense of
supplying them with Provisions, or other Necessaries, after their arrival there, nor to assist
their removal to England, or elsewhere, should they be desirous of quitting the Colony.18
In fulfilling its pledge to provide administrative and military support to the Swan
River Colony, the Government was equally determined to incur as little expense as
possible—and briefed the Colonial Office accordingly. The following sober
remarks from the Colonial Office’s Permanent Under-Secretary, Robert Hay, to the
Treasury confirm that the Colonial Office was
fully aware of the necessity of adhering to the strictest economy…Sir G. Murray has
provided that the Expedition which is preparing should be on the least expensive scale.19
As a consequence, the Colonial Office provided only eight civil servants (three
with ‘no Salary at present’, and the rest very poorly remunerated), three artisans
and a detachment of the 63rd Regiment to assist Stirling establish and govern this
latest one-million-square-mile outpost of Empire.20 As Malcolm Uren has
commented, ‘Could any colony have been secured cheaper?’21
This ‘attention to aeconomy, which the Government found it necessary to exhibit
in the outset’, coupled with the beat-the-French haste which saw the Parmelia
despatched from Plymouth only three months after the actual decision to found the
colony was made (before Parliament, in fact, had even ratified the decision),
ensured that Stirling’s fledgling civil service was not only inadequate, but illprepared and disorganised.22 Accordingly, while the Colonial Office made sure that
ten pounds of sealing wax and a supply of red tape were loaded onto the Parmelia,
the eight officers of the ‘civil establishment’ had presumably received even
scantier instructions than their Lieutenant-Governor, because while still at sea
Stirling had to set to and draft regulations to guide them in the day-to-day
administration of their departments.23
Far more serious, believing that the Colonial Office had failed to appoint some
indispensable civil officials (such as commissioners of audit for land evaluation
and a registrar), Stirling assigned additional, mostly honorary, positions to officials
already holding posts; recruited officers from among the passengers on board the
Parmelia; and signed up a civil engineer when the Parmelia was reprovisioning in
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Highest Privilege and Bounden Duty
Cape Town. And Stirling’s attempts to flesh out his civil service did not stop at
Cape Town. In his first report back to the Secretary of State for the Colonies he
outlined that:
I have been under the necessity of adding to the appointments which you were pleased to
make on the Civil Establishment of the Settlement previous to our leaving England…The
reason which in each particular case induced me to do so are stated in the Return thus
numbered. I hope the necessity of the case will plead my excuse with you for the
extension.24
By the end of 1829, the original civil establishment of eight had ballooned to
thirty-one.25 Notwithstanding Sir George Murray’s response that ‘You cannot be
too cautious of creating New Offices, or holding out hopes of increase in the
Salaries of those already constituted’, in the following two years ‘the Necessities of
the Service, and the additional business arising out of the rapid growth of the
Settlement’ (particularly as settlers fanned out into the outlying countryside to
claim their land grants) necessitated further appointments.26
Among the most significant of these were the ‘resident magistrates’ (also known as
‘government residents’ or ‘government magistrates’). Stirling had been instructed
by the Colonial Office to divide the colony into counties, and the resident
magistrates whom Stirling appointed to head up these regions had a status and role
analogous to the county sheriff in England—including, as shall be seen later, the
important role of returning officer for elections. In addition, as B. K. de Garis has
pointed out, until elections were instituted in the colony, resident magistrates also
functioned like de-facto local members.27 In a spirited defence of the appointments,
Stirling made the following case for their retention to Lord Goderich:
I therefore submit these following reasons for having made these Appointments. First,
Covering so great a Space of Territory as the Settlers in this Colony did, and still do, it
became absolutely necessary that in each of the detached Towns or Districts there should
be some Correspondent of the Government, some Person to keep the Peace, and to
regulate the Transactions between the Settlers and the Natives, some Person to make
known the wants and Proceedings of his Neighbours, as well as to communicate to them
the Orders and Instructions of Government. The Performance of these Duties, and the
regulation of Town Allotments, as well as the Superintendence of Government Property
in the several Towns, led to the Selection and Appointment of the Government Residents,
at the several Towns and Stations herein before mentioned…To attach the small Salary of
£100 a year to the Office for their Performance was scarcely too much in a Country where
no one can afford to give his Time and Attention without Emolument.28
Although most of Stirling’s various appointees were initially granted land in lieu of
salaries for their services, and only later very ‘small sums’ drawn on the British
Treasury—‘for they could not live after the first few months without remuneration
for their Time & Attention’—Stirling knew that the Colonial Office and Treasury
would be displeased.29 (They had, after all, refused point-blank his very modest
appeal for more tradesmen before he sailed from Portsmouth.) In his early
despatches to the Colonial Office, lamenting his non-appearing Instructions,
Stirling had stressed that:
The Matters on which I more particularly require to be acquainted with the views of His
Majesty’s Government relate to the Amount and distribution of Expenditure; the
Numbers, Duties, and Salaries of the persons comprising the Civil Establishment…30
36
Subsequent despatches, in which a clearly anxious Stirling attempted to justify his
appointments, make unsettling reading:
An Extension of the civil Establishment is necessary – I have appointed Persons to act in
such Situations as imperatively required to be filled up and I hope by doing so I shall not
incur your displeasure.31
Apoplectic secretaries of state or not, if the colony was to survive, Stirling had little
choice but to make his imperative appointments to service the colony’s rapidly
dispersing population and to improve the remuneration or, at least, allowances of
his officers. The cost of living in the small settlement was roughly four times that
of England, with the result that his gentlemanly corps of civil servants on their
fixed and modest salaries were, as the embittered Colonial Storekeeper, John
Morgan, expressed it, on the brink of ‘debt and beggary’ and totally unable to live
‘in any thing like a respectable Manner’.32 Civil service conditions also didn’t
conduce to gentlemanly living. Morgan’s clerk, William Shilton, for example, was
expected to sleep with the mice and weevils in the colonial storehouse as one of the
conditions of his pitiful £50 salary—a direction which outraged Morgan who
wanted to keep his assistant ‘in every way respectable, whilst attach’d to my
Office’.33 Stirling was wholeheartedly sympathetic to the plight of his officials,
sharing with the Military Commandant, Captain Frederick Irwin, his fears that the
colony’s civil servants ‘cannot allow their families & themselves proper
nourishment on their present Allowances’.34 In addition, Stirling believed—
perhaps, in part, because of the resignations he was receiving—that as a general
principle ‘Adequate Salaries must be allotted to those who are in the employment
of Government, so that efficient and honest people may be induced to seek & prize
them’.35
With the receipt of his Commission in 1832 appointing him Governor and
Commander-in-Chief, Stirling finally obtained Instructions regarding his civil
service. Although provision was made for some new officers (including a Colonial
Chaplain, Advocate General, draftsman and additional artisans) he was directed to
dispense with some of his previous appointees, reduce the already meagre salaries
of others, and at all times to enforce ‘the most rigid aeconomy in every branch of
the Public Service’.36 While Stirling replied to Lord Goderich with becoming
humility that ‘it will be no less my wish than my Duty’ to comply—and even sent a
follow-up letter a few weeks later discussing civil service reductions ‘now in
progress’, he actually continued his unsanctioned appointments and pay rises—as
the following icy despatch from the lords commissioners of His Majesty’s Treasury
to the Colonial Office discloses:
My Lords request that you will state to Mr. Stanley [Lord Goderich’s replacement as
Secretary of State], that fully coinciding in the directions conveyed to Lieutenant
Governor Stirling in Viscount Goderich’s Despatch of 28th. April 1831 – in regard to the
necessity of adhering to the Establishment voted by Parliament, it is with great regret my
Lords observe the numerous & continued deviations both from the number of
appointments and the rates of Salary borne on the Estimates upon which these Votes were
obtained…37
This correspondence actually took place when Stirling was back in England
attempting to prise more aid from the British Government for the struggling Swan
River Colony—in particular, for the embattled civil establishment.38 At the same
37
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time the lords commissioners of His Majesty’s Treasury were tooth-combing their
way through the ‘Expenditure and Accounts of the Settlement at Western
Australia’ and compelling Stirling to explain even trivial departures from the
Estimates and Instructions he had received.39 The stress of the situation soon began
to tell on Stirling. After doing his best to justify his unauthorised expenditure on
the grounds of absolute necessity or equity, he begged to be absolved from
responsibility for the sums drawn on the Treasury, otherwise ‘I shall remain subject
to incalculable loss and constant anxiety’.40
The lords commissioners of His Majesty’s Treasury finally relented and wiped the
books clean. They also agreed to continue funding an enlarged but still bare-bones
civil administration for the colony by means of an annual parliamentary grant. But
they also provided an exhaustive list of directions to Stirling regarding his future
expenditure, and ensured that the Secretary of State for the Colonies gave Stirling
‘imperative directions’ that thereafter
You are strictly prohibited from increasing, on any pretence whatever, the salary of any
Officer, borne upon the Parliamentary Estimate, or the Salary of Allowances, assigned by
His Majesty’s Government, to those who are charged upon the Colonial Funds, – without
the previous authority of the Secretary of State, or of the Board of Treasury. You will be
held personally responsible for every departure from this Regulation – a responsibility,
from which you will not be relieved, unless you should be able to shew, that the officer
would have resigned, had you not increased his Salary, & that you could not have
procured the Services of another Competent Person upon less favorable terms.41
While Stirling was expressly forbidden to depart from the parliamentary Estimates
in future, he had received along with his Commission, authority to raise colonial
revenue. From this source the local Government was entitled to fund any civil
offices for ‘the more complete efficiency of the Public Service’ that were not
budgeted for in the Imperial Treasury’s lean annual grant-in-aid to the colony.42 In
granting Stirling this authority, the Secretary of State for the Colonies had
cautioned that ‘in carrying this necessary measure into effect, you will always bear
in mind that the burthens to be imposed on the Community must not exceed what
the exigencies of the Public Service may require’.43 Unfortunately for Stirling, the
means of raising revenue in the infant settlement were almost non-existent. The
colony’s terms of settlement had granted land in proportion to the agricultural
articles and labour that the settlers shipped in: accordingly, the settlers had
ploughed almost all their money into agricultural articles and labour. Worsening
the problem, as Pamela Statham-Drew has highlighted, was the fact that a great
deal of the introduced labour was indentured—and therefore not paid wages, but
merely a passage out and keep.44 Finally, much of the limited money left in the
colony was used to buy imported goods at extortionately marked-up prices—and,
therefore, flowed out of the colony. Consequently, many of the settlers were
reduced to barter, promissory notes, tabs with local merchants, the ‘needy settlers’
loan account’ and the odd spot of counterfeiting and, as a result, the colony’s
capacity to defray the costs of an adequate civil service and pursue ‘more complete
efficiency’ was severely handicapped.45
The crippling shortage of funds in the settlement continued with only slight
improvement in the years following Stirling’s departure from the colony in 1839,
and was compounded by the British Government repeatedly refusing the colony
38
loans and even the authority to raise loans on its own behalf.46 Indeed by 1849,
when one dispirited settler wrote home that ‘money is not to be had in the Colony,
all is barter’, the settlement was regarded by many as a basket case (or as one
British administrator put it: ‘one of the most striking failures as a colonial
settlement of any that belonged to the British Empire’).47 In the following year the
then Governor, Captain Charles Fitzgerald, officially informed the Secretary of
State for the Colonies that, ‘So great was the prevailing despondency and
depression…all classes of colonists are leaving as opportunities occur’.48
By this stage a number of the settlers—in particular, the influential Avon Valley
pastoralists and metropolitan merchants—believed there was only one way out of
the colony’s seemingly entrenched economic stagnation and they accordingly
petitioned the Imperial Government for the introduction of convicts, because they
knew that with the boatloads of old lags from Britain would come not only forced
labour, but a massive injection of Imperial funds to maintain the convict
establishment.49 And they were right: with the advent of convictism in 1850 money
flowed into the settlement through the provision of infrastructure and supplies for
the convict establishment and through employment opportunities with the
autonomous and better-funded convict civil service (a sub-branch of the Imperial
civil service which answered to the Home Office). Distasteful as chain gangs and
curfews may have been to the settlers, convict funds and labour kick-started the
local economy. By the mid-1850s the colony could finally—just—dispense with
the annual Imperial parliamentary grant-in-aid and defray the costs of the
Government and civil service.
But, like Stirling’s, it continued to be a no-frills civil service. Money, although
more freely in circulation, was still limited. Governor Fitzgerald’s wife, for
example, conducted bazaars to raise money for school furniture in the 1850s, and
barter and paying labourers by truck (i.e. by goods or provisions, rather than
money) was rife in the outlying districts well beyond the 1880s.50 Whatever
revenue was available in the Government exchequer had to stretch a long way—
quite literally as settlement continued to develop away from the hub. This had
serious implications for the colony’s bureaucracy, as Michael Hollier has outlined:
Western Australia’s infant public service had extremely tenuous and temporary
foundations…this was to create a public service which was run on a shoe string from the
perspective of personnel, finances, guidelines and regulations. It also negated the
development of any type of professional administrative elite, and delayed prospective and
genuine introspective reform of the service for a considerable time.
…
This was to have a marked detrimental effect on the colony’s civil administration and its
work until at least 1890…51 [Emphasis added.]
Certainly, for most of the period covered in this study, there was limited money
available to guarantee that Government business—including the conduct of
elections—was conducted in anything approaching best-practice fashion—and
whenever the colony was in economic difficulties, public service positions and
remuneration were usually the first areas put up for retrenchment.52 In addition,
those fortunate enough to secure one of the lowly paid civil service posts available
were often saddled with additional unpaid positions—a bureaucratic practice
39
Highest Privilege and Bounden Duty
Highest Privilege and Bounden Duty
known by the fairly benign term ‘pluralism’—but which actually meant bonewearying exploitation of officers, particularly the resident magistrates who were
often responsible ‘for a district about as big as Great Britain’.53 In 1857, for
example, the resident magistrate of the 5,000-square-mile Champion Bay area,
William Burges, complained to the Colonial Secretary of the onerous workload he
was expected to get through for a very modest stipend:
[resident magistrates] have every branch of the Public Service in their district to look after
and correspond on. In my district I have, in addition to my magisterial duties of a visiting
magistrate, to be a Sub-collector of Customs at two ports, District Registrar of Marriages,
Births and Deaths and also to attend the duties connected with the Survey Department, the
Board of Works or Engineer Department, the Police Depot and the Board of Education.54
And it would, of course, be to the resident magistrates that unpaid supervision of
elections would eventually fall. (See the charming vote of thanks to the resident
magistrate in Geraldton for chairing an election meeting as a ‘favour’ after his
‘long and fatiguing day’ during the 1874 general election.55) Even the buildings in
which civil servants worked often demonstrated pluralism. The colony’s first
Supreme Court justice, Archibald Burt, for example, upon his arrival in the colony
in 1861, presided in a court house that also functioned as a church and school—
which was not quite as alarming as the resident magistrate for the Greenough and
Irwin Flats districts conducting the Court of Petty Sessions in Dongara in ‘the bar
parlour of the Irwin Arms’.56 And going further along the pluralism continuum,
with limited or no staff available to assist senior bureaucrats, they themselves often
had to roll up their sleeves and deal with the public—a practice which Hollier has
correctly noted ‘forestalled any distinct delineation between operational and
management responsibilities and duties’.57
Parsimony, however, was not the only characteristic of the British civil service
shipped out to Swan River. Predictably, the exercise of patronage by the British
Government and its appointed Governor influenced almost everything to do with
the colony until the granting of responsible self-government in 1890 handed all
appointments to the incumbent Ministry. Thus, Stirling’s initial proposal that the
British Government found a colony at Swan River—and that he might have ‘the
honor of its superintendence and Government’—was initially shelved by the
Admiralty and the Colonial Office ‘on the score of expense’.58 Yet this decision
was reversed within months of Stirling’s return to England. Now Stirling was
undoubtedly persuasive, and his mode of lobbying has been described as an
‘attack’ and ‘Assault on Downing Street’, but that his return to England coincided
with the appointment of a new Secretary of State for the Colonies, Sir George
Murray, and a new Colonial Office Parliamentary Under-Secretary, Horace
Twiss—both of whom were friends of Stirling’s and his wife’s families—was
unquestionably helpful.59 So, too, was the involvement of co-lobbyist, Thomas
Peel, the cousin of the current Home Secretary, Sir Robert Peel. Certainly the
British press felt that nepotism was involved in the Home Secretary’s support for a
colony in which his cousin was to receive a 250,000-acre grant, and newspapers
featured cartoons captioned: ‘A country job for my country cousin’.60 Even more
blatant, the physical act of annexing Western Australia was characterised by
competing preferment and patronage. Originally, the Admiralty had requested the
uber-Establishment Lord John Churchill, in command of the Tweed, to undertake
this mission, and instructions were issued to Commander Schomberg on
40
7 November 1828 to organise this.61 Captain Charles Fremantle, however, was
eager to be assigned to the India station and put pressure on two vice-admirals (one
of whom was his uncle) to have the commission reassigned to him—which it was
on 2 December 1828.62
Patronage was most evident, however, in the dispensation of appointments—the
spoils of Empire! In his Essay on the Government of Dependencies (1841), Sir
George Cornewall Lewis listed colonial patronage as a major ‘disadvantage’ to the
‘dominant’ or ‘supreme government’ because it lowered ‘the standard of its
political morality’.63 While it was common knowledge that many posts in the gift
of the Secretary of State for the Colonies were bestowed on well-connected
wastrels to get them out of the United Kingdom or, as Lewis sniffed, as a
‘legitimate means of repairing a shattered fortune’, it appears that the Colonial
Office was also aware that the ‘rough work’ of the colonies generally required
robust and often specialist officers.64 Accordingly, Colonial Office patronage,
particularly respecting the senior positions at Swan River, appears to have been
exercised responsibly, with many officers being ‘appointed for specific
professional knowledge’.65 Thus, while Stirling was well placed in having two
allies in the top echelons of the Colonial Office and some sway in the Admiralty
through an uncle who was a Vice-Admiral, he also had first-hand experience of the
Swan River area from his 1827 ‘Explorating visit’ as well as some solid experience
in establishing and disestablishing settlements in northern Australia to recommend
him.66 In a similar fashion, the next in seniority in the Swan River civil service
hierarchy, Colonial Secretary Peter Broun, although the son of a baronet and
‘recommended for the position by Sir George Murray “and other influential
patrons”’, was also an experienced clerk; while the Colonial Storekeeper, John
Morgan, was not only a friend of Colonial Office Permanent Under-Secretary
Robert Hay (to whom he would soon be sending novella-sized despatches
bemoaning his lot and requesting further patronage to get him out of the colony),
but was also an officer who had seen plenty of colonial service and who had
written a treatise on colonisation, The Emigrants’ Note Book and Guide.67
Even positions that weren’t yet created in the colony were stitched up in advance
through the exercise of patronage in England. The barrister George Fletcher
Moore, for example, departed for Swan River on the understanding that he would
eventually receive a judicial appointment:
[My son] was induced to Emigrate in hopes of obtaining the Judicial appointment at Swan
River and was favor’d with a letter from Sir Geo. Murray to Governor Sterling enclosing
others from the present chief Baron for Ireland, – Mr. Justice Torrens – the present
Attorney General for Ireland & from other heads of the Irish Bar bearing testimony of his
being qualified to fill a Judicial situation in any of his Majestys Colonies. At the date of
Mr. Moores last letter (November) the Governor had not received his own Charter,
consequently had not made any Judicial appointments but had given a promise to Mr.
Moore so soon as he should have it in his power, and Mr. Moores only apprehensions
were lest the appointment might be fill’d up at home, without the Governt. here being
aware that a qualified person had gone out under a promise of obtaining it when courts of
law should be establish’d there.68
Although Moore was appointed Commissioner when a Civil Court was established
in the colony in 1832, his father informed the Secretary of State that it was—‘at a
41
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Salary which I am sure No Man No Lawyer at home will covet—at a salary that
will not afford Him a Horse—not so much as many Noblemen in England pay to
their Servants’.69
It is interesting to note that Stirling himself was permitted to exercise patronage for
some of the Swan River appointments—which recalls Sir John Craig’s comment in
the previous chapter that ‘it could never have been convenient to disregard entirely
the man responsible for getting work done’.70 Stirling’s nominees, however, were
highly competent officers who would have met with Colonial Office approval
anyway. He secured the position of Harbour Master for his close friend Captain
Mark Currie, while the experienced Admiralty hydrographer, John Septimus Roe,
who was to become the colony’s Surveyor General, wrote to his family that, ‘Capt.
Stirling promised to use his influence on my behalf when it was finally decided at
the Colonial Department office that he was to be sent on the service’.71
Subsequently, however, an impatient Roe was not overly gracious about the delay
in his own appointment—
Captain Stirling seems to be manoeuvring exclusively for his own benefit. The wish that
he expressed about my not making any official or other application in the business before
he could say what were the actual intentions of the government, while it places me in
rather an unpleasant predicament in case of my being eventually placed under his
command, nevertheless induces me to suppose he wishes to have all his own way, to get
some of his own immediate friends into the situations he intends to recommend the
Colonial government to adopt, and then to leave me the optional choice of all the inferior
gleanings which may not be worthy of his own consideration…I must say I do not like the
man.72
Stirling also took along members of his and his wife’s family when he sailed for
Swan River (and when he returned to the colony in 1834 after visiting England)
and various honorary and paid positions were found for them.73 Moreover, as
Statham-Drew has pointed out, the Colonial Office was ‘besieged’ with requests
for appointments to the new colony and forwarded them to Stirling in his first batch
of official correspondence with directions that he pay ‘attention and favour to
certain individuals who had been highly recommended by peers of the realm,
Members of Parliament or top civil servants’.74 Finally, as immigrants landed in the
colony and paid their respects to the Governor, they also usually presented their
letters of recommendation and testimonials—although one contemporary remarked
somewhat cynically of this practice: ‘his Excellency…put the letters in his pocket
perhaps never to be opened; or if so not attended to—the common fate of letters of
introduction’.75
In 1837 Empire-wide regulations were issued which granted the colonial governors
a greater degree of independence in making appointments and, therefore,
exercising patronage.76 For positions up to £100 per annum the Governor had
unfettered discretion over appointments and dismissals; for positions up to £200
the Governor could advise the Secretary of State regarding appointments and
dismissals and make provisional appointments—and his decisions were usually
ratified; for positions over £200 the Governor could make recommendations and
temporary appointments, but these could be, and often were, overridden by the
Secretary of State to secure the post for his own nominee.77 In practice, however, it
seems that increasingly all but the very top appointments soon came under the
42
sway of the Governor, as this reply from Secretary of State, Lord Stanley, to a
supplicant in 1845 reveals:
Virtually the patronage of all the Colonies is vested in the respective Governors;
and…every vacancy which occurs must be provisionally filled up on the spot, and
consequently in the case of the Australian colonies, held by the person so appointed for at
least a year, before the supersession by the Secretary of State can take place. This
becomes consequently a most invidious course of proceeding. It dissatisfies the Individual
displaced, the Colonists generally, and especially the Governor, who feels his authority
weakened by having his recommendation disregarded. Practically therefore I have little or
nothing at my disposal.78
But patronage—whether from the Secretary of State or the Governor—was not
such an evil in a colony where there were often not enough suitable candidates to
fill available positions. As an exasperated Governor Gipps in New South Wales
commented in the 1840s: ‘It is hard that though I am tormented almost out of my
life with applicants for office, I never know when I want a good man where to put
my hand on him’.79
Early Government
On 14 May 1829, while Stirling and his officials were still on board Parmelia,
‘some temporary Provision’ for ‘the Government of His Majesty’s Settlements in
Western Australia’—in the form of Imperial Act 10 Geo. IV, c. 22—received the
royal assent.80 Almost a year and a half of this Act’s five-year—but fortunately
renewable—life span passed, however, before on 1 November 1830, an Order in
Council was issued enabling a Legislative Council to be established under its
provisions. Now, finally, the Colonial Office could frame Stirling’s long-promised
Commission and Royal Instructions—not that the (admittedly understaffed)
Colonial Office hurried itself either.81 Indeed, Stirling didn’t receive the paperwork
until the beginning of 1832 at which stage ‘the Ruler’—as he somewhat selfdeprecating termed himself—immediately set about instituting the less autocratic
form of Government authorised by the various documents.82
Firstly, the newly commissioned ‘Governor and Commander in Chief’ was directed
to swear in, and work in close conjunction and ‘concurrence’ with, an ‘Executive
Council’ which had been appointed to assist and advise him in administering the
Government (clauses 1 to 8 in his Instructions as well as in his Commission).83 The
members of the Executive Council (as nominated in clause 2 of the Instructions)
were to be the ‘Senior Officer of Our Land Forces’ (more usually known as the
‘Commandant’ or the ‘Officer Commanding the Troops’), the Colonial Secretary,
the Surveyor General and the Advocate General (later known as the Attorney
General). Notwithstanding the repeated injunctions in the Instructions that the
Governor must work in ‘concurrence’ with the Executive Council, the Governor
was not in fact compelled to accept his councillors’ advice—although required to
provide explanations to the Secretary of State when he didn’t. (And as recently as
1828 Governor Darling in New South Wales had been ‘sharply rebuked’ by
Secretary of State Sir George Murray for ignoring his executive councillors.84) In
reality, however, the Governor completely dominated the Executive Council in that
only he could convene meetings, he presided at such meetings, and he set the
agenda. (And as for the ‘advice’ likely to be proffered by councillors at Executive
43
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Council meetings, a Western Australian newspaper later scoffed that given the
councillors were career public servants conscious of the need to keep on the right
side of any Governor, their advice ‘may well be supposed to, in most instances,
consist in a devout attention…to the keeping of their situations—greatly dependent
upon their not thwarting the ideas of their chief’.85)
Stirling’s second task was to set up the Legislative Council ‘authorized and
empowered’ by the Order in Council, so that in tandem with the legislative
councillors he could finally pass laws and ‘constitute such Courts and Officers, as
may be necessary for the Peace, Order, and good Government of His Majesty’s
Subjects’.86 Notwithstanding 1832 being the year the Great Reform Act was
passed, the Swan River’s Legislative Council was not to comprise elected
representatives as the Colonial Office deemed that the settlement was not ‘yet ripe
for Institutions of this nature’ and would have to make do with ‘the Establishment
of a Legislature, & Tribunals of a more simple, though less popular, character’.87
The decision to grant the infant colony an unelected legislature was, however,
standard procedure for the Colonial Office at the time, as the following excerpt
from an official memorandum outlines: ‘It has been the practice in later times to
adopt, as it were, intermediate systems in passing from the absolute to the
representative form’.88
As a result, Swan River’s Legislative Council as constituted by the Order in
Council consisted only of the Governor, and the same quartet who formed the
Executive Council, viz. the Commandant, Colonial Secretary, Surveyor General
and Advocate General.89 And just as the Governor dominated the Executive
Council, he similarly lorded it over the Legislative Council where he was the only
member authorised to initiate legislation. In addition, the new Legislative Council’s
‘power and authority’ was subject to a number of ‘conditions and restrictions’—
principally, that it ‘shall and do conform to all such Instructions as His Majesty
shall from time to time be pleased to issue for that purpose’.90 And proving that the
devil is in the detail, clauses 10 to 17 of Stirling’s accompanying Instructions listed
a catalogue of restrictions to the Council’s legislative power including outright
bans on framing laws which dealt with divorce, naturalisation and the granting of
land to unnaturalised aliens. To top it off, the Council’s laws and Ordinances had to
be forwarded ‘with all convenient Expedition’ and laid before both Houses of the
Imperial Parliament for ‘Approbation or Disallowance’—or what one nineteenthcentury constitutional authority has aptly designated the ‘second veto’.91
The Legislative Council met for the first time on 7 February 1832 and, in a further
departure from practice in the Mother Parliament, held its sessions in camera. (It
wasn’t until 1834 that Stirling opened Legislative Council sessions to the public.92)
Yet, somewhat disarmingly, this most un-Westminster like Chamber, still sought to
‘conform to the rules of the British Parliament’ in its ‘proceedings’, adopted
Standing Orders based on House of Commons procedure, and ‘required’ its
members to attend meetings in full military dress or in frock coats with ‘buttons
with a Crown on them’.93
While undoubtedly the colonists were relieved that Stirling’s period of one-man
rule was over, they were far from pleased with the parody of a legislature which
had replaced it. Many would have concurred with Thomas Oldfield’s observation
44
in the History of the Boroughs that ‘it is a received maxim in our constitution, that
no person can be free without being concerned in making their own laws’—and
even James Stephen in the Colonial Office had uneasily acknowledged that a
‘Legislature without Representation’ was one of ‘those invasions upon the first
principles of English law’.94 When the newly sworn-in Legislative Council
promptly sanctioned the raising of colonial revenue through licence fees and duties,
however, the settlers’ displeasure turned to outrage. Their anger is understandable:
very few in the colony had money anyway and what little they had was needed to
buy necessities at prohibitively marked-up prices; the colony was literally on the
brink of starvation and possibly abandonment; and immigration—which would
have brought with it much-needed labour and capital—had come to a standstill
because of the scrapping of the ‘munificent land grant system’ and the circulation
of adverse reports of the colony back in Britain.95 The fact that up till then, ‘No
tithes and no taxes we now have to pay’, as George Fletcher Moore had exulted in
his 1831 song ‘Western Australia For Me’, seemed like very meagre
compensation.96
Within months a petition framed by the ‘Land Holders Merchants and other free
Settlers’ had been handed to Stirling.97 The motivation for the petition may have
been the Legislative Council’s unpopular decision to impose duties on imported
spirits, but the crux of the petition was the violation of the constitutional principle
of ‘no taxation without representation’—
That in the parent Country and in every British Settlement, excepting this Colony, the
people are represented by a House of Parliament, or Assembly, comprised partly of men
unconnected with the Government: we therefore view with alarm the principle of taxation
adopted in this Colony which imposed burthens on the People by summary Acts of
council, without allowing them a proper representation in Your Excellency’s Legislative
Council, consisting entirely of Government Officers. 98
Another petition directly addressed to the Secretary of State was more specific
regarding the right to the franchise:
That your Memorialists consider it highly essential that both the Agricultural and
Mercantile interest should be allowed to send their own representatives to sit in the
Legislative Council and trust the Home Government will grant their prayer to that effect.99
By this stage Stirling agreed with the colonists that the settlement was ‘in a state
perilous in the extreme’ and was preparing to return to England to press for more
aid.100 He assured the settlers that he would lay their petitions before the British
Government—and was soon presented with an even stronger worded ‘PROTEST’
for good measure:
We the undersigned Settlers in the colony of Western Australia, in consequence of the
refusal of YOUR EXCELLENCY to rescind the Act of Council imposing a tax on Spirits,
or even to suspend its operation till the matter is represented to the King’s Government,
DO PROTEST in the most solemn manner against this ACT of COUNCIL for the
following REASONS.
First. BECAUSE it is an inherent principle of the British Constitution, that no
Englishman should be taxed unless by his own consent.
45
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Second. BECAUSE the Measure is only the commencement of a System of Taxation,
imposed by Government Officers, and is FORCED into a Law, against the UNANIMOUS
voice of the People.
Highest Privilege and Bounden Duty
Third. BECAUSE this Colony unassisted by the Parent Country, has been chiefly
indebted in its rise and progress, to the spirit and enterprise of free British Emigrants: and
they having embarked a Capital, unparalleled in the annals of Colonization, have an
undoubted RIGHT to be represented in the Legislative Council; and to be there heard in
opposition to Measures which will not only check their prosperity for many years, but
shake the Colony to its foundation.101
While Stirling would not budge on his spirit duties, his political sympathies were
firmly with the settlers. In fact, his liberal credentials, as outlined in Pamela
Stathem-Drew’s biography, were impeccable (he came from a pro-Whig family;
had attended a school renowned for its Whig tendencies; and his father-in-law was
a Whig MP who had voted in favour of the First Reform Act), and the colony had
witnessed early proof of his commitment to liberalism when he instituted an eighthour day and a generous scale of rations for indentured labourers in 1830.102
Indeed, some settlers, thought Stirling was perhaps too liberal, and complained to
the Secretary of State, like Robert Lyon, that ‘I have been ruined by laying out my
money in the way recommended by Government in their published regulations’.103
The consensus, however, was, as the editor of one of the local papers wrote, that
Stirling was ‘admitted to be liberal in opinion...[and] that the Government and
Governed, form but one party’.104
Stirling kept his word and informed Colonial Office Under-Secretary Robert Hay
at the end of December 1832 (while he was away on his rescue mission in
England) that he endorsed the ‘extention of the Legislature so as to admit either by
nomination or election a certain portion of the Settlers unconnected with the
Government’.105 And ‘election’ would indisputably have been on Stirling’s mind
given that when he wrote this letter Britain was in the throes of its first general
election since the passing of the First Reform Act. However, considering that Hay
agreed to his proposal ‘provided it be by nomination, and that the numbers be kept
within reasonable bounds’, it is not surprising that Stirling back-tracked on
elections in a despatch only six weeks later to the Secretary of State, Lord
Goderich, and compliantly recommended that ‘The Circumstances of the
Settlement seem to limit arrangements on this point to the principle of
nomination’.106 Goderich accepted Stirling’s advice:
The last point embraced in the Memorial of the Settlers, to which it is necessary for me to
advert, is the introduction of Representative Members into the Legislate Council. A full
and decisive answer to the outcry, raised against Taxation without a more legitimate
Assembly than a Council composed of Government Officers, would be found in the fact,
that it is strictly conformable to the Act of Parliament, which regulates the concerns of the
colony. I am, however, fully sensible of the advantages, which would be derived from the
presence at the Council of a few of the most leading men engaged in Commercial &
Agricultural pursuits. In the hope of removing the irritation evinced by the Colonists, at
the imposition of the Taxes, proposed by His Majesty’s Government & which were
limited to those only, which the actual demands of the Colony appeared to require, & with
the view also of giving you the benefit of the efficient advice of experienced Settlers, I am
induced to recommend to the King, the adoption of your suggestion, that the number of
the Legislative Council should be increased, – you will, therefore, consider yourself
authorized to nominate to that Body two Colonists upon whose experience & discretion
you can the most rely, with the addition afterwards of two more Members, should you be
46
of opinion that such an augmentation would be desirable & that such a number of Persons
can be found qualified & willing to undertake the duty – the total number however of the
Legislative Council, as now proposed to be constituted, should not under any
circumstances exceed eight, independant of the Governor.107
Goderich, as has been seen earlier, was soon replaced as Secretary of State for the
Colonies by E. G. Stanley, but he, too, supported the demands for a mixed
legislature and requested that Stirling provide a list of ‘those Persons whom you
may consider, from their general character and estimation in the Colony, to be the
fittest to become Members of that Body’.108 Stirling responded by sending a
colonial A-list of thirty-nine ‘Gentlemen…Resident Proprietors’, but regrettably,
within a week of receiving it, Stanley informed Stirling that:
respecting the augmentation of the Legislative Council in Western Australia, I have the
honor to acquaint you, that it has appeared to me expedient to defer the execution of this
measure, until after the renewal of the Act of Parliament under which the colony is
governed, which will take place in the course of next year. If the Colonists, however,
should evince any feeling of dissatisfaction on this point, you are at liberty to
communicate to them the intentions of the King to give a more popular character to the
Legislative Council than it, at present, bears.109
That the settlers might evince feelings of dissatisfaction at this outcome was
putting it mildly. But it was not just the delay which incensed them—they
completely repudiated the notion of nomination. How after the reforms of 1832, as
a Swan River newspaper put it, could they settle for anything less than ‘the officers
to be appointed by election, which is the grand principle of the government from
top to bottom’?110
In 1835 the renewal of the Western Australia Act took place—but nominations to
the Legislative Council did not. Furthermore, outright opposition to the
unaugmented Legislative Council continued to mount in the small settlement, as
C. T. Stannage has pointed out:
there was hostility towards the propertied officials from landowners like W. L. Brockman
and William Tanner, who felt that the officials governed in their own interests and not in
those of the colonists as a whole, or at least those belonging to the wider investing class.
They felt excluded from decision-making in Swan River, and, lacking that guaranteed
annual income from Government, they believed that officials had an unfair advantage in
the acquisition of wealth. When in early 1835 the Government sought to recover debts
due to the Crown, it was William Tanner who convened a meeting in Perth to protest
against this unfair act.111
The meeting—the first public meeting requisitioned (i.e. formally requested in
writing) in the colony since the appointment of a sheriff—took place on Monday
16 February 1835 while the Governor was conveniently out of the way touring the
south-west. It was long and lively and the colonists didn’t pull their punches. Led
by the formidable Tanner, the settlers outlined a raft of grievances including
mismanaged land allocation (too much of it given to absentee navy and military
officers and too much in the form of scattered ribbon grants), unfair revisions to the
land regulations (which would bring about land forfeiture and prohibitive fines),
inappropriate allocation of public works (too much near the Governor’s locale), the
imposition of an expensive mounted police corps (which the colonists didn’t want),
the lack of a bank (which the colonists did want) and Government patronage
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(which they wanted if they were the recipients, but not otherwise).112 But as J. S.
Battye has noted:
The real source of the trouble was unquestionably the amendment in the constitution of
the Legislative Council. The colonists expected that unofficial members, whom it was
proposed to add, would be elected and not nominated.113
And, quite simply, the settlers were not prepared to be fobbed off with nomination.
There seemed to be only one course of action: the colonists must have elected
representatives in the Legislative Council to espouse their interests and keep the
Government honest. Resolutions to this effect were passed unanimously and later
set out in a memorial (signed by one-third of the colony’s adult males) which was
addressed to the Secretary of State. The key resolutions were the following:
2d. – That the taxation per head in this Colony is nearly equal to that in England, and that
we ought not to be taxed further until we are represented.
5th – That the proposed system of Government nominating certain Members to represent
the interests of the Colony in the Legislative Council, is inefficient for that purpose, and is
not in accordance with the spirit of the British Constitution, and not suited to the
circumstances of a free and taxed population, and that the Colonists themselves, under
proper qualifications, do exercise their constitutional right of returning their own
Delegates; and further, that the Government be requested to suspend the Act empowering
the Local Government to call Members from the Colonists to the Legislative Council,
until the Government shall deem it fit to grant us our right of returning representatives by
suffrage.114
After the meeting, Stirling wrote quite bitterly in a private letter to Under-Secretary
Hay that:
As the Governor and his Measures appear to have been tolerably well abused on that
occasion, perhaps I am not an impartial Judge of their Proceedings in other Respects, but I
cannot help feeling alarmed at the Injury which may be done to the Settlement by the Self
Conceit and Absurdity of a few Individuals…in my opinion the immediate destruction of
the Colony would be the consequence of granting them the Objects of their desire Viz.
A Representative Assembly, a Bank & the Abolition of the Police…115
Stirling was more temperate in his despatch to the new Secretary of State for the
Colonies, Thomas Spring Rice, but he was still dismissive of the colonists’
‘principal Ground’ of complaint that ‘in the absence of a Representative Assembly
they had no control over the injudicious Expenditure of their means’.116 On the
contrary, Stirling argued that ‘the Public exercise virtually a controlling Power’
over the finances—which, considering his legislative councillors had recently
amended the Colony’s first set of Estimates against his express wishes, but in line
with those of the settlers’—may have seemed the case. (As an aside, with the
exception of some conflict over the Estimates in the succeeding couple of years,
such an ‘unauthorised usurpation of power’ by the officials was seldom
repeated.117) Accordingly, Stirling concluded:
the Difference appears to be of little moment between a Council of officers such as there
is at present established here, and one composed of Persons selected from amongst Private
Individuals by the Government or elected by their fellow Colonists.118
48
And, in the following year, in a despatch to yet another new appointee as Secretary
of State for the Colonies, Lord Glenelg, Stirling unequivocally rejected the
‘prevailing notion’ that the settlers could be ‘entrusted with the Appointment of its
own Government, and with the right of interfering extensively in the administration
of affairs’, notwithstanding his frank admission that there was ‘a general if not an
unanimous Desire’ by the colonists ‘to elect and appoint the Members of the Local
legislature, and even the Governor himself, and that their wishes will continually
tend to this object’.119
No adequate explanation was given by Stirling for his, by now, strident opposition
to elected representatives in the Council. Undeniably, as he pointed out to Glenelg,
the colony’s non-Aboriginal population was minuscule—roughly 2,000 including
the military garrison—but that was, as everybody knew, ample even by reformed
English borough standards to constitute a number of constituencies.120 Was Stirling
concerned that the possible high passions of an election could prove too
inflammatory for his close-knit and stressed community? Or was he simply
deferring to the Colonial Office’s stated preference to take things slowly and
proceed by nomination, because this would better protect Britain’s financial stake
in the colony? Certainly, his observation to Glenelg that:
the simplest and safest Rule – as far as I can judge will be to apportion to the Inhabitants
from time to time such an Influence in these Matters, as may accord exactly with the
Share which they take in providing for their own Protection, and for the Public
Expenditure…
suggests that he was more in sympathy with the views of Downing Street than with
the aspirations of the local settlers.121
Whatever the reason, no unofficial members, nominated or elected, were installed
during Stirling’s tenure, although on 11 March 1836, according to Edward
Sweetman in his Australian Constitutional Development, Stirling expressed his
‘regret’ to the Legislative Council for the appointments not being made thus far,
explaining that he had been ‘instructed not to appoint the four unofficial members,
pending further instructions’.122 Intriguingly, these comments are not recorded in
either Legislative or Executive Council Minutes on the date given by Sweetman, or
any dates close to this (in fact, according to the Perth Gazette, Stirling was actually
out of Perth on 11 March); however, the Swan River Guardian, in an editorial,
dated 29 December 1836, backs up Sweetman’s claim by referring to Stirling
having informed his ‘cabal’—one of the Guardian’s epithets for Stirling’s
officials—that he had received ‘verbal notice to delay’ appointing unofficial
members ‘till the act of Parliament for Swan River which expires in the present
month of December was renewed’.123 In addition, it is almost certain that by March
1836 Stirling would have received a despatch from Glenelg, dated 24 August 1835,
which confirmed in writing that the British Government was holding back on
making the unofficial appointments in the short term:
At present it has not been deemed advisable to make any alteration in the Law as it stood;
but before the expiration of the existing Act, the circumstances of the Colony may have
assumed a more settled form, and His M’s Government would then be better able to judge
what changes may be rendered desirable in the Institutions, both Legislative and
Judicial.124
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It is almost equally certain that Stirling would have made this information public
considering it would have helped direct public anger at the lack of settler
representation away from him and towards the Colonial Office. The disclosure, if
made, however, did not stop the Swan River Guardian from claiming that Stirling
still had ‘full authority in virtue of his Vice-Regal Power’ to go ahead and make
the appointments and that all that was really stopping him was ‘his apathy,
indifference or Naval pride’!125
Although Stirling complied with his Instructions and did not enlarge the Council,
he urged Glenelg in two separate despatches written in 1836 to honour the
‘promised’ offer of unofficial nominees—‘notwithstanding that the four additional
Members to be appointed by the Crown would fail in satisfying the Public
Desires’.126 The Swan River Guardian in an editorial in 1836 made the same point
somewhat more pungently: insisting that the nominations should be made, so that
the ‘People’ would no longer be voiceless and thereby ‘defrauded of its just rights’,
but arguing that as ‘the Governor will take good care to select his own favorites,
and thus make null what the British Government call a boon to the Colonists’, the
representatives ‘ought’ to be elected by the settlers—the ‘only source of legitimate
Power’.127
Early in the following year the Swan River Guardian resumed the theme
and attempted to stir the colonists into requisitioning a public meeting to
petition the King to grant ‘Four additional Members elected to the Council by the
voice of the People, in order to act as a check on our present “Honorables”’.128 The
meeting didn’t take place, possibly because a belated reply to the settlers’ 1835
memorial from the Secretary of State (published in the Western Australian
Government Gazette for all the colonists to see) reaffirmed the British
Government’s support for unofficial members to be admitted to the Legislative
Council, and directed Stirling to resubmit a list of eligible nominees for
appointment.129 Election of these unofficial members, however, was emphatically
ruled out by Glenelg—principally because under the Act providing for the colony’s
governance, ‘His Majesty is not empowered to delegate to the Local Government
of Western Australia, the selection of persons to fill the office of Members of
Council’, but also because:
I cannot, however, conceive, that in its present state, the Colony is fitted to receive with
advantage, a more popular form of Government: much less, that the Colonists can, with
any degree of reason advance a claim to an Elective Legislature.130
Stirling re-sent a list at the end of 1837, but his original list of thirty-nine
candidates had shrunk to a perfunctory six.131 He knew the settlers didn’t want
nominated councillors and his heart wasn’t in it. By this stage he was
contemplating his retirement as Governor—with luck his successor could sort out
the problem.
Notwithstanding the non-appointment of settler representatives during his tenure,
Stirling was generously described as ‘an entire and liberal promoter of every good
and liberal institution’ in the Address presented to him upon his departure.132 The
colonists could afford to be generous: Stirling’s replacement, John Hutt, had been
50
authorised by an Order in Council dated 1 August 1838 to swear in four nonofficial legislative councillors—and he did so on 4 January 1839 only three days
after arriving in the colony.133 The colony had finally taken its first ‘intermediate’
step on the way to representative government.
The Vicarious Parliament: Press, Petitions and Protestations
By this stage, of course, the colony had been settled almost a decade and the delay
in permitting settler participation in the legislature could be interpreted as a major
slight from the mother country. But, if electing parliamentary representatives is a
mechanism by which citizens can ‘be heard’ or ‘have a say’—to borrow the idiom
of modern-day election campaigns—then it is important to note that the Swan
River colonists still had plenty of other means of getting across their point of view.
In fact, Stirling and the Colonial Office were bombarded with the colonists’
opinions (and censure) and possibly believed that the unrepresented settlers were
not materially disadvantaged—after all, most English citizens at this time were
voteless and had to express themselves through extra-parliamentary means. Indeed,
the traditional recourse by enfranchised and unenfranchised Englishmen to ‘plain
speaking and perpetual public meetings’—rather than barricades and bloodshed—
was celebrated in the nineteenth-century by French historian Hippolyte Taine, who
observed in his Notes on England that:
the newspapers, and public meetings comprise one great universal parliament and a great
many small ones dotted about all over the country, which prepare the ground for,
supervise, and complete the work of the two Houses.134
British historian Thomas Carlyle came to a similar conclusion when discussing
England’s restricted franchise and the expression of public opinion. Indeed,
Carlyle—as was his wont—went further and recommended that the Times replace
the ‘National Palaver’ (as he dubbed the national Parliament) on the grounds of
improved efficiency and reduced expense!135
In the Swan River Colony, notwithstanding the exorbitant cost of paper and ink
(and the fact that when unobtainable, ink often had to be concocted from mutton fat
and soot) the colony was well served by local newspapers.136 During the first seven
years of the settlement, eight different newspapers came out—the first of which
were hand-written and pasted on to trees—and for most of the colony’s existence
there were at least two weekly newspapers.137 With greater or lesser fervour these
newspapers championed the interests of the settlers, and Stirling soon discovered,
just as Governor Darling had only a few years earlier in New South Wales, that
‘The People are taught by the Papers to talk about the rights of Englishmen and the
free Institutions of the Mother Country’.138 What must have been particularly
galling to all governors, was that the Secretary of State for the Colonies directed
them to send back copies of local newspapers for Colonial Office files—thereby
providing the settlers with an unmediated channel of communication with Downing
Street. Newspaper editors and correspondents were aware of this directive, and
often cheekily addressed grievances and criticism directly to the incumbent
Secretary of State.139
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Stirling, no doubt, was particularly enraged by the Swan River Guardian which
made an art form of invective and was ferociously critical of him, the civil service
officials who comprised the Legislative Council, and the fact that the settler
interest was unrepresented in the legislature:
we tell him that his policy has been a CURSE to this Colony; Surrounded by a horde of
fawning parasites, and OPEN FORNICATORS, whose sins were winked at by that eye
which as the watch-guard of morality ought to have darted forth the gleam of indignation
at their conduct; giving way to every kind of servile adulation, and rewarding the slaves
who humbly knelt and kissed his hand; in short endeavouring to promote his own private
interests, against those of the true Settlers of Swan River. Sir James Stirling’s name as a
Governor, is an abomination in every company.140
The Swan River Guardian folded in 1838—largely due to the enactment of
legislation requiring newspaper proprietors to provide prohibitively
expensive sureties against potential libel suits—but was succeeded two years later
by the almost equally critical the Inquirer.141 While a former Inquirer journalist
breezily confessed in his reminiscences that the paper often criticised the
Government in default of newsworthy copy (because the ‘incidents of colonial life
were not…of a very stirring character’), it is still the case that for decades the
Inquirer voiced the settlers’ interests—and maintained unrelenting pressure on
governors and the Colonial Office for improved settler representation in the
Legislative Council.142 It is also interesting to note that the Swan River press, while
crusading for elected representatives in the local legislature, frequently portrayed
itself as a forum for public opinion somewhat akin to a Parliament—or, as the
Swan River Guardian put it: ‘a FREE PRESS’ was the settlers’ ‘only
Representative’.143 Somewhat ironically, this view of the watchdog and
advocacy roles undertaken by newspapers was endorsed by the Colonial Office—
and then used as a justification for not granting elected legislatures to colonies.
Secretary of State for the Colonies, William Huskisson, acknowledged in 1828, for
example, in respect to New South Wales, that ‘The existing government
was neither arbitrary nor despotic, for there was a free press, which had a due
influence and control over public affairs’—and, as F. G. Clarke has underlined, this
‘Confidence in the value of the local press made imperial officials disinclined at
that time to graft elective principles on to the constitution of New South Wales’.144
In addition to the press, the Swan River colonists, like their English counterparts
back home, were also constantly meeting and memorialising.145 Some meetings at
Swan River took place in semi-official forums such as the Western Australian
Agricultural Society and the York Society (the latter formed after Stirling’s
departure)—forums that Western Australian historians have with some justification
referred to as quasi-parliaments.146 In addition, numerous public meetings took
place in ‘headquarters’ (Perth) and regional centres—and many finished up with a
petition or protest being prepared for signing and subsequent transmission to
Downing Street. It was Colonial Office policy, however, that all petitions and
remonstrances had to pass through the Governor’s hands—who would furnish any
necessary background information as well as an official gloss.147 Frequently, the
governors—especially if they were the butt of a petition—were unsympathetic to
the settlers’ grievances; and Governor Fitzgerald’s dismissive parody of the
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‘Monster Address’ which greeted his arrival in the colony in 1848, indicates how
easily a Governor could undermine a petition:
In short my Lord in this Address I am told we want everything and that everything must
be done for us, as we are quite incapable of doing anything for ourselves from past
suffering and therefore throw ourselves on the Paternal aid of the British Government…I
would say in a few words our present position is by no means irretrievable, give us My
Lord a large infusion of new Blood and some Capital.148
At the individual level, settlers were able to address personal grievances—again via
the Governor’s office—to Downing Street, and one incoming Under-Secretary of
State in the Colonial Office was warned by a colleague around this time that
‘nothing can equal the stupidity and prolixity of your colonial correspondents and
you will be assailed with documents of bulk immeasurable without one interval of
repose’.149 Several Colonial Office mandarins (particularly, Permanent UnderSecretary Hay) also encouraged unofficial communication from key settlers—i.e.
correspondence not filtered through the Governor’s office. Notwithstanding the
extra workload involved in wading through and responding to this correspondence,
it was welcomed because it provided independent information about the colony to
supplement the possibly jaundiced reports of the Governor.150 And as J. J.
Auchmuty has wryly observed: ‘A governor could have no idea of the contents of
these communications; he would have been far better off with a parliamentary
opposition…had he only known it’.151 In addition, well-connected malcontents who
had not received satisfaction from their missives to and from the Colonial Office,
often called upon contacts in Britain to lobby on their behalf, and, if that failed,
they occasionally sailed ‘home’ to argue their case in person.152 Finally, the Swan
River settlers were ‘extraordinarily litigious’ and de Garis has aptly noted that the
‘flood of litigation’ in the early settlement ‘suggests that the courts provided a
means of managing conflict and reducing tension dealt with in other ways in
societies with more developed political institutions’.153
In one of his first despatches back to the Colonial Office Stirling reported a ‘natural
tendency to complain’ on the part of many colonists.154 Both J. S. Battye and W. B.
Kimberly repeatedly refer to this ‘tendency’ (or ‘spirit of agitation and complaint’)
and observe how over the years—with so much practise—it hardened ‘into a habit
with the colonists’.155 While the extremely good-natured Advocate General George
Fletcher Moore (who complained along with the best) mused that ‘Nothing is more
satisfactory than a good hearty grumble; it is like the safety-valve of a steam engine
which lets the superfluous power escape harmlessly, though noisily’, Battye has
made the rather unkind observation that if the settlers had channelled some of the
energy they devoted to formal complaint into fixing their grievances themselves,
they would have had less to complain about in the first place.156 With regards to the
constitution of the Legislative Council and lack of elected representatives,
however, the colonists could not effect the changes by themselves. But, as the
Inquirer newspaper outlined, when confronted with ‘a cause of evil, when it is
beyond the power of our legislature to interfere with it’ and ‘even in the teeth of all
probability of success, it is nevertheless a duty we owe ourselves to record our
sentiments on this most important point on every occasion’.157 In other words, the
settlers only option was to harass the mother country until it capitulated. All stages
of Western Australia’s political development, like that of her sister colonies, came
in the wake of serious harassment.
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The ‘Legislature…of a more simple, though less popular, character’
As mentioned earlier, following Governor John Hutt’s arrival in the colony in
January 1839, four non-official members were finally sworn into the Legislative
Council. They included one of the wealthiest and most influential landowners in
the colony, William Tanner, who also happened to be one of the ‘official’
members’ sturdiest critics (he co-founded the Inquirer newspaper in the following
year to bolster his attacks on the Government). Also appointed were prominent
settlers William Locke Brockman, George Leake and Thomas Peel. Underscoring
the fact that these members would not be up for election, as insisted upon by the
settlers (and by this stage Chartists in England were petitioning for annually elected
parliaments), the Colonial Office stipulated that their term of office would be for
the duration of their residence in the settlement—which could, as a later Secretary
of State conceded, result in an appointment ‘for life’.158 At the inaugural session of
the now mixed legislature, Governor Hutt (described by Battye as possessing the
‘truest spirit of liberality and tolerance’) expressed his seemingly genuine
‘pleasure’ at the appointment of ‘four Gentlemen, not Officers of Government’, to
the Council: ‘The Government of Western Australia has by this measure made a
most important step in advance in-as-much as it is assimilated more nearly to the
constitution of our own Country’.159 Moreover, Hutt continued, it was a ‘chief
source of congratulation’ that the official members would no longer have to endure
‘the odium of being at once the framers and executors of the laws’.160
In reality, however, the official members (also known as the ‘Executive Council’,
‘salaried’ or ‘paid’ members) were usually viewed by the settlers as (ahem)
‘gentlemen who voted against their own consciences’ because they almost
invariably voted—à la Cabinet solidarity today—as a bloc in support of the
Governor.161 In addition, the Governor held a deliberative and, as President of the
Council, a casting (or, effectively, ‘double’) vote, so on any matter, the executive
contingent could carry the vote and frame the law.162 Of course, the settlers weren’t
happy with this outcome; and while the eastern states historian, R. M. Hartwell, has
airily commented that, ‘The temper of politics in the west was never as bitter as in
the east; there was too much pre-occupation with getting a living to worry unduly
about the refinements of government’—the reality is that Western Australians did
not accept the new regime passively or graciously.163 Indeed, Kimberly’s
assessment of the their attitude is closer to the mark:
Even among a community of Englishmen so small as that in Western Australia,
dissatisfaction was bound to arise with a government in which it had no direct
representation. One strong tenet in the political religion of the Englishman is that he is
quite competent to govern himself. He objects to be governed by a body in which he has
no practical vote. When he talks he likes his opinions to be listened to with respect. He
cannot sit by quietly and be dependent on a cumbersome administration appointed by
statesmen thousands of miles away, who have no personal, and little practical, knowledge
of the conditions of his estate. It is quite in opposition to his training, and the traditions of
his ancestry. Anything approaching autocratic government or an oligarchy is as
wormwood to him. He agitates, and complains, and dogmatises. If no heed is paid to his
views, he waits a little, as is but in unison with a phlegmatic nature, and agitates again.164
And this is exactly what happened. Until Western Australians won the right to elect
representatives, they protested, remonstrated and petitioned almost continuously—
their sense of grievance undoubtedly heightened after 1843 when the first
54
parliamentary elections took place in Australia to provide a two-thirds elected
Legislative Council—‘a British Parliament in miniature’ as the Inquirer put it—for
that sink of sin, New South Wales.165 (Elections, which, by the way, also followed
British electoral practice ‘in miniature’ with rioting and a death toll of two
reported.166)
One of the first major assaults on the Western Australian legislature occurred in
1845 when the colonists were languishing under a crippling economic
depression—a textbook example of ‘hunger politics’.167 In a memorial addressed to
the Governor and Legislative Council, the petitioners questioned in a mock
ingenuous way, why—
surrounded by the elements of wealth, abundance of rich land, an industrious and
intelligent population, a genial climate, and a geographical position possessing
extraordinary commercial advantages. [And more of the same.]
they could be in this ‘most critical position’:
The circulation has been drained; immigration has ceased; emigration has commenced;
the revenue is falling; property has been rendered almost valueless; trade has been nearly
annihilated; our energies have been prostrated; and public confidence is at an end. [And
more of the same.]
The inescapable conclusion being that:
These two conditions of society are so utterly at variance with each other, that your
petitioners conceive they could not coexist under a sound system of legislation.168
Or as editor of the Inquirer newspaper put it with less nicety of language: ‘we owe
the destruction of our naturally fair prospects to some of the measures of the
government, either home or local, or both’.169 In particular, the Inquirer implied
that there was no one in the local Government voicing the settlers’ interests
(particularly regarding the all-crucial land regulations) to the Home Government—
certainly no one could accuse the Governor of doing it! (Fortunately for the
Governor, systematic coloniser Edward Gibbon Wakefield’s A View to the Art of
Colonization—‘affectionately dedicated to John Hutt, Esq.’—was still four years
away.170)
The aim of the memorial was quite clearly that ‘the position of the colony shall be
forced upon the attention of the Council’ (its confronting language alone would
ensure that) with the hoped-for result that said Council would ‘cause the most
searching investigation’ into the memorial’s claims and ‘devise such remedies as
may remove the evils complained of’.171 Unfortunately, however, when the
memorial, at the instigation of unofficial member, George Leake, was eventually
considered by a committee of the whole Council on 19 June, the committee swiftly
concluded that:
they disapproved of many of the allegations of the memorial…as not founded in fact and
as capable by their dissemination of doing great injury to the Colony. They considered it
unnecessary and inexpedient to summon & examine Witnesses…172
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A sub-committee consisting of two official members—the Surveyor General and
the Advocate General—and one unofficial member, F. C. Singleton, was appointed
to frame resolutions to this effect. When the resolutions ‘embodying the sentiments
of the majority of the Committee of the whole Council’ were brought forward for
adoption a week later, George Leake strenuously opposed them, arguing that ‘the
subjects alluded to, had not received the attentive consideration of the Council, and
that the language of the Resolutions was uncourteous and insulting to the
Memorialists’.173 The Governor, the Commandant, the Colonial Secretary and
William Mackie also protested at their ‘wording’ (although they all agreed with the
sentiments of the resolutions), and given Hutt had stated that he would enter a
protest against their adoption if the ‘objectionable parts’ were not ‘expunged’,
Surveyor General Roe on behalf of the sub-committee agreed to their
amendment.174 The new and supposedly toned-down official response to the
settlers’ memorial accordingly read:
it is the opinion of this Council, that most of the allegations therein contained are either
incorrect or greatly exagerrated, and in either case are unreasonable and of a mischievous
tendency…this Council considers such documents highly prejudicial to the best interests
of the Colony…That the desponding tone and erroneous assertions of the
Memorial…have a strong tendency to injure this Country in the minds of intending
immigrants.– as well as to add to the small number of those who have recently emigrated
from it, and who belong to a class of restless persons who are always to be found in every
community. That this Council…is of opinion that the best remedy for the temporary
embarrassments under which individuals may be suffering from too sudden a transition
from a state of fictitious abundance to one of more wholesome and substantial reality, is
to be found in a steady perseverance in those habits of self denial, industry, and patriotic
exertion…175
Everyone in the Council, with the exception of Leake, was apparently satisfied
with this wording and the much-awaited resolutions were adopted.
Presumably this cavalier and insulting dismissal of the settlers’ memorial by the
officials-dominated Council underlined to Leake the need to bolster the
representation of non-official members within it. Accordingly, a month later, on
16 July 1845, Leake reminded the Council that an unfilled vacancy in one of the
non-official positions meant that an ‘undue preponderance was thus given to the
votes of the Official Members’.176 (Leake diplomatically omitted the fact that
another non-official position had, since 1842, being filled by a salaried officer of
the Crown, the Colonial Judge, William Mackie.) Notwithstanding Hutt’s
explanation that the only reason why the non-official vacancy remained unfilled
was because the Colonial Office’s list of pre-approved nominees was exhausted
due to resignations and potential nominees ‘refusing’, and that the Advocate
General had advised against making an interim appointment because ‘if Her
Majesty’s Government refused their consent to the nomination, all the Acts on
which this Member had voted would be illegal’, Leake still moved a resolution that
the British Government appoint ‘two Members not holding any paid Office under
the Government, in addition to the present number, in order to maintain a due
equilibrium in the votes’.177 In fact, an additional two non-official nominees added
to the existing quota would have given the unofficial members six votes in theory
(but five in fact with Mackie excluded) as opposed to five strictly official votes
(plus Mackie, whose status was somewhat equivocal) and a casting vote—which
was a bit too much equilibrium for the Government—particularly if Mackie were
56
to take it into his head to resign. Not surprisingly, the official members exercised
their existing undue preponderance and voted down the motion.
Two years later the Inquirer weighed into the local Government, claiming that the
Legislative Council (once again with an unofficial spot vacant while the salaried
Mackie still held another), ‘is now an unreal mockery—a farce—nothing more than
a delusion on the settlers; giving them the shadow deprived of substance—a sop to
quiet their grumbling, by allowing them to indulge the pleasing fancy that they
have representatives’.178 A few months later the paper resumed the attack, pointing
out that vacant positions in the Legislative Council had recently been refused by
several leading colonists:
that so important an office as that of Legislative Councillor has literally gone begging, is
one that must show the Government how much their arbitrary proceedings in carrying
measure after measure by the mere force of official votes, have been disliked and
repudiated by the respectable portion of our community…the Council, as it is at present
constituted, sanctions acts as if passed by general opinion, which are in reality most
opposed and most prejudicial to the general welfare of the colony, and which would be
entirely rejected, had the colonists a proper and adequate representation. An entire
change of our Colonial Legislature is much needed, as the people have virtually no voice
in matters brought before it, as was intended by the Home Government.179 [Emphasis
added.]
In 1848 dissatisfaction with the Legislative Council again came to a head with the
Inquirer claiming that even the executive councillor bloc within it acknowledged
that:
the Legislative Council, as it is now constituted, does not adequately represent the
opinions of the community, or, rather, that their power of so doing is completely nullified
by the great preponderance of Government officials possessing seats in the two
Councils…the necessity of a change is now for the first time unanimously admitted.180
This surprising about-turn came in the wake of a ‘Report’ into the ‘Constitution of
the Council’ which had been proposed by a recently appointed—and extremely
critical—non-official member, R. W. Nash (who prior to his appointment in March
1848 had spent fifteen months in the Council as an official member while he was
Acting Advocate General).181 The report spelt out that the executive councillor bloc
with the Governor’s double vote had, from the beginning, formed ‘the real
Legislative Council’; that one of the non-official positions was still filled by a
salaried officer of Government, the Colonial Judge William Mackie (who also
happened to be the brother-in-law of Acting Governor Lieutenant-Colonel
Frederick Irwin); and that in 1847 another official member, the Collector of
Revenue, had been appointed to the Council.182 As a result, the Council now stood
at seven official or Government members versus three genuinely non-official,
rendering the non-official members’—‘position and influence in the Council
merely nominal, having no power to prevent, modify, or even delay, any law,
import, or vote, however injurious it may appear to themselves and the entire
public’.
The report suggested a range of strategies which ‘Her Majesty’s Government’
could implement to fix the problem: reducing the official membership; enlarging
57
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the unsalaried membership—or doing both; or instituting a rule that one unsalaried
member must always concur with a vote. Indeed, the only object unequivocally
‘solicited’ by the report was that a ‘unanimous negative of the unsalaried colonists
should have a similar effect to the veto of the Governor’. While the Perth Gazette’s
coverage of the debate stated that the official members were not prepared ‘to go so
far’ as to surrender the Governor’s casting vote, Acting Governor Irwin was, in
fact, as his despatches to the Secretary of State reveal, willing not only to surrender
his double vote, but to forgo voting privileges altogether except in the case of an
equally divided Council.183 Furthermore, Irwin wasn’t even opposed to the nonofficial members having a veto, although, showing a good sense of realpolitik, he
suggested during the debate that ‘if the power of veto of the non officials were
limited to taxation alone, it would be…more likely to be approved by the Home
Government’.184 As these changes also had the support of the unsalaried members,
the Colonial Judge, Mackie—who with Nash and George Leake had comprised the
committee which produced the report—and apparently even the Advocate General,
George Fletcher Moore, there were the numbers in the Chamber to adopt the report
and its recommendations.185
The recently arrived Colonial Secretary, Richard Madden, knew this, and he was
almost beside himself at the prospect of these ‘very extensive alterations in the
Constitution of the Legislative Council’ being passed—believing that ‘the
Government would be rendered utterly ungovernable’ for the new Governor,
Captain Charles Fitzgerald, who was due to land in the colony within weeks.186
Madden ‘took the liberty of whispering my fears’ to Irwin, who brushed them
aside; and in desperation Madden proposed ‘an amendment that would disconcert
the plans…of premeditated hostility to the just influence of the home
Government’.187 Madden’s amendment was a tactical masterstroke: it
recommended the addition of ‘three or four non-official members’ to even up the
numbers in the Council in line with the ‘rules and regulations of Her Majesty’s
colonial service’—and as such seemed like a significant improvement, although, of
course, even four more non-official members would still give the now augmented
official bloc, with Mackie’s vote and the retention of the double vote, command of
the Council.188 But, as Madden later confided to Governor Fitzgerald, it was
‘hardly to be expected’ that four would be ‘given’ anyway.189 Possibly having
second thoughts, both Irwin and the Advocate General, in Madden’s words,
‘deemed it expedient’ to support the amendment and with the votes of the other
officials it was carried—as was a subsequent motion requesting that the unadopted
report still be forwarded to the Secretary of State with the suggestion that ‘the
Council would prefer the addition of four more unsalaried members’.190 A week
later Irwin forwarded the report and resolutions with a covering despatch warmly
endorsing the equalisation of the Council to Earl Grey, the current Secretary of
State for the Colonies.191
The proposed enlargement of settler interest was also welcomed by the editor of
the Inquirer who observed that it ‘will be a great step gained. The first of a series
of those progressive improvements in our Legislature we hope soon to see effected,
until the number of the population and state of the colony entitles us to a free
representation’.192 Within days, however, the new Governor had landed and been
informed by a very jittery Colonial Secretary of the Council’s report and Irwin’s
58
supportive despatch. Immediately, Fitzgerald dashed off a strongly worded letter to
‘deprecate the remodelling’ of the Council—
I am of opinion if such organic changes take place that your Lordship will be transferring
the Government of the colony from the hands of the Governor into those of a party long
resident in this settlement who (without meaning them any disrespect) will have already,
by questioning the right of the Governor to a casting vote in the Council, given our
Lordship some earnest of what they may be disposed to do, if the non official members
are increased to an equality with the official, and also given to them when unanimous the
right of veto.193
Notwithstanding Fitzgerald having ‘a fair share of the autocrat in his composition’,
even he recognised, however, that the current imbalance was an affront to the
colonists (who had also made a point of expressing their discontent with the ‘mere
non-entity’ Council very forcibly in the memorial with which they had greeted his
arrival), and concluded his letter with a call for two more non-official members to
be appointed.194 In a despatch which crossed with this one, however, Earl Grey
gave Fitzgerald advance notice of legislation about to be submitted to the Imperial
Parliament which would introduce ‘the principle of popular representation into the
Governments of Van Diemen’s Land & of South Australia by the addition of
Elective Members to their Legislative Councils’—i.e. granting them the two-thirds
elected legislature which New South Wales had received under the 1842 Imperial
statute An Act for the Government of New South Wales and Van Diemen’s Land
(also known as the New South Wales Constitution Act or the Australian
Constitutions Act No. 1); and that:
It is proposed that, by the same measure, the Legislative Council of Western Australia
shall be empowered to pass an Ordinance adding Elective Members in the same
proportion to its own members; whenever the inhabitants shall, by Petition, have declared
themselves generally favorable to such a change, and prepared for the sake of obtaining it
to take upon themselves that part of the charge for the Civil Government of the Colony,
which is now met by the annual Grant of Parliament.195
Fitzgerald, in response to this proposal, outlined that although Western Australia
was not financially—
in a position to take advantage of the liberal and enlightened views of Your Lordship
as…to a representative Council, they are not without hope that Your Lordship will give
them the nearest approach thereto namely an equal (or more nearly so) number of
unsalaried Members in proportion to the salaried ones.196
At the very least, Fitzgerald requested one additional non-official member to boost
their numbers to five within the Council. Indeed, Fitzgerald was experiencing
‘more than common anxiety on this subject’ at the time, because all three of the
Council’s unsalaried non-official members had had the poor form to leave the
colony or die since his first despatch on the subject a year previously, and the
‘objectionable disproportion’ in the Chamber (now six salaried officials to one
salaried ‘non-official’) left him in a ‘position of some embarrassment’ given that it
was a ‘subject upon which much discontent has and does prevail’.197 Although
Downing Street signed off replacements for the existing vacant non-official seats,
Fitzgerald was bluntly advised that no change to the outright numbers or
composition of the Council would be sanctioned until ‘the Inhabitants of the
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Colony shall be prepared to relieve the British Treasury from those charges which
are at present defrayed by Parliamentary Grants’.198 The Colonial Office did make
one striking concession though, in endorsing the appointment of Jewish merchant
and auctioneer Lionel Samson to the Council. Until 1858 Jews were disqualified
from sitting in the House of Commons, so Samson’s recommendation to the
Western Australian legislature (he was proposed initially by Governor Hutt in
1844) was, in fact, a significant departure from accepted practice in the mother
country.199 Indeed, at roughly the same time Samson was being sworn into the
Legislative Council (20 December 1849) the British Parliament was embroiled in
the controversy of Jewish banker, Lionel Rothschild, having being elected MP for
the City of London for the second time (1847 and 1849), but being barred from
taking his seat.
The last significant call for reform of the legislature before the advent of the
convict period, occurred in 1849. The Legislative Council had been requested by
the British Government to frame depasturing regulations for implementation in the
colony. The Council committee appointed to draft them was composed of major
landowners (in possession of almost half the alienated land in the colony according
to Battye) and they came up with a series of spectacularly self-interested proposals
which soon had the whole colony in an uproar.200 This was the final straw for the
colonists who had long viewed their councillors as a ‘favoured few’ who governed
‘almost entirely in the interests of themselves and their friends’ (which prefigured
later criticism that the colony was run by ‘six hungry families’).201 A large public
meeting was held in Perth on 18 July 1849, and resumed on the following day, at
which the ‘odious, intricate, inconsistent, narrow-minded, and injurious
regulations’ were unanimously denounced and revised ones were framed for the
Secretary of State’s benefit.202 After the meeting had disposed of the land
regulations, a prominent colonist, John Wall Hardey, proposed ‘amid many noisy
manifestations of approbation’:
That as the settlers have no confidence in certain Members of the Executive Council, that
a Memorial to the Home Government be drawn up embodying substantial reasons for the
same, and praying their removal…
and that in the future the settlers be allowed to ‘select’—i.e. elect—their legislative
councillors from the list of eligible candidates periodically signed off by Her
Majesty.203 Hardey’s resolutions were passed unanimously, but were not pursued
as the Governor took the heat out of the situation by amending the most
contentious of the depasturing regulations—proving, as the editor of the Perth
Gazette observed, that the ‘memorable meeting’ had not been in vain.204
In 1850 the Imperial Parliament passed An Act for the better Government of Her
Majesty’s Australian Colonies (Australian Colonies Government Act or Australian
Constitutions Act No. 2) which, as outlined by Earl Grey earlier, provided for a
measure of elected representative government, along the lines of that instituted in
New South Wales in 1843, for those Australian colonies able to afford it—i.e. all
of them except Western Australia. Somewhat ironically, in the same year a
desperately impoverished and under-populated Western Australia (with a total nonAboriginal population of only 4,622 according to the 1848 census) and a capital
city which ‘resembled a scattered village’, celebrated twenty-one years of
60
settlement by accepting its first boatload of British convicts.205 Of course, with
penal colony status superadded to its empty coffers, Western Australia now
‘violated two canons of self-government’.206 It is interesting to note, however, that
although it was widely believed that Downing Street would refuse to countenance
‘any sort of elected government’ in the colony while it remained a penal
settlement—as had been the case in the eastern colonies—Western Australians for
the duration of the convict period (1850–1868) continued to condemn the
constitution of their Legislative Council and, even on occasion, its lack of elected
representatives.207 Indeed, only one year after the introduction of convictism the
local press denounced the colony’s ‘despotic Government’ (which had voted pay
rises for all public officials—of which there was a fair number in the Council) for
being ‘utterly unfitted…for the position they occupy as legislators’, while Battye
has commented of the early 1850s:
almost every act of the Council had met with disapproval, and changes in the membership
were continually advocated; but when those changes were made they do not appear to
have brought about any modification of the public attitude. It is quite evident that the
object aimed at in this dissatisfaction was a representative Council...208
The colony overcame one of the impediments to a more representative legislature
in the mid-1850s when it was finally weaned from the annual parliamentary grantin-aid from Britain (relying instead on the ‘lavish expenditure’ from Her Majesty’s
Treasury washing through the colony to support the convict system).209 In
anticipation of this symbolic moment, a non-official member, Marshall Waller
Clifton—described as representing ‘popular opinion in the Council’, but who in
1845 was also one of the rumoured replacements for Hutt as Governor—proposed
to his fellow councillors in 1853 that ‘the time has now arrived’ when the colony
should take upon itself the
whole charge of the establishment and expenses heretofore voted in aid of its Revenue by
the Imperial Parliament…whereby the Colonists will be placed in a position to demand
when they see fit to do so an Elective Legislative Council…210
‘Which’, as the Minutes record, ‘was not seconded’.
Clifton had better luck the following year when he again raised the issue in the
Council. This time he acknowledged the sad reality that ‘the Colony is not in a
position to demand the right to an Elective Council’—an assessment confirmed by
the Governor who stated that ‘The Home Government would never allow us a
Representative Assembly while we were a penal settlement, nor were we yet in a
position to carry one out’.211 Nonetheless, Clifton insisted that ‘there was an
universal wish among the people for a greater voice in the government of the
country’, and he proposed an increase of three non-official members. Such an
increase, Clifton explained, would not only bring the non-official contingent back
to the almost equal ‘proportion’ it shared with the official members when the
Council first became mixed in 1839, but it would also constitute the
‘generally…equal’ proportion recommended in Her Majesty’s Regulations. As
with previous proposals to boost the non-official contingent of the Council, the
result would be that the officials would still, with Mackie’s vote, control the
Council. However, the fact that an increase of three non-official members would
technically deliver the unofficial bloc seven votes if Mackie was included in their
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cohort (and notwithstanding his ‘salaried’ standing he clearly sympathised with the
unsalaried members and had even obligingly seconded the motion under
discussion) as opposed to five unequivocally official members, plus the Governor,
troubled Fitzgerald. Not surprisingly ‘after considerable conversation’ Clifton
acceded to Fitzgerald’s request that the motion be amended to recommend ‘two’,
rather than three, additional non-official members and, thus amended, the
resolution was passed. Notwithstanding the concession wrung out of Clifton, the
resolution was completely repudiated by Governor Fitzgerald who subsequently
harrumphed to the Secretary of State in a despatch that the Council already
possessed a ‘sufficient amount of collective and deliberative opinion for the wants
of the Colony’ considering its scanty population.212 Indeed, far from repeating his
own previous requests for additional non-official members, a clearly fed-up (and
soon to retire) Fitzgerald now recommended that if any changes were to be made to
the Council, then it should be contracted by the removal of an official member.
But, possibly sparing a thought for his successor, he added that if two additional
non-official members were to be granted, then he ‘would anxiously solicit’ another
official member be appointed too.213
Another Governor Joins the Fray
The following year saw Governor Arthur Kennedy arrive in the colony. Almost
immediately he was instructed by the current Secretary of State for the Colonies,
Lord John Russell, to ‘consider and report to me your opinion’ as to the constitution
of the Council—particularly whether ‘you deem it desirable that the Council should
be further increased by the addition of more unofficial Members; and of another
Official Member as suggested by Governor Fitzgerald’.214 (As this despatch was
written nine months after Fitzgerald’s latest letter arguing against an increase, and
well within the time normally taken for correspondence to pass between Swan River
and England, it appears that the Colonial Office sensibly chose to disregard
Fitzgerald’s recent change of heart.) Although Russell directed Kennedy to furnish
his ‘opinion’ on the Council, his despatch ended with a polite reminder of the
Colonial Office’s ‘general policy which I think is in favor of the present constitution
of the Council’. It is no surprise, therefore, that Kennedy—a career Governor
described by de Garis as ‘more concerned with pleasing the Colonial Office than
propitiating the colonists’—provided the answer expected of him:
I have no reason to suppose that the public have not implicit confidence in the Legislative
Council as now constituted, and I think that the individual respectability and
independence of that body fully entitle them to that confidence…I am of opinion that
there is not now any general desire on the part of the public or any section of the
Legislative Council for change. I lean to the opinion that any change in the present
organization of the Council would only tend to unsettle the public mind, and that there is
no judicious medium between that which exists, and an Elective Council the advantages
or disadvantages of which under the existing circumstances of this Colony it is
unnecessary for me now to enter upon.215
It was a different Secretary of State for the Colonies, Henry Labouchere, who
answered this despatch—but he, also, was
not disposed to think that any advantage would be derived from encreasing the number of
members of the Legislative Council which as at present constituted appears to possess the
confidence of the community…216
62
Kennedy and Labouchere were soon disabused of their rosy appraisal of the
settlers’ ‘confidence’ in the Council. Just over twelve months after Kennedy’s
arrival, the Council’s passing of a repressive and unpopular Licensing Ordinance
led, on 6 August 1856, to the biggest public meeting ever convened in the colony
(with additional meetings in the outlying districts) to protest against the Ordinance
and, more significantly, ‘for the purpose of taking into consideration the propriety
of petitioning Her Majesty’s Government to amend the present constitution of the
Legislative Council’.217 Impassioned speeches were made urging those present to
‘claim their rights as Britons’, and the meeting unanimously passed a resolution
calling for ‘the increase of the number of non-official members to a number
equalling that of the official members, to be elected by the free settlers’.218
Governor Kennedy soon let the Secretary of State know what he thought about
these suggestions—
The sanity of this project may be inferred from the fact that the total male population
above 15 years is 5,100, 3,000 of whom are convicts or expirees, and this population is
scattered over a territory 500 by 300 [miles].219
Kennedy, however, wasn’t only troubled that if an elective Council was instituted,
the ‘right of suffrage’ would soon extend to the ex-convict class—‘originally
criminals of the deepest dye’. He was also concerned that if suffrage was withheld
from the bond class, then the evils of electoral patronage still so prevalent in the
United Kingdom would soon prevail in the small colony:
Were the right of suffrage narrowed, a local Solicitor and the Cashier of the Bank, who
own or influence the local press and control all money transactions, would virtually
nominate the Council unless the Government embarked in a system of corruption which
would create a worse evil.
Such a situation, he wrote, would deter ‘suitable and respectable candidates [who]
would not come forward and expose themselves to the obloquy and
misrepresentation which all who differ from these gentlemen are subjected to’.
Finally, Kennedy argued that ‘the introduction of the elective principle into the
Legislature of this Colony as at present circumstanced is simply impracticable’,
because there was ‘no possible or safe machinery to carry’ out elections in the vast
territory—‘even assuming there was material to choose from’. In response to this
despatch, Labouchere, although renowned in England for his ultra-liberal views,
tersely replied that: ‘Her Majesty’s Government are not prepared, under present
circumstances, to advise the introduction of Elective Members into the Legislative
Council’.220
Perhaps Lionel Samson, who spoke ardently in support of the resolutions at the
meeting, suspected this would be the outcome: a few months later, and well before
the Secretary of State’s reply was sent from the Colonial Office, he resigned his
seat, presumably, as W. B. Kimberly has suggested, ‘to testify his conviction that
the presence of non-official members in the Legislative Council was powerless for
good’.221 Exactly two years later, Clifton, similarly claiming that ‘the present
number of non-official members is powerless for good’, also resigned from the
‘FARCE and a SHAM’ Council after failing to get it to pass resolutions to enlarge
the non-official bloc by two members and ‘modify…[its] constitution’.222
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In reporting Clifton’s resignation the Perth Gazette revealed that ‘No non-official
member has attended [Council meetings] for some time past’: a boycott which the
editor applauded because the Council was ‘an engine of unconstitutional
oppression—the arena of all that is false in words and works’ and one in which no
‘honorable or independent’ gentleman could participate ‘without incurring public
reproach and contempt’.223
The only remedy, according to the Perth Gazette, was for representative
government to be instituted in the colony. Many of the settlers agreed, and the
Perth Gazette announced in the following month that committees of prominent
settlers in Perth, Fremantle, Swan, York, Toodyay and Bunbury were organising
signatures for a petition—which the paper obligingly printed in full and urged
everyone to sign—calling for the enlarged and two-thirds elected Legislative
Council provided for by the 1850 Act for the better Government of Her Majesty’s
Australian Colonies.224 Nothing came of the petition, but Lionel Samson—vowing
to pursue ‘a platform of political reform’—accepted reappointment to the Council
in March 1859 (somewhat bizarrely filling the vacancy created by Clifton!).225
Only a year later, however, Samson was again expressing his disillusionment with
the non-official members’ role:
He had observed that whenever he, or other nominees, got up to address the council he
was received and greeted with sarcastic looks and gestures, and the members of the
Executive…knew they had, the whole power in their own hand. He was aware that the
nominees were perfectly powerless, and under the present constitution that they were
useless, and was now convinced that the absence from Council of the non-official
members would be for all practical purposes as beneficial as their presence.226
Samson spoke not only for the other dissatisfied non-official members, but for
many discontented colonists, when he informed the Chamber that: ‘it was now high
time that they obtained the elective franchise and legislated for themselves’.
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3
The S-Elections
Constitutions for the Colonies are now on the anvil; the
discontented Colonies are all to be cured of their
miseries by Constitutions.
Thomas Carlyle
Going ‘the whole hog’
At the end of 1864 the Inquirer newspaper had a scoop: ‘private letters’ from
impeccable sources rumoured that the transportation of convicts to the colony—the
sole remaining convict settlement in the British Empire—would cease ‘at no very
remote period’.1 With the cessation of transportation, of course, would fall the
principal hurdle to elected representative government. The editor of the Inquirer
couldn’t contain himself:
It is unnecessary for us to state that an alteration in our present form of Government is, in
our opinion, an absolute essential to progress; and long before the final breaking up of the
Convict Establishment in this Colony, we hope she will be in possession of a Government
in which the principle of representation is recognized. When we can govern ourselves,
and have no occasion, should we desire to settle our own territory upon our own terms, to
refer to the Imperial authorities before we can alienate an inch of land, we may be able to
attract immigration; and when, relying upon the security of the natural wealth at our
disposal, we may choose to borrow money for the purpose of executing reproductive
works, and employing our surplus immigration, it will not be necessary to ask the sanction
and court the rebuff of the Secretary of State for the time being.
Following this enthusiastic plug for the ‘principle of representation’, however, the
editor proceeded to caution the locals against following the example of the sister
colonies who had not ‘copied the institutions of the Mother Country’ in instituting
their ‘popular’ governments—and, as a result, had ‘gone too far’.
While the defects of the other Australian colonies’ legislatures were not detailed,
the readers of the Inquirer would have understood the reference: the eastern
colonies upon, or soon after, attaining self-government had generally plumped for
such un-English practices as manhood suffrage in their Lower Houses, triennial
parliaments and the secret ballot. Indeed, in the 1860s Sir Charles Dilke reported a
witticism which summed up Australia’s political scene quite nicely:
‘What is a Colonial Conservative?’ is a question that used to be daily put to a Victorian
friend of mine when he was in London. His answer, he told me, was always, ‘A statesman
2
who has got four of the “points” of the People’s Charter, and wants to conserve them.’
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In fact, the reference to Chartism is telling given the number of Chartists who were
transported to, or found it judicious to relocate to, Australia in the period preceding
the attainment of self-government in the eastern colonies (peaking around the time
of the collapse of Chartism in Britain and the discovery of gold in Victoria) when,
it has been widely argued, they ‘helped to shape opinion during the crucial period
when the colonists were drafting and refining their own constitutions’.3
Unfortunately, since this time, the New South Wales Parliament, in particular, had
been raising eyebrows around the world with its sizable cohort of boorish and
drunken members and its often riotous sittings—with the result that democratic
electoral provisions were frequently stigmatised for ‘giving place to noisy and
illiterate vulgarity’.4 Nevertheless, ‘let the defects of their system be what it may’,
the editor of the Inquirer resumed:
looking at what has been done in the direction of material progress by colonies under
representative Government…we cannot but allow that gigantic strides have been made,
and that political freedom and material prosperity have been co-existent.
While, by contrast, the very British and very decorous Western Australian
legislature:
now weighs like an incubus on the Colony. The best of rulers must fail under the system,
for he is not a free agent. With the kindliest motives, a Governor is a despot in his relation
to the people; with every wish to be independent, he is a slave in his relation to the
Secretary of State.
Within weeks the rumour was formally confirmed and the local newspapers printed
in full the relevant despatch from Secretary of State, Edward Cardwell, to the latest
Western Australian Governor, Dr John Hampton, announcing that transportation to
Western Australia would ‘entirely cease’ within three years.5 But even before
Cardwell’s despatch had been handed to the Governor, advertisements for a
‘PUBLIC MEETING!!’ ‘with a view to memorializing His Excellency the
Governor and Council to adopt the modified forms of Constitution’ available under
the Australian Colonies Government Act had been placed in the local press.6 The
meeting, which had been conceived and requisitioned in the first week of January
by some of the colony’s leading settlers (J. G. Lee Steere, W. L. Brockman,
W. Padbury, G. Shenton, J. G. C. Carr, J. W. Parker and S. P. Phillips), was
strategically scheduled for 21 February 1865—the day before the Perth Races
‘when persons from all parts of the colony will probably be in Perth in greater
numbers than can be hoped for at any other time’.7 In addition, according to the
Perth Gazette, giving the community plenty of warning about the meeting allowed
‘ample time for considering’ the move away from its ‘state of perfect vassalage’!8
Consequently, on 21 February 1865 ‘sixty of the most influential members of our
small community’ met at the Freemasons’ Hotel where a majority of them
supported the following resolution:
That in the opinion of this meeting the time has now arrived when it is proper to take
advantage of the Imperial Act of 1850, authorizing, under certain conditions, the
constitution of a new legislative body…9
According to the terms of the Act for the better Government of Her Majesty’s
Australian Colonies the next step in the process was for ‘not less than One Third in
66
Number of the Householders within the Colony of Western Australia’ to petition
for elected representation—whereupon ‘it shall be lawful’ for the Legislative
Council to pass an Ordinance amending the constitution of the Council so that it
would comprise two-thirds elected representatives and one-third Crown
nominees.10 A sizable committee was promptly appointed at the Freemasons’
meeting to draft the petition and organise the signature gathering.11
A number of those present at the meeting, however, expressed reservations, and
argued that the quest for a measure of elected representative government under the
terms of s. IX of the 1850 Act (which stipulated twice that Western Australia must
bear the full charge of its civil establishment free of ‘Parliamentary Grants’ from
Britain) was ‘rather premature’; that ‘through the withdrawal of imperial aid, the
colony would collapse’; and that the colony would be scratching to find enough
men of means able to devote their time to the then unpaid position of legislative
councillor.12 Others warned against the ‘floodgates of free representation’ (clearly
everyone was concerned about the ‘bond’ element within the community); while
one old settler, possibly recalling English elections before he emigrated, recoiled at
the thought of being ‘harassed by elections and other annoyances’.13 These fears
were shared by many in the community, including the editor of the Inquirer
newspaper who had suddenly gone cold on the idea of major constitutional
change—presumably fearing that fully-fledged responsible government would
soon follow—and who had started expressing the view ‘that there are few real evils
to redress’ in the current system and ‘we are…as well governed as any place in the
world’!14
The editor of the Perth Gazette, however, was ardently in favour of representative
government and repeatedly pointed out that the colony had already dispensed with
the type of parliamentary grants referred to in the Australian Colonies Government
Act as early as 1853; and that the financial aid which the colony currently received
from the Imperial Government for its civil establishment (roughly £12,000 per
annum) was ‘principally’ for ‘Imperial services’, i.e. they were convict-related and
therefore an Imperial responsibility—and that Tasmania continued to receive
similar Imperial funding even after it was granted representative and responsible
government.15 Furthermore, the Perth Gazette championed the ‘good common
sense’ and local experience of the settlers, affirming they would make ‘capable’
legislators if only given the opportunity.16 Above all, the Perth Gazette derided the
‘dead-alive nominee state of dependency’ and ‘perfect vassalage’ the colony was
currently languishing under, and urged the settlers to pursue the ‘true British
feeling of a desire for political rights’.17 Over the next few months 1,303
‘Householders’ in the colony did just that and signed the petition in favour of a
partly elected Council.
While the signatures were being gathered by eleven local committees throughout
the colony, Governor Hampton raised the issue of an ‘amended constitution’ in the
Executive Council and invited the councillors to give their ‘unbiassed’ opinion on
the subject.18 In particular, he was interested in the Attorney General’s advice
regarding the ‘prevailing idea that the Council was bound to comply with the
prayer of such a petition’. The Attorney General, George Stone, who was
completely opposed to the proposed constitutional change, ‘had no doubt on the
question’ that ‘it shall be lawful’ to amend the Constitution was not compulsory
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but merely permissive. Indeed, apart from the Colonial Secretary and the
Comptroller General of Convicts (the latter official was added to the Executive, but
not Legislative, Council in 1852) who were guardedly in favour of the petition
‘provided it is signed by a majority of the right thinking people in the Colony’, the
four remaining executive councillors believed that the push for a partly elected
Council was ‘premature and that the people should be saved from themselves’—
with the Surveyor General dolefully prophesying that the ‘change would be a great
evil and lead to a state of anarchy and confusion’.
The householders’ petition was presented to the Council on 29 June 1865 by the
long-standing advocate of reform, Lionel Samson; and a select committee—
comprising Samson, the Commandant, the Colonial Secretary and the Attorney
General—was appointed by the Governor to investigate the validity and ‘class’ of
each signature.19 While this fairly laborious process was taking place, the Governor
forwarded a copy of the petition to the Secretary of State and informed him that
while he had
carefully abstained from any interference or expression of opinion in the matter, and have
now left the Official Members of the Legislative Council wholly free to act as they may
see fit with reference to the proposed change…I deem it right to state I have reason to
believe that a large majority will vote against it.20
Interestingly, this despatch has been consistently misinterpreted by Western
Australian historians who—perhaps taking a cue from W. B. Kimberly and J. S.
Battye—have argued that the Governor’s comment that a ‘large majority will vote
against it’ referred to the colonists.21 The colonists, however, were not going to be
presented with any opportunity to vote on whether they could have a vote—only
the legislative councillors—and Hampton was already aware of the negative views
of the Executive Council bloc within it. The select committee reported back to the
Council on 18 August with the news that even after scrubbing out 150 invalid
signatures there was a total of 1,153 householder petitioners (including twenty-four
‘Females’ who wouldn’t even acquire a vote under the new dispensation) which
was more than one-third of the estimated 923 householders in the colony.22 The
Governor then put the motion: ‘That the Petition is in accordance with the
requirements of the Act of Parliament’. The motion was passed unanimously, as of
course it had to be, but Hampton immediately inquired of the Attorney General
whether the Council was actually obliged to do anything about it. Previously in
Executive Council, Stone had provided an off-the-cuff opinion that ‘it shall be
lawful’ to amend the Constitution was merely discretionary, but on this occasion he
was armed with a full report citing legal precedents in support of this
interpretation.23
Samson was undeterred. He believed the colony was ready to ‘go the whole hog’
for partially elected representative government and he had the signatures to prove
it; he accordingly put the motion: ‘That the prayer of the Petition…be complied
with’.24 Before the vote could be taken, however, another non-official member,
John Wall Hardey, moved the following amendment:
That in the opinion of this Council the constitution of the Legislative Council may be
improved to meet the present requirements of the Colony, by an addition of two NonOfficial Members, and the term of office of all Non-Official Members limited to three
68
years, instead of for life; and further, that His Excellency the Governor be requested to
recommend such a modification of the present Legislative Council for the favorable
consideration of Her Majesty’s Secretary of State.25
Hardey’s amendment was carried; the petition was dead; and an enraged Samson
submitted a strongly worded ‘Protest’ which concluded with the following stinging
observation:
if the Legislative Council are to have the power of rejecting the Petition of one-third of
the Householders, they may reject a similar Petition signed by every Householder in the
Colony, and may never consent to suppress their own body as at present constituted.26
At this rather climactic point the Governor wound up the 1865 session of
Council—which didn’t reconvene until the customary mid-year session in the
following year—and bundled up the report, amendment and protest for the
Secretary of State’s determination. He also informed the Secretary of State that
while he believed the ‘form of Government and Legislature now in operation here
appear to me to be peculiarly well adapted’ to the colony:
The petition for a partly elective Council would seem to indicate that…the Legislative
Council does not now possess the confidence of the community…I am convinced that it
will be impossible to arrest the progress of the movement under consideration, unless
some concession is now made. I therefore recommend that the request contained in the
amendment should be acceded to, provided no change is made in regard to the Governor
having “an original vote in common with the other Members, as also a casting vote if
upon any question the votes be equally divided”.27
Hampton signed off after mentioning that ‘I have reason to believe it is probable
that I will be requested to forward to you by next month’s mail a Memorial from all
classes of Colonists in favor of the amendment’.
The pro-amendment memorial alluded to by Hampton circulated in the colony over
the next few months, but it only managed to muster seventy-two signatures—and
it, too, registered a preference for elections: ‘We wish it to be understood, however,
that we should very much prefer that instead of such [additional] members being
appointed upon the nomination of the Governor, they should be elective by the
people’.28 Perhaps that fact that even the conservative element in the colony called
for elections, motivated Hampton’s suggestion to the Secretary of State in his
21 December 1865 despatch (in which he forwarded the memorial) that:
to whatever extent I might be allowed any voice in the matter, I should endeavour to
nominate the persons most acceptable to the free inhabitants generally, and fairly
representing every interest throughout the Colony—a very difficult task which I would be
glad to see delegated to Electors.29
—A quasi-proposal for elections which almost immediately took on the status of a
‘pledge’ or ‘promise’ with the settlers.30 Or perhaps it was the fact that a protest
meeting in Geraldton on 12 October, which unanimously denounced the Council’s
rejection of ‘the people’s Petition’ and proposed the circulation of two new
petitions (one to rebut Hardy’s counter-petition and another to the Secretary of
State ‘humbly requesting that the present Government of Western Australia be
compelled to adopt and enforce the British Act of Parliament, 13 and 14 Vict. cap
59’), had received wide publicity?31 By the time Hampton’s despatch was mailed,
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Christmas was almost upon the colony; the protests had finally subsided; and the
Governor, councillors and colonists settled down to wait for the Secretary of
State’s reply.
They waited an unconscionably long time. When the Legislative Council
reconvened in the middle of 1866, sitting after sitting opened with Governor
Hampton announcing: ‘I have not received from the Colonial Office any
communication whatever with reference to the proposed amendment of the
Constitution of this Council, brought forward last session’.32 The 1866 session of
Council concluded without any reply and when it resumed sittings in June the
following year there still wasn’t a response from the Colonial Office. But while
Hampton speculated with perhaps a touch of smugness that ‘great embarrassment
and complications in other Colonies under an Elective Legislature might have
induced the Secretary of State to defer his decision’—the local newspapers frothed
about the standard ‘Downing Street routine’ of ‘provoking coolness’ and
‘contemptuous neglect’.33 The newspapers were closer to the truth than the
Governor: a Colonial Office Minute explains that the delay was due to personal,
and deeply regretted, ‘circumstances’ of one of the Colonial Office staff.34 It is
unthinkable that Indian or Canadian legislative concerns would have been so
casually overlooked.
But to be fair, in 1866–1867 the British Government was preoccupied with
momentous constitutional change of its own. Indeed, according to one
distinguished historian, the British Parliament in 1867 faced, ‘perhaps the decisive
event, in modern English history’—the consideration of a Reform Bill which
would transform England ‘into a democracy and…[make] democracy not only a
respectable form of government…but also, in the opinion of most men, the only
natural and proper form of government’.35 The British quest for parliamentary
reform in 1866–1867 was also a chief topic of interest in Western Australia with
both the Perth Gazette and the Inquirer reporting every step, twist and reverse of
the process in exhaustive detail (even down to which parliamentary sittings the
Prime Minister, Lord Derby, missed because of gout).36 So while Western
Australians waited for the decision as to their constitutional future, the Imperial
Parliament was conveniently discussing the pros and cons of crucial issues—
particularly, an appropriate basis for the suffrage—that eventually the local
legislature would be compelled to deal with. In fact, it is essential at this point to
survey briefly the Second Reform Act, not only because the arguments for and
against it in the Imperial Parliament informed political discussion in Western
Australia for years, but also because the Act defined where the mother country
stood electorally in the year that the colony held its first s-election. It then becomes
much easier to determine whether Western Australia followed the electoral
example of the mother country or that of the ‘ultra democratic’ sister colonies.37
The Second Leap in the Dark (or Dishing the Whigs)
As with most pieces of legislation designed to bring additional citizens ‘within the
pale of the Constitution’, the Second Reform Act of 1867 had a checkered and
controversial passage. The saga actually commenced in March the previous year
when the Liberal Prime Minister Lord John Russell (‘Finality Jack’ of the First
Reform Act) directed William Gladstone, the Liberal Chancellor of the Exchequer
70
and Leader of the House of Commons, to introduce a Reform Bill into the
Commons. The thrust of Russell’s and Gladstone’s Bill was the extension of the
franchise to the more prosperous, and therefore presumably ‘respectable’, members
of the urban working class—the so-called labour aristocracy, and they proposed to
do this by lowering the borough franchise from £10 to £7 and by extending the
vote to £10 lodgers in the boroughs. (The Bill also contained some less radical
provisions to expand the county electorate.) If the Bill had passed—and it was the
fifth Government-sponsored Bill seeking to widen the franchise which had been
submitted to the Parliament in the past fifteen years—it would have seen the first
extension of the suffrage since the ‘final and irrevocable settlement’ of 1832. But it
didn’t pass: dissident right-wing Liberals dubbed the ‘Adullamites’, with the
support of the Tories, saw the Bill off because they feared it went too far
(notwithstanding Gladstone’s admission that the Bill would still ‘give the working
class less power than it had had before the passage of the first Reform Act’).38 As
the Adullamites’ leader Robert Lowe (who had been intimately involved in New
South Wales politics twenty years previously) spat out in Parliament:
If you want venality, if you want ignorance, if you want drunkenness, and facility for
being intimidated; or if…you want impulsive, unreflecting, and violent people, where do
you look for them in the constituencies? Do you go to the top or to the bottom?39
In fact, Lowe continued, if they weren’t careful they would end up with mob rule
and corrupt politicians just like Australia! Indeed, much of the reform debate in
England at this time, as Australian historian Humphrey McQueen has pointed out,
‘drew upon Australian experience with democracy’—particularly, McQueen has
argued, because ‘the privileged political position of Australian working men vis-àvis their English counterparts was appreciated in both countries’.40 In reality,
however, it was more likely due to ‘the failings of Australian democracy’—
particularly, riotous proceedings in the eastern colonies’ legislatures—which made
riveting newspaper copy, and were so frequently denounced in the Times and other
British newspapers, that a pro-reform writer in 1867 could write of the ‘English
dread of Australian politics’.41
Notwithstanding considerable public protest at the sinking of the 1866 Reform Bill,
Lord Russell resigned, lamenting ‘the general apathy of the South of England on
the subject of reform’.42 A minority Conservative Government led by Lord Derby
took over on 28 June 1866, and at the beginning of 1867 the Conservatives ‘took
the country by surprise’, as the Perth Gazette described it, by deciding to introduce
their own Reform Bill into Parliament—a Bill which rapidly evolved into a far
more radical package than the legislation which they had helped torpedo the
previous year.43 As an opening gambit the Conservatives proposed male household
suffrage hedged about with various number-culling safeguards (such as two-year
residency requirements and personal payment of rates) and offset by ‘fancy
franchises’ and dual voting provisions which would bestow the vote, or an
additional vote, on worthy non-working-class recipients—graduates, professionals,
property-owners, those with substantial savings bank accounts and so on. Before
the Bill was even introduced into Parliament on 18 March, however, three leading
Conservative Cabinet ministers, including the recently appointed Secretary of State
for the Colonies, Lord Carnarvon, resigned in dismay that their party was
attempting to ‘outbid the Liberal party in the market of liberalism’.44 Well, the
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Conservatives’ Bill became substantially more liberal over the ensuing months, as
one by one the safeguards and fancy franchises were discarded or amended in the
Parliament—indeed, at one stage the House even discussed, but soon voted down,
John Stuart Mill’s motion that women be enfranchised—and when the much
‘mutilated and improved upon’ Bill was finally passed, it extended the borough
franchise to all male rate-paying householders and £10 a year lodgers who met a
twelve-month residency requirement.45 (The Act accomplished much more than
this—including redistribution of seats and amendments to the county franchise—
but household suffrage in the boroughs constituted the core of the Act.) While
household franchise was still a long way from the Chartist demand for universal
male suffrage, it was a huge step forward—with Gladstone observing that ‘we
have, I think, practically adopted the principle that every man who is not disabled
in point of age, of crime, of poverty, or through some other positive
disqualification, is politically competent to exercise the suffrage’—and one which
increased the English-Welsh electorate by almost a million voters.46 (By contrast,
Russell and Gladstone’s Liberal Reform Bill of the previous year had modestly
proposed to enfranchise roughly 400,000 voters.47) As with the First Reform Act,
Reform Bills extending the franchise in Ireland and Scotland were passed soon
after.48
While the 1866–1867 reform movement was not as convulsive as that of 1830–
1832, the atmosphere in the United Kingdom was still highly charged with monster
processions, protest meetings and demonstrations in favour of reform taking
place—most famously in Hyde Park where, in July 1866, toppled railings and
trampled flower beds prompted some commentators (contemporary and modern) to
talk breathlessly of riots and England’s ‘Bastille’.49 Furthermore, 1867 was
punctuated by Fenian ‘outrages’ and the Birmingham Riots—which clearly didn’t
help. Not surprisingly, British society was seen to be at a crossroads; and
arguments for and against electoral reform were, as customary, being vented in
political essays and the press, as well as in Parliament. One of those most
vehemently opposed to taking the ‘Leap in the Dark’ (the 1832 metaphor was
dusted off again) was Thomas Carlyle who in ‘Shooting Niagara’ (his metaphor for
granting the vote to the ‘rabble’) warned the British public that widening the
suffrage to include the lower orders would simply recruit ‘new supplies of
blockheadism, gullibility, bribeability, amenability to beer and balderdash’.50 What
would come next, he sneered: ‘Horsehood’ and ‘Doghood’ suffrage?51 Even the
avowed liberal Matthew Arnold was aghast at the ‘perturbed social condition’ and
‘the tendency to anarchy which seems to be threatening us’—in particular, by the
‘vast residuum’ clamouring for the franchise—an anxiety shared by fellow-liberal
Walter Bagehot who in The English Constitution (published serially in the
Fortnightly Review between May 1865 and January 1867) warned against paying
too much homage to ‘our ignorant classes’.52 Arnold, however, went much further
than simply deploring the social turmoil of the times: in his resonantly entitled
Culture and Anarchy, he cautioned against narrowly equating reform with electoral
reform—‘the idea of the blessedness of the franchise’ by which the mere
possession of the vote ‘has in itself some edifying and perfecting effect upon
human nature’.53
Those providing a more positive slant on the democratic reform movement
included a group of liberal and radical intellectuals who published two volumes of
72
essays while the Second Reform Act was transiting the Parliament—Essays on
Reform (published in March) and Questions for a Reformed Parliament (July).54
One essay from the first volume (which appeared in time for a copy, or at least a
review of it, to surface in Perth before the first ‘s-elections’ took place) is
particularly interesting. Bernard Cracroft in his meticulous profiling of the
members of the House of Commons exploded the anti-reform bogey that the
‘swamping’ of the electorate by working-class voters would threaten the stability
of the body politic. Cracroft outlined that notwithstanding the abolition of the
property qualification for MPs in 1858, at the 1865 general election the 128,603
working-class borough voters (representing a sizeable 25 per cent of the English
and Welsh electorate) had only managed to elect two members who could be said
to specifically represent their interests—out of a House of 660 members.55
Meanwhile, 179 railway directors sat in the House to champion the cause of
railway shareholders!56 In fact, Cracroft demonstrated that the Commons was
chock-a-block with aristocratic landowners who formed ‘one vast cousinhood’ of
shared interests: ‘They have a common freemasonry of blood, a common
education, common pursuits, common ideas, a common dialect, a common
religion’.57 If there was any swamping going on, Cracroft argued, it was with this
lot who got into and controlled Parliament—‘by the power, in short, of their
prodigious antecedent advantages, by their irredeemable start in the race for
power’.58 (And by their deep pockets that could afford to contest an election.) But
really, John Stuart Mill had made the point six years earlier in Representative
Government when he commented that British legislators ‘care comparatively little
who votes, as long as they feel assured that none but persons of their own class can
be voted for’.59
Notwithstanding the county class still being voted in because of their ‘prodigious
antecedent advantages’, the democratising of the Imperial Parliament was
accelerating. Over the next two decades the British Parliament—and electoral
practice—would be transformed. So, too, would the English education system as
the apprehensive upper echelons realised, to quote Robert Lowe’s sulphurous
assessment, that ‘it will be absolutely necessary…[to] prevail on our future masters
to learn their letters’.60 Within three years the Forster Education Act would be
passed providing (near compulsory) elementary public schooling for English and
Welsh children aged between five and twelve.
The S-elections
On 9 September 1867 Governor Hampton finally received a short despatch from
the latest Secretary of State, the Duke of Buckingham, approving the equalisation
of the official and non-official members of the Council and the limitation of the
non-official members’ tenure to three years, as recommended in Hardey’s
amendment.61 The original rejected householders’ petition and Samson’s ‘Protest’
were not referred to. Almost immediately after the despatch was made public, a
meeting was requisitioned for:
the purpose of taking into consideration…the subject of the proposed appointment of
Non-Official Members to the Legislative Council, and of devising some means of taking
the sense of the Colonists as to the particular persons to be recommended.62
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Basically, the colonists had to determine how to deal with Governor Hampton’s
pledge to consult the wishes of the colonists in nominating the councillors—or, as
the editor of the Inquirer put it, ‘in point of fact, electing them’.63
The meeting, which was ‘numerously-attended and highly respectable’, took place
at the Perth Court House on 14 October—somewhat fittingly in the same month
that the last convict ship, the Hougoumont (with a cargo of sixty-two Fenians) set
sail for Western Australia.64 Predictably, a number of those in attendance
denounced the Colonial Office concession, agreeing with the editor of the newly
launched Fremantle Herald, that ‘the pretended boon’ was ‘a sham and a
delusion—worthless—worse than worthless—an injury and an insult’.65 Their view
was that the colonists should ‘decline to accept any alteration to the constitution of
the Legislative Council unaccompanied by the Elective Franchise’—which, as the
editor of the Herald had recently reminded his readers was, ‘their birthright as
Englishmen’.66 Most at the meeting, however, argued more pragmatically that it
was inevitable that ‘We would have Responsible Government by-and-by’, and that
the concession amounted to a ‘step in the right direction’ and an ‘instalment’ of
reform that the colonists should seize. In fact, from comments made at this
meeting, and in editorials of the period, it appears that most colonists were far more
aggrieved that they had missed out on the elective franchise than representative or
responsible government.67 Indeed, there was wholesale confusion in the colony
(possibly much deliberate) as to whether upcoming constitutional change would
involve representative or responsible government, with the terms being bandied
around fairly indiscriminately. (Representative government under the terms of 13
& 14 Vict., c. 59 would give the colonists elected representatives in the legislature,
but not an elected and, therefore, responsible Executive. The Executive would
continue to be appointed by, and remain responsible to, the Secretary of State.)
The meeting carried a unanimous resolution which made the settlers’ aspirations, at
least, quite clear:
That in the opinion of this meeting, the colony has not yet arrived at such an advanced
stage as to render “Responsible Government” desirable, but that an alteration in the
present form of government is absolutely necessary, and that such alteration should
consist in the election of non-official members of Council by the inhabitants.
Finally, after a little more discussion and argy-bargy, Edward Newman, one of the
meeting’s requisitionists, put ‘the proposition of the day’:
That it is desirable that the colonists should at once, so far as circumstances will permit,
endeavour to establish the principle of election; and that with this view the settlers in the
different districts be invited to hold public meetings for the purpose of nominating the
particular persons to be recommended to the Governor for appointment as unofficial
members; and that for this purpose the Colony may be considered to be divided into the
following electoral districts, each making choice of one member:—the Northern District
(Champion Bay) one; the Eastern District (Culham to Beverley) one; the South District
(Bunbury, Vasse, &c., including King George’s Sound) one; the Victoria Plains and Swan
Districts, including Bindoon, Gingin, &c. one; Perth, one; Fremantle, one.68
Newman continued that he anticipated ‘opposition’ to his proposed electoral
boundaries, because many would prefer to see ‘the leading interests—the
Mercantile, Agricultural, and Pastoral’ represented rather than areas of settlement.
74
But, he argued, trying to represent interests would be ‘quite impracticable’, while
representing ‘electoral districts’ would ‘meet the general approval of the colonists’.
Surprisingly, considering the interest which boundaries and redistributions
command today, Newman’s proposition didn’t unleash yet another round of
argument—possibly because the ‘electoral districts’ he proposed, in spite of his
protestations, basically represented clumps of settlement dominated by ‘Mercantile,
Agricultural, and Pastoral’ interests anyhow. After minimal ‘opposition’, and a
‘Hear, hear’ for Charles Manning’s observation that selected members ought to be
representative of ‘the colony generally, and not that of any particular interest’, the
proposition was carried unanimously.69 The boundaries taken care of, a thirty-one
member ‘Central Committee’ to coordinate the six district selections was appointed
before the meeting closed.
Notwithstanding the existence of a ‘Central’ committee, there was very little that
was centralised about the colony-wide selection process. It had been accepted at
the meeting, as a matter of course, that ‘There should be no dictation to the districts
in the modus operandi of selection’, because as Newman remarked (accompanied
by more interjections of ‘Hear, hear’) ‘it would be a most invidious task in any way
to point out to the committees the mode of planning their course for business. He
considered if they could not do that themselves they ought not to enjoy such
privileges’.70 Reporting on the meeting, the editor of the Perth Gazette suggested
that the speakers:
carefully abstained from expressing any opinions as to how the selection is to be made,
very justly considering that as His Excellency expressed no opinion on the subject they
had neither right or authority to bind the people down to any course of procedure.71
A more likely explanation, however, is that the colonists, facing what was in all but
name an election without any electoral infrastructure, automatically adopted as a
default template the British electoral model whereby each county was fully
responsible for the conduct of its own elections through the county sheriff’s office.
Accordingly, the Perth meeting devolved all aspects of the running of the
selections—type of poll, voting qualifications, choice of polling day and hours of
polling, number of polling booths, appointment of scrutineers etc.—to the districts
on the understanding that the local resident magistrate—the district equivalent of a
county sheriff—‘would direct the business of the district committees’ as the
returning officer.72
The Central Committee met within days of the meeting and wrote to the Colonial
Secretary requesting the Governor to ‘favor them with any remark or suggestion he
may be pleased to make for their guidance’.73 The Colonial Secretary replied by
return mail that the Governor was ‘glad’ that the selection process by ‘the free
inhabitants generally’ was under way; but other than expressing a desire that the
selections be finalised before the December mails to ensure a full Council would be
installed in time to pass the 1869 Estimates, the Governor had no suggestions to
make.74 (Indeed, Governor Hampton was so determined to keep the Government at
arm’s length from the selections—because they were not ‘a strictly official
matter’—that permission was refused for election-related public notices to appear
in the Government Gazette.75) With this bit of protocol taken care of, the Central
Committee despatched a form letter to the leading lights in the districts urging
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them in the first place to hold an election because ‘it is desirable at once to
endeavor to establish the principle of election by the settlers, in preference to
leaving the members to be selected by the Governor’, and then emphasising that
although selection via public meetings—British hustings style—seemed the
obvious way to proceed:
it is, of course, open to those interested, to take the sense of the inhabitants in some other
manner, if they prefer it; the meeting in Perth having carefully abstained from dictating
any particular line of proceeding.76
The Central Committee then set about organising the Perth selection. They decided
to call the poll for 11 November at the Perth Court House, and, somewhat
surprisingly, considering that the local press was constantly blackguarding the New
South Wales and Victorian parliaments for ‘anarchy’ and ‘mobocracy’ and
‘crises—crises—crises’ (and there was a very serious constitutional stand-off
taking place in the Victorian Parliament at the time), the committee decided to
follow practice in the sister colonies, rather than that of the mother country, in
several key areas.77 First, they opted for ‘universal’ (i.e. white British adult male)
suffrage—although they excluded ticket-of-leavers. (Women, of course, did not get
a mention; nor did Aborigines, although in the same year the New Zealand
Parliament passed legislation which established four seats in the legislature that
were to be elected exclusively by Maori.) While there was general community
acceptance that universal suffrage was probably appropriate, given that Governor
Hampton had specifically referred to the ‘free inhabitants generally’ making the
selections, the Inquirer and Perth Gazette, and even some candidates, expressed
the hope that this liberal franchise was a one-off for the selections and would not
set a precedent for any elections in the future. Indeed, even the editor of the more
radical Fremantle Herald pondered, ‘But what will Downing Street think and say?’
at the colony taking its own ‘leap in the dark’—‘the consequences of which at
home the boldest of the Tory Cabinet trembles’.78 The settlers, however, were
presumably less anxious on this score than they would have been even a year
earlier considering that the mother Parliament itself had just moved a step closer to
universal suffrage with the passing of the Second Reform Act.
The Central Committee also deviated from British practice by choosing to use a
secret ballot, rather than the British mode of open voting by show of hands or
acclamation. This decision was perhaps not unexpected given that from the earliest
days in the colony, there had been strong support for the secret ballot (viz. the
‘Cheers’ at a meeting of the Guildford Agricultural Society in 1834 when one of
the speakers recommended that when the colonists finally got elected
representatives in the Legislative Council, that such representatives should be
‘chosen by ballot’) even though in Britain at the time the ballot was, according to
Goldwin Smith, ‘a name of revolutionary terror’.79 In addition, all five sister
colonies had, between 1856 and 1859, adopted the secret ballot for parliamentary
elections and reported model elections as a consequence. The form of secret ballot
enacted by the sister colonies, however, was a variant on already existing secret
voting systems. The Australian Electoral Acts stipulated that electors were to use a
uniform ballot paper supplied at the polling place by electoral officials (usually
printed, but technically in some colonies ‘printed or written…according to the form
of the Schedule’) instead of, as elsewhere, voting papers—often coloured or
76
otherwise ‘recognizable from a distance’—provided by electors themselves or by
obliging candidates and parties.80 Further, the Australian Electoral Acts directed
that such ballot papers were to be marked unobserved in a separate booth or
compartment rather than, as customary overseas, at a table surrounded by polling
officials and candidates’ scrutineers. While the version of secret ballot the Central
Committee proposed was not the state-of-the-art (and considerably more
expensive) ‘Australian Ballot’ of the sister colonies, it was nonetheless significant
that secret voting had been adopted in principle, given that in England at this time
advocacy for the secret ballot was at a nadir both within the general community
and in the Parliament according to Bruce L. Kinzer in his comprehensive study,
The Ballot Question in Nineteenth-Century English Politics.81 (Within five years,
however, Liberal Prime Minister, William Gladstone—a recent and somewhat
lukewarm convert to secret voting—would overbear a hostile House of Lords, to
enact the Ballot Act 1872 and introduce Australian-style secret ballot voting for
Britain’s recently expanded electorate. It is interesting to note that considerable
attention was paid both by the British 1869–1870 Select Committee on
Parliamentary and Municipal Elections and by the Imperial Parliament to evidence
that the Australian Ballot promoted ‘pure and peaceful elections’ which were
‘entirely free from intimidation, riot or disorder’.82)
Finally, the committee proposed to copy the eastern colonies and omit public
nominations on polling day. This ‘most un-English style of conducting the affair’,
however, was roundly condemned by the editor of the Inquirer who pointed out
that without nomination policy speeches, electors might not know which
candidates would commit themselves to securing the elective franchise if they were
elected.83 The sheriff and general public also complained about the absence of
nominations, and at the last minute the Central Committee capitulated and agreed
to allow them. (Again, public nominations would also be done away with in Britain
with the passing of the Ballot Act 1872.)
The five other districts soon received their circular from the Central Committee and
they took their proffered autonomy quite literally, with the northern Champion Bay
District—which had provided the largest number of signatories to the
householders’ petition—deciding not to hold an election at all. Instead, at a public
meeting held on 14 November at the Hampton Hotel in Greenough, fifty-nine of
the ‘principal inhabitants’ of the area passed a resolution which repudiated the
Colonial Office concession because, ‘The people asked for a right to elect & they
will be satisfied with nothing short of the Elective Franchise’—and because the
concession ‘is unsatisfactory & no improvement on the form of Government in
operation since the foundation of the Colony’.84 Further resolutions condemned the
Council for its ‘illegal’ rejection of the householders’ petition and censured John
Wall Hardey. Before winding up, the meeting appointed a committee to organise
another householders’ petition—and to ensure that this petition didn’t meet the
same fate as the 1865 one, the committee prepared a memorial to the Secretary of
State questioning the legality of the Council’s rejection of the householders’
petition and requesting him to:
issue such instructions for the guidance of His Excellency The Governor, and the
Members of the Legislative Council of this Colony, as may place beyond doubt how far a
Petition, meeting in every respect the requirements of the Act 13. & 14. Vic: Cap: 59 can
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be set aside by them, and whether the boon granted to the Colonists by that Act is in
reality of no avail, till it may please the Members of the Legislative Council to give it
effect.85
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The other districts, however, eagerly accepted the concession, and soon the press
was awash with public notices calling on ‘Free Residents’ to attend preliminary
meetings to organise their local poll.
The first selection to take place was in Perth on 11 November and the Inquirer
reported that the proceedings ‘stirred up memories of election strife and excitement
in the Parent Country’.86 In fact, from the Inquirer’s report, the election—‘for to all
intent and purpose it was an Election’—had much of the festive aspect of a
provincial British election: ‘the whole City was decked in colours’, flags were
everywhere, and the volunteer band played in the streets accompanied by a
placard-covered omnibus. The poll commenced at 2 p.m. in the court house with
the sheriff explaining the proceedings and making it quite explicit to the crowd of
‘male adults of all classes’ in front of him, that while they could vote on the present
occasion ‘it was to be clearly understood that the concession must not be
considered as a precedent for future elections’. Three candidates were then
proposed and seconded—one candidate actually seconding another—and two of
them made brief policy speeches. (The third candidate, Walter Padbury, did not
attend the nomination.) Polling then took place until 5 p.m. and within half an hour
the sheriff informed the electors that local businessman Mr Julian Carr—who had
pledged himself to support ‘universal suffrage, Representative Government and
liberal measures’—had been elected by a generous margin.87 A vote of thanks was
then given to the returning officer, and the colony’s first election was over—having
taken only three and a half hours in total.
Over the following weeks the four other district selections took place, with most
local committees deciding to ‘observe the same rules as had worked so well’ in
Perth—i.e. a public-meeting style election, voting by ‘free residents’, pubic
nominations and a secret ballot.88 The Swan District committee, however, could
not bring itself to allow manhood suffrage and insisted on a ‘£10 householders and
forty-shilling freeholders’ property qualification.89 This property qualification was
ridiculed by the press, and was challenged by about thirty local settlers an hour
before the poll, but the local committee refused to budge, with the result that
approximately forty votes were rejected at the selection ‘for want of
qualification’.90 Interestingly, the Fremantle local committee also attempted to
restrict the franchise to ‘Ratepayers, or tenants paying a yearly rental of not less
than £10’, but abandoned the qualification in favour of manhood suffrage after
public protest.91 The non-urban electorates also permitted outlying settlers to vote
by post or by proxy (i.e. authorising an agent to deliver voting papers on an
elector’s behalf); while in the sprawling Southern District and Eastern District the
local committees decided to run several dispersed polling places and aggregate the
votes at the end of the poll—although some anxiety was expressed that
unscrupulous types could get away with voting at all the different polling places.
An additional complication for the large districts with multiple polling places was
that the same candidates were not necessarily nominated in each place. In the
Eastern District, for example, Samuel Phillips and Edward Hamersley were
nominated in Toodyay and Northam, while at York a third candidate, S. E. Burges,
78
was proposed—although when a running tally during polling revealed that he was
running last, Burges immediately withdrew and urged his supporters to vote for
Phillips.
As with the Perth selection, there was considerable activity and excitement in the
districts when polling finally took place. In Fremantle the ‘day was observed as a
general holiday by nearly all classes’—shops closed at 10 a.m., the town was
plastered with placards, posters, streamers and flags; the volunteer band paraded up
High Street; electors wore paper cockades; and the winning candidate, Walter
Bateman, was shouldered to Harwood’s Hotel after the results were announced,
where he stood drinks for his supporters.92 All in all, as the Herald correspondent
observed, it ‘reminded one of Election times in the Mother Country’—a somewhat
droll assessment considering that the Fremantle election had been touched by
scandal, with rumours circulating—although later denied—that Captain Finnerty
had tried to coerce the pensioner guard under his control to vote for Edward
Newman.93 (As a precaution, the town crier had been despatched around Fremantle
to inform the citizens that ‘the Ballot protected them’.94) The regional elections
were more muted, but the Bunbury poll, which was conducted at the Wellington
Hotel on the same weekend as the annual Agricultural Society meeting and ball,
was reportedly ‘really exciting’ with stump orators being hissed and cheered, and
flags and campaign placards ‘in great profusion’.95
It is interesting to note, however, that while the selections in the different districts
were reasonably uniform and democratic in the end, the fact that the local
committees were authorised to do as they wished, troubled the Western Australian
press which feared that with the districts ‘all differing from each other’ and with
decisions being made ‘according to the caprice of a few who put themselves
forward and assumed the power of dictating how it was to be’, there would be
‘great diversity of opinion—great confusion, and in all probability—no conclusive
result’.96 That from the very beginning of the colony’s electoral history there was
an impulse towards standardising electoral rights and the conduct of elections,
rather than permitting ‘each constituency’ to elect members ‘according to its own
fancy’, would make it easier for electoral matters to be mandated by statute and
transferred to the control of a single coordinating agency, as they soon would be,
unlike the county-by-county administration of elections back home where returning
officers still had considerable statutory discretion in running elections (and which
is still the case in the United States, as the 2000 presidential election highlighted).97
But as Marian Sawer has outlined, this wasn’t only a Western Australian impulse:
The Australian colonies were remarkable for the early development of the role of
professional electoral administrator. This was unlike most of the world where electoral
administration remained amateur in nature, an additional duty piled on officials when the
need arose, and was usually highly localised and often very partisan.98
The last selection took place on 14 December and soon all the formal election
returns were lodged in the Colonial Secretary’s office. With regard to these returns,
de Garis has made the very interesting point that because historian W. B. Kimberly
in his 1897 History of West Australia, mistakenly claimed that Edward Hamersley
received the greatest number of votes for the Eastern District, but the Governor
nominated Samuel Phillips (who actually did win), ‘this has confused later students
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of the topic who have assumed that the Governor ignored the electors in
nominating Phillips’.99 Indeed, for the next one hundred years, a number of
Western Australian historians relying on Kimberly (or Battye who repeated the
mistake) have not merely been confused but also quite indignant at Hampton’s
nomination of the winning candidate, with one contributor to the sesquicentenary
Westralian Portraits volume writing that ‘the governor duly nominated all the
elected members except young Hamersley, selecting Phillips in his place because
of his long experience in Council. Hamersley senior was justifiably furious at the
snub’!100 Ironically, when writing to the Secretary of State to nominate the settlerselected members for seats in the Legislative Council, the Governor did in fact
‘snub’ the intransigent non-electors of Champion Bay when he vindictively
recommended that their vacancy be filled by John Wall Hardey, who had missed
out on a Council seat in the Swan selection after running last with a mortifying four
votes.101
For the record, the six selected/nominated members in the order they appeared in
the 1868 Western Australian Blue Book were: J. W. Hardey (Champion Bay),
J. G. C. Carr (Perth), W. Bateman (Fremantle), J. G. Lee Steere (Southern District),
W. L. Brockman (Swan) and S. P. Phillips (Eastern District). The W. L. Brockman,
returned for Swan, incidentally, was the same W. L. Brockman listed in the 1839
Blue Book as one of Governor Hutt’s first non-official settler nominees to the
Legislative Council.
Overall, the Western Australian trial elections had passed off extremely well, as
Governor Hampton acknowledged to the Secretary of State: ‘although the selective
proceedings have unavoidably been to a considerable extent informal and irregular,
the result has been very salutary’.102 More than salutary, in fact, when it is
considered that seventeen candidates stepped up to contest the five seats and over
2,000 colonists voted, which, as J. McKenzie has noted, proved that the ‘Colonists
were prepared to make use of such liberties as were granted them, and that there
were plenty of men able and willing to stand for election to serve in the
Council’.103 Moreover, the Western Australian selections had been infinitely more
civilised than the 1865 general election in Britain which had been marred by mob
rioting and house burnings and, according to a report in the Times, ‘more profuse
and corrupt expenditure than was ever known before’.104 Indeed, Governor
Hampton was so reassured by the settlers’ conduct that he recommended to the
Secretary of State that
it would in my opinion be highly advantageous to concede to the duly-qualified
inhabitants of the Colony a legal right, at the end of the three years, to elect a number of
non official members of the Legislative Council equal to the number of official members,
always provided a casting vote is reserved for the Governor as at present…I have good
reason to believe that such an arrangement would be generally acceptable, and I know for
certain that many influential Colonists who in the year 1865 were strongly in favor of the
partly elective Council provided for in the 9th Section of the 13 and 14 Victoria, Cap: 59,
would for some time to come be satisfied by the proposed concession with a properlydefined franchise.105
Considering that all the selected candidates had put on public record their
commitment to securing the elective franchise for the settlers once they had taken
their seats in the reconstituted Council, Hampton’s counsel was wise and timely.
80
It was also exactly what the Secretary of State wanted to hear. In canvassing the
proposed equalisation of the Council earlier in the year, a Colonial Office Minute
outlined that triennial nomination of councillors would be a ‘great practical
inconvenience’ for the Colonial Office.106 The Minute recommended that it was
time the colony instituted proper elections—and that ‘a confidential despatch’
should be sent to Hampton ‘saying that the Secretary of State would be quite
prepared to entertain that mode of proceeding if the Governor should think fit to
propose it’!107 It was no surprise, therefore, that on 27 March 1868 the Secretary of
State replied to Governor Hampton’s obliging despatch, by approving the six
names forwarded to him and concurring with the proposal for elections: ‘I see no
reason why after the first term of three year shall have expired, the Constitution of
the Council remaining unaltered, the unofficial members should not be elected by
the people’.108
Once informed of this despatch most of the settlers would rejoice that the elective
franchise would soon be a right and not a concession. But when elections were
placed under the control of officialdom instead of in the hands of the people as in
1867, would manhood suffrage and the secret ballot survive? Would the colony
continue to follow what Sir Charles Dilke in 1867 admiringly referred to as the
‘eager burning democracy’ of her sister colonies, or would she be yanked back to
walk in lock step with the mother country?109
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4
Representative Government of
Sorts
Let us think well before we cut ourselves adrift from the
stay and support or our natural home—we a feeble,
half-grown, rickety, portionless cadet of the Family.
Correspondent ‘L’—
Perth Gazette, 17 February 1865
Trying—and Waiting—Again
Governor Hampton’s satisfaction with the 1867 trial elections was not shared by
the locals. The editor of the Herald ridiculed the ‘amusing absurdities’ of the
‘Selecto Elective Farce’; a number of the colony’s leading advocates of
representative government—including the secretary of the Champion Bay Reform
Association, Henry Gray—dismissed the selections as ‘wholly illegal, there were
no writs issued, no registry of voters’; while the Perth Gazette editorialised that it
was now ‘almost universally recognised’ by the settlers that as an ‘absolute
necessity’ they must secure the ‘right to be represented in the colonial legislature’,
rather than go through another ‘queer sort of unauthorised election’.1 And ‘the
colonial legislature’ envisaged by the Perth Gazette and an increasing number of
colonists, was not Hampton’s recently augmented and equalised Council, but the
two-thirds elected representative government provided for by the 1850 Act for the
better Government of Her Majesty’s Australian Colonies. Indeed, as J. S. Battye
has rightly noted, public opinion in favour of representative government appeared
to have strengthened after the ‘temporary reverse’ of the rejection of the
householders’ petition.2 Undoubtedly, the successful conduct of the selections
would have won over some waverers, while the Governor’s recent act of nepotism
in appointing his ill-qualified son as Acting Comptroller-General of Convicts (on
top of Hampton Junior’s existing positions in Government service) further
discredited the existing regime and one of its hallmarks—appointment by
patronage.3 Thanks to the 1867 selections, the Legislative Council would contain a
bloc of non-official members pledged to support constitutional change—but the
colonists knew that the reconfigured Council would not be sitting for months
because Governor Hampton first had to receive an Order in Council from Britain
ratifying its new membership. And then, a new householders’ petition would need
to be presented.
82
The supporters of representative government—led by the feisty memorialists from
the Champion Bay area who now found themselves saddled with the despised and
city-based John Wall Hardey as their local member—lost no time or momentum in
launching another petition.4 A public meeting was called for 21 February 1868 at
which chairman and councillor-elect, James Lee Steere, reassured the gathering
that ‘there would be no long speeches made upon the desirability of the settlers
obtaining electoral rights, it being generally agreed their minds were made up on
that point’.5 Instead, after ‘little, if any discussion’, another councillor-elect,
Samuel Phillips, proposed that the colonists should take ‘immediate steps’ under
the Imperial Act to petition for representative government—with the petition to be
presented to the Council at its next sitting.6 Unlike 1865, the resolution was carried
unanimously. A new coordinating committee, containing some veterans from the
previous one, was appointed; the wording of the 1865 petition was adopted
verbatim; a subscription to defray costs was opened; and the canvass ‘from one end
to the other’ of the colony began.7
It was three months later, when the district committees were busy trawling through
the colony collecting signatures (in competition with an unrelated petition calling
for increased public works and immigration, which also contained a clause
requesting the ‘elective privilege’), that the Perth press published a couple of
bombshells from the Secretary of State.8 In the first, Lord Buckingham responded
to the Champion Bay memorial and informed Governor Hampton that the
Legislative Council had not acted illegally in rejecting the 1865 householders’
petition because (as the Western Australian Attorney General, George Stone, had
advised) the words ‘it shall be lawful’ to amend the Constitution in the Imperial
Act conferred a ‘discretion’ and were ‘not imperative’.9 Not the sort of news to
gladden the hearts of the petitioners! The second despatch, however, was a cause of
celebration throughout the colony: it confirmed the appointment of the non-official
members selected by the colonists, and also assented to Hampton’s proposal that in
future—‘the constitution of the Council remaining unaltered’—such members
could be elected by the colonists.10 This, of course, was the first the colonists had
heard of Hampton’s recommendation that real elections should be instituted in the
colony—thirty-six years after such rights had first been sought. To enable the
Colonial Office to take the ‘requisite measures for making the desired change in
the Constitution’, however, the Governor was directed by Lord Buckingham to
provide a ‘Report describing the Electoral Divisions, and the Franchise, which you
would propose, and explaining the reasons on which they are founded’.11
The editor of the Inquirer urged the settlers to accept the concession, and to
buttress the case against pursuing the Australian Colonies Government Act version
of representative government—and responsible government, which the editor was
convinced would soon follow—the Inquirer ran articles highlighting the ‘incessant
conflict and anarchy’ of the eastern colonies’ legislatures and talked-up the risks of
‘wanton and wasteful expenditure’ and ruinous taxation by ‘vampire Ministries’
under self-government.12 Somewhat ironically, the paper even maligned selfgoverning New Zealand, recently under the command of Premier Frederick
Weld—who, the hapless editor was not to know, would become the colony’s next
Governor.13 The editor of the Perth Gazette, on the contrary, argued that the
electoral concession was too little too late; once again spelt out the case for the
conventional model of representative government; and could not ‘too forcibly
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remind our readers that the way to secure that, is for EVERY HOUSEHOLDER
TO SIGN THE PETITION’.14
Although explicitly instructed to provide an electoral report, Governor Hampton
didn’t. His tenure as Governor was almost up and he felt that it would be more
appropriate to leave the recommendations to his as yet unnamed successor, who
would have plenty of time to frame electoral provisions before the three-year term
of the selected nominees expired.15 When the reconstituted Council finally met on
21 July, Hampton did, however, ‘congratulate’ the new members on the Secretary
of State ‘having assented to the unofficial members being hereafter elected by the
people’.16 He also informed the Council that the Colonial Office believed that the
new ‘representative character’ of the Council would necessitate ‘the services of
well-qualified men as Governors’ (stifled guffaws in the Council at this, no doubt),
and as a result, the gubernatorial salary was to be bumped up by £700 per annum,
with this additional portion of the salary to be defrayed by the colony.17
In the following month the Perth Gazette revealed that the householders’ petition
had reached the target number of signatures, but that the organising committee had
decided against submitting it to the Legislative Council, ‘preferring not to risk its
loss during the present session…when the Governor has expressed his desire not to
assent to the adoption of any important measure which might embarrass his
successor’.18 Instead, signature gathering would continue, and the petition would be
held over for Governor Sir Benjamin Pine—‘our reported new Governor’—who, it
was hoped, would receive it favourably.19 This optimism seemed justified: Pine
had, as the editor of the Perth Gazette informed his readers, ‘administered the
government of Natal, where a legislature similarly constituted with that we ask for,
has been in vogue for the last eleven years’.20 The appointment of the ‘reported
new Governor’ was officially confirmed in the following month; but Pine, as it
turned out, was not keen to take up the Western Australian appointment, even with
the increased salary, and repeatedly deferred his departure, with the sanction of the
Colonial Office, while he lobbied for a better posting.21
A put-out Governor Hampton left the colony in early November, informing the
Secretary of State that he had booked his passage home for a date after the
scheduled arrival of the new Governor (presumably to enable the customary
handover), but ‘Sir B. Pine has not however arrived, nor has he written to me or to
anyone here as to when he may be expected’.22 Lieutenant-Colonel John Bruce, the
Commandant of the Troops, was sworn in as Acting Governor, and ‘in monthly
expectation of Sir Benjamin Pine’s arrival’, he also adopted a holding pattern with
the administration.23 When he received a despatch from the Secretary of State six
months later, however, informing him that the non-appearing Sir Benjamin Pine
had just accepted the post of Governor of Antigua, and the process of finding a
Governor for Western Australia would have to start again from scratch, he felt
compelled to act.24 In the first place, the Legislative Council had to be convened in
the next couple of months to pass the Estimates and, more troubling still, there
were reports in the press that the householders’ petition committee had decided
against waiting for the new Governor and was going to submit the petition to the
Council after all.25 With everyone rankling at the colony’s shabby treatment by the
Colonial Office, Bruce faced the prospect that the petition might be adopted under
his interim administration.26
84
Having to present an incoming Governor with a legislature committed to
representative government as a fait accompli would disconcert any acting
administrator—but it would have been especially galling for Bruce who was
implacably opposed to any constitutional change in the colony—especially change
which could ‘jeopardise the properties of all, by giving the reins of power into the
hands of a body of men possessing no stake in the colony’.27 As discussed in the
previous chapter, when Governor Hampton had canvassed the executive
councillors’ opinions regarding the first householders’ petition in 1865,
Commandant Bruce had not only stated his opposition, but had melodramatically
insisted that ‘the people should be saved from themselves’.28 Bruce possibly
believed that he had accomplished this by seconding John Wall Hardey’s
amendment and seeing off the first petition—now it seemed he would have to save
the colonists all over again.
Bruce decided that the best strategy to pre-empt the second petition was to fasttrack the electoral franchise and boundaries report requested by Lord Buckingham,
‘with the view of being enabled to inform the Legislative Council that the
necessary measures had been actually taken to give full effect to the concession of
the Secretary of State’.29 Like Hampton and Lord Buckingham, Bruce hoped that
this concession would satisfy enough of the signatories to the petition—some of
whom weren’t overly concerned what constitutional set-up was in the colony so
long as they could vote for it—to see the movement fail.
The plan, however, was thwarted by the Colonial Secretary, Frederick Barlee, who
in Executive Council disagreed with the new electoral divisions proposed by the
Surveyor General and the Comptroller General. Under the proposed new
boundaries, which only slightly rearranged the divisions used in the 1867
selections, Toodyay was transferred from the Eastern District into Swan, and
Murray was excised from the Southern District and yoked with York—changes
made to give the ‘nearest approach to electoral districts of equal population’.30
Barlee, however, insisted that the boundaries determined upon by the colonists
themselves for the selections and ‘to which division no objection has been raised’
should be retained until the public could again be ‘consulted’.31 On a more
practical note, Barlee also observed that ‘very great dissatisfaction would ensue’ if
York was coupled with Murray, and Swan with Toodyay, because these districts
‘had little in common with each other’.32 A few days later the punctilious Bruce
informed Lord Granville (Buckingham’s successor) that after Barlee’s ‘adverse
minute on the subject’, he felt obliged to delay and undertake ‘further enquiry in
respect to the Divisions’.33 Barlee’s intervention, however, turned out to be
fortunate as the editor of the Perth Gazette raised the issue of electoral divisions in
the same month, urging the importance of securing ‘to all parts a fair share of
representation’ and insisting that such a crucial process ‘ought not to be left to the
decision of the Governor and the Executive’.34
Just to make Bruce’s interim administration even more of a headache, around this
time the non-official member for Fremantle, Walter Bateman, was pressured into
resigning by a group of ‘influential gentlemen’ (including two losing candidates,
Edward Newman and Robert King, from the previous year’s Fremantle selection)
who were concerned that Bateman’s recent ill-health would force him to miss the
impending session of Council—and its crucial vote on representative
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government.35 Bateman’s resignation letter, written and signed on his behalf by his
brother, made it quite explicit that his resignation was being tendered ‘in order that
the ELECTION of a QUALIFIED person may ensue’—because ‘I feel it absolutely
necessary that Fremantle should not be unrepresented during the next Session’.36
However, because there was no longer any pre-approved list of nominees signed
off by the Colonial Office, there was no mechanism to replace him other than by
the existing dragged-out process of nomination to the Secretary of State and
confirmation by Order in Council.37 On Tuesday 18 May a letter from the Colonial
Secretary, Frederick Barlee, was received by the ‘influential gentlemen’ informing
them of this fact, and conveying an extraordinarily ill-judged offer from Acting
Governor Bruce: ‘His Excellency will be prepared at once to transmit to England
for approval, the name of any gentleman who may, in the opinion of those
gentlemen…be a fit and proper person to represent Fremantle in the Legislative
Council’.38
The ‘self-constituted arbitrators of the destinies of Fremantle’ kept Barlee’s letter a
‘profound secret’—and decided to call the colony’s first snap poll on the upcoming
Saturday afternoon—‘postponing all public notice till the morning of the
meeting’—at which their preferred candidate (who happened to be one of
themselves) would be nominated.39 When the plan was leaked on the Thursday
morning, there was outrage at the ‘horrible conspiracy on the part of a few to
defraud their fellow townsmen out of their rights to share in the selection of a
representative’.40 The town crier was instructed to warn the citizenry that ‘their
liberties were in danger’, and a tumultuous ‘crowded to the doors’ public meeting
was held that night at which it was resolved that if it was good enough for the
‘influential gentlemen’ to organise the selection of Bateman’s replacement, it was
good enough for the citizens of Fremantle to do so.41 With absolutely no authority
whatsoever, the meeting determined that a by-selection would take place on 3 June.
It is interesting to note, however, that although the meeting decided that the poll
would be conducted by secret ballot like the previous year’s selections, universal
suffrage was rejected in favour of household suffrage.
On the day following the meeting an aggrieved Walter Bateman, realising that his
replacement could not be confirmed in time to attend the opening of the Legislative
Council, formally revoked his resignation—and Bruce was ‘pleased to accede’ to
his request.42 At this stage things became almost surreal. Despite there no longer
being a vacant seat to fill, the townsfolk of Fremantle decided to go ahead with
their by-selection anyway in case ‘a vacancy should happen, which with the
greatest possible delicacy and good taste they publicly as well as privately argued
must happen within a short period’.43 In this action they were fortified by yet
another ill-judged decision by Acting Governor Bruce who, on 25 May, informed
the three candidates currently contesting the non-vacancy, that he was ‘still quite
willing to forward to England by the next mail, the name of any person who may
be acceptable to the Inhabitants of Fremantle as their Member, and thus in the
event of the occurrence of a vacancy, avoid…delay’.44
Election day was commensurately farcical. The local resident magistrate, John
Slade, refused point blank to have anything to do with the proceedings and,
consequently, without a returning officer, ‘No preparations had been made…for the
proper conduction of the ballot’; a letter from the Crown Solicitor condemning the
86
by-selection as ‘absurd’ and ‘folly’ was read out at the hustings; an unresolved
‘dispute’ took place as to what constituted ‘bona fide householders’; and numerous
speakers—some jumping onto tables and being threatened with a police escort out
of the hall—pointed out that an election could not take place when there wasn’t a
vacancy.45 Finally, to the ‘derisive cheers of the assemblage’ the be-ribboned
candidates withdrew their nominations.46 Possibly the best verdict on the whole
daft and unseemly process was that of an anonymous correspondent to the Perth
Gazette:
Mr. Editor, is it not enough to make a man blush that he is a Western Australian, to read
in public print such scenes as occurred in Fremantle last week…It is, Sir, the duty of
every colonist who respects law and order to put an end to this state of things, and to
impress on the Government the absolute necessity of immediately on the meeting of the
Legislative Council, to take into consideration the Householder’s Memorial, and settle
once for all what is to be our form of Government. I for one would sooner have no
Representatives than again see them elected as they were last time.47
Notwithstanding the fiasco at Fremantle, the folk of Champion Bay seemed to
think the idea of a by-selection per se wasn’t such a bad one. They had always
chafed against the loathed John Wall Hardey being inflicted on them—and
especially now when the second householders’ petition was about to be submitted
to Council and Hardey’s would be a vote against it. Within a week of the Fremantle
debacle they requisitioned a public meeting, framed a memorial supporting
representative government and formally called upon Hardey to resign.48
Acting Governor Bruce undoubtedly appalled by the abortive Fremantle byselection, and now facing the possibility of another in the deep north, still jibbed at
the prospect of representative government. He had convened the Legislative
Council for 26 June, and on 23 June he discussed tactics in Executive Council,
expressing ‘his desire that if the Legislative Council pressed for an immediate
consideration of a Petition for an Elective Council, the Executive Members should
support him in postponing it till the arrival’ of the new Governor.49 When the
Council met and the petition was not presented, Bruce reverted to Plan A and
announced to the members that the protracted absence of a Governor could no
longer justify the electoral report requested by the Secretary of State remaining in
‘abeyance’ and that it should be ‘furnished without further delay’.50 To further
disarm the advocates of the petition in the Council, Bruce expressed his ‘entire
confidence in the rightmindedness of the non-official members’, and proposed that
a committee consisting of only one official member (the Surveyor General) and all
the non-official members prepare the electoral report.51
The report was pulled together quickly and tabled in the Council on 5 July. It
proved to be a curious mish-mash of liberal and regressive measures because the
committee—presumably anticipating that a more conventional model of
representative government would eventually be introduced in the colony—opted to
comply with the provisions governing the institution of representative government
set out in the 1850 Act for the better Government of Her Majesty’s Australian
Colonies. Accordingly, the committee recommended the property and residency
restrictions for the franchise laid down in s. IV of the 1850 Act, rather than the
universal suffrage of the 1867 selections, and also recommended the introduction
of an extremely high property qualification for members (which s. XII of the 1850
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Act directed was to be imported from s. VIII of the even older New South Wales
Constitution Act).52 While both these restrictive qualification provisions had been
liberalised or done away with in Britain and the sister colonies over the past decade
or so, Western Australia under the terms of the 1850 Act was compelled to adopt
them in the first instance—although empowered by the same Act to alter them once
representative government was in place. The committee was not bound by statute
over the procedural matter of how the new legislature was to be elected, however,
and opted to retain the secret ballot used in the 1867 selections even though the
mother country still used open voting.
Two days later, James Lee Steere trumped Bruce by finally presenting the
householders’ petition—signed by an impressive two-thirds of the colony’s
householders (1,649 signatories)—but, rightfully sceptical of its chances under the
present Council, with Commandant Bruce in charge and pro-petition Bateman
absent on his sickbed, he successfully moved that ‘the Memorial should stand over
for consideration at some adjourned meeting of the Council’, i.e. when the new
Governor was in command.53 Five days later the 1869 session of Council closed.
Bruce forwarded the electoral divisions and franchise report to Lord Granville,
with the forthright assessment that ‘Much dissatisfaction prevails at the principle of
election having remained so long in abeyance’—and a warning that the Colonial
Office should not sit on the report:
Believing that the day has not yet arrived for the people of Western Australia to manage
their own affairs, I am of opinion that it is expedient no time should be lost in bringing to
maturity the modified form of Representative Government sanctioned by The Duke of
Buckingham’s Despatch No. 40 of the 27 March 1868.54
Bruce’s despatch also acknowledged that the colony’s incoming Governor—
recently confirmed to be the former New Zealand Premier, Frederick Weld—might
be prepared to ‘countenance’ representative government, in which case the report’s
recommendations could still be useful and ‘brought into operation’. Either way,
Bruce signed off by suggesting that Lord Granville’s ‘authority’ be granted ‘at
once’ rather than at the end of the selected nominees’ three-year term, assuring him
that the non-official members would ‘willingly resign…so as to give immediate
effect to the proposed modified Representative system’.
The subject of resignations, willing or otherwise, would clearly have been on
Bruce’s mind as he wrote this despatch: two days previously he had informed
Granville that Walter Bateman had resigned again and that he had authorised the
people of Fremantle to organise a new selection—‘after a manner prescribed by
themselves’.55 In his intimation that the new Governor might ‘countenance’
representative government in the colony, however, Bruce was being more than a
little disingenuous—Frederick Weld was renowned as a published ‘authority on the
principles and practical effects of representative institutions’ and had been a longstanding and passionate advocate of self-government and self-reliance in New
Zealand.56 Certainly the Perth Gazette, in announcing Weld’s appointment to the
people of Perth, hoped from his track record that he would be ‘desirous to adopt the
modern ideas of self-dependence and onward progress’ in Western Australia.57
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‘Going the Whole Hog’—Attempt Two
The new Governor—the first aristocratic and Catholic one to be appointed to the
colony—arrived at King George’s Sound on 18 September 1869. (Incidentally,
Britain has yet to have a Catholic Prime Minister in office.) Following an
inspection of ‘the public works, and the various departmental arrangements, and
informing myself as to the state and requirements of the district’, Frederick Weld
overlanded to Perth, running a gauntlet of luncheons, triumphal arches and
welcoming addresses (many of which expressed a ‘desire for constitutional
changes’, as he subsequently informed the Secretary of State).58 Weld reached
Perth and was sworn into office on 30 September, and after enduring a month of
levees and soirees he took off on a series of rural rides around the colony which
kept him away from the capital for up to seven weeks at a stretch. Although
impatient for a resolution to the long-pending householders’ petition (and the twoyear legislative log-jam and freeze on public works), the colonists accepted that
their new administrator would first want to tour through his bailiwick and gauge
the needs and opinions of the colonists at this critical period in its history.59
While on his first tour, which spanned the colony’s eastern and northern districts,
Weld received a despatch from Lord Granville instructing him to provide a report
on ‘the proposed change in the constitution of the colony’—i.e. to report on
Bruce’s recent report.60 While it was too soon for Weld to do so, he sent back a
confidential despatch a week later from the Champion Bay area (where he would
not have been spared the locals’ firmly held opinions and grievances) outlining that
he had already encountered ‘an almost universal sentiment of dissatisfaction
prevalent regarding the present form of government, coupled with a moderate and
reasonable tone’.61 Two days later, on 2 December, at a public dinner in Geraldton,
Weld first publicly, and very comprehensively, shared his views on representative
government for Western Australia:
I now come to a question which I am aware is uppermost in your minds, though you have
had the good taste not to force it upon me—the question of representative
government…Naturally you wish me to say something on a matter upon which the people
of this country appear to have formed a decided, and, at the same time, quite a reasonable
opinion; I think such an opinion worthy of respect, and I should not be fulfilling my duty
did I not give weight to such an opinion temperately urged. I only propose this evening to
remind you that it is necessary thoroughly to realize that self-government means work,
self-reliance, self-sacrifice, and self-taxation; that the old superstition that a Governor or a
Government can do everything must be discarded; that sugar-plums would not fall into
our mouths under any system; that party divisions were inevitable; but that whatever
might be its disadvantages, it led to political life. Again I would remind you that though
you consider that this colony is not now ready for responsible government, yet that having
representative government you might any day drift into responsible government. It might
come at any moment; it could only be delayed for a time by mutual forbearance and
cordial co-operation between the representatives and the Executive. Consider all this
calmly, fully, and in a business like spirit, but you must not think that because I ask you to
do this that I am averse to representative institutions, to be so would belie my whole life;
from my early days I have studied representative institutions; for years I have helped to
work them. At a dinner which was given me by men of all parties and of the greatest
distinction, before I left England, Lord Granville stated that in selecting me for the post I
now hold, he had selected me as one who had advocated in the colonies those principles
of self-reliance and self-government which had made England what she is, and which
alone could raise the colonies to a high position. I cannot therefore but respect and
sympathize with those whose aspirations tend in that direction…It would be to me a very
89
great disappointment to leave this country without seeing those principles in full and safe
operation…I will endeavor, with the experience gained as a colonist and to the best of my
abilities, to lead and guide the steps of the colonists who I hope will in a short time—and
the sooner the better for me—arrive at self-government, which of all others is most
adapted for Englishmen.62 [Emphasis added.]
Highest Privilege and Bounden Duty
Weld’s comments were, as the press commented, ‘received throughout the colony
with an immense degree of satisfaction’, and James Lee Steere capitalised on this
fillip to the petition movement by sending a call-to-action letter to the Perth
Gazette exhorting his ‘brother colonists’ in the districts to hold meetings and pass
resolutions ‘calling upon your [selected] Representatives to support your Memorial
for a Representative system of Government’ when it was raised in the Council.63 A
week later the Governor, now on the southern and western leg of his travels
through the colony, reached Steere’s constituency; and at a public luncheon in
Bunbury (with Steere, as chairman, sitting next to him) he again expressed the
view, accompanied by ‘loud cheers’, that ‘Representative Government was the
form for English Colonists’.64 But, as the editor of the Perth Gazette pointed out,
Weld still hadn’t committed himself as to when this paragon of governmental
systems would be instituted in the colony.65
Of course Weld wasn’t going to make any commitments until he had cleared
matters with the Secretary of State—and first he had to provide the requested
report. On 1 March 1870 with the last of his tours behind him, he wrote that he felt
sufficiently confident—after ‘having spared no efforts to make myself acquainted
with the feelings and opinions of the Colonists’—to ‘lay before Your Lordship my
views upon the subject of constitutional changes in this Colony’.66 Weld then
outlined that although his ‘own abstract belief [is] that representative government
is that form which is best suited to the wants and genius of British Colonists’, he
had believed that it was his ‘duty’ to explain to the colonists the ‘difficulties and
drawbacks’ of seeking such a system—particularly, that it would inevitably lead to
responsible government, which most of the colonists claimed not to want yet.
Nonetheless, he found that ‘no voice is raised in favour of the maintenance of the
present system’—and, more to the point, his own voice wasn’t raised in favour of it
either. Weld’s principal objection to the current set-up was that it was an
unsuccessful ‘compromise’:
which balancing the official and non-official parties equally, and placing the Governor as
president in a half elected house enabled him barely to pass his measures by his casting
vote compels him either to sit silent when his policy is discussed or personally to descend
into the arena and as it appears to me places both him and the members of the Council in
an unbecoming and false position.
Furthermore, Weld was affronted by the liberal franchise and general ad hocery of
the recent selections:
I cannot moreover conceal from your Lordship that I have a very strong opinion that the
exercise of universal suffrage and the absence of all legal regulation of Elections might be
in the present circumstances of this Colony in a high degree dangerous, and it is not only
creditable but also fortunate that this licence has not hitherto been productive of any
serious evils.
Believing that the colony had ‘already arrived at that point when it is impossible to
retrace steps already taken, and almost equally difficult and dangerous to remain as
90
we are’, Weld concluded that representative government was not only
‘inevitable’—but also possibly perilous to delay any further:
I see no reason to suppose that under the present system the Colonists will ever become
more fitted for self government, and I greatly dread that if its introduction be long
deferred they will become far less fitted, – at present there are still men amongst them
whose English Education and English reminiscences would guide them in the almost
forgotten path: – the younger generation may grow up with less political Education, and
far less thought I fear of the real responsibilities of good citizens and loyal subjects.
Weld respectfully signed off hoping that the Secretary of State would provide
prompt guidance and instructions in this matter—perhaps by the new-fangled
telegraph.
Weld didn’t have long to wait. Within a fortnight he received a confidential
despatch from the Secretary of State (in reply to the earlier confidential despatch
Weld had sent from Champion Bay) in which Granville stated that he saw ‘no
reason why the form of Government provided by the Act 13 and 14 Victoria Cap.
59 should not be adopted if the colonists desire it’.67 Indeed, Granville—a
renowned liberal—went on to say that:
It can scarcely be doubted that this alteration in the Constitution will lead speedily to the
establishment of responsible Government. The changes now made, therefore, should be as
far as possible so devised as to facilitate that result.
—Although Weld did not reveal this part of the despatch to the local press. The
fact that the Secretary of State assented to constitutional change, although
removing any Imperial obstacle, did not, however, guarantee that such change
would take place. The petition could once again be torpedoed in the Legislative
Council—and the numbers, as the press was fond of speculating, would be close.68
As J. McKenzie has aptly summed up, despite general support for constitutional
change within the community and most of the press, there was still considerable
‘opposition’ from the ‘official nominees of the old Council who feared the change
as a prelude to Responsible Government, with attendant rashness in public affairs,
and moreover, with loss of employment for official nominees’.69
Weld informed the press immediately of Granville’s approval; commenced drafting
a Bill ‘in strict accordance with the provisions of the Act’; and on 13 April advised
his executive councillors that the Legislative Council would be summoned on 23
May ‘for the purpose of taking into consideration a petition of certain
householders’.70 The advocates of the petition were galvanised. Meetings in
support of representative government were held throughout the colony ‘in order
that the Governor and Council may be more fully convinced of the strong feeling
that exists in favor of a change in the present system of government’.71 As
expected, these meetings were characterised by rousing speeches condemning the
current system and the passing of a brace of resolutions ‘to guard against any
procrastination in getting the new system into work’—with the Fremantle meeting
also affirming a resolution to ‘urge upon His Excellency the necessity for a
comprehensive and liberal form of Representative Government’.72 Significantly,
these meetings were also used to remind the ‘selected’ members (who were all in
attendance) that their constituents expected them to honour their pledges to support
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Highest Privilege and Bounden Duty
the householders’ petition. For good measure the editor of the Perth Gazette
similarly reminded the selected members of their commitments—warning that if
they reneged they would ‘never again stand a chance of becoming a representative
of the people’.73
The Legislative Council convened on Monday 23 May 1870—almost eight months
after Weld arrived in the colony. But if the colonists had resigned themselves to the
usual glacial pace of constitutional change continuing, they would have been blown
away by Weld’s rapid-fire stage management of proceedings. As the clock in the
Council Chamber struck 1 p.m., Weld strode in and, without any welcomes or
niceties whatsoever (and Weld was generally very wordy), he briskly informed the
‘Honorable Gentlemen of the Legislative Council’ that they had been summoned
for one purpose—and that was to consider the petition in favour of representative
government—and, as Weld regarded it as ‘most necessary that a decision, which
must not only influence the policy of the Government, but which is also pregnant
with the future of the colony, should be made at once’, he advised the Council that
he had already overseen the drafting of a Bill in compliance with the Imperial
statute.74 Weld’s long despatch to the Secretary of State in support of representative
government was then read in its entirety to the councillors, after which Weld
informed them that the Imperial Government had confirmed that grants made to the
convict establishment were not the sort of parliamentary grants which disqualified
the colony from the terms of the Australian Colonies Government Act.
Immediately prior to the Bill being introduced, Weld successfully moved for a
suspension of Standing Orders so that the second reading could take place in fortyeight hours—and not six days later as was customary. The assembled councillors
were then informed by the Governor that if they voted against the first reading
taking place he would regard that as a ‘contemptuous rejection’. The Bill was read
a first time.
When the Council reconvened two days later Weld was equally businesslike: he
deftly ‘wound up’ a ‘fruitless discussion’ of an engineering report, moved the
second reading of the Bill, and informed the Chamber that ‘he had tried to consider
the question as a colonist, and as such he should vote in its favor’.75 James Lee
Steere seconded the motion and then immediately moved that the long-shelved
householders’ petition be read. After this took place, the set-piece speeches on
representative government finally began and every councillor except Weld had his
say, although absolutely nothing new in this well-ploughed subject was added to
the debate. The Attorney General, George Stone, however, astonished the gathering
by curtly declaring that ‘he had seen reason to change his opinions’ since he voted
against the petition in 1865—but his vote was immediately cancelled out by
Samuel Phillips who had ‘also altered his opinion since the last occasion’ and
decided to dishonour his selection pledge. (This from the man who had been on an
organising committee for the abortive 1858 householders’ petition; who had
seconded the resolution in favour of representative government at the 1865 public
meeting; and who had moved the resolution to organise a follow-up householders’
petition at the 1868 meeting!) Finally, the motion for the second reading was put,
and it was passed seven to five with Commandant Bruce, Surveyor General Roe,
Collector of Revenue Lefroy and Hardey and Phillips voting against it.76 Weld had
the numbers.
92
The following day the Council formed itself into a committee of the whole to
dissect the Bill. While the main provisions of the Imperial Act had to be adopted or
rejected as they stood, Weld informed the members that the Council was
‘competent’ to deal with certain procedural issues, including electoral boundaries,
the number of members to be elected and the ‘mode of election’.77 The councillors,
however, appeared largely satisfied with the Bill as drafted and concluded their
clause-by-clause consideration of its provisions by Friday 27 May 1870 after
amending almost nothing but election timetable dates—and making only one
change to the scheduled electoral boundaries (renaming the ‘Bunbury’ electorate
‘Wellington’).78 With a nice sense of occasion Weld had the colony’s Foundation
Day set down for the third reading. And so it came to pass that the Constitution Bill
was read a third time and received the royal assent on 1 June 1870—just in time for
Weld and the councillors to don their top hats and rush down and open the new
Town Hall.79
Curiously, however, some confusion, both contemporary and modern, has been
expressed regarding Weld’s authority to give the royal assent to the Constitution
Bill. In the 2001 High Court case, Yougarla, for example, Justice Kirby referred to
Weld having ‘despatched the Bill to London to await the Queen’s pleasure’,
although Kirby noted that while the Secretary of State later signified Her Majesty’s
‘Confirmation and allowance’ there was no evidence that the Bill was laid before
both Houses of the Imperial Parliament as required by the Australian Colonies
Government Act.80 In fact, there was no requirement under the 1850 Act for the
Constitution Bill to be laid before the Imperial Parliament or reserved for Her
Majesty’s pleasure (s. XXXII of the Act, however, required Bills seeking
responsible government to be so reserved and laid before the Imperial Parliament)
and such approbation the Constitution Bill subsequently received from Her Majesty
was simply the pro forma approbation or disapprobation every Westralian
Ordinance previously assented to by the Governor would receive. The editor of the
Perth Gazette in 1865 summed up the situation quite clearly for similarly mistaken
‘Correspondents’:
There is no necessity that we “wildly beseech the Home Government for leave to elect our
own rulers.” That leave the Imperial Parliament has by the Act 13 and 14 Vict. c. 59,
already given us without, we believe, any reference home being necessary. We have to
comply with certain conditions, and upon our proving we have done so, our wishes must
be carried out.81
‘At Last She Moves’
In his Reminiscences, J. T. Reilly, a long-standing advocate of constitutional
reform in Western Australia, proudly recounted the opening of the Perth Town
Hall, and how Governor Weld:
in the course of a very patriotic speech, declared his firm belief in the colony’s future
progress and prosperity, and concluded a very stirring address with a phrase which
afterwards became talismanic:—“At last she (the colony) moves.”82
Many shared Weld’s sentiments, particularly when he referred to the advent of
representative government—the colony’s ‘new form of Government’—as ‘the
commencement of a new era’.83 But what exactly did Western Australia’s ‘new
Constitution Act’ deliver to the colonists?84
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In compliance with the 1850 Act for the better Government of Her Majesty’s
Australian Colonies, which stipulated that a representative council established
under its terms must consist of a ratio of one-third nominated members to twothirds elected, s. 1 of Western Australia’s Legislative Council Ordinance (33 Vict.,
No. 13) outlined that the new Council was to comprise eighteen members—with
six appointed by Her Majesty and twelve elected by enfranchised colonists.85 The
rest of the Ordinance detailed how this was to be done—i.e. the document was
basically the colony’s first Electoral Act, setting out procedures for ‘ensuring the
orderly, effective, and impartial conduct of such elections’.86 Much was routine.
Section 2 listed the colony’s ten new electoral districts (Perth, Fremantle,
Geraldton, York, Toodyay, Swan, Greenough, Wellington, Vasse and Albany—
with the boundaries delineated in Schedule A) and s. 3 outlined that the more
populous Perth and Fremantle districts would return two members apiece, while the
others would return a single member—a distribution which B. K. de Garis has
correctly stated was ‘decidedly unequal in terms of population’, but which
nonetheless provided representation of the colony’s scattered and often sparsely
populated regional areas of settlement, while satisfying the claims of the two most
populous metropolitan electorates for a commensurately greater say.87 Conducting
the election in each district would be a returning officer—a ‘fit and proper person’
to be appointed by the Governor (s. 5).
Magistrates’ clerks were ‘required and empowered’ by s. 7 to compile alphabetical
‘Electoral Lists’ of those entitled to vote within the district, with these annual
registers to be completed by 10 April every year (but by 1 August in 1870) and
made available for public viewing, without cost, at the local magistrate’s office a
week later. Although s. 8 outlined that ‘Any person who shall desire to have his
name inserted in any such Electoral List shall…apply personally or otherwise to
the clerk’, it appears that some magistrates’ clerks made up the electoral lists based
on their local knowledge and without would-be electors necessarily applying for
registration—which, unlike today, was not compulsory.88 Nonetheless, the editor of
the Perth Gazette urged readers that it was one of their ‘political duties’ to check
that their name had actually been placed on the register.89 Section 8 also detailed
the appeal process for those who were refused registration (i.e. the lodging of a
written and signed ‘Notice of Claim’), and made provision for registered electors to
‘object to any other person as not entitled to have his name retained’ on the
electoral list. Lists of these claims and objections were to be compiled and
displayed at the magistrates’ offices by the end of April (and beginning of
September for 1870)—with resolution taking place, after public notice, later in the
following month at the local Court of Petty Sessions constituted as an electoral
revision court (ss. 8–9). Section 9 outlined that the revision court would also
generally update and correct the electoral lists, with the names of deceased,
incapacitated or disqualified electors being ‘expunged’. To discourage false
testimony, s. 10 outlined that all parties and witnesses were to be sworn and subject
to the ‘pains and penalties…[of] wilful and corrupt perjury’, while s. 13
discouraged vexatious litigation by awarding costs against those initiating
unsuccessful objections. Once ‘revised and settled’, the electoral lists were to be
delivered to the district returning officers, who were to copy the entries
alphabetically into books (which were interchangeably referred to as the ‘Electoral
List’ or ‘Roll of Electors’) with ‘written or printed’ copies also having to be
94
prepared for distribution ‘on payment of the fee or sum of five shillings’ (ss. 11–
12).
So who was entitled to be on the electoral roll? The Legislative Council Ordinance
doesn’t actually spell this out; rather, s. 7 states that ‘all the
provisions…concerning the qualification and disqualification of Electors’
enumerated in the 1850 Australian Colonies Government Act shall apply
(notwithstanding these voting qualifications having been thoroughly liberalised in
the eastern colonies since 1850) and its marginal note directs the reader to s. XII of
this Act. Section XII, however, doesn’t contain any franchise qualifications or
disqualifications either—although s. IV of the Act does in full-blown legalese. In
fact, determining the franchise entitlements for those male British subjects over the
age of twenty-one who did qualify was a convoluted and somewhat confusing
process. This confusion is perhaps why the editor of the Perth Gazette stepped in
and paraphrased the provisions for the people of Perth in the lead-up to the first
election. It is worth quoting the newspaper because it appears to be the only
instance where franchise entitlements were clearly set out on paper for the colony’s
potential voters:
what qualification is requisite for a voter…the ownership for six months previously of a
freehold estate of the value of £100, free of encumbrances; the occupation for six months
previously of a dwelling-house of the clear annual value of £10; a leasehold, with three
years to run, of the same value; or a depasturing license of the like value. But no person
can vote at any election who has not paid up all such rates or taxes as may have become
payable on account of such holdings during three months before registration or election.90
Electors were also entitled to vote in every electorate in which they met these
franchise entitlements, i.e. plural voting was permitted.
The principal disqualification called into operation from the 1850 Act, was that ‘no
Man shall be entitled to vote who has been attainted or convicted of Treason,
Felony, or other infamous Offence in any Part of Her Majesty’s Dominions, unless
he have received a free Pardon or one conditional on not leaving the Colony for
such Offence’ (s. IV). This provision blocked Western Australian conditional
pardon holders who were permitted to leave the colony from voting which, of
course, was not the statute’s intention, so Weld flagged that this would be the first
section of the Ordinance to be amended.91 Women of course did not receive the
vote (although two months earlier they had been permitted to attend their first
public meeting in the colony to protest the recent assassination attempt on the Duke
of Edinburgh) and, as de Garis has correctly observed, there was ‘no serious
discussion’ at the time regarding their enfranchisement, with the Victorian Express
remarking that as women already had ‘more than they can do well in all that
appropriately belongs to them, to add the civil and political duties of men, would
be unjust and oppressive’.92 Nevertheless, Colonial Secretary Barlee in a toast to
the ‘Ladies’ at the Town Hall gala luncheon, at which the ladies, sequestered in the
gallery, merely observed the proceedings, made the usual sop:
He knew that in returning members to represent the various districts in the new Council,
the ladies would in reality be those who chose the members. He would advise those who
sought the suffrages of the people, if they deserved success, to get on the right side of the
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Highest Privilege and Bounden Duty
ladies, and as for voters, boldly as they might come forward to give what they might
desire should be supposed to be their own votes, that was all nonsense, they would simply
represent the votes of the particular ladies under whose good influence they were; he
implored the ladies to send forward the best men in the country…93
Highest Privilege and Bounden Duty
Naturally, women also couldn’t be candidates for election, but then nor could many
men. The qualification for members, called into operation from s. VIII of the 1842
New South Wales Constitution Act (via s. XII of the Australian Colonies
Government Act which directed that, with a couple of nominated exceptions, ‘all
the Provisions’ in the New South Wales Constitution should also apply to the other
colonies once they achieved representative government ‘as if all such Provisions
were here repeated, the Name of such respective Colony being substituted for the
Name of the Colony of New South Wales’), debarred all but the wealthy—with
only British subjects over twenty-one years of age and in possession of freehold
property worth £2,000 ‘above all Charges and Incumbrances’, or of the annual
value of £100, being entitled to stand.94 So even if William Brockman had
expansively declared in the Legislative Council, during the debates on
representative government, that he wouldn’t be ‘too proud’ to sit with members
who wore ‘the butcher’s apron or the baker’s cap’, it would be unlikely that he
would have that novel experience until the new Council liberalised this thirty-yearold provision too.95 The reasons why a member would forfeit his seat included the
usual blacklist: failure to attend two consecutive parliamentary sessions without
permission, swearing allegiance to a ‘Foreign Prince or Power’, treason, insanity,
insolvency or bankruptcy, or being ‘convicted of Felony or any infamous Crime’—
s. XVI of the 1842 Act. The term of office for all members, elected or nominated,
was also derived from the New South Wales Constitution Act and was five years
unless the Council was dissolved earlier—which placed Western Australian
elections half-way between the triennial elections of Victoria and South Australia
and the septennial ones back in Britain—and within these quinquennial terms the
Council had to sit at least once every year and not more than twelve months
apart.96
Procedure for the conduct of elections was detailed in the Ordinance and was
basically similar to that back in England and in the sister colonies at the time. For a
general election, or by-election, the district returning officer would receive a writ
from the Governor (organised through the Colonial Secretary’s office) directing
him to organise, and publicise, a poll to take place from 10 a.m. to 6 p.m. on a
single, nominated day (ss. 14, 19, 20 and 21). (In the wake of the reforms of the
1830s, polling within an electorate took place on a single day in England as it did
in the sister colonies.) The returning officer was to determine if more than one
polling place was required in the electoral district and, if so, provide each with a
copy of the electoral roll and a deputy returning officer and other clerical staff (ss.
16–17)—although, due to expense, there was, in fact, only one polling place per
electorate until the 1880 general election. On election day, the returning officer
would open nominations and if ‘no more candidates proposed than the number of
Members to be returned’, he would declare him/them ‘duly elected’ (s. 20). If there
were more candidates than vacancies, however, the returning officer would call for
a ‘show of hands separately in favor of each candidate’ (s. 20). If this was not
conclusive, and a candidate or ‘not less than six Electors on his behalf’ requested a
poll, then voting papers containing the elector’s signature and property details and
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the full name of his preferred candidate(s) were to be handed in ‘immediately’ at
this and any other polling places (ss. 20–21). The ‘voting paper’, by the way, was
any sheet of paper with the requisite details written on it, because with nominations
taking place on polling day, there wasn’t an opportunity to pre-print ones with
candidates’ names. Correctly filling in the details on the voting paper was the
elector’s responsibility—although s. 26 directed that as long as the required
information was on the voting paper, it could not be rejected ‘for mere want of
form’. In the Perth and Fremantle electorates, where two members were to be
returned, electors could choose to fill in two candidates’ names on their voting
paper or vote only for one candidate—a practice called ‘plumping’.
Although the use of voting papers was an advance on the oral recording of a vote
by a polling clerk in Britain, many colonists (correctly) felt that with clerks and
scrutineers clustered around the hustings, their signed votes would not necessarily
remain secret. The stipulation in s. 20 that British-style open voting, rather than the
Australian secret ballot, was to be used in the colony may seem surprising given
the successful use of the ballot at the 1867 selection and the 1869 Fremantle
by-selection, its recommendation by the electoral report committee appointed by
Acting Governor Bruce, and the fact that all the sister colonies used—and
extolled—it, but as a recent biographer of Governor Weld has pointed out, Weld,
while a member of the New Zealand legislature, had ‘opposed the proposed secret
ballot as “un-English”’.97 And, as Bruce L. Kinzner has amply demonstrated in The
Ballot Question in Nineteenth-Century English Politics, Weld’s viewpoint was
common at the time—particularly in England where it was widely held, to quote
Lord Palmerston, that ‘publicity in the exercise of all great functions is an essential
principle of the British constitution’.98 While opposition to the secret ballot in
Britain was more virulent on the conservative side of politics—the diminution of
aristocratic influence at elections was never going to be a selling point for the
Tories—a number of leading Chartists also had misgivings about secret voting as a
principle, while even those Chartists in favour of the ballot were opposed to
introducing it without manhood suffrage (the ballot was actually dumped from the
1848 Chartist petition).99 Completing the spectrum, a number of celebrity liberals
such as John Stuart Mill and Lord John Russell also very publicly repudiated secret
voting. Indeed, the strength of antipathy to this ‘bad, secret, shabby way of voting’
is perhaps best captured in a letter written by Lord Russell to his brother:
I cannot tell you how delighted I am at the manly stand you have made against the Ballot.
It would in my opinion…destroy the character of Englishmen certainly of the liberal
party. What pitiful figures we should cut, sneaking up to the ballot box looking with fear
to the right and the left and dropping in our paper the contents of which we are afraid or
ashamed to acknowledge whilst the tory comes forward like a man and like an
Englishman, and says openly and fearlessly who he votes for. I would rather never give a
vote, than give a concealed vote—the desire to conceal the vote is a bad sign of the
times.100
To return to the Legislative Council Ordinance. During polling, if the returning
officer (or deputy returning officer) thought fit, or was requested to do so by ‘any
two Electors entitled to vote for the same Electoral District’, he (at this stage
always a he) was authorised by s. 21 to ask an elector any or all of four prescribed
questions—which included some which it is compulsory to ask of every elector
today: Are you the person who has signed this voting paper? Are you the person
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whose name appears on the electoral roll for XYZ property? Have you voted
previously in this election for this district? Do you still hold the qualification for
which you were registered? And, of course, anyone who gave the wrong answer
was ‘excluded from voting’ (s. 25). In addition, if the returning officer, deputy
returning officer, or a candidate or candidate’s agent, suspected personation—
which was a misdemeanour and another ground for refusing the vote—the elector
could be required to make an oath or affirmation to the effect that they were the
person on the electoral roll (ss. 22, 25 and 43). If would-be electors refused to
answer the statutory questions or take the oath/affirmation, they could not vote; and
if it were proved subsequently that they lied, they would ‘suffer the like penalties
as persons convicted of wilful and corrupt perjury’ (ss. 23–24). Section 21
empowered electors to authorise a ‘proxy or agent duly authorized in writing’ to
deliver a voting paper on their behalf—a necessary provision in Western Australia
where the polling place could be a couple of days’ ride away, or where an elector
owned property in other, possibly distant, electorates. In this situation the elector
was compelled to answer the four prescribed questions in writing and make the
oath/affirmation in the presence of a justice of the peace, who also had to witness
and countersign the elector’s signature on the voting paper (ss. 21–22). As a further
safeguard, the written questions and answers, as well as a copy of the
oath/affirmation signed by the justice of the peace, had to be attached to the proxy
voting paper (s. 23).
At close of polling the deputy returning officers were to bundle up and seal the
voting papers and return them to the returning officer for the count and declaration
of results (ss. 27–28)—although, as previously mentioned, there weren’t any
deputy returning officers until the 1880 general election. Although not specified in
the Ordinance, or any other statute for that matter, counting of votes was to be by
the ‘first-past-the-post’ system used in Britain and the sister colonies—i.e. the
candidate with the most votes being declared the winner—although it is interesting
to note that an anonymous correspondent to the Inquirer in 1870 recommended the
adoption of the new system of proportional representation which was being
endorsed in Britain by the much-respected John Stuart Mill.101 If the vote was tied,
the returning officer—otherwise disqualified from voting in the district—was to
decide the poll by a casting vote (s. 28). The election over, the returning officer
was instructed by ss. 29–30 to endorse the writ with the name(s) of the successful
candidate(s) before returning it to the Governor (although not stated in the
Constitution, members were barred from taking their seat in the Legislative
Council until the Governor had physically received the writ) and also send the
sealed voting papers to Perth where they were to be retained by the Clerk of the
Legislative Council for a period of five years in case there were any disputed
returns.
If there were concerns that an election was invalid, an election petition could be
submitted to the Legislative Council for investigation and determination by the
Chief Justice who was empowered to determine the ‘sufficiency’ of a returned
member’s qualifications; reject or admit votes; unseat a returned member and
declare an unsuccessful candidate ‘duly elected’ instead; or rule an election
‘absolutely void’ (ss. 31–37). It is interesting to note that it was only two years
previously, with the passing of the Parliamentary Elections Act 1868, that England
reverted to having the courts, rather than House of Commons election committees,
98
try election petitions, so Western Australia was showing a fairly prompt take-up of
English electoral reform in handing arbitration of controverted elections to the
Chief Justice—especially considering that at the time all the sister colonies
exercised parliamentary jurisdiction over petitions and only slowly relinquished
this control—with South Australia only surrendering exclusive jurisdiction to a
Court of Disputed Returns in 1969.102 To limit vexatious petitions, s. 36 directed
that petitions could only be submitted by a candidate at the disputed election, by
one-tenth of the electors on the roll for that district, or by a member of the
Legislative Council, while s. 35 provided that costs were to be awarded against
unsuccessful petitioners. The principal grounds for voiding an election—bribery
and corruption—were dealt with comprehensively in s. 38 which proscribed a
range of activities capable of ‘influencing the vote’ of electors: payments, gifts,
promises, inducements, hiring and treating and, on the negative side, threats or
intimidation. Those convicted of bribery or corruption could be fined up to £200 or
sentenced to a maximum of six months in gaol; and, in the case of a candidate—
whether guilty in person or through the actions of his agent for whom he was
deemed to be responsible—he would also lose his seat and be disqualified from
sitting in the Legislative Council until the next general election (ss. 38–41).
Meanwhile, electors who received or solicited largesse could face a £50 fine (s.
42). Of these fairly punitive provisions the observation of the editor of the Perth
Gazette is worth noting: ‘Heavy penalties are provided against bribery, but the
ballot would be a better preventive by making it useless’.103
At Last She Votes
Although the Legislative Council Ordinance was only assented to on 1 June 1870,
s. 7 outlined that the first ‘Electoral Lists’ were to be ready by 1 August of that
year. This was just as well, considering that Governor Weld intended to ‘put the
new Electoral machinery into operation with the least possible delay’ and issued
the writs for the colony’s ‘first bona fide election’ on 18 July.104 In keeping with
the English tradition of entrusting the conduct of (county) elections to the sheriff,
Western Australia’s first gazetted returning officers consisted exclusively of the
colony’s sheriff, for the Perth electoral district, and the colony’s quasi-sheriffs, the
resident magistrates, for the other electorates.105 (Interestingly, this reliance on
legal officers to administer elections—which from the 1880 general election
onwards extended to JPs, the Clerk of Petty Sessions, sub-inspectors of police and
so on—continued until the late twentieth-century at which time the Western
Australian Electoral Commission made concerted efforts to diversify its
recruitment pool.) Again, like the original English county elections, Western
Australia’s regional elections were to take place in the local magistrate’s court
house, although in Perth and Fremantle larger venues had to be appointed (the new
Perth Town Hall and the Odd Fellows’ Hall respectively).106 The Western
Australian elections, like those in Britain and most of the sister colonies, were also
staggered, with the first election set down for 11 October at Geraldton, and the last
to take place in the Wellington District (Bunbury) on 9 November.107 In addition,
as in Britain and other British colonies, an unsuccessful candidate at an earlier
election, could try his luck again at a later one—something which Governor Weld
himself had done in New Zealand in 1861 when he lost his seat in the legislature
and which, more spectacularly, British Prime Minister William Gladstone had done
in the 1868 British general election when he was returned for Greenwich after his
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defeat in South-West Lancashire.108 And as de Garis has commented, staggered
elections ‘also made it easy for those with property spread over the colony to vote
in a number of elections’.109 Unlike British elections, however, at which all official
election costs were borne equally by candidates until 1918, s. 44 of the Legislative
Council Ordinance directed that ‘All necessary and reasonable expenses’ incurred
during the ‘first’ election, if approved by the Governor, were to be ‘paid and
discharged out of the public funds’—a provision which existed in all the sister
colonies.110 (Notwithstanding the ‘first’, the colonial coffers underwrote official
costs for all subsequent elections as well.)
With the issue of the writs, the old Council—and the colony’s original
Constitution, 10 Geo. IV, c. 22—ceased to exist and public notices by returning
officers; spiels by candidates and election committees; and reminders to the public
to ‘REGISTER, REGISTER, REGISTER’ before the electoral lists closed in a
week’s time, flooded the local press.111 After what was a very protracted election
campaign period (almost four months for Bunbury and a Bunbury candidate
jumped the gun and started campaign advertising before the issue of the writs) the
elections finally commenced.112 With the exception of Albany and Greenough, all
seats were contested; and from reports filed in the local newspapers it appears that
the real elections were not markedly different from the selections of 1867 with all
the paraphernalia of ‘home electioneering’—campaign rosettes, bunting, placards,
banners, the volunteer band, shouldering or chairing of successful candidates,
mock chairings and so on—again being resorted to.113 The 1870 election campaign
did, however, see one innovation: the publications of ‘requisitions’ (or formal
written requests) inviting a local personage to stand for election. Over the years
these requisitions, accompanied by long lists of signatures, would become
increasingly elaborate and complimentary to the candidates—who would always
respond with an equally flattering and exquisitely courteous reply—and while a
candidate did not technically require a requisition to stand, the lack of a requisition,
or one with few signatories, would be made much of by opponents.114
As with British elections, the unenfranchised seemed to participate in the 1870
election almost as much as the enfranchised, with the ‘the ladies, Heaven bless
them!’ and the ‘noisy representatives of the “great unwashed”’ parading in their
favoured candidates’ colours.115 And, at the Fremantle election, a contemporary
diarist has recorded that Aborigines also became involved: ‘People both black and
white were gathered in large groups around the busy public houses discussing with
all the gusto of fanatical ranters the coming events of the day’.116 Indeed, the editor
of the Inquirer urged all citizens to ‘share in the general gathering’ and ‘respect the
occasion’ as a sort of civic duty.117 Unlike British elections, however, the local
ones
were carried on with the greatest decorum and order…[and] will be memorable for the
absence of drunkenness and, rioting, too often the unfortunate sequence of
“electioneering” in the mother country, as well as in our more favored and prosperous
Australian settlements.
Or so the editor of the Perth Gazette rather smugly informed the extra-colonial
‘well wishers of Western Australia’.118 The Fremantle election, however, was
apparently more spirited than those in the other electorates—because ‘the
100
Fremantle people generally outstrip us on all public occasions’—but even their
election was ‘highly creditable’.119
A striking feature of the 1870 elections, in contrast to the 1867 selections, was the
complete uniformity of the official conduct of the various district elections, with
the respective returning officers promptly commencing proceedings at 10 a.m. and
following the same script of reading (or having a clerk read) the writ, presiding
over nominations, calling for the show of hands and then, if required, conducting
the formal poll until 6 p.m., whereupon they counted the ballot papers under the
supervision of scrutineers and declared the results. In fact, the editor of the Perth
Gazette commented very unfavourably on the only reported divergences from this
procedural uniformity and rebuked the returning officer for Perth, Alfred Hillman,
for two infractions. First, Hillman was criticised for shutting polling down for a
one-hour lunch break, which, the editor correctly insisted, was contrary to the
Ordinance which only authorised an adjournment ‘in a case of riot’.120 More
seriously, Hillman was censured for having ‘garnished’ the Town Hall with a slew
of police officers who, while they may have made themselves useful distributing
voting papers, were also ‘ostentatiously and officiously obtruded upon the sight of
the people’ to ensure order—with the Western Australian Sub-Inspector of Police
actually silencing an elector for cheering a candidate during nominations. This
policing of electors was roundly condemned by the editor who pointed out that
‘this was a public meeting for an election, at which the people have every right to
give free expression to their sentiments’. Similiarly, election day in Fremantle also
saw policemen ‘strapped and belted up as they had never been before…threading
their way through the crowded streets’, according to a contemporary journal
entry.121
The principal difference between the 1867 and 1870 elections, however, was open
voting and it soon became clear to most that the earlier system was preferable.
Under the new regime the returning officer called for a show of hands and declared
the results, but this was a hopelessly inaccurate method of gauging votes.122 At the
Perth election, for example, the returning officer announced after the show of
hands that candidates Edmund Birch and Terrence Farrelly were elected, but after a
poll was demanded the final result saw Julien Carr and Luke Leake returned with
huge margins (Carr: 235; Leake: 205; Birch: 160; Farrelly: 95).123 A similar
embarrassing reversal took place at the Fremantle election.124 Furthermore, open
voting with its show of hands required all the district’s electors to be present
simultaneously, and it could be a fairly noisy and boisterous proceeding—
especially as it followed on from the often rowdy public nomination of candidates.
Thus, while Englishman Sir Charles Dilke commented admiringly of polls in the
eastern colonies of Australia at this time—at which electors proceeded in an
orderly fashion to the ballot box under secret voting and where there were no
running tallies of results to keep people milling around the polling place—that
‘elections pass off in perfect quiet’, the same could not be said of the West.125
In addition, as outlined earlier, if the show of hands was inconclusive and a formal
poll was demanded—as it was in all the contested elections in 1870—then the
elector was given (or could provide himself) a voting paper to complete instead of
having to record an oral vote in front of electoral officials, as occurred in England
at the time. But as all the colonists realised, this ‘half-and-half system’ did not
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guarantee the elector privacy ‘unless he chose to take away his voting paper and fill
it up elsewhere’, because electors generally filled in and signed their voting paper
under the nose of the assembled returning officer, clerks and scrutineers.126 The
editor of the Perth Gazette, in particular, expressed concerns that in Western
Australia’s numerically small rural constituencies there could be considerable
opportunity for intimidation and ‘coercion’ of electors by their creditors—
especially as the colony was in an economically depressed state at the time.127
Critics of open voting in the colony, however, drew heart from the fact that the
Imperial Parliament had considered a Bill to introduce the secret ballot and abolish
public nomination of candidates in British elections—and thereby ensure ‘perfect
purity of election’ and avert ‘the scenes of profligacy and riot invariably attending
open voting’—only a few months previously.128 (Both measures were achieved in
Britain in 1872 with the passing of the Ballot Act.)
Apart from the reservations about open voting, the colony’s first proper elections
had been a great success—undoubtedly the colonists hoped their new constitutional
set-up would prove equally so.
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5
Dissatisfaction
…our present hybrid abominable form of
“Representative Government” with a permanent and
irresponsible Executive…
Herald, 19 April 1873
The New Club in Town
Not surprisingly, the colony’s first election of the propertied, by the propertied,
returned what F. K. Crowley has called ‘a certified list of the colony’s leading
gentry’ to take up seats in what ‘looked very much like a landowners’ and
merchants’ club’—although, somewhat unexpectedly, considering the large number
of rural electorates, a preponderance of merchants, rather than landowners, was
elected to the Legislative Council.1 (Interestingly, the other landowners’ and
merchants’ club, the Weld Club, opened just over a year later.) For the record, the
roll-call of elected members, in the order they appeared in the colony’s Blue Book
for 1870 was as follows: Major Logue, Geraldton; George Shenton, Greenough; John
McKail, Albany; J. G. C. Carr, Perth; L. S. Leake, Perth; E. Newman, Fremantle;
W. D. Moore, Fremantle; Thomas C. Gull, Swan; J. H. Monger, York; James
Drummond, Toodyay; John G. Bussell, Vasse; and James G. Lee Steere, Wellington.
As for the six non-elected nominee members of the Legislative Council, Governor
Weld incurred the ‘very grave and serious personal responsibility’ of provisionally
appointing them—a course he felt compelled to take because delegated authority to
make the nominations had not come through from the Secretary of State, and he was
unwilling to postpone the convening of the new Council, and the passing of backlogged legislation and the 1871 Estimates, until the necessary paperwork was signed
off by the Colonial Office.2 Weld’s official nominees consisted of the Colonial
Secretary, Frederick Barlee, and the Attorney General, R. J. Walcott. The third
official position, to be held by the Surveyor General, was not filled at this stage
because John Septimus Roe had recently resigned, after a marathon forty-one years
in the job, and Weld was sourcing a successor. (By the end of December, Malcolm
Fraser, a well-regarded English civil engineer and surveyor, had been sworn into the
position.) The three non-official nominees consisted of former selected member
Samuel Phillips (who didn’t even attempt to re-enter the Council via election after
ratting on his selection pledge to support representative government); pastoralist and
former resident magistrate Maitland Brown; and a young businessman, and fellow
Catholic, William Marmion. Of the latter’s appointment, Weld reported to the
Secretary of State:
though not elected he received a large measure of support at the present election for the
Fremantle District, which is slightly underrepresented in proportion to its importance and
103
population, he may also in a sense be considered as representing a large minority.3
[Weld’s underlining.]
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As B. K. de Garis has noted, Weld’s appointment of the ‘squatters’ Phillips and
Brown similarly ‘redressed the balance’ regarding the ‘slightly underrepresented’
landowners in the Council.4 Over the next twenty years governors would, in fact,
routinely make nominations which balanced up representation of regions or
interests in the Council.
Because the elected members would outnumber the Governor’s nominees in the
Legislative Council, and the Governor would no longer sit in the Chamber, there
was a misconception held by some that he was now a ‘comparatively powerless’
and ‘ornamental’ figurehead.5 But nothing was further from the truth as His
Excellency, even if indirectly, still ruled the show: it was the Governor’s
prerogative to summon, prorogue and dissolve the Council; only he could initiate
Bills appropriating revenue (although the members could pass addresses requesting
the expenditure of money); and he wielded the right of veto over all Bills. In
addition, the Governor’s power of nominating the non-official members gave him
considerable scope to appoint councillors who would support the Government’s
policies. Furthermore, the Governor’s dominance of Executive Council was
untouched, i.e. as previously, he determined when meetings would take place,
presided over such meetings, controlled the agenda and was not compelled to
accept his advisers’ advice (although, as before, obliged to convey his reasons for
not doing so to the Secretary of State).6 ‘In brief’, to quote W. B. Kimberly’s
assessment of the new constitutional order, ‘the Crown’s prerogative was stronger
than the People’s rights’.7 Still, as Crowley has pointed out more recently, the very
fact that elected members held a significant majority in the Chamber meant that
‘their views had…to be closely considered by the Governor’.8 Moreover, the
councillors had the power of the purse in that they could refuse to pass supplies for
carrying on the Government—a reserve power that would keep any Governor in
check.
With the Governor out of the Chamber, the Colonial Secretary, Frederick Barlee,
was aptly depicted by the editor of the Perth Gazette as ‘the representative of the
government in the Legislature’ as well as the natural ‘guide’ and ‘leader’ of
proceedings.9 In recognition of the fact that the Colonial Secretary was now almost
a ‘de facto premier’, the position was also given official precedence in the
Executive Council after the Governor.10 In layman terms, however, the Colonial
Secretary—due to his roles as the Governor’s right-hand man (or ‘grand vizier’ as
Barlee was described by his biographer, J. H. Honniball) and administrative head
of the colony’s civil service—had probably always been regarded as ‘next to the
Governor the first man of consequence in the Colony’, as early settler Eliza Shaw
once put it.11
The newly constituted representative Council met for the first time on Monday
5 December 1870. Unfortunately, the much anticipated swearing-in ceremony was
bungled by the Chief Justice, Archibald Burt, who mistakenly bequeathed an
‘Honorable’ on the non-official nominees—to the chagrin of the elected cohort
who had to make do with being ‘only Mr’.12 After the final oath of allegiance was
sworn, the Colonial Secretary promptly rose to organise the ‘first duty the Council
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had to discharge’—the election of a Speaker to preside in the Chamber and ensure
that ‘the business of the House would be conducted with dignity, honor, and
impartiality’.13 Luke Leake, a leading merchant and one of the members for Perth,
was elected unopposed and the Council briefly adjourned while all the councillors
trooped to Government House to have the appointment ratified.14 It was, and later
in the afternoon, the Governor retraced the councillors’ steps back to the new
purpose-built ‘Legislative Hall’ (adjacent to the Town Hall) to formally open the
first session of the Council.15 Weld’s Address was comprehensive, but not too long,
and, as anticipated, he referred to the necessity of passing legislation to amend the
brand-new Ordinance under which the Council was constituted.16
And as for the new Legislative Council’s legislative role, it was authorised to pass
laws for the ‘Peace, Welfare, and good Government’ of the colony—‘Provided
always, that no such Law shall be repugnant to the Law of England, or interfere in
any Manner with the Sale or other Appropriation of the Lands belonging to the
Crown…or with the Revenue thence arising’—and also didn’t impose differential
customs duties, levy duties on supplies imported for Her Majesty’s Troops, or levy
duties inconsistent with any treaties entered into by the British Government.17 As
previously, there were also certain ‘conditions and restrictions’ on the Council’s
general legislative power laid out in the Governor’s Royal Instructions; and, in
addition, stipulated laws—in particular, those altering electoral boundaries,
creating new electorates, or increasing the number of members—had to be reserved
for the signification of Her Majesty’s pleasure, while laws amending the manner of
electing members, or the qualifications of electors or members, or altering the
Constitution to move towards responsible government, had to be reserved and
tabled in the Imperial Parliament.18 And all legislation had to be forwarded ‘by the
first convenient Opportunity’ to the Secretary of State for Her Majesty’s
confirmation or disallowance, and the Secretary of State could also direct the
Governor to assent to a Bill which he had previously vetoed.19 Of particular interest
to the new Council, however, was the authority given to it by s. XXXII of the
Australian Colonies Government Act to alter its own electoral provisions—and, in
fact, the very first Bill to be introduced in the Legislative Council under
representative government was the amending Representation of the People Bill
which was introduced by Barlee only minutes after Weld’s Opening Address.20
As expected, the Bill proposed to extend the franchise to the (otherwise qualified)
conditional pardon holders who had been unintentionally excluded by the literal
wording of the 1850 Act; and it also proposed enfranchising pastoral licence
holders and leaseholders whose leases had less than the previously stipulated three
years to run. What had not been expected, however, was that the Bill would contain
a provision to abolish the property qualification for members of the Legislative
Council—‘following the precedent set them in England and in all the Australian
colonies’ as Barlee informed the Chamber.21 (Actually, Tasmania still retained a
property qualification for members of Parliament and would do so until as late as
1901.) While the assembled councillors allowed the first reading to take place, the
elected members (who had been obliged to hand in their ‘Declaration of
Qualification’ paperwork earlier in the day) were opposed to the abolition of the
property qualification for MPs. Accordingly, James Lee Steere—who had assumed
the status of ‘leader of the elected side of the House’ in opposition to the
Ministerialists, or Government nominees—spoke against the provision at the
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second reading stage and moved that the Bill be referred to a select committee
consisting entirely of elected members.22
The select committee reported back to the Council a month later and recommended
that the candidate property qualification be retained—which was hardly a surprise
considering its members were convinced that without a property qualification ‘the
House would be soon full of “stump orators”’.23 Nevertheless, the committee
conceded that the current qualification was too high and recommended that it
should be halved in value. The committee also proposed some additional
provisions for the Bill: that anyone convicted of treason or felony be banned from
taking a seat in the Council; that ‘officers holding appointments under the
Government’ be barred from sitting in the Council as elected members (although,
as nominee member Maitland Brown sourly observed during the debate on the Bill,
Government employees were probably unelectable anyway ‘as they were looked
upon by the public at large as servile sycophants’); that £10 householders could
still vote in their electoral district if they changed address as long as they had
resided somewhere else within the same electorate for six months prior to the
election writ being issued; and that the franchise be extended to lodgers who for six
months prior to an election had paid for board and lodging at the rate of £40 per
annum.24
Barlee vigorously defended the original Government Bill in a speech described by
one member as a ‘counterblast’; but a majority of the House supported the select
committee’s recommendations (with the exception of the board and lodging
franchise which was seen as too difficult to implement) and the ‘materially altered’
Bill was passed on Friday 13 January 1871.25 Weld presumably spent a good part
of the weekend drafting ‘Message from the Governor—No. 16’ in which he
criticised the amendments and urged the members to give ‘serious and calm
consideration’, i.e. reconsideration, to the Bill—which he returned to the House
with his ‘Message’ on Monday 16 January.26 The elected members,
notwithstanding their claims to have ‘calmly and quietly considered the matter’,
remained unrepentant: the Bill stood as passed and was reserved for Her Majesty’s
approval by Weld on 18 January 1871.27 On the same day, Weld prorogued the first
session of the Legislative Council.
The tussle, often acrimonious, over the Representation of the People Bill was not
an isolated case. Crowley has correctly observed that there was ‘more or less
continuous difference of opinion’ between the elected and nominee members over
the ensuing years.28 Indeed, as early as August 1872 a conflict between the two
branches of the Chamber (and, to an extent, within the two groups themselves) over
the issue of protective tariffs versus free trade, culminated in free-trader Weld
withholding his assent to a Tariff Act Amendment Bill which would have levied a
duty on imported flour. In defending his exercise of the veto, Weld personally
outlined to the Council—immediately prior to proroguing it—that in his opinion
the proposed duty was:
—a tax which presses unduly on the poorest class, which produces revenue utterly
incommensurate with the tax laid upon the consumer, which benefits the speculator rather
than the farmer, and which inaugurates a system of protection as opposed to free trade. An
Act so pregnant in results affecting the future of the colony…cannot pass into law without
a previous appeal to the country [i.e. an election].29
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Weld continued that he felt additionally justified in disallowing the Tariff Bill, and
allowing the colonists to decide the issue themselves via election, because he had
just received and was, in fact, proclaiming in the Council ‘from this date’ (17
August 1871), Her Majesty’s assent to the Council’s An Act to amend the
Representation of the People, and to alter the Property Qualification of Members
of the Legislative Council (34 Vict., No. 30), so the colony now had an expanded
electorate which, following the ‘ordinary constitutional course’, had to be
consulted.30
The only difficulty was that Weld couldn’t call an election straight away. As he
explained to the assembled members—including new member, Albert Hassell, who
had only joined the Council five weeks earlier after being elected unopposed for
the seat of Albany on 23 May 1871 in the colony’s first by-election—that ‘Under
the law, fresh electoral rolls cannot be made up before April, and revised before
June, 1872’.31 In fact, the best Weld could manage was to ‘prorogue this Council,
with a view to a dissolution’—but, putting a positive spin on the enforced delay,
Weld outlined that it would at least give the colonists ‘time and opportunity’ to
give the tariff issue their ‘matured opinion’.32 The Council was accordingly
prorogued until 1 November 1871 and the Governor and his retinue swept out of
the Chamber.
In the following months the Council was prorogued twice more, and on 2 March
1872 Weld finally issued the writs for the colony’s first early general election.33
Unlike 1870, when the elections were staggered over a four-week period, the longawaited 1872 elections were scheduled to take place over a fairly compressed fourday timeframe beginning on 25 June. (Considering that the five-week election
period for the 2005 Western Australian general election was described by the West
Australian newspaper as a ‘long-haul election’, the four-month campaign periods
of the 1870s must have seemed never-ending.34) Within days of the writs being
issued, the usual public notices by returning offices, requisitions for candidates to
stand, advertisements for election meetings and reminders to potential electors to
register, filled the local press. With the exception of John Bussell from Vasse and
William Moore from Fremantle, all the previously elected members of the
Legislative Council re-stood for election.
Because the Council had been dissolved over the emotive issue of taxing the poor
man’s loaf, it is no surprise that ‘Protection’ was the dominant election issue—
although candidates were also grilled at election meetings over their views
regarding the meagre £35,000 loan for public works recently sanctioned by the
Secretary of State, and whether the colony should move towards responsible
government if the Executive continued to thwart the ‘voice of the people as
expressed through their representatives’.35 Half the seats were uncontested,
however, and in those seats that were contested, there was, as the editor of the
Inquirer observed, a ‘paucity of candidates’—with only three challengers for
Fremantle and two for the remaining electorates.36 Indeed, there were significantly
fewer candidates than the previous election, which, as J. McKenzie, has pointed out
was not the anticipated result of halving the property qualification for members!37
But as H. J. Hanham has commented of elections in Britain during the same period:
‘general elections were not general’.38
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Notwithstanding the large number of uncontested seats, the ‘paucity of candidates’,
and a prediction by the editor of the Inquirer that the forthcoming elections would
be ‘decidedly dull’, in two of the contested electorates, Greenough and Vasse, there
were quite tempestuous polls—by Western Australian standards anyway.39 In
Vasse, where former member John Bussell had resigned, a bitter contest soon
developed between local candidates Thomas Carey and David Eedle—who for
several years had had a fairly fraught personal relationship.40 In the early stages of
the campaign period they both addressed the local electors at public meetings at
which Carey had to be restrained from bringing up ‘matters of personal disputes
and strife’ in retaliation against Eedle’s earlier ‘References of the most ungenerous
and unmanly kind’.41 Their supporters then battled it out in the local revision court,
challenging the claims of electors who they believed would vote for the other side.
The Inquirer’s report of the revision proceedings—particularly the overt bias of the
revising magistrates—makes fairly alarming reading:
Eedle’s supporters have raised objections to 25 names on the list of voters, passed, it must
be remembered, by the Clerk of Courts. Carey’s supporters object to 23. As proceedings
went on, it at once became apparent that the majority of the magistrates were determined
to and did, in the most unblushing manner, throw out every voter opposed to their
favourite…The spirit shown was positively disgraceful. It casts a slur on the district.42
The revision court out of the way, the local resident magistrate, J. S. Harris, who
was also the returning officer, then proceeded to accompany candidate Thomas
Carey as he toured around the district collecting proxy votes. A memorial was
promptly sent to Governor Weld ‘praying that some other person…be appointed
Returning Officer at the forthcoming elections’.43 While Harris was not removed
‘as the elections were so close at hand’ (and in fact conducted two more elections
in Vasse as returning officer before a forced retirement in 1880) he was officially
warned to ‘observe strict impartiality’.44 Election day in Vasse was predictably
stormy. At nominations, Eedle’s proposer launched into a blistering attack on
Carey and his supporters, and ‘in spite of all the warnings he received from the
body of the court, he continued his line of argument until the Returning Officer
was compelled to adjourn the proceedings’—which made this the first legal
adjournment of an election in the colony.45 (But only by one day, as it turned out!)
When everyone had calmed down, the election resumed and a poll was taken—
which Carey won by a margin of twelve votes (sixty-four to fifty-two).46 In the
wake of the election, both candidates expressed their bitterness over the election
proceedings, particularly Eedle who complained at a public dinner of the ‘partisan’
behaviour of the returning officer who ‘placed every obstacle in his way’, but
eventually the fracas passed over.47 Greenough was not so lucky.
In the northern electorate of Greenough, the former member was the popular and
well-regarded George Shenton, who had been elected unopposed in 1870 and
whose re-election in 1872 was generally seen as a given—which was just as well
considering Shenton was out of the colony for the entire election period. While his
brother, Edward Shenton, and a colleague, Charles Crowther, acted as electoral
agents on his behalf, and a group of supporters formed an election committee
(which reportedly did not meet), the Perth Gazette later congratulated Shenton for
being returned with ‘no canvassing on his part’.48 Indeed, the most Shenton’s
election supporters seemed to take upon upon themselves was to post supportive
notices in the press, and persuade Crowther to bankroll a ball and supper at the
108
Greenough Hotel on the night of the election. Unfortunately for Shenton, Henry
Gray, a long-standing campaigner for constitutional reform in the colony, got wind
of the ball—which he perceived to be an inducement to vote for Shenton, and
hence an act of bribery under the Legislative Council Ordinance. Literally at the
last moment, just as nominations were about to commence, Gray arrived at the
polling place claiming that, ‘after much pressure he had at last consented to come
forward as a candidate’.49 In reality, he was standing because as a candidate he
would be entitled under s. 36 of the Legislative Council Ordinance to submit an
election petition to unseat Shenton.
When nominations opened Shenton was duly proposed and seconded by a couple
of admirers. When it came to Gray’s turn, however, his seconder, Major Logue
(who had been elected unopposed for the adjoining electorate of Geraldton the day
before) far from eulogising him, launched into a denunciation containing gems like
the following:
He…was sorry to say that Mr. Gray’s actions were like those of the runaway horse and
the mad bull, and the consequence was that any matter he had much to do with invariably
came to grief, and for that reason he did not think he would do in council.50
It took a few minutes before the dumbfounded Gray registered what was going on,
but he finally ‘sprang up’ in the court house to defend himself—only to be told by
the returning officer, E. H. Laurence, ‘that this was not the time nor place for the
candidates to address their constituents’.51 While most candidates did, in fact,
deliver their main policy speeches at public meet-and-greet election meetings prior
to election day, they usually also made a short speech at nominations, so this was a
decidedly unfair ruling from the returning officer—especially considering the
provocation.52 The enraged Gray ‘continued with determination’ at which the
returning officer called the police to clear the court, and the colony’s second
electoral adjournment took place.53 Eventually order was restored and a poll taken;
and, as expected, Shenton won by an ‘overwhelming majority’ (seventy-five to
eighteen).54 That evening at Shenton’s victory ball ‘dancing was kept up till nearly
day-dawn’.55
Of course Henry Gray wasn’t dancing. Within hours of his defeat he was taking
affidavits from electors in a bid to have the Greenough election overturned on the
grounds of ‘bribery, corruption, and undue influence on the part of [Shenton’s]
electioneering agents and committee’.56 Bribery and corruption were claimed on
the grounds that the ball and supper at the Greenough Hotel constituted ‘treating’,
while to support claims of undue influence Gray had electors swear affidavits that
if they did not vote for Shenton (who was a wealthy merchant) they would be ‘sold
up to-morrow’—which was a somewhat curious course of action considering Gray
was also a merchant.57 George Shenton, meanwhile, who had arrived back in the
colony on the same day as the Greenough election was completely unaware of any
victory ball given in his name—or of Gray’s plans to unseat him. Indeed, the
election petition, to be tabled in the newly convened Legislative Council a month
later, would prove something of a bombshell. But this anticipates.
The dramas in Vasse and Greenough were not the only hiccups in the 1872
election. Indeed, complaints regarding the election came in thick and fast. To start
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with, the registration process was criticised for being too slow; and then there were
objections that some magistrate’s clerks were refusing to register legitimate
claimants.58 The heavy-handed attitude of some returning officers and clerks of
court was also criticised—and is beautifully exemplified by the following letter to
the Inquirer from the clerk of court at Champion Bay (in response to a letter of
complaint regarding non-registration):
[the criticism] is an untruth in its entirety…I have to request that you will furnish me with
the name of your correspondent and the “qualified voter,” that I may have the satisfaction
of calling on them, in order that they may know more fully my sentiments with respect to
their assertions.59
Suspecting that disclosing the complainant’s name would result in ‘pistols for two’,
the editor of the Inquirer refused the request.60 Complaints were also made of the
revision court process—where outright bias, as in Vasse, was matched by
spectacularly discourteous and peremptory treatment of claimants and witnesses by
officials in other courts. The press report of the revision process at the York Court
House, for example, reads like a Monty Python spoof.61
The major source of complaints, however, regarded the ‘the shameless and
shameful abuse of the system of voting by proxies’ in ‘almost every electorate’.62
In a lengthy post-mortem of the election, the Inquirer newspaper discussed the
‘evils’ of this ‘unprincipled electioneering dodge’ in detail, in particular—
the practice resorted to by the partizans of many of the candidates at the recent election of
perambulating the district, accompanied by a justice of the peace and other persons of
influence and position, thereby by mere force of persuasion, cajolery, or intimidation,
crushing down a flexible elector into seeming acquiescence, and elbowing aside less
favored candidates, with tongues not so fluent, principles less elastic, and influence less
powerful.63
Indeed, in the editor’s opinion, if proxy-voting abuses had not occurred, and a true
secret ballot had been in place in the colony, ‘the general result of the elections
would have differed materially from what it was’. The article wound up with a plea
that an ‘independent member of the newly elected Council [would] have the
courage to bring this matter under the consideration of our representative
assembly’.
The ‘newly elected Council’ met for the first time on 30 July 1872. Among the
elected members there were few changes in personnel: apart from Thomas Carey
and William Pearse replacing the retiring Bussell and Moore, the only other change
occurred in Swan where William Locke Brockman had ousted Thomas Gull by
three votes—which, as de Garis has wryly stated, gave Gull ‘the dubious
distinction of being Western Australia’s first sitting member to be defeated at the
polls’.64 There was a significant change to the make-up of the unofficial nominee
members, however, as Weld—although he had undertaken not to veto a new Tariff
Bill if passed after the ‘appeal to the country’—appointed nominees whom he had
first established were avowed free-traders. Accordingly, Alfred Bussell and
Wallace Bickley replaced his inaugural nominees, Samuel Phillips and Maitland
Brown, who had voted in favour of the Tariff Bill. This fairly autocratic action, on
top of the previous year’s veto, ‘raised the political temperature’ in the Council and
110
won more of the members over to the view that responsible government,
notwithstanding its costs and risks, might have to be taken on sooner rather than
later.65
The second day of the new session of Council saw the Attorney General present
Henry Gray’s election petition to unseat George Shenton.66 At the request of the
councillors, the petition was read aloud and then forwarded to the Chief Justice,
Archibald Burt, for determination in accordance with the Legislative Council
Ordinance. As the case was not heard in this one-judge town until June–July of the
following year, Shenton continued in the interim to represent the Greenough
District. Considering the controversial nature of his own election and the fact that
he represented a northern district, Shenton was probably more than particularly
interested in the discussions relating to election management and increased
representation for the north that soon arose in Council.
The first election matter to be canvassed in the Council, however, was on 6 August
1872 when Edward Newman, one of the members for Fremantle, inquired whether
the Government intended to introduce a Bill to ‘more effectually regulate voting by
ballot’.67 Barlee answered guardedly that the Government was keen to see how the
recently passed Ballot Act operated in England before undertaking to change the
system in Western Australia—but conceded that he was ‘quite aware of the many
objections’ against the current system of proxy voting in the colony and that any
proposals put forward to ‘reform’ it would ‘receive the most careful consideration
of the Government’.68 At this point, rural member James Lee Steere quickly
expressed his concern that any moves to abolish proxy voting would ‘virtually
disfranchise’ a ‘large proportion of the country electors’ who were unable to reach
polling places on election day.69 (At this stage, notwithstanding the provision in the
Legislative Council Ordinance for multiple polling places, the practice throughout
the colony had been to appoint only one polling place per electorate—unlike, for
example, the forty-five polling places in the Merredin District at the 2005 general
election.) To shore up his argument, Steere actually went so far as to declare that:
the whole of the complaints which had been urged against our existing system of voting
arose simply from the fact of the returning officers not performing their duty, and not
from any inherent evil in the system itself.70
It was seldom that one of the official contingent agreed with the so-called Leader
of the Opposition, but the Attorney General endorsed Steere’s comments,
lamenting that: ‘If returning officers only knew their duties and performed them,
our existing system of voting by ballot would not be such an evil as it is now
represented to be’.71 No doubt to the great disappointment of the editor of the
Inquirer, after a little more discussion, ‘the matter dropped’.72
Also dropped in this session was a Bill to increase the number of members in the
Legislative Council—an increase which the Council was authorised to take under
s. XI of the Australian Colonies Government Act. This increase had been
foreshadowed by Weld in his Opening Address when he referred to giving a
member to the northern district of Roebourne—‘a district which has especial
claims to a separate representation’—and, as this would ‘put another nominee seat
at my disposal’ (to maintain the statutory 2:1 ratio between elected and nominee
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members), he also proposed hiving the ‘Murray and Williams’ area from Fremantle
and giving that district its own member to provide the second unofficial member.73
The Bill was introduced by Barlee on 6 August 1872, but at the second reading
stage Steere opposed it on the grounds that the proposed northern electorate would
only contain twenty-four electors—who, he argued, were already represented by
Major Logue, the member for Geraldton.74 Perhaps fearing a diminution of his own
constituency, Logue seconded Steere’s amendment that ‘the Bill be read a second
time this day six months’—usually a polite parliamentary fiction by which a Bill is
not, in fact, postponed for six months, but killed off entirely.75 As eleven of the
councillors (all elected members) supported the amendment, the Bill was duly
defeated. While the minuscule number of electors in Roebourne was the only
reason advanced in the Council for seeing off the Bill, McKenzie has suggested
that there were, in fact, a raft of reasons: the south didn’t want to increase the might
of the north, particularly its ability to secure a ‘proportionate expenditure of the
public funds’; the free-trade metropolitan electorates didn’t want to increase the
number of rural electorates favouring protection; there was concern that the new
members would increase the Government’s sway in the Council; and, finally, that
the elected members were so incensed by Weld and Barlee’s control of the
legislature that they opposed the Bill for the mere sake of opposition.76
Whatever the reasons, the Government was not bowed. In fact, given the need to
head off separatist sentiment in the north it could not afford to be, and the
following session opened with Weld requesting the members ‘favorably to
consider’ essentially the same Bill, because the ‘Northern District…yields a very
considerable revenue and…[its] interests are special and very important’.77 (Indeed,
further underlining the importance of the north, Weld referred to another Bill he
proposed to introduce into the Council—one which would grant ‘extended powers
of Local Self-Government’ to the region.78) Accordingly, the Increase of Members
in Legislative Council Bill (Mark Two) had its first reading on 1 July 1873 and,
helping the cause along, on the next day Major Logue—who had either had a
change of heart or been worked on by aggrieved northern settlers—tabled a petition
from forty-three northerners ‘praying that the Council would take into
consideration the desirability of no longer denying [the northern district] the
privilege of returning its own representative to the Legislative Council’.79
Unfortunately, one sure vote in favour of the Bill was lost when Chief Justice Burt
delivered his verdict in the Gray v. Shenton election petition case only three days
later, and declared that George Shenton’s agents—even if acting without Shenton’s
authority or knowledge—had breached the bribery and corruption provisions in the
Legislative Council Ordinance by holding the victory ball and, as such, the
Greenough election was ‘absolutely void’ and Shenton ‘not duly elected’.80 While
Henry Gray had a victory in seeing Shenton unseated, he was infuriated that Chief
Justice Burt, after ruling the ball an illegal act under the Ordinance, had
nevertheless ordered a ‘scrutiny’ of votes and subsequently determined that there
were more ‘pure and uncorrupted votes’ cast for Shenton (i.e. electors swore on
oath that they had not been invited to the ball, or were uninfluenced by the ball in
voting for Shenton) than were cast for Gray.81 Therefore, Gray was still not the
outright winner and a new election had to be held—which Shenton, under s. 39 of
the Legislative Council Ordinance, was disqualified from contesting. (Under s. 39
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the disqualification applied until ‘the time of the next general election’—which
ruled out any preceding by-elections.)
The Greenough by-election took place on 22 July 1873 and Gray was again
trounced—this time by Charles Crowther, the erring electoral agent whose actions
caused the voiding of the election in the first place! (Which seems to prove the
observation of distinguished electoral historian, Charles Seymour, that ‘the voiding
of an election or the light thrown by a parliamentary investigation upon the corrupt
management of an election, involved no disgrace’ to a candidate in the nineteenth
century.82) Indeed, at the show of hands Crowther received ‘innumerable’ votes
and Gray only two—and although these two demanded a formal poll, the returning
officer refused because under the Legislative Council Ordinance at least six
electors had to make the request.83
Chief Justice Burt’s decision to rule the 1872 Greenough election ‘absolutely void’
was not unexpected—after all, the Legislative Council Ordinance comprehensively
outlawed any form of activity that could be viewed as treating, while s. 40 clearly
stated that candidates were ‘deemed’ to be bound by the actions of their agents.
Indeed, the press during the 1872 election campaign was full of reports of
‘complimentary’ banquets and luncheons given to candidates by ‘their friends and
supporters’ and not the other way around—so Crowther’s actions were particularly
ill-judged.84 Nonetheless, the ruling—or the section of the Ordinance on which it
was based—was widely regarded as inequitable and frankly irrational. Major
Logue, the member for Geraldton, summed it up well in a letter to the Inquirer:
Public opinion, at all events, appears to condemn a decision which has debarred the reelection of a gentleman entirely “ignorant before the fact” of the harmless entertainment
given to the electors of the Greenough, and at the same time permits the agent, who,
according to that decision, was in a legal sense the instrument of alleged bribery and
corruption, to be elected in his place.85
The ruling was also controversial because the case for Henry Gray had been argued
by the Chief Justice’s son, Septimus Burt, who, the editor of the Perth Gazette
informed his readers, ‘although a married man, reside[d] with his father’ and
shared the Chief Justice’s legal clerk—Alfred Burt, his brother.86 The editor
continued:
We cannot but think that the time has arrived when the evils arising from these close
family connexions and association should, as far as possible, be remedied, as much for the
honor of the Judge himself as in the interest of the litigants in the Court over which he
presides…87
While the paper didn’t mention the other son of the Chief Justice, Octavius, who
had been appointed a clerk in Governor Weld’s office in May 1872 (and who
would be promoted within two years to the position of Weld’s private secretary and
Clerk of the Executive Council) the hostility of sections of the Perth community to
the influence of the numerous and well-placed Burt family increased over the
years.88 Indeed, it could be argued that when Octavius Burt was later appointed as
the colony’s first ‘Chief Electoral Officer’ in 1901 he was subjected to more public
scrutiny and condemnation than other CEOs because of his family status.89
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On 25 July 1873 the Increase of Members in Legislative Council Bill, the
Government’s ‘simple little Bill’ to create the ‘Northern District’ and ‘Murray and
Williams District’ electorates passed its third reading.90 Clearly, since the last
session, the elected members had reversed their position—possibly prompted by
the northeners’ petition or maybe by the realisation that the Government was not
going to let them get away with fobbing off the north’s interests. But, suggesting
that the Government did not get it all its own way, it is interesting to note that after
the councillors had agreed to all of the Bill’s clauses at committee stage, Barlee,
without explanation, withdrew the Provision for Further Government of Northern
District Bill.91
Whatever the members’ motivation for their collective about-face, there is no
reference to it in Hansard as literally all the (reported) debate on the Bill dealt with
a series of radical resolutions moved by James Lee Steere during the committee
stage: to double the number of members to be returned by all single-member
electorates; to limit the number of unelected members in the Legislative Council to
four official members (the existing three plus the Colonial Treasurer); to include
elected members in the Executive Council; and to regulate proxy voting. The first
three of these proposals were torn to shreds by Barlee, not supported by Steere’s
fellow elected members, and therefore withdrawn.92 The fourth resolution,
regarding the regulation of proxy voting was, however, welcomed by Barlee who
suggested that outright abolition might be preferable to Steere’s palliative motion
‘to obviate many of the abuses attendant upon it’.93 The resolution was accordingly
affirmed by the House; but after some inconclusive debate by manifestly
unprepared members a week later, Steere gave up on this resolution, too, and
proposed that the issue be held over to the next session of Council. Undeterred,
however, Steere proposed a last-minute amendment to the Bill which was
successful—that in the future, candidates would have to provide written notice of
their intention to nominate to the returning officer—and that a public notice
regarding such nominations was to be ‘affixed’ to the court house door ‘until the
day of election’.94 This very sensible amendment was endorsed by the Government,
with the result that for succeeding elections candidates were obliged by s. 6 of the
Legislative Council Act Amendment Act 1873 (37 Vict., No. 22) to provide written
notice of their ‘intention’ to nominate at least ten days before the election (five
days’ notice for by-elections, or if an election was to be held within a fortnight of a
session of Council fixed by Proclamation). Consequently, while formal public
nominations would still take place on election day, dramatic eleventh-hour
surprises, such as Henry Gray’s, would no longer be possible.
Although Steere’s resolutions were not successful, his forceful speech in the
Chamber in support of them articulated a profound sense of disillusionment and
frustration with representative government ‘in practice’: ‘I think nearly every
elected member of this Council will go with me when I state that our present
Constitution has not worked well and never can work well, and is ill-suited for the
requirements of this colony, or any other’.95 In particular, Steere deplored the timewasting humiliation of ‘having taken part in what has been the mere farce of this
House being called together to register the edicts of the Executive’.96 (Which
sounded exactly like the complaints made by the unofficial legislative councillors
about the old regime, and which expressed almost word-for-word some of the
criticism being levelled at representative government by sections of the Westralian
114
press.97) The logical solution, according to Steere, was responsible government—
which he had endorsed on the hustings during the 1872 election campaign—but
‘unwillingly’ he acknowledged that the colony could not afford it and would be
unlikely to find ‘a sufficient number of gentlemen in this colony to form two
distinct parties, which would be necessary under Responsible Government’.98
Hence, the ‘compromise’ of his resolutions by which the Executive Council would
be ‘popularized’ and the Legislative Council strengthened.99
Even though Barlee had been quite vitriolic in demolishing Steere’s resolutions—
which he derided as ‘so crude, so unworkable, so altogether unstatesmanlike’—he
was, in fact, a cautious supporter of responsible government (not surprisingly as it
was widely held that he would become the colony’s first Premier under responsible
government) and acknowledged that ‘the present system was accepted as a
transitional form of Government, a stepping stone from one constitutional system
to another’ and that the:
desire of the present Governor has been to fit the colony for that great end which all her
inhabitants look forward to, when the people of this country will be able, in full accord
with the Government, to relieve the Governor and the Executive Council of the
responsibility and the power they now hold, and take it on their own shoulders.100
That said, Barlee did not believe that Steere’s resolutions to ‘tinker up’ the
Constitution were the way forward, but a recipe for disunion and deadlock.101 The
Surveyor General also rejected Steere’s ‘half measures’ arguing that ‘he was in
favour of going the whole animal or none’.102
Within a month, Governor Weld signed off a lengthy confidential despatch to the
Secretary of State, Lord Kimberley, regarding ‘the constitutional question’, in
which he stated that while ‘transition forms [of Government] are often necessary
evils’, the ‘hybrid’ one possessed by Western Australia—‘an irremoveable
Executive responsible to the Crown placed face to face with a Legislature
responsible to the people’—seemed to be singularly unpopular with the
populace.103 (An opinion he knew the Secretary of State shared, given Kimberley
was on record as stating that ‘the worst possible form of government is that having
representative institutions with irresponsible ministers’.104) But, Weld continued,
‘the idea of Responsible Government’ was also ‘unquestionably unpopular in the
country, and strenuous endeavours to make it popular have so far utterly failed’.
Among the legislative councillors, however, Weld believed responsible
government was gaining considerable support:
…I also think it more than probable that if the question were left a perfectly open one, and
I expressed my readiness to carry out, so far as in me lay, the decision of the Council,
whatever that might be and permitted a member of Government to propose a vote in
favour of Responsible Government that such vote would be carried by a considerable
majority, perhaps unanimously, if it were known that some members of the present
Executive were willing to retain office.
While Weld then reiterated his opinion that responsible government was ‘the best
existing form of Government…[for] the British race’, he also candidly expressed
some doubts as to whether Western Australia’s transplanted Britons were ‘fit’ for
the change. But fit or not, Weld knew that the issue was not about to go away and
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informed Kimberley that Steere had already given notice that at the next session of
Council the following motion would be introduced:
That a Select Committee be appointed to enquire into the expediency of amending the
Legislative Council Act, so as to endeavour to ensure that the action of the Executive
Government should be such as could only be carried out with the support and approval of
representatives elected by the people.
‘This of course I see’, Weld continued to the Secretary of State, ‘is Responsible
Government’. With such a motion in the offing, Weld felt it was imperative to
sound out in advance the attitude of Her Majesty’s Government—whether ‘to
hasten, or to retard, the introduction of Responsible Government into this
Colony’—and how much ‘discretion’ he would be given to deal with the issue.
With these matters resolved ‘beforehand’, Weld believed the colony could progress
to responsible government, whenever the time came, with ‘no unnecessary delay or
correspondence regarding the form of constitution, involving possible
controversies’.
Weld received a ‘Secret’ despatch from the Secretary of State a few months later
which, although counselling him not to ‘take any step to disturb the existing
arrangements’, expressed a fairly relaxed attitude on the part of the British
Government to the prospect of responsible government for the colony: ‘Her
Majesty’s Government would not be disposed to resist any wide spread and
sustained desire which might hereafter prevail in the Colony for responsible
Government’.105 Somewhat perversely, however, the letter disregarded Weld’s
request for guidelines:
but as such an event is not likely to take place without much previous discussion it does
not seem to be necessary now to determine by anticipation the particular questions which
may arise as to the manner of introducing the change or the precise form of the
institutions which in that case might be found most adapted to the new arrangements.106
Weld, consequently, was not given the requested pointers as to how he should
respond if a call for responsible government came up.
‘Going the whole animal or none’
And come up it did. The ‘whole animal’ was proposed in the Legislative Council
on 22 July 1874 when Steere moved—
That the time has now arrived when it would tend much to the future progress of the
colony to establish here a system of Responsible Government; and that a select committee
be appointed to draw up a Constitution and bring up a Bill to carry out that object…107
Steere then outlined why he thought the time was now ‘ripe’ for this ‘momentous’
change whereas it seemingly had not been only a year earlier. In his opinion a
‘great change had come over’ public opinion in the past year and a ‘vast majority’
of the colonists now supported responsible government; the ‘public mind was not
disturbed by any question of vital or even exciting interest upon which there was
any wide divergence of opinion’; the Council itself was all ‘cordial unanimity’; and
the Governor (whose term was soon to conclude) had the requisite ‘experience and
116
knowledge’ to see the new system implemented.108 As for the need to take on
responsible government, Steere believed it was essential to give the colonists
control of their chief asset—Crown waste land—through which they could attract
immigrants and fund public works; equally, responsible government would also
enhance the colony’s ability to raise substantial loans—again, needed to underwrite
public works.109 Steere then reminded the assembled councillors that their own
constitutional regime was never meant to be more than a ‘stepping-stone to that of
responsibility’—and that Western Australians had the benefit of the ‘varied
experience [of the sister colonies] as precedents to guide us’ and could thereby
‘avoid the errors they committed’.110 In a somewhat surprising conclusion to his
Address, however, Steere flagged that ‘an amendment, of a friendly nature’ would
be made to his motion—and that it was an amendment with which ‘he would be
able to concur’.111
Charles Crowther, a ‘fresh convert’ to responsible government, immediately
proposed the friendly amendment, i.e. he supported Steere’s motion that the colony
should take on responsible government, but insisted that it should be prefaced with
an expression of ‘confidence in the integrity and ability of the present Government’
and that ‘this House is of opinion that an Address should be presented to His
Excellency the Governor praying that he will be pleased to introduce a Bill for that
purpose, and to recommend Her Majesty to approve of the same’.112 While the
parliamentary debates don’t provide any background to the amendment, Crowther
subsequently revealed to his constituents that the elected members had not been
prepared to support Steere’s motion as it stood because they thought that Governor
Weld ‘who brought to a successful issue Responsible Government in New
Zealand’ would frame a better Constitution Bill than the select committee proposed
by Steere (whose members apparently were at loggerheads with one another—with
two not even on speaking terms).113 Furthermore, the elected members feared that
if Steere retained initiative of the Bill it would give him too much power and
perhaps deliver him the premiership of the colony under self-government—a
position which they thought, at least in the first instance, would be more
appropriately held by Barlee.
Only one councillor (Edmund Birch, one of the members for Perth) argued against
the proposals for responsible government—but even he suggested that the
Governor be requested to ‘amend the present form of Government by increasing its
powers and the number of members, so as to approximate as nearly as possible to
Responsible Government without all its attendant evils’.114 But the members were
in no mood for ‘lite’ responsible government: Birch’s amendment wasn’t
seconded, while Crowther’s was ‘affirmed without a division’.115
The following morning an Address ‘on the subject of Constitutional Changes’ was
presented to the Governor. Later on the same day, a return ‘Message’ from the
Governor was read to the House which praised the Council for the ‘remarkable
unanimity’, ‘marked moderation of tone’ and ‘total absence of party feeling’ which
had characterised the debates on responsible government.116 More significantly, the
Message concluded with the following pledge from Weld:
The Governor is not in a position to express the views of Her Majesty’s Government upon
the question of Responsible Government, but, in compliance with your request, he will
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cause a Bill to be prepared and introduced into your Council; and in the event of your
passing it, he will recommend that Her Majesty’s assent be given to it, and that the system
of Ministerial Responsibility be with the least possible delay established in this, as in the
other Australian Colonies.
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In deference to the ‘expressed wish of country members’ who were keen to return
to their homes and affairs (and who were also running up hefty, and
unrecompensed, hotel bills in the city while they waited around) the new
Constitution was drafted and debated in record time.117
Indeed, the speed with which the Bill was drafted (it was actually ready by 31 July
when it was discussed in Executive Council) was due, according to one of the local
newspapers, to it having been ‘mainly copied from South Australia’ (i.e. from the
Constitution Act 1856 of South Australia).118 However, while there are
resemblances between the Western Australian Bill and the South Australian Act,
Weld also made significant departures from the latter (for example, not following
South Australia in having elections for the Upper House or manhood suffrage for
the Lower). In reality, Weld and Barlee probably surveyed a number of Australian
colonial constitutions—all of which show evidence of wholesale cutting and
pasting.
Whatever the Bill’s provenance, it was introduced by Barlee on 3 August 1874—
only twelve days after the Council formally requested it—and to save further time
for the members, Barlee sought permission at the first reading stage to make a
‘lengthy statement’ explaining the ‘principles which have actuated the Government
in framing it’, hoping thereby to avoid extensive debate later on.119 Indeed, the
desire to avoid ‘every possible delay’ became an integral part of the Government’s
strategy in relation to the Bill, with Barlee warning the councillors that Governor
Weld believed the Bill as it stood ‘probably may meet the concurrence of Her
Majesty’s Government’, and was one he could ‘conscientiously recommend for the
assent of Her Majesty’s Government’—but that significant amendments to it could
compromise Weld’s endorsement and its likely acceptance in Britain and also lead
to ‘interminable correspondence, in the shape of controversy between the Imperial
Government and the Government of this colony’.120 On a more conciliatory note,
Barlee reminded the councillors that ‘the Bill in its present form’ could be
amended ‘at any time’ after it had become law.121
Barlee then sketched out the Constitution Bill for the councillors.122 The proposed
new Parliament would comprise two Chambers—a Lower House, or Legislative
Assembly, consisting of twenty-five members presided over by a Speaker elected
by the members of the Assembly themselves; and an Upper House, or Legislative
Council, consisting of eleven members presided over by a President appointed by
the Governor-in-Council (i.e. the Ministry).123 The property qualification for
members of the Legislative Assembly would be lowered to match the fairly modest
property qualification currently required to qualify for the franchise, i.e. it would
virtually be abolished, while members of the Legislative Council would be
nominated by the Governor and Executive Council conjointly—initially for a
period of seven years and thereafter ‘for the term of their natural lives’ (the tenure
in the nominated Legislative Councils in New South Wales and Queensland).124 In
addition, the Governor and Executive Council would have the power to create
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additional legislative councillors, giving them the capacity to ‘swamp’ the Upper
House to ‘ensure a majority’—although Barlee expressed it a little less bluntly than
that.125 While both Chambers would have legislative powers, Barlee outlined that
the nominated Legislative Council ‘would have no power to originate money Bills,
or any Bills for appropriating any part of the revenue of the colony, or for
imposing, altering, or repealing any tax or impost’—a standard provision in
colonial constitutions.126
Barlee would have known that a Chamber full of nominees with lifetime
appointments—with the prospect of more being manufactured at will to force
through the Government’s legislation—would have been a complete anathema to
the elected members. To justify these ‘conservative’ measures he first tried an
appeal to the members’ pro-British sensibilities: ‘it is considered exceedingly
desirable that the Constitution of every English community should as far as
practicable, be based on the principles of the Constitution of the Parent State’.127
And presumably none of the assembled councillors would have been unaware that
the majority of British colonies with bicameral legislatures had nominated Upper
Houses—including New Zealand where Weld had been instrumental in seeing
responsible government instituted.128 Indeed, the better-read of the members would
also have recalled that the English constitutional authority, Walter Bagehot, had
recently referred to the power of creating additional members of the House of
Lords as the ‘safety-valve’ of the English constitution:
The head of the executive can overcome the resistance of the second chamber by choosing
new members of that chamber; if he do not find a majority, he can make a majority. This
is a safety-valve of the truest kind. It enables the popular will—the will of which the
Executive is the exponent, the will of which it is the appointee—to carry out within the
constitution desires and conceptions which one branch of the constitution dislikes and
resists.129
(As an aside, this ‘safety-valve’ swamping feature was exploited so flagrantly by
successive New Zealand governments, that the country’s Upper House became
completely discredited; and in 1949 the New Zealand Legislative Council was
stacked with a ‘suicide squad’ which voted for its abolition as of 1 January
1951.130)
The real reason for a nominated Upper House, however, Barlee depicted in fairly
melodramatic terms. Principally, he argued, in sparsely populated Western
Australia ‘where the working classes so preponderate in point of number over the
wealthy or propertied classes’ and where the colony’s increasing prosperity (and a
possible future ‘auriferous discovery’) could see the colony ‘inundated by political
demagogues, who will endeavor to hound the people on to demand revolutionary
reforms’, the Government believed it was crucial to install a conservative
bulwark.131 This bulwark would be composed of ‘gentlemen’ who by ‘social
position, by character, by education, by their stake in the country and by their
experience not alone in the colony but elsewhere’, would act as a ‘salutary check’
on a Lower House elected by ‘the people’ and ‘liable to be carried away by the
popular feeling of the hour’.132
For similar reasons—that ‘the working classes of this colony, under the existing
franchise, have enormous power’—Barlee outlined that the franchise would not be
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lowered to manhood suffrage as in the eastern colonies.133 (And considering the
number of ex-convicts in the community, this would not have been a popular move
except to ex-convicts! As one Western Australian historian has commented, ‘he
would be a bold man indeed who openly advocated manhood suffrage in Western
Australia of the “Seventies”’.134) Interestingly, however, although Barlee painted
the prospect of working-class ascendancy in extremely pejorative terms, claiming
that it resulted in ‘class legislation’ by a class ‘liable to be actuated by the impulse
of the moment, liable on such impulse to do all sorts of wild and unreasonable
things, in times of popular excitement, influenced by unworthy people actuated by
unworthy motives’, he was also vitally concerned that the interests of the lower
orders were protected and not stifled by the existing class ascendancy.135 In fact,
while he repudiated the ‘liberal’ model of ‘some of the neighbouring colonies’
which ‘has for its object the placing of all political power in the hands of the
working classes’, the avowedly ‘conservative’ model he proffered—‘to guard the
interests of all classes, so that while full protection is afforded for the propertied
classes the rights of the working classes should be equally respected, and that no
preponderance should be given to one over the other’—would have been dismissed
as a radical’s pipe dream only half a century earlier.136 Furthermore, the Bill
proposed a significant measure of electoral reform to strengthen the position of
working-class voters. Proxy voting—which was largely a mechanism for the
propertied to cast their plural votes—was to be abolished (but rural electors, the
true proxy or ‘absent’ voters, would not be disfranchised because the number of
electorates would be increased to twenty and additional polling places would be
established within each electorate). The Bill also proposed to implement the secret
ballot ‘in its integrity’, i.e. Western Australian electors in the future would receive
a printed ballot paper that they would take into a private compartment and fill in
themselves unobserved and then return folded to the returning officer to be placed
unopened in the ballot box.137 Again, this change would principally benefit
working-class electors, as they were the ones most likely to be subject to undue
influence from employers or shopkeepers.
All in all, the Bill was, as Barlee summarised it, ‘more or less democratic’ but with
‘a strong conservative element’—which was the perfect sales pitch to make for a
Bill that not only had to win over conservatives within the Council and the
community, but also appeal to the new Tory Government in the mother country
which, under the leadership of Benjamin Disraeli, had come into office earlier in
the year after spending the better part of a generation in opposition.
Steere and the other elected members (three of whom, unfortunately, were absent
from the Council at the time) undoubtedly shared the Government’s dread of the
lower orders’ voting clout—and the prospect of them gaining the ‘upper hand’ in
Parliament and introducing ‘class legislation’.138 (Their own class legislation was
perfectly acceptable, of course.) Steere, after all, had squarely referred to the
eastern colonies’ ‘errors’—and the need to avoid them—in introducing his motion
for responsible government, and he also had a track record of trying to keep
Western Australia’s working class (and bond under-class) in its place.139 Even so, a
Chamber chock-full of life-seated nominees was hardly going to be acceptable to
Steere when the obstructionism and flouting of the public will by the existing crop
of nominees was largely driving his current push for responsible government.
120
The second reading stage for the ‘speedy’ issue of the Constitution Bill was set
down for two days later.140 Steere with admirable speed of his own, organised a
public meeting in the Perth Town Hall at noon for the same day with the aim of
memorialising the Legislative Council to postpone the Constitution Bill’s second
reading ‘so as to give an opportunity to the public of examining its provisions and
of expressing opinion thereon’.141 With one notable exception (J. T. Reilly, who
argued that delaying responsible government was ‘prejudicial to the best interests
of the colony’) the assembled speakers concurred that the Constitution Bill should
receive ‘full, free, and fair expression of opinion’ across the colony—particularly
regarding the question of ‘whether a nominated or an elected Upper House would
be most desirable’.142 One speaker, S. H. Parker, even went so far as to recommend
an ‘appeal to the country’, quite correctly pointing out that the issue of responsible
government had ‘never been made an election cry’ (the issue had been very much a
secondary one in the 1872 ‘Tariff’ general election). But as none of the elected
members present, conscious perhaps of election expenses, took up his suggestion,
the original resolution was put and passed and signatures duly collected.
Armed with 142 signatures to his postponement petition, Steere, not surprisingly,
was the first member on his feet in the Legislative Council that night. After his
petition was read aloud to the Chamber, and Barlee had officially moved that the
Constitution Bill’s second reading take place, Steere’s attack on the proposed
Upper House finally began. His opposition was four-pronged. First, he argued that
a steep property qualification for Legislative Council members and Legislative
Council electors, as existed in those sister colonies with elected Upper Chambers,
would provide a more than adequate safeguard against ‘aggressive democratic
ascendancy’:
an Upper House so elected would represent the property, wealth, and intelligence of the
country. Surely men of that class, bound to the colony by every conceivable tie, would
prove a more effectual check upon hasty or crude legislation than nominees appointed by
the Governor of the day—men who are here to-day and away tomorrow, mere birds of
passage, who may possess no property whatever, nor any other stake or interest, in the
colony.143
Second, he argued that on the ‘eve of the departure of our Governor’, nominations
by Weld’s successor—‘utterly unacquainted’ with the colonists—would be
delegated to the Colonial Secretary. ‘And what would be the result? Why, that we
should have an Upper House composed of men bound to carry out the policy of the
first Ministry established under the new Constitution.’144 Third, Steere adverted to
the ‘evil…power invested in the Governor’ of ‘swamping’ the Upper House with
new members to ‘carry some pet measure’.145 And, finally, Steere derided as
‘simply ridiculous’ Barlee’s notion that Western Australia could emulate
constitutional practice in the mother country by instituting a nominated Upper
House:
the feelings and political proclivities of the lower orders in England were of a highly
conservative nature, and they…manifested every respect and esteem towards the
aristocracy, or upper classes. Here it was very different; here we were more on a footing
of equality; here there were no traditional class distinctions; and our Upper House would
not be looked up to with the reverential respect with which the lower orders regard the
House of Lords in England.146
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The last argument was particularly astute, and echoes the comments made less than
ten years earlier by Walter Bagehot who wrote—specifically citing Western
Australia as an example—that ‘Equality is not artificially established in a new
colony; it establishes itself’ and that, as a consequence, attempts to ‘transplant to
the colonies a graduated English society…have always failed at the first step’
because the ‘rude classes at the bottom felt that they were equal to or better than
the delicate classes at the top’.147
But it wasn’t only the Constitution Bill’s Upper House provisions that appalled
Steere. Like many of the other members he was also ‘perfectly horror-struck’ at the
overly generous Civil List, retirement allowances and bonuses proposed by the
Government (although, as Weld’s biographer has explained, such ‘generosity’ was
‘designed to preclude any intriguing by officers reluctant to resign because of
inadequate compensation’) and he deprecated the fact that the Bill ‘was being
hurried forward with almost indecent haste’.148 All in all, although he was a
staunch advocate of responsible government, he would not vote for it ‘at any
price’, and proposed an amendment along the lines of the petition:
That in consideration of the absence of three elected members, and the advanced period of
the session; and in order to give time for an expression of public opinion relative to the
provisions of the Constitution Bill, the consideration of the second reading thereof be
postponed for four months.149
Barlee was at his merciless ad hominem best in seeing off Steere’s amendment. He
accused Steere of ‘inconsistencies’, ‘fallacies’ and even a ‘species of mental
mania’, before pillorying him with a barrage of rhetorical questions: Who had first
introduced a motion for responsible government, but now was doing everything he
could to postpone it? Who had badgered the Government relentlessly to ‘introduce
the Bill at as early a date as possible’, before complaining of ‘indecent haste’? Who
originally claimed his constituents demanded responsible government, but now felt
compelled to consult them about it?150 Barlee then spelt out the cause of Steere’s
‘very sudden change of opinion’ on the issue to the squirming members: ‘the mere
fact that there are certain features in the Bill that do not suit his own views on the
matter’—and that Steere had not enough support within the Council to ‘carry his
objections’ at the committee stage of the Bill and, therefore, needed to harness
‘outside agitation’ to have his way.151 The ‘disastrous’ consequences of deferring
the Bill were then itemised by Barlee: the colony would be a laughing stock among
the sister colonies; the Estimates would need to be held over with the result that
much-needed immigration would be stalled and the implementation of the Torrens
Land Act could not take place; and, most seriously, the colony would be left ‘in a
state of political chaos’ for Weld’s successor.152
Most of the members then had their say, but the celebrated ‘unanimity’ regarding
responsible government seemed to have evaporated. Some members were opposed
to the nominated Upper House, others supported it; some condemned the generous
Civil List and pensions, others thought the provisions reasonable; some thought
their constituents should be consulted, others not. The only unanimity related to
resentment at Barlee’s ‘most disgraceful tirade of abuse’—‘made with the object of
coercing the House to support his own views’.153 Steere, in the face of Barlee’s
‘threat’ to hold back the Estimates and stall immigration and public works, sought
122
to withdraw his amendment.154 Weld, however, had previously directed Barlee to
insist on a division—on the grounds that if the amendment were successful it
‘might have been construed as a condemnation of the provisions of the bill’.155
Barlee did as instructed and the amendment was negatived twelve to five. The
Constitution Bill was read a second time.
Barlee was triumphant: he had bludgeoned the Bill through its second reading
without a postponement and with a large majority. Mission accomplished, Weld
consulted with his Executive Council on the following day and sought their opinion
as to whether it would ‘now be advisable to pause and dissolve the Legislature’.156
The councillors—including Barlee—‘unanimously advised a dissolution’, upon
which Weld proceeded to the Legislative Council and informed a stunned Chamber
that ‘in order to prevent any appearance of haste in a matter so important, and to
give the country an opportunity of expressing its deliberate opinion, it behoves me
to dissolve Your Honourable Council’.157 A fortnight later, on 19 August, the
election writs were issued from Barlee’s office. On the same day the Inquirer
newspaper ‘rumoured’ (correctly, as it turned out) that Governor Weld’s imminent
replacement would be William Robinson—the younger brother of the New South
Wales Governor, Sir Hercules Robinson. (Who, incidentally, during his tenure as
Governor would have to deal with a push to change the New South Wales Upper
House from a nominated to an elected Chamber!158)
The elections, with the exception of the North District, were set down from
23 September to 6 October. (The election for the isolated North District took place
on 20 October, but sitting member Maitland Brown, who was re-elected
unopposed, subsequently decided to sit for the seat of Geraldton to which he had
also been elected unopposed. A by-election for the North District held on 31
December returned Samuel Burges.) This was a comparatively short election
period, but Weld was keen for the Council to reconvene and pass revised Estimates
before the year ended. A short campaign period was also a sound move considering
the colonists were being subjected to their third general election in four years—not
counting a spate of by-elections due to deaths and resignations. As with previous
elections, the returning officers were appointed from the ranks of the resident
magistrates, although in the electorate of Perth, the Perth Police Magistrate, E. W.
Landor, took over from the sheriff. (Landor also ran the election in Swan where he
had been carrying out the duties of the resident magistrate during a vacancy.159) As
an interesting aside, in the middle of the 1874 election period, the resident
magistrates, and Landor, were also gazetted as returning officers for district board
elections under the recently passed Elementary Education Act 1871.160 In a similar
way today, the Western Australian Electoral Commission provides trained
returning officers for elections other than parliamentary ones e.g. local
government, university and union.
Weld’s ‘wise discretion and true constitutional judgment’ in calling the poll was
widely applauded—especially by the local newspapers which ran non-stop
editorials, bulging correspondence columns and background articles on responsible
government and the pros and cons of elected versus nominated Chambers—
including an extended discussion of Earl Grey’s proposal that less populous
colonies might be better off scrapping their second Chamber and instituting a
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unicameral legislature containing a small inner-circle of nominees.161 While the
pro-responsible government editor of the Western Australian Times (the new
masthead for the Perth Gazette) cautioned readers that the whole point of the
election was for electors to debate the ‘details’ of the Bill and not whether there
should actually be a Bill, as that proposition had already been ‘carried through the
second reading by a large majority’, the election did, in fact, open up the issue of
‘Responsible Government—Aye or No’.162 Accordingly, across the colony, wouldbe members first lined up on either side of the ‘Aye or No’ divide (with one
candidate, S. S. Parker in York, notoriously changing his mind mid-election from a
staunch ‘Aye’ to a staunch ‘No’ after receiving proxy votes as a pro-responsible
government candidate) before giving their pledges as to the ‘details’ they would
support if a motion for responsible government was again carried.163
As expected, the most debated detail of the proposed Constitution was whether the
Upper House should be nominated or elected—and, if elected, what would be an
appropriate basis for the franchise. What was perhaps not expected was the
complexity and often sophistication of the debate on the hustings and in the press.
Predictably, many denounced nomination as the Bill’s ‘fatal objection’ and, like
Steere, objected to life-seated appointees opposing themselves to the
democratically elected members and acting as a clog on legislation—particularly
legislation which ‘did not go to promote their own selfish purposes and the special
interests of their class’.164 But election of a privileged few property-holders by a
privileged few property-holders was even less popular, being seen, somewhat
ironically, as less democratic and more conservative than nomination by the
Governor-in-Council. Under nomination, it was argued, candidates with limited
wealth, but with intelligence and experience could be selected, whereas a stiff
property qualification for candidates and electors would simply see the rich get in
and class interest, class division and deadlocks institutionalised (as, it was
frequently pointed out, they were in Victoria). Clearly, the notion that property
should have automatic sway within the political system was under challenge within
the colony, with the Inquirer dismissing the idea as a ‘relic of feudalism’ and ‘not
any guide to judge of the possessor’s fitness for either the judicious or wholesome
exercise of political privileges’.165
Indeed, the seemingly unavoidable drawbacks of both Upper House models was
the reason why at least five (successful) candidates who advocated nomination on
the hustings confessed that while it was their ‘present leaning’ they could be
persuaded otherwise by argument or by their constituents’ wishes.166 Other
candidates plumped for a unicameral legislature to skirt the problem—agreeing
with the editor of the Inquirer that a bicameral system in a sparsely populated and
‘rudimentary’ colony was ‘an anomaly and an anachronism’—no more than a
‘burlesque imitation of old world institutions’.167 Interestingly, despite their various
misgivings and reservations, most candidates still accepted the Government’s line
that there should be some brake mechanism on the popularly elected Legislative
Assembly. Not so the editor of the Inquirer who argued that:
Our principal aim in regard of the Legislature should clearly be to make it, according to
its ideal, fully representative of the whole people. We have no class amongst us who need
to be guarded against. Equal justice for all is the best security for all.168
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The Mandate
Considering that the 1874 election had been characterised by the usual high
number of uncontested seats (more than half) and ‘paucity of candidates’ as
preceding elections, and that only two seats were not recontested, it is not
surprising that all but one of the former members were returned. (The member who
lost his seat, Thomas Carey of Vasse, reportedly did so because he spent a large
part of the campaign ‘betraying’—i.e. campaigning for the challenger to—the
popular Steere in the adjoining electorate of Bunbury.169) And as most of the
former members had previously been advocates of responsible government, the
‘verdict of the aggregate constituencies…was in favor of the proposed change’, as
Steere triumphantly summed it up.170 Weld also reappointed his four previous
nominees who supported the cause. The members in favour of an elected Upper
House, however, were still in a minority, so Steere’s strategy of calling upon
outside influence had failed. It had also, possibly, been fatal to the Bill.
When the Council met on 18 November 1874—summoned by Weld for the last
time—the members were informed that they must temporarily suspend their quest
for responsible government because:
A knowledge derived from recent personal communication of the views of Her Majesty’s
Government, and of the conditions they may see fit to impose in regard to constitutional
changes, will probably enable my successor to throw fresh light on that important
question, and greatly assist you in the very careful and cautious deliberations which may
be expected from a Council elected especially to consider a constitutional question upon
which such extremely grave issues are at stake.171
Although keen to see the issue resolved, the councillors accepted the ‘wisdom’ of
Weld’s position and pledged to ‘refrain from any further discussion of the question
till the arrival of Your Excellency’s Successor’.172 Their compliance was fortunate
considering that Weld had recently received a telegram from the Secretary of State
urging such a stay of proceedings until the new Governor’s arrival.173 Three days
later the Legislative Council was adjourned, and Weld departed soon after to take
on the less challenging duties of an ornamental Viceroy in self-governing
Tasmania.
The ‘Successor’, William Cleaver Francis Robinson, arrived at King George’s
Sound on 4 January 1875 and was sworn into office on 11 January. From his recent
briefings with the Colonial Office, Robinson was aware that the new Conservative
British Government was entirely opposed to granting responsible government to
Western Australia. Such a position towards the self-governing aspirations of one of
its colonies was a complete turnaround from the previously supportive and even
encouraging attitude of successive (Liberal) administrations, which had believed
almost as a political orthodoxy, that if:
we purse a liberal policy, and extend to them [the colonies] the dearest privilege of
Englishmen—the privilege of self-government, and do not vexatiously intermeddle with
their internal affairs…we shall bind them to us with chains which no power on earth may
break…174
And obviously it was in polar opposition to Lord Granville’s relaxed observations
to Governor Weld only five years earlier that it ‘can scarcely be doubted’ that
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Western Australia’s move to representative government ‘will lead speedily to the
establishment of responsible Government’.175 But the new Government’s stance
was not unexpected given Prime Minister Disraeli’s recent dramatic reappraisal of
the value of Empire—a reappraisal spurred in part by the increasing might and
imperialist ambitions of other foreign powers.176 Thus, from exasperated comments
in the 1850s and 1860s that ‘wretched colonies’ were ‘a millstone round our necks’
and ‘deadweights’, Disraeli in his celebrated 1872 Crystal Palace speech pledged
the Conservative Party to upholding the Empire—and, as numerous historians have
noted, thereby signalled the ‘beginning of imperialism as an effective force in
British politics’.177 Unfortunately, the result of all this for the expectant Western
Australians was that their new Governor’s ‘mission’ was, in his own words, ‘to
endeavour to persuade them that they were not then fit for responsible
government’.178
Robinson briefed his Executive Council of this fact on 18 January 1875. The
Legislative Council met four days later and the opening formalities were no sooner
over than ‘Message from the Governor—No. 1’ was read out. In fact, there wasn’t
much of a Message from Robinson: just a single sentence introducing a lengthy
despatch from the new Secretary of State, Lord Carnarvon, which commenced with
an expression of ‘surprise and regret’ that Weld had drafted a Constitution and
permitted a second reading without consulting ‘Her Majesty’s present
Government’.179 Carnarvon then outlined that while the reproduction of the ‘free
institutions of the Mother Country’ was
the proper and desirable end to which the colony tends, at which it must in time arrive,
and towards which all those, whether there or at home, who are concerned in the
administration of its affairs, ought to direct their measures
he believed that in Western Australia’s financially underdeveloped and
underpopulated state (in which, he pointedly reminded them, of the 8,000 adult
males in the colony, ‘between 5,000 and 6,000 are persons formerly transported as
convicts’) the movement was ‘somewhat premature’. Accordingly, the despatch
concluded by dismissing any prospect of responsible government in the short term:
…I feel it my duty, though not a grateful one to me personally, to withhold any hasty
consent, and to interpose at least such prudent delays as will secure a full and
dispassionate consideration of a decision which is fraught with such important
consequences to the Colony.
Within minutes the Council was adjourned and, being a Friday night, the
councillors had a weekend to regain their composure and muster their arguments.
Predictably, there was a marathon debate on the following Monday in which many
members expressed their own feelings of ‘great surprise, and certainly of regret’ at
the ‘noble lord’s despatch’.180 Steere was the first to speak and he rounded off a
spirited defence of the responsible government movement, and the fact that ‘the
decision of the elections was accepted on all hands as substantially the decision of
the country’ on the matter, with a series of twenty resolutions.181 The principal one
was No. 4:
They would, however, ill fulfill the pledges they have made, and the votes they have
recorded, and they would, moreover, feel how little worthy they would be to occupy their
126
respective positions, if they, specially elected after a dissolution on the question of
Responsible Government, did not fully and emphatically bring under the consideration of
Her Majesty’s Government, their adherence to the views they have advocated, their
reasons for arriving at these views, and…urge upon the Secretary of State to recommend
Her Majesty to sanction the amended Constitution they have sought.182
Maitland Brown, claiming to represent the ‘respectable minority’ of colonists
opposed to responsible government, promptly proposed a series of twelve counterresolutions which, in essence, supported Carnarvon’s despatch.183 After hours of
fairly intense debate (including some ‘instantly repressed’ uproar in the Strangers’
Gallery during Maitland Brown’s defence of the status quo) a vote was finally
called.184 While the official and unofficial nominees had not participated in the
debate (apart from an involuntary ‘Hear, hear’ from Barlee at one point) because it
was held to be a matter ‘entirely for the elected representatives of the people to
deal with, without any intervention or influence being brought to bear by the
Government’, all members were permitted to vote.185 Brown’s counter-resolutions,
being regarded as an amendment, were dealt with first and were lost by fifteen
votes to three; Steere’s original resolutions were then put and carried by the same
margin—with all of Weld’s nominees voting in favour of them.186 The following
day Robinson prorogued the House until June, after promising to forward the
resolutions to Lord Carnarvon ‘by an early opportunity’.187
In fact, Robinson forwarded the resolutions to Lord Carnarvon on the same day in
a ‘Most Confidential’ despatch, noting that ‘I almost fear that matters have gone
too far to allow the question to be delayed with advantage for any great length of
time’ and that it is ‘threatened’ that ‘many of the most respectable members will at
once resign their seats’ if ‘Your Lordship’s final decision be adverse to the wish of
the majority of the Council’.188 Robinson hedged his bets, however, by also
observing that ‘I am disposed to think that if the leaders of the movement could be
reconciled to delay the Country would readily submit to it also’. By the following
month, when he sent his formal ‘Report’ on the subject, Robinson had come round
firmly to the view that the responsible government movement could be halted and
recommended the Secretary of State to:
Refuse absolutely to entertain the question for the present on the grounds of the isolated &
scattered character of the population, & the insufficiency of men of the necessary means
and experience to enable them to devote their thoughts & personal attention to Legislative
duties.189
—Although he still conceded the risk that such action could ‘swell the ranks of the
agitators, who are backed up as it is by the whole press of the Colony’. Robinson
also informed Carnarvon that he had sent his executive councillors a ‘confidential
minute’ explaining the propriety of them henceforth toeing the Government line.
Robinson concluded by stating that ‘your Lordship’s answer is awaited by the
Legislative Council with some anxiety’.
Only a month later however, Robinson sent a telegram and a despatch to Lord
Carnarvon requesting that his Lordship delay the anxiously awaited decision
because Barlee, sensing the impossible situation he was now in—bound to
support his Imperial master’s line, but personally in support of responsible
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government—had requested a year’s leave of absence so that he would be away
from the Council when the subject was next debated. Robinson was jubilant:
As Mr Barlee’s departure if only for a time will be a great blow to the Responsible
Government party, I have thought it desirable your Lordship should be made aware of his
intention…should your Lordship think proper…[to] refuse to sanction that change for the
present. The fact of Mr Barlee being away when your Lordship’s answer arrives will so
dispirit his party that no trouble of any consequence need be anticipated.190
Due to six additional prorogations it was actually 30 November before the Council
reconvened. By this time Robinson had received Carnarvon’s decision that his
Lordship was ‘compelled to think’ the postponement of constitutional change
‘necessary’ because ‘I cannot see any prospect of the immediate introduction of
Responsible Government being otherwise than injurious to the interests of the
Colony’.191 In his Opening Address Robinson wasted no time in informing the
members of Carnarvon’s ruling:
…His Lordship, having carefully considered the whole question, has been unable to arrive
at the conclusion that the circumstances of the Colony are at present such as would justify
him in advising Her Majesty to assent to the desired reform…I trust that His Lordship’s
decision, in the wisdom of which it is my duty to say that personally I entirely concur,
will be accepted in the spirit in which it has been arrived at, and that even those who may
feel some disappointment at the postponement of the accomplishment of their wishes will
on calm reflection admit that the change would be somewhat premature.192
This round was definitely the Secretary of State’s and the members’ Address in
Reply conceded the fact:
Those who are in favour of the immediate adoption of that form of Government will
doubtless feel some disappointment at the postponement of the accomplishment of their
wishes, but it is evident that further agitation at the present time and under existing
circumstances would be undesirable, and therefore His Lordship’s decision will no doubt
be accepted in the sprit in which it has been arrived at.193
While Barlee may have been conveniently out of the way, Steere was still present
and he was not prepared to bow to Downing Street and give up the cause. In the
Address in Reply debate he proposed that the wording of the relevant paragraph
should simply register ‘disappointment’, and delete any references to embargoing
‘further agitation’.194 Considering the members knew that the quest for responsible
government was, for the present at least, a hopeless cause, and that some of the
‘waverers show a decided inclination to join the Government party’, as Robinson
put it, Steere’s amendment would quite probably have failed—except that Maitland
Brown launched into an offensive tirade against the responsible government
movement that immediately put the elected members’ collective backs up.195 Even
the Acting Colonial Secretary’s suave assurances that any postponement of
agitation ‘merely referred to the immediate present, and in no way precluded future
action in the matter’ were not enough.196 When put to the vote Steere’s amendment
passed ten to nine, and as the majority of the ‘Noes’ were Robinson’s now tamed
nominees this was something of a triumph for the elected members. But it was a
hollow triumph. Everyone knew that despite the bluster, responsible government
was ‘shelved for the present’, as Robinson noted in a confidential despatch to
Carnarvon.197 (And for good measure the Colonial Office ‘promoted’ Barlee to the
128
lieutenant-governorship of British Honduras.198) Indeed, as de Garis has aptly
commented: ‘After five years of excitement the colony moved into calmer political
waters in the mid 1870s and remained there for almost a decade’.199
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6
Perseverance
What can societies like that in Western Australia do
with self-government except abuse it?
Fraser’s Magazine, 1848
Productively Biding Time
Governor Robinson had been almost embarrassingly zealous in carrying out his
Imperial instructions to thwart responsible government in Western Australia—
swamping the Colonial Office with confidential despatches and cypher telegrams
on every twist and turn of the issue—but once the threat was seen off, he seemed
genuinely committed to helping the colonists improve the political system they
were perforce stuck with. In fact, over the next few years Western Australians were
granted several key provisions from Weld’s torpedoed Constitution Bill—including
some major reforms relating to elections and election management.
Indeed, on 3 December 1875, only two days after the Government’s humiliating
defeat on Steere’s amendment, the Attorney General introduced the Election
Petitions Bill or, as it became formally known when passed, An Act to amend the
Law relating to Election Petitions, and to provide more effectually for the
prevention of Corrupt Practices at the Election of Members of the Legislative
Council (39 Vict., No. 10).1 As its long-winded title suggests, the Bill sought to
tighten up some of the election petition provisions laid out in the Legislative
Council Ordinance. To start with, it proposed that future election petitions were to
be submitted directly to the Supreme Court and not via the Legislative Council, and
that they had to be lodged within twenty-one days of the gazettal of the return of a
winning candidate (sixty days in cases involving the remote north) rather than the
more leisurely ‘within seven days’ of the first meeting of the newly elected Council
under s. 36 of the Ordinance.2 But to get around the dodge of candidates paying
electors after the petition process was over, a twenty-eight day time limit kicked in
‘at any time’ after a corrupt payment or reward was made.3 The Bill also proposed
that a single elector would be able to initiate a petition; that the presiding justice
would have the power to compel the attendance of witnesses; and that petitions
could not be withdrawn without the leave of the Supreme Court and notice being
given in the relevant electoral district and the petitioner being liable for the
respondent’s costs.4
The last two clauses were undoubtedly spurred by the abandonment of the Parker
v. Monger election petition case earlier in the year—a case which ‘ingloriously
collapsed’, according to the Inquirer in an editorial inveighing against the
widespread condoning of bribery in the colony, because ‘popular sympathy was
130
with the defendant’.5 However, considering that Parker’s decision not to pursue the
petition—on the day set for its hearing—was followed by the immediate
resignation of Monger, it appears that, irrespective of ‘popular sympathy’ siding
with Monger, some sort of extra-judicial deal was struck between the two men.
(And, as Norman Gash has demonstrated, there was ample precedent for this
because ‘compromised’ election petitions, to avoid often ruinous litigation costs as
well as prosecution, were legion in England in the nineteenth-century.6) Chief
Justice Sir Archibald Burt, who had held several meetings with both men’s legal
counsel, was not impressed by the abandonment of the case, however. In a report to
the Legislative Council, Burt spelt out that while he had actually refused Parker
leave to withdraw the petition—because he (Burt) did not believe that he was
authorised to grant such leave—the allegations in the petition remained, and would
continue to remain, ‘uninquired into and undetermined’ because the ‘Chief Justice
is unable to make any further effectual Order…He cannot compel parties to
proceed…in a Petition the prosecution of which they have determined to
relinquish’.7 Well, similarly placed justices could in future cases! In fact, the Bill
further guarded against parties to election petitions colluding to evade their day in
court and possible conviction, by empowering the Supreme Court to ‘substitute’ a
petitioner and even retain the original petitioner’s ‘security’ for costs ‘if the
proposed withdrawal is in the opinion of the said Court induced by any corrupt
bargain or consideration’.8 And seemingly covering every contingency, the Bill
also directed that an election petition trial was to proceed even if the respondent
resigned his seat, and, further, that an election petition could proceed
notwithstanding the death of the petitioner or respondent, or the respondent
refusing to fight the case, as substitute petitioners and respondents could be
admitted.9
Penalties for those convicted of bribery after an election petition were also beefed
up in the Bill, with those found guilty, whether candidate, agent or canvasser, being
banned for a seven-year period from ‘being elected to and of sitting in the
Legislative Council’, from ‘being registered as a voter and voting at any election in
Western Australia’, and from holding any municipal or judicial office or being a
justice of the peace—provisions which, like most of the clauses in the Bill, had
been copied from the English Parliamentary Elections Act 1868.10 The candidate,
as previously, also forfeited his seat.11 In addition, any candidate who knowingly
employed an agent or canvasser who had ‘within seven years previous to such
engagement been found guilty of any corrupt practice by any competent legal
tribunal’ would also have his election automatically voided upon petition.12 To
discourage abuse of the Bill’s tough new provisions, however, the Bill also
empowered the court to award costs ‘regard being had to the discouragement of
any needless expense by throwing the burden of defraying the same on the parties
by whom it has been caused, whether such parties are or not on the whole
successful’.13
In short, the Bill’s provisions sped up the election petition process while making it
less liable to evasion or vexatious litigation. The downside was the prohibitive
£500 security demanded from a petitioner before any action could proceed and
which, under specified circumstances, could be forfeited.14 (While the mother
country mandated a £1,000 security from election petitioners, the mother colony,
New South Wales, only required a £100 deposit.15) Coupled with the high property
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qualification for candidates, such provisions ensured elections remained the rich
man’s province. The Bill was subjected to minimal amendment, was passed within
a fortnight, and assented to by Robinson five days later on 21 December. As the
Act wasn’t retrospective it did not affect Charles Crowther or even the inaugural
disqualified member, George Shenton, who had been returned to the Council six
weeks previously in the Toodyay by-election—just in time to vote on the Bill!
Only an hour or so before the Election Petitions Bill was passed, William Burges, a
recently appointed unofficial nominee—perhaps trying to capitalise on the
consensus in the Council with respect to improving elections—moved that:
an humble Address be presented to His Excellency the Governor praying that he would be
pleased to bring in a Bill to put an end to proxy voting, and to establish the ballot and
secret voting at elections, as at present obtained in England. Freedom of election was the
basis of constitutional liberty and he trusted the House would support the motion.16
This motion would undoubtedly have delighted the editor of the Inquirer who, after
the 1874 election, had dusted off and reprinted almost verbatim the article exposing
electoral abuses and urging electoral reform, which he had published after the 1872
election.17 (If anything, proxy-voting abuses were worse in the 1874 election which
featured ‘blank’ proxy-voting papers being signed by electors and left to the
discretion of candidates or their agents to fill in as they saw fit.18) The motion
clearly also struck a chord in the House. But while members agreed with Burges
that the system needed an overhaul, some felt that abolishing proxy voting
altogether was ‘premature’ in the colony’s often sprawling electorates, ‘unless the
country was prepared to multiply polling booths ad infinitum, and to provide other
expensive machinery for ensuring voting by ballot alone’.19 The Attorney General
suggested as a compromise that at least some additional polling booths could be
made available and that ‘other persons beside magistrates’ should be able to
witness proxy forms—a suggestion warmly endorsed by J. T. Monger, the member
from York, who recounted that:
At the last election for the district which he had the honor to represent, the opposition
candidate had monopolised the services of all the available magistrates of the district, and
if a friendly JP from another locality had not offered him his services he would not have
been in the position to obtain a proxy vote at all.20
Further suggestions were bandied around before George Randell, representing the
Perth electorate, successfully moved an amendment that His Excellency be called
upon to ‘introduce a measure at the next ensuing session of the Legislature to
amend the law as regards proxy voting and to restrict the operation of the system
to, say, 15 miles from the nearest voting place’.21
The amended motion was passed, but the requested ‘measure’ was not referred to
by Robinson at the opening of the next parliamentary session; and when unofficial
nominee Septimus Burt queried the ‘intention’ of the Government on the subject a
few days later, he was informed by the Acting Colonial Secretary, Anthony
O’Grady Lefroy, that while the Government was in favour of introducing voting by
ballot—
yet from the distance that voters live from the places where elections are held, the
Government do not see their way to accomplish the desired result; this change would
132
involve the establishment of numerous additional polling places, at an expense which the
Government do not feel justified in recommending.22
Notwithstanding O’Grady Lefroy’s discouraging reply, discussion of proxy voting
and the secret ballot soon cropped up again during debate on proposed amendments
to voting provisions in the Municipal Institutions’ Act 1871 (amendments which,
by a legal technicality, saw unmarried Westralian women ratepayers gain the right
to vote for municipal elections).23 The Government’s proposal that municipal
elections, currently conducted by ballot, would henceforth follow parliamentary
election practice (i.e. a show of hands followed by a poll if inconclusive, with
electors having to sign and write their address on their ballot papers), was
vehemently opposed by Randell who declared that ‘the general feeling of the
country—shared in by this House—is in favor of the ballot’.24 Several members
expressed agreement, and a majority voted in favour of Randell’s amendment that
the requirement for municipal electors to sign and put their name and address on
the ballot paper be struck out.
Indeed, the feeling in the House was so pro-ballot that during the debate Steere
floated the idea that His Excellency ‘should’ once again be memorialised: ‘praying
that he will at the next session bring in a bill to establish the system of ballot
voting, both in connection with municipal and parliamentary elections’.25 Randell
appeared to take the hint, and a week later formally moved that an Address be
presented to His Excellency—although he jettisoned Steere’s recommendation that
the Council petition for the ballot, and simply left the request at the Governor
introducing, at the next session, a Bill to ‘limit’ proxy voting to electors who lived
more than fifteen miles from a polling place or who produced a medical certificate
attesting to their inability to vote in person.26 The motion was unanimously
affirmed. As to why he abandoned the call for the secret ballot, Randell admitted
during debate on his motion, that on thinking the matter over, he believed the
existing system—but for ‘the loose mode in which it was carried into effect’—
could ‘ensure perfect secrecy’.27 Perhaps, given the drama and ill-feeling of the
past couple of years, and the Government’s seeming reluctance to move on the
issue, it was considered impolitic to ask for too much.
Whatever Randell’s reservations, it must have been something of a surprise when
at the opening of the 1877 session of Council, Governor Robinson outlined that the
Government intended to introduce a Bill ‘abolishing proxy voting and substituting
voting by ballot’.28 In explaining this rare instance of the councillors getting more
than they had actually asked for, Robinson frankly acknowledged that fears the
colony’s finances could not afford the increase in polling places necessary to make
the secret ballot work within the ‘great extent of our territory’ were a ‘mistake’,
and that by
making use of thirty-two Police Stations, three Telegraph Offices, and four selected
Stations, nineteen-twentieths of the whole population will be brought within a radius of
not exceeding fifteen miles from one or other of the polling places.29
And, warming to the subject, he continued that ‘even were the difficulties and the
cost far greater than we have any reason to anticipate, I consider that the time has
come for dealing with this highly important question’.30 The members were not
particularly gracious about the concession, or Robinson’s enthusiastic conversion,
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however, with even one of the unofficial nominees remarking that ‘he did not think
the House would be likely to give the Government credit for voluntarily
introducing that measure. They had, rather, been forced to bring it forward’.31
The principal features of the Ballot Bill, or to give it its full title when passed, An
Act to amend the law relating to Procedure at the election of Members to serve in
the Legislative Council (41 Vict., No. 15), were catalogued by the Attorney
General a week later at the second reading stage. And while the abolition of the
proxy vote and the introduction of the ‘new system of voting’ in which electors
‘alone and in private’ would mark their vote ‘by making a cross within the square
opposite the name’ of their preferred candidate on a printed ballot paper, which
would then be deposited folded into a locked ballot box, may have been the
centrepiece of the Bill, a range of other electoral provisions and amendments made
the Bill basically a supplementary Electoral Act to the Legislative Council
Ordinance—with which, as cl. 2 of the Bill stipulated, it ‘shall be taken and read
together as one Act’.32
When the Attorney General’s survey of the Bill’s provisions was completed, the
members seemed particularly keen to discuss improvements and additions, with
some urging fairly strenuously that the Bill not vary, as it did quite significantly,
from the English Ballot Act 1872 on which it was based. Indeed, Maitland Brown
was so troubled by the departures from the English Act—which ‘had been found to
work admirably at home’—that he sought to have the Bill referred to, and
presumably anglified by, a select committee.33 The Attorney General, Henry
Hocking, who had framed the Bill resisted this, however—commenting on the
Chamber’s over-fondness for shunting Bills off to select committees—and,
notwithstanding Maitland Brown’s observation that the topic of electoral change
was ‘an exceedingly dry one for discussion’, Hocking managed to persuade a
majority of the members that the Bill should be dealt with by a committee of the
whole House.34
Accordingly, a detailed clause-by-clause dissection of the Bill took place in the
Council over the following three weeks. On the key issue of introducing the secret
ballot in the colony—five years after England and almost two decades after the last
sister colony had adopted it—the councillors wholeheartedly supported the Bill.
They also endorsed the Bill’s proposal to dispense with public nominations on
election day. Henceforth, the returning officer would simply ‘announce’ who had
‘duly become candidates…in accordance with the provisions’ (i.e. who had
submitted a written nomination form at least ten days before election day) and
restrict those allowed in the polling place once polling had commenced to officials,
those electors actually casting a ballot, scrutineers and the odd constable—
procedural changes which would also bring the colony closer into line with the
mother country and sister colonies.35
The elected members, however, were not pleased that the Government had opted to
abolish, rather than, as requested, simply limit, proxy voting—notwithstanding the
Bill safeguarding the voting rights of an estimated 95 per cent of country
constituents by providing for additional ‘district’ polling places. However, it was
not the 5 per cent of rural electors who had a long return trip ahead of them on
polling day that most concerned the members, but rather those well-off colonists
134
(including a number of themselves) who owned property in distant electorates and
who, without some means of voting by proxy, i.e. being able to tender a vote when
absent from the electorate, would have to forfeit their plural votes. Steere
accordingly moved that a new clause be inserted into the Bill (becoming s. 10 in
the Act) to enable electors who lived more than thirty miles from a polling place in
their electorate, or who would not be within the electorate on polling day (which
would cover not just non-resident plural electors, but also those who today would
be classed as ‘absent’ voters, i.e. people away from their electoral district because
of business, holidays and so forth) to still vote. Under s. 10, such electors would be
able to ‘demand’ a vote, prior to the election, from a resident magistrate, police
magistrate or justice ‘duly appointed by the Governor by notice in the Government
Gazette as a person authorised to take votes at elections’ and who had been issued
with specially printed blank ballot papers and counterfoils. To keep a lid on the
number of officials issuing such votes and also because of the ‘expense and
inconvenience’ of printing and despatching the blank ballot books around the
colony, however, the Council was advised that the Governor’s authorisation would
not be extended to all the colony’s JPs.36 (In the 1880 election, for example, only
the resident magistrates, the Perth Police Magistrate and two additional justices
were gazetted.37) It is worth noting that this measure would usher in the first
instance of ‘postal’ voting in Australia, although the s. 10 votes could technically
be returned to the relevant returning officer by means other than post, e.g. by a
friend or an agent. (Incidentally, the introduction of postal voting arrangements
was also comparatively new in England. J. R. Vincent, for example, has written of
‘new arrangements enabling the country clergy to vote by post’ in the 1865 Oxford
University election.38)
Many in the colony quite correctly maintained, after the passing of this Bill, that
proxy voting had been abolished even though, somewhat confusingly, the term
‘proxy’ continued to be used to describe s. 10 votes (and still is today by some
historians).39 Indeed, as late as 1893 an exasperated Premier Forrest stated quite
emphatically of ‘absentee’ voting: ‘Some persons call it proxy voting, but it is not
proxy voting at all; because voting by proxy is to get someone else to vote for you,
whereas the practice I refer to is the voter’s own deliberate act, just as if he were
personally present at the election’.40 Interestingly, the supposed retention of
‘proxy’ voting, and thereby plural voting, in 1877 has been commented upon
unfavourably by some Western Australian historians—C. T. Stannage, for
example, has referred to it being ‘saved’ by the members to safeguard plural votes
and thus becoming part of the armoury of ‘country conservatism’.41 It is important
to note, however, that there had not been widespread calls for the abolition of
plural voting in the colony at the time (although such calls would come with the
formation of Liberal Association Leagues in the 1880s). And this Westralian
acceptance of plural voting is not remarkable considering that, with the exception
of South Australia which did not permit plural voting when it instituted selfgovernment in 1857, neither the mother country nor the ultra-democratic sister
colonies had set a precedent for abolishing the practice. (New South Wales and
Victoria did so in 1894 and 1899 respectively, for their Lower Houses, and the rest
of the Australian legislatures followed suit in the early twentieth century. The
United Kingdom retained plural voting until 1948.42) Rather, what Western
Australian colonists and the press had been railing against since 1870 were the
‘abuses’ involved in the system of proxy voting by which colonists tendered their
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plural votes—and the changes made to ‘proxy’ voting in the Ballot Act very
effectively eliminated these.
Accordingly, the harassment of electors, including some who lived only a few
doors away from the polling place, by squads of ‘proxy hunting’ candidates and
JPs would no longer occur; absent votes taken in future would be under the
provisions of the ‘secret ballot’, unlike the old system in which the witnessing JP
would observe how the elector had voted; candidates would no longer have to
compete for the services of compliant JPs to attest absent votes and, therefore, were
on an even footing; and JPs would finally be freed from the quasi-role of
‘electioneering agents’ within their districts—a role which had often generated illfeeling among local communities.43 Finally, it should also be noted that in a
number of Western Australian electorates, as even Stannage has conceded, ‘the
proxy vote was a negligible electoral factor’ (e.g. the seven absent voters out of
213 electors on the Moore electoral roll in 1896); and, further, that a large
percentage of absent voters were not metropolitan plutocrats, but locals whose
property interests simply happened to straddle a couple of adjacent electorate
boundaries.44
The other major feature of the Bill which displeased the members was the form that
the new printed ballot papers would take i.e. they would be numbered on the back,
with the matching number appearing on the ballot paper’s counterfoil or stub—a
provision that had been lifted straight from the English Act, which had, in turn,
copied it from the Victorian Electoral Act.45 Considering that under the Ballot Bill,
returning officers at the central polling places, and deputy returning officers at the
district polling places, were bound to mark the elector’s name on the electoral roll
and then record it on the counterfoil of the elector’s ballot paper, there was concern
that an unscrupulous returning officer could later compare the ballot papers and
counterfoils and work out who had voted for whom.46 The Attorney General
explained that the numbering and counterfoil provisions were imperative, in the
case of an election petition, to enable the Supreme Court to ‘trace up’ the votes of
any elector ‘with a good horse’ who may have voted at the central and district
polling places in his electorate or, alternatively, who may have been accused of
bribery or corrupt practices.47
Considering that multiple voters under the Bill would be subject to naming and
shaming in the Government Gazette and up to two years in jail, it was unlikely that
there would be too many offenders, and this traceability feature, with the exception
of Victoria, had not been adopted by the other Australian colonies—although there
were reports from New South Wales that as a result of the lack of traceability,
personation was a serious ‘evil’.48 To safeguard ‘the principle of secrecy’,
however, the Government had written into the Bill that only the Chief Justice was
authorised to scrutinise the ballot papers and counterfoils and that even during legal
proceedings an elector could not be ‘required to disclose for whom he has voted’.49
The elected members grudgingly accepted the Government’s line, but insisted on
additional safety measures which did not appear in either the Victorian or the
English Act, such as the separate packaging and sealing of the counterfoils before
the locked and sealed ballot boxes were opened—with candidates and scrutineers
also being permitted to apply their own seals to the packaged counterfoils.50 The
councillors insisted on similar measures to safeguard the secrecy of absent votes,
136
so that under s. 10 an absent elector’s folded ballot paper and counterfoil had to be
sealed in separate envelopes before being returned (usually by post, but also by
hand if convenient) to the relevant returning officer, who had to keep them
unopened until the poll commenced, after which—‘in presence of the
scrutineers’—he was to open the counterfoil envelope and mark the absent voter’s
name off the roll before opening the ballot paper envelope (and scrutineers were
entitled to check that the seals were still intact before he did this) and depositing
the still folded ballot paper in the ballot box.
Other secrecy provisions were also strengthened or initiated by the members.
Steere successfully moved, for example, that instead of voting at ‘a table apart’,
electors should be provided with a ‘compartment screened from observation’ as in
the English Act; and, again following the English Act, he successfully proposed
that a clause be inserted in the Bill requiring all officials and agents in the polling
place, and subsequently at the count, to be bound by secrecy and subject to heavy
penalties, i.e. imprisonment with or without hard labour, for attempting to elicit
information as to how any elector voted, or for disclosing ‘at any time to any
person any information’ as to how an elector may have voted or his number on the
ballot paper or register.51 Various members also expressed concern for ensuring the
secrecy of voters who were illiterate, blind or ‘who had no arms’.52 In fact, secrecy
concerns aside, the members wanted to ensure that such electors could vote at all,
with Maitland Brown proposing that a clause be inserted into the Bill enabling any
electors who were unable to vote for themselves, to be able to request the presiding
officer, in the presence of scrutineers, to mark their vote for them. After all, as
Maitland Brown put it, ‘in a small community like this, they could not afford to
exclude any class of persons who were otherwise entitled to vote’.53 However,
notwithstanding the British Act authorising the presiding officer—‘in the presence
of the agents of the candidates’—to assist blind, illiterate and even Jewish electors
(if the election was held on a Saturday), and all the Australian Electoral Acts (with
the exception of South Australia’s) providing for illiterate voters, the Government
was unsympathetic to this motion, with the Attorney General arguing that:
[he] considered the proposed clause unnecessary. If there were a large number of blind
people in the community, well and good; no doubt it would be a hardship to debar them
from voting. But among a small population like this, where the number of blind people
might be counted on the fingers of one’s hand, he did not think it was necessary to
specially provide for their exercising the franchise.54
(A far cry from modern elections in which the Western Australian Electoral
Commission provides election-related information in Braille publications and on
Information Radio to the vision-impaired community, as well as equipping selected
polling places with closed-circuit television screens to enlarge ballot papers.) As
for ‘illiterate persons’, the Attorney General had previously outlined that ‘as much
provision as possible’ was made for them in that the ballot paper would list
candidates alphabetically!55 The motion was narrowly defeated with the official
and unofficial nominees lining up against it—with the result that returning officers
at future elections would be strongly criticised for complying with the Act (and
under pressure to waive it) as the following report from the 1889 general election
contest at Toodyay reveals:
Much dissatisfaction has been expressed at the action of the returning-officer in refusing
to assist voters who were unable to read, by explaining the position of the names of the
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candidates. Several votes were lost to both candidates through this stupidity, and several
would not enter the polling room for the same reason. Later on in the day the returningofficer assisted later applicants, thus adding to the error. A formal complaint was lodged
by Messrs. Throssell, Gregory and Morrell at the close of the contest.56
Highest Privilege and Bounden Duty
It is interesting to note, however, that there is no pleasing everybody, and that the
provision to assist illiterate electors had been strenuously denounced in the
Imperial Parliament by a number of ballot advocates who believed that electors
could be pressured into pretending to be illiterate so that the ‘agents of the
candidates’ would be able to see how their vote was dictated to the presiding
officer—and, as a consequence, that ‘the Bill had been so greatly impaired…that
many friends of the Ballot were scarcely anxious that it should receive the Royal
Assent’.57
The members also tightened up the nomination process, requiring would-be
candidates to have their nomination form countersigned ‘by at least half a dozen of
the electors of the district in token that they support his candidature’ (the British
Ballot Act required the signatures of ten registered electors on a nomination paper
which, taking into account Britain’s more populous electorates, was a less onerous
requirement); and as a further ‘guarantee’ that candidates were nominating in ‘real
earnest, and…not doing so just for the fun of the thing’ they would be required to
provide a £25 deposit (£50–£100 in some of the other Australian colonies, and
nothing in Britain at this stage where candidates’ earnestness was presumably
guaranteed by the requirement that they pay an equal share of all official election
costs) which would be forfeited if they didn’t poll a ‘certain proportion of votes’.58
Again copying the English Act, Steere successfully moved that a sub-clause be
inserted into the Bill whereby ‘EVERY person’ who ‘Forges or fraudulently
defaces, or fraudulently destroys any nomination paper, or delivers to the returning
officer any nomination paper knowing the same to be forged’ would be guilty of a
misdemeanour liable to be punished by up to six months’ imprisonment or a fine of
up to fifty pounds.59 As tough as this penalty may have been, it was light compared
to that incurred by returning officers or electoral officials guilty of the same
offence. Indeed, for any fraudulent offences in relation to ballot papers and ballot
boxes, an electoral official was liable for quadruple the statutory prison term or
fine. Moreover, electoral officials convicted of ‘wilful’ misconduct, could be made
to ‘forfeit to any person aggrieved by such misfeasance, act, or omission, a penal
sum not exceeding One hundred pounds’—‘in addition to any other penalty or
liability’.60
The Ballot Bill was passed on 13 August 1877 and received the Governor’s assent
three days later. Upon the Speaker informing the members of this fact, Steere
immediately rose to ‘enter his protest’ against the Governor having done so, stating
that as the Bill affected the ‘manner of electing members to serve in the Legislative
Council’, it was one of those constitutional amendments which had to be ‘reserved
for the signification of Her Majesty’s pleasure thereon’.61 The Attorney General,
Henry Hocking—who admitted straight up that he had advised the Governor to
assent to the Bill—promptly entered into a patronising attack on Steere which he
triumphantly concluded by reading out s. XXXI of 5 & 6 Vict., c. 76 (which directs
the reservation of ‘all Bills’ altering electoral boundaries or increasing the number
of MLCs, but makes no reference to reserving Bills amending the manner of
election) in justification of his advice to His Excellency. When Steere pointed out
138
that applicable section was in fact s. XXXII of 13 & 14 Vict., c. 59 (which directs
the reservation of Bills altering provisions ‘concerning the Election’ of
members)—which he then read aloud to the members, the Attorney General ‘after
a pause’ quickly exited the Chamber to ‘confer with His Excellency’.62
Debate resumed after a short adjournment with Steere claiming that although he
did not wish to speak ‘disrespectively’ of the Attorney General and Governor, he
‘thought it was necessary that some record should appear in the “Votes and
Proceedings” of the House with reference to this matter’ so that His Excellency’s
unconstitutional action would not be seen to have been ‘tacitly acquiesced in’ by
the councillors.63 The devastated Hocking apologised profusely for his ‘ignorance’,
accepted full ‘blame’ for his ‘blunder’, referred to the Bill he would introduce to
‘rectify the error as far as possible’, and even lauded Steere for ‘very properly’
speaking up—all in a desperate bid to have the motion dropped.64 But the humble
pie was to no avail and the motion passed eight to six. The next day Hocking’s
Ballot Act, 1877, Suspension Bill passed through its three stages in a matter of
minutes and was assented to immediately. Within a week the two ‘Acts’ were sent
to England for the Colonial Office to sort out—and their departure from the colony
was followed soon after by Governor Robinson who had just completed what was
to be the first of three terms as Governor of Western Australia.
Ten months later, the new Governor, Major General Sir Henry St George Ord (who
had assumed office on 12 November 1877) still hadn’t received any Imperial
response, let alone assent, to the Ballot Acts. After insistent questioning in the
Council about this from Stephen Parker, who had recently entered the Council
following the 22 May 1878 Perth by-election, Ord bluntly informed the latest
Secretary of State, Sir Michael Hicks Beach, that as ‘the delay will be made use of
adversely to the interests of Government’, he would be ‘obliged’ if Her Majesty’s
instructions could be telegraphed to him forthwith.65 Considering that Ord had
previously reported to the Colonial Office that since arriving in Western Australia
he had perceived marked dissatisfaction with the existing political regime—much
of it because of Imperial ‘delays’ in dealing with Western Australian legislation
and loan requests—his bluntness is understandable.66
Within weeks Ord was warning the Secretary of State of yet another danger—that
Stephen Parker, who had ‘pledged himself’ at the Perth by-election to introduce a
Bill for responsible government in the next session of the Legislative Council—
was attempting to do just that.67 Indeed, Parker gave notice to the Council on
Monday 8 July that at the end of that week he would move a series of resolutions
urging the inauguration of responsible government ‘at the earliest possible period’,
and that he would also seek leave to introduce a Constitution Bill (basically a
facsimile of Weld’s 1874 one) to bring this about.68 Unfortunately for the
responsible government movement, the inexperienced Parker mismanaged his
tactics in the Council. On Friday 12 July he successfully moved that consideration
of his resolutions be held over to the following Monday—the same day that
‘certain amendments based upon the resolutions’ would be moved by Maitland
Brown (the leader of the elected members while Steere was temporarily absent
from the colony).69 That sorted out, Parker then attempted to introduce his
Constitution Bill. This reversal of order was immediately objected to by the
member for Albany, Sir Thomas Cockburn-Campbell, who argued that it should
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first be established whether there still existed support for responsible government
within the Council. Holding such views, Cockburn-Campbell moved the ‘Previous
Question’—a gagging motion which shuts down debate and calls for an immediate
vote.70 An exasperated Parker pointed out that the House had ‘over and over again’
supported resolutions in favour of self-government, and angrily queried, ‘When are
we going to be done with affirming resolutions?’71 Fremantle member, William
Marmion, however, countered that as some members might have changed their
opinions on the question, and other new members had entered the Chamber, it was
entirely reasonable to reaffirm the principle. After some further heated discussion,
the members voted thirteen to five against granting Parker leave to introduce his
Constitution Bill before the resolutions; and as the session was almost at an end,
such a deferral was viewed by a number of the councillors as tantamount to
shelving the Bill.
And Marmion was right, of course, about the principle needing to be reaffirmed.
While three of the four members who had recently joined the Council via byelections in 1878 were pro-responsible government (viz. Stephen Parker, Thomas
Carey and Edmund Brockman) a number of the old members—most notoriously
James Lee Steere—had changed their opinion on the desirability of responsible
government since voting in favour of it in 1874 and 1875. The nominee contingent
had also largely been pressured into dropping their support by Robinson (or
replaced when occasion arose by those opposed to responsible government such as
S. S. Parker, Stephen Parker’s father), while some of the elected cohort were not
prepared to take on constitutional change without men of the calibre of Weld and
Barlee to lead it. A ‘large majority’ of the members had also recently been taken
aside by Governor Ord who had spelt out the ‘serious objections’ to Western
Australia adopting self-government.72 Apart from the significant ‘pecuniary burden
the step would entail’, Ord underlined that under responsible government the
colony would soon—
have to grant, as all the others on the continent had done, manhood suffrage without any
property qualification for members and eventually the restoration of the civil rights to the
Criminal Class, which form something like one half the population.73
And given that a recent petition signed by more than 600 Western Australians—
‘including many ticket-of-leave holders and expirees’—had requested Queen
Victoria to restore civil rights to ex-convicts, Ord’s caution would have
resonated.74
The prospect of ex-convicts wielding overwhelming voting strength, no longer
being barred from the legislature, and being able to sit on juries to judge their peers
(and the colony’s gentry), filled the members with horror. So much so, in fact, that
Maitland Brown, Sir Thomas Cockburn-Campbell and other members even
suggested to Ord that they would prefer to revert to the old pre-1870 constitutional
model than see the institution of responsible government with the full restoration of
civil rights to ex-lags—an idea that Ord ran past the Secretary of State, but which
was curtly dismissed by Downing Street.75 In fairness to the members, however, it
should be noted that even though transportation had ceased a decade earlier, the
‘Criminal Class’ was still a dominant and fairly daunting presence in sparsely
populated (approximately 30,000 Europeans) Western Australia at this
140
time—which was not the case in the more populous sister colonies when they took
on self-government in the 1850s.76 The British novelist Anthony Trollope, for
example, after a short stay in Western Australia only six years previously, had
made much of the ‘Bill Sykes physiognomy of a large proportion of the
population’ and the fact that ‘the convict element pervades the colony…the convict
flavour is over everything’; while, more recently, Stannage has pointed out that
Western Australia’s crime rate in 1878 was seven times higher than South
Australia’s.77
On Monday 15 July Parker formally moved his six resolutions calling for the
immediate introduction of responsible government. He also informed the Council
that after being refused leave the previous week to introduce his Constitution Bill
he had intended to abandon the resolutions, but in deference to Maitland Brown,
who had framed a series of amendments to the resolutions, he had agreed to go
ahead with them. Now Maitland Brown was well known as an arch opponent of
responsible government, so it might seem curious that Parker would do him any
favours, yet in his Address to the Council, Brown outlined how during the tenure of
Governor Robinson he had been ‘exceedingly dissatisfied’ and ‘disappointed’ by
the way the colony’s progress had been ‘vexatiously retarded’ by a combination of
the Governor’s conservatism and the Imperial Government’s overly cautious and
time-wasting interventions in the colony’s affairs.78 Indeed, Brown confessed that
on a couple of occasions he had been on the brink of throwing in his lot with the
responsible government movement. He still had concerns, however, that Western
Australia could not afford to forego the substantial Imperial grants currently made
available for the colony’s magistrates, police, chaplains and convict department if
it took on responsible government; and he also doubted whether the colony could
furnish enough men of means and leisure to run a fully self-governing
administration—a reservation shared by many. On a more positive note, however,
Brown felt that Sir Harry Ord was shaping up as a reasonably progressive
Governor—Ord’s support for a £200,000 loan for public works was certainly
encouraging.
The ambivalence of Maitland Brown’s speech was reflected in his amendments.
The first stated that responsible government ‘might be still further deferred with
advantage to the Colony’, but the second warned that such a deferral really
depended on the Imperial Government allowing the Governor ‘greater
discretionary power to carry into effect such measures as the Legislature may deem
conducive to the welfare of the Colony, than has been accorded to that officer in
the past’.79 The third amendment warned that the ‘lack of this discretionary power’
was the reason why the movement for self-government ‘is now stronger and more
general than it has ever been’, while the final amendment sought to ‘respectfully
submit’ that the Imperial Government’s constant ‘reviewing and deciding the
details of every important measure which the Governor, with the approval, or at the
desire of the Legislature, may wish to carry out’ ‘practically nullified’ the
advantages of representative government.80
Sir Thomas Cockburn-Campbell immediately rose to propose his own amendments
‘on the amendments’.81 By and large Cockburn-Campbell endorsed what Brown
proposed—being, if anything, even more opposed to granting responsible
government to the ‘especially dangerous elements a Western Australian mob
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contains’—but he felt the amendments needed to convey in more forceful
‘wording’ the colonists’ objections to the Imperial Government’s meddling in the
colony’s affairs and the fact that such meddling ‘largely augments’ the responsible
government movement.82 He also thought the amendments would be signally
improved by warning the Imperial Government that unless things started to mend,
‘this Council will be irresistibly compelled…to follow in the wake of public
opinion’ and seek self-government—a resolution later described by Stephen Parker
as a ‘ludicrous bit of bunkum and bumptiousness’.83 Before the councillors could
draw breath, William Marmion rose to move yet another set of amendments. In
fact, Marmion’s amendments were largely a cut and paste of Brown’s and
Cockburn-Campbell’s, but as Marmion was in favour of responsible government—
although only if it could be attained on the right terms, i.e. without loss of Imperial
funds—he was eager to call on the Secretary of State to ‘reconsider…and
recommend the removal of the penalties’ if Western Australia took on responsible
government.84
Thankfully, that was the end of amendments, but more discussion of ‘inordinate
length’ ensued.85 The same old ground was covered, but the grim warnings of the
Attorney General that ‘the “residuum” of the population—the dregs that remain
after the electoral body has been strained off’ would agitate for universal suffrage
and soon be voting in the ‘convict class’ to sit in the Chamber and take over the
administration of the Government, are worth noting because they made public what
Ord had discretely being telling the members for weeks.86 Finally, it was time to
put the amendments to the amendments to the proposed amendments. Marmion’s
amendments were lost on the voices while Cockburn-Campbell’s were passed
thirteen to five, with the result that Parker’s original resolutions calling for the
immediate adoption of responsible government were lost. Had Parker expected
they would be passed? Probably not, but he believed that ‘to allow another Session
to pass without re-affirming the desirability of a change in the Constitution was to
treat the whole question as one of no consequence, and of no public interest or
importance’.87 Over the next decade Parker would doggedly reaffirm the
desirability of change until the colony finally achieved it.
And not just Parker. On 24 July 1878 ‘some of the friends of constitutional reform’
at a public meeting held in Perth’s Shamrock Hotel unanimously passed the
following resolutions: ‘That this meeting is of opinion that the majority of the
inhabitants of this colony are dissatisfied with the present constitution, and
earnestly desires the adoption of a constitution of Ministerial responsibility’ and—
in view of the result of the division in the Legislative Council, on the motion of Mr. S. H.
Parker…for the introduction of a bill to establish a constitution of Ministerial
responsibility it appears to this meeting to be desirable that a Reform League should be
organised for the purpose of taking such steps as may be best calculated to secure for this
colony what is enjoyed by all the other Australian colonies, namely, the right of selfgovernment.88
Office bearers to what J. McKenzie has aptly described as ‘the first attempt at
organising a political party in Western Australia’ were appointed; and a follow-up
meeting on 3 August approved a circular encouraging the formation of country
branches—an invitation swiftly taken up in York and Bunbury.89 Indeed, the
popularity of the Reform League spurred conservative MLCs Charles Harper and
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Sir Thomas Cockburn-Campbell to buy out the Western Australian Times in the
following year and under a new masthead—The West Australian—and with
Cockburn-Campbell as editor, to use it as a vehicle for countervailing antiresponsible government propaganda—or ‘the promulgation of correct information
respecting public affairs & to the correction of the mendacious and fallacious
statements of the other papers on the subject’, as Governor Ord phrased it in a
confidential despatch to the Secretary of State.90 Henceforth, the opposing factions
would come to be loosely referred to as the ‘Liberal’ and ‘Conservative’ parties.91
An Effluxion of Time Election
On 15 January 1879, exactly six months after seeing his resolutions for selfgovernment rejected, Stephen Parker gave notice that at the next session of Council
he would again be seeking leave to introduce a Constitution Bill.92 Governor Ord
promptly informed the Secretary of State, and recommended that as
One of the strongest arguments [against responsible government] is to be found in the
greater cost of Government through the withdrawal of Imperial grants…I shall be obliged
if you will cause me to be furnished with a statement of them, which I will lay before the
Legislature.93
The Colonial Office complied with the costings, and lo! at the beginning of the
next session of Council Maitland Brown just happened to request ‘the probable
cost, direct and indirect, which the adoption of Responsible Government would
entail upon the Colony’—knowing full well that the answer would not be good
propaganda for the responsible government movement.94 A delighted Ord was then
able to write to Sir Michael that Maitland Brown’s ‘question’:
gave me the opportunity of laying before members and the Public a paper I had prepared
respecting the cost of Responsible Government and the resources which it is necessary a
Colony should possess to enable it to work out such a measure with success. This
information was quite new to most people and I understand it did some good. The
impression it made no doubt led the leader of the R.G. party to abstain from bringing the
question forward during the session.95
For good measure, Ord then closed the 1879 session of Council by reading out a
couple of despatches from the Secretary of State ‘reiterating the grave reasons,
which he is satisfied exist, against the adoption of the proposed change’.96
That done, Ord prorogued the Council to 23 October 1879—at which time the
Council expired by the ‘effluxion [or passing] of time’. Considering that both the
1872 and 1874 general elections had been called prematurely, and functioned more
like referenda than ordinary elections, the 1880 election was the first election since
the institution of representative government that followed a full term. Indeed, the
1880 election was held even later than it ought to have been for a supposed
quinquennial or five-yearly election. While the colonists had expected the election
to take place by late 1879 (and Ord himself in 1878 had twice referred to a
September 1879 election in despatches to the Secretary of State) the issue of the
writs did not take place until 10 January 1880—a full eight months after colonists
had begun requisitioning potential candidates.97 This ‘unprecedented and
unconstitutional delay’, which left the colony without a Legislative Council for
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months, was condemned by James Lee Steere who scoffed at the excuses given by
the Government for the delay—i.e. that under the provisions of the Ballot Act more
time was needed to make preparations for the election, and that the Government
had to send to all the way to Adelaide for a ballot box to provide a ‘model’ for
local carpenters!98 The more likely reason for the delay can be guessed at by
comments made by Ord in a confidential despatch to Sir Michael that:
it was submitted to me that if I could obtain permission for the introduction of a Bill
extending the duration of the present Parliament for two or even one year…that such an
arrangement would give the Public, now carried away by the reckless appeals of the Press,
time to recover itself, and that on further reflection, and especially if steps were taken to
supply the public with some better information than it possessed respecting the real nature
of R.G. and the consequences it entails, a change of feeling respecting it might be brought
about even in the course of a year.99
Such a delaying Bill was not introduced by Ord, but in a previous confidential
despatch to the Secretary of State, Ord nonetheless confirmed the virtue of giving
the colonists time to ‘see that the Home Government has their interests really at
heart’.100
While some of the heat may have gone out of the responsible government
movement since Parker’s abortive 1878 bid for self-government, the issue was still
very much alive and well within the community—and unremittingly stoked by the
Fremantle Herald which was run by ex-convicts with a vested interest in the
adoption of responsible government and the resultant ‘restoration of the civil rights
to the Criminal Class’ as Ord had put it. Similarly, the Reform League was actively
promoting the movement and canvassing ‘the constituencies so as to ensure the
election to any vacancy of candidates pledged to Responsible Government’.101 As a
result, the 1880 general election—which took place between 9 and 14 February in
all but the remote North District where the poll wasn’t held until 12 March—was
hotly contested in the six populous electorates where polls took place (Perth,
Fremantle, York, Swan, Bunbury and Geraldton); and as Ord informed the
Secretary of State, ‘The only question which seemed to excite any interest was,
whether the candidate was or was not opposed to a change in the form of
Government’.102
When all the results were in, bar those of North District which were always late
coming back, a relieved Ord was able to inform the Secretary of State that while
there had been a few changes in personnel in the Council, the widely anticipated
return of a majority of pro-responsible government members had not taken place.
Rather, ‘if a member should be elected in the North favorable to the measure the
condition of parties will be exactly what it was last year, viz (9) nine out of the
elected members opposed to and (5) five in favor of the change’.103 As it turned
out, the member returned for North District, McKenzie Grant, was in favour of
responsible government so the state of the Council was completely unaltered by the
1880 general election. (Interestingly, while agreeing that the numbers for and
against self-government amongst the elected cohort remained unchanged, the local
newspapers actually put the ratio at a slightly more optimistic six for and eight
against.104)
The 1880 election was highly significant, nonetheless, as it was the first general
election conducted under the provisions of the 1877 Ballot Act (which, after doing
144
the rounds of English law officers, had finally received Imperial approval and been
proclaimed in the colony on 7 April 1879) and, as such, it was the first Western
Australian election which substantially had the look and feel of a modern-day one.105
Accordingly, across the colony at twelve ‘central’ and thirty-six ‘district’ polling
places (which had been determined at a specially convened meeting of the Executive
Council), presiding officers commenced polling by exhibiting an empty ballot box to
witnesses and then locking it—as they do today (although cardboard boxes and
plastic seals have replaced the original wooden boxes and metal padlocks); electors
marked their votes on printed ballot papers in private compartments after reading
printed instructions—as they do today; and electoral officials and scrutineers were
bound by stringent secrecy provisions—as they are today.106 And, as with modern
elections, voters were able to cast completely secret absent votes.
Favourable articles appeared in the press commending the new-look elections, and
Ord was able to report to the Secretary of State that the elections ‘under the
provision of the Ballot Act…were unaccompanied by any disorder or
disturbance’—a view corroborated by the editor of the West Australian who
described the proceedings in the Perth Town Hall during polling as ‘very tame and
monotonous’.107 Outside the polling places, however, the usual wearing of
candidates’ colours, parading of vehicles, hiring of brass bands (but not by
candidates) and placarding had taken place. And, as usual, Fremantle the ‘hot-bed
of radicalism…the head quarters of the [Reform] League’s operations’ was the
liveliest electorate, with the West Australian reporting that ‘During the whole time
of the polling, the town was in a perpetual fever of excitement. And Fremantle is
capable of some excitement’.108
One feature of the 1880 election which was not seen as an improvement on
previous ones, however, was the delay in the formal declaration of the poll results,
because under the Ballot Act the counting of votes could not commence until the
returning officer had received the ballot boxes from all the district polling places
and aggregated the ballot papers. This was not a major problem in Perth and
Fremantle where the results were out by 10 p.m. on election night—although
electors still probably grumbled as the results in the 1874 election had been
available a few minutes after 6 p.m. because the returning officers had counted
votes during polling (and Perth had also had running tallies up to 4 p.m.).109 In the
rural electorates, however, the delays were significant. In both the Geraldton and
Wellington electorates, for example, results were declared four days after polling,
leaving everyone to ‘wait in suspense’.110 Such delays, however, could not be
avoided because many of the smaller district polling places only took a handful of
votes, and if all were cast for the same candidate this would negate the secret
ballot. (At the 1884 general election, for example, the Bannister Police Station in
the York electoral district took one vote, as did the ‘36-Mile Albany Road Police
Station’ in the Murray and Williams electoral district in the 1889 general
election.111)
Very few complaints about the conduct of the election made it into the press. One
was that through ‘carelessness’ and ‘negligence’ of those responsible (the Colonial
Secretary’s Office) blank ballot papers were not despatched early enough to some
of the electorates. As a result, according to the West Australian, approximately
sixty electors in the Williams area, who were entitled to vote in the Wellington
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electorate, and of whom ‘it is well known that a large number’ would have voted
for James Lee Steere, were unable to vote until three days before the poll—which
was too late for their ballot papers to reach the returning officer by election day as
prescribed by the Ballot Act.112 Unfortunately, Steere went on to lose his seat by
one vote.113 Another complaint relating to the new system of absent voting was that
some rural electors had not voted because they now had to undertake a long ride to
cast their vote with a gazetted officer. The editor of the West Australian
acknowledged that the old system of proxy voting was full of abuses, but
maintained that it had been convenient for outlying electors to have a candidate and
JP pitch up at their door and collect their votes. Even if such electors were ‘only
disfranchised through their own apathy’, the editor felt that it was unacceptable that
‘one result of the Ballot Act is to practically disfranchise a very large number of
country voters’ because ‘these rural votes are of considerable importance,
supplying what might be called the ‘peasant proprietor’ element—the steadying
and stolid element—to counter-balance the more frothy effervescence of the
towns’.114 The editor hoped that something—he wasn’t sure what—could be
tweaked in the Ballot Act so that in future elections rural votes could be ‘collected
with greater facility’.115 Although it is difficult to compare returns from the 1874
and 1880 elections, because only two rural seats were contested at both elections, it
appears that numbers, excluding the fairly minimal population increase that was
taking place in the colony at the time, were certainly down.116 The Wellington
electorate, for example, posted 272 votes in 1874 and dropped to 266 in 1880.117
York’s voter turnout actually doubled from the 1874 to 1880 elections (from 97
votes to 188), but the 1874 figures were atypical because the election was a lowturnout landslide for John Monger after his opponent, S. S. Parker, swapped midcampaign from supporting to opposing responsible government (and also perhaps
due to bribery, given that Monger resigned his seat in early 1875 after an election
petition was filed against him!). If, however, the 1875 York by-election turnout
figures are used (306 votes), then the 1880 return of 188 votes shows a significant
decrease in voter participation.
The Status Quo Council
Governor Ord’s verdict on the 1880 general election was that with no outright
change in the numbers for or against responsible government:
it might be supposed that for the next five years at all events, the Colony would be safe
from any renewal of the agitation for a change in the form of Government which have
hitherto so largely, and with such injurious results, occupied the public mind – But it
would be very unwise to take for granted that the conviction, perhaps impression would
be the better word, of the few elected members who constitute the majority now opposed
to any change, will remain the same during the next 5 years.118
Ord’s caveat was a shrewd one, because the issue of responsible government was
raised as early as 1882 by Stephen Parker who, on the hustings during the 1880
election campaign, had once again pledged himself to do so. By the time Parker
made his move, however, there had also been a significant change of personnel
among the officials. The colony’s new Governor, Sir William Robinson—dubbed
the Colonial Office’s ‘Conservative instrument’ by the Inquirer—had reassumed
command of the colony on 10 April 1880, around the same time that the Liberal
Lord Kimberley had been reappointed to the position of Secretary of State.119 By
146
the end of 1880 there was also a new Colonial Secretary in the colony—Major, the
Rt. Hon. Baron Gifford VC.
Before Parker moved to introduce responsible government, however, the Council
was occupied with an attempt to alter the existing constitutional set-up. The
member for the North District electorate, McKenzie Grant, moved on 7 August
1882 that the Governor be requested to bring in a Bill to increase the parliamentary
representation of the northern part of the colony by two members (and by this
stage, with settlement pushing forward in the Gascoyne and Kimberley regions, the
colony’s former ‘north’—the Champion Bay or Geraldton area—was now regarded
as more properly belonging to the southern part of Western Australia). Grant
proposed that the Bill should split the current North District constituency into two
electorates: the first, still named ‘North District’, to be represented by two
members and the second, ‘Gascoyne District’, to be represented by one member.
To support his motion, Grant contrasted the ‘material progress and importance’ of
the ‘magnificent districts’ of the northern part of the colony, which although
generating approximately £130,000 a year worth of export revenue ‘were almost
wholly unrepresented in that House’, with the ‘largely represented’ southern
electorates which ‘as regards the extent of their resources and the value of their
exports, cut a very sorry figure indeed’.120 Such a state of affairs was ‘not right or
proper’ and Grant called on the members to treat the region with ‘fair play,
and…justice’ and support his motion.121 At this point, Grant could have sat down;
instead, he launched into a far-reaching condemnation of the system of electoral
representation in the colony, declaring that:
A good many other outside districts were represented by hon. members whose homes
were in the metropolis; in fact, nearly the whole of the representation of the Colony was
in the hands of town members, and it was unreasonable to suppose that these hon.
gentlemen could have much sympathy with the wants of outlying districts. They could not
be expected to feel that kindly and intelligent interest in them which they naturally felt in
localities nearer home, with the requirements of which they were personally
acquainted…122
Grant anticipated objections to his motion because he believed many would argue
that the population of the north was ‘so few and scattered that it was not worth
giving them increased representation’, but he pointed out that many northerners
temporarily worked out of the area and moreover:
they had a numerous black population, who were a source of wealth to the district, in
aiding the development of its resources. He did not mean to say he wished to see these
blacks exercising the franchise, but they had a right to have their interests protected.123
Then Grant sat down, but his challenging remarks prompted the first extended and
considered (even if somewhat muddled and highly partisan) discussion of the
nature and principles of electoral representation to take place publicly at an official
level in the colony. It is worth examining this debate at some length because the
members articulated the views and competing claims which, with negligible
change, would inform discussion on the subject right up to the passing of ‘One
Vote One Value’ legislation a hundred and twenty-odd years later.
Grant’s motion was seconded by fellow northerner Maitland Brown, the member
for
Geraldton,
who
wholeheartedly
endorsed
the
view
that
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‘representation…preponderated in favor of the towns, in this Southern portion of
the Colony’.124 To prove his point, Brown went on to profile the members of the
current Council, outlining that the Governor, all his executive councillors and three
of his four nominees lived in the city, as did the four members for Perth and
Fremantle and the members for the ‘country districts’ of Swan, Toodyay, Murray
and Williams, and Albany.125 (The phenomenon of city residents representing
country districts was, of course, largely the result of members of Parliament being
unpaid—most country settlers were simply unable to sustain the loss of income and
foot the hotel bills involved in being an MLC. The difficulties of travelling to
sittings from remote regions was also a disincentive.) Brown then acknowledged
that while these city-based members undoubtedly:
regarded themselves, and properly regarded themselves, as the representatives of the
Colony at large rather than as the delegates of any particular district, still…being human,
they were bound to be influenced by their immediate surroundings.126
Brown resumed his seat after challenging any member to ‘controvert the statement
that this great preponderance of [metropolitan] representation ought not to exist, to
the extent that it now does’.127
George Shenton, the Mayor of Perth and the member for Toodyay, was
immediately on his feet to do some controverting:
Although it might be true that the bulk of these representatives resided in Perth and
Fremantle, it should be borne in mind that one third the whole population of the Colony
were centred in those two towns; therefore, if the claims of representation were to be
calculated by the ratio of the population, Perth and Fremantle would be entitled to return
double the number of representatives which they now returned.128
That said, Shenton still supported giving the north two extra members because the
interests of the region deserved greater representation and because such an increase
would enable the Governor to appoint an additional member to the Legislative
Council—which could see the Director of Public Works and Commissioner of
Railways, James Thomas, obtain a seat in the Council.
James Lee Steere (who, after his one-vote loss in Wellington, had been returned
unopposed to the Council three months later via the 22 May 1880 Swan byelection) also favoured increasing northern representation, but challenged the
reasons given in support of it by Grant, stating that representation ‘in proportion to
the material wealth of an electorate’ was not ‘a principle which had ever been
admitted’.129 If it had, he continued, then London alone would hold a quarter of the
seats in the House of Commons! Steere also contested the view that members
privileged the interests of their own electorates; he believed, on the contrary, that a
Burkean ‘virtual representation’ actually took place:
He thought none of these representatives regarded themselves as returned to advocate or
support the interests of any particular part of the Colony to the prejudice or detriment of
other parts, but that their duty was rather to watch over the interests of the Colony at
large, irrespective of whether they might happen to reside in town or in the country.130
Steere then concluded that while the topic of increasing representation was on the
table, the councillors should look at the claims of some of the southern country
148
districts ‘which were entitled to equal consideration in this respect’—a view
supported by the next speaker, Charles Crowther.131 Stephen Parker wound up the
debate by calling for an adjournment—after cheekily observing that he supported
Grant’s motion because it would probably see three more city members land in the
Council!
When the debate resumed a week later Parker immediately proposed an
amendment to the original motion. Basically, Parker agreed that the north should
have two extra members, ‘not so much on account of its population as of the vast
amount of revenue which it yielded to the public exchequer’; but he also believed
that the ‘same privilege’ should be extended to two ‘very important and extensive’
southern districts—Victoria Plains and Williams—which he proposed should
become separate electorates each returning a member.132 Interestingly, Parker put
forth an additional claim on behalf of the Williams area: that at present a large part
of it was ‘merged’ with the Wellington, or Bunbury, electorate ‘with which it had
nothing in common, and situated as it was at so great a distance from the place of
election, the result was that the district was in a great measure unrepresented’.133
Finally, Parker argued that increasing the Council by four elected members and
two nominees would bring the House up to twenty-seven members—which
‘increase could not fail to add to the influence and importance of the House as a
legislative assembly’.134 Parker’s amendment was seconded by Sir Thomas
Cockburn-Campbell who spent much of his speech reassuring Grant that the
amendment was not a bid to ‘neutralise the effect of the larger representation which
was proposed to be given to the North’.135 On the contrary, Cockburn-Campbell
insisted that the southern districts were well aware that it was not in their interests
for a dissatisfied north to ‘sever its connection with the South’ and ‘the only
possible way of ensuring that such an event shall not take place is by giving the
North what is due to her, and seeing that her interests are properly cared for’.136
But, he continued, the important country districts of the south similarly needed a
greater say in the town-dominated Council. Cockburn-Campbell also endorsed
Parker’s observation that electoral boundaries should be drawn to ensure electors
had a commonalty of interests, agreeing that, ‘The people of the Williams knew
nothing of the Wellington District, and the Wellington electors knew nothing of the
Williams people’.137
The amendment seconded, Maitland Brown flagged that if the north and the south
were going to get additional representation, then the old north, Champion Bay,
should get a guernsey too—and on all of the grounds put forward so far:
‘population, revenue and importance’.138 The prospect of five underpopulated
districts getting additional seats, however, was too much for Fremantle member
William Marmion who huffed that
in his opinion it was the towns that ought to complain of being inadequately represented
rather than the country, for if there was one interest more than another which
preponderated in that House it was the agricultural and the pastoral interests. They could
not separate those two interests, for they were to a very great extent identical, and it was
impossible to deny that they were largely represented in that Council,—which had been
designated by the electors of a Southern constituency as a “Council of squatters.”…He
would remind hon. members that most of those representatives who lived in Perth, though
town residents, were intimately connected with pastoral and agricultural pursuits, or, if
not directly connected with those pursuits, were largely interested in them, through
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business relations; and it could not for a moment, he thought, be fairly said that, with the
large number of members interested directly and indirectly in country affairs, those affairs
were likely to suffer at the hands of the House as at present constituted.139
Highest Privilege and Bounden Duty
As such, Marmion was prepared to support an increase in representation for the
north only, and solely on the grounds that this region contributed as much as it did
to the colony’s coffers. George Shenton was the next to speak, and he also
expressed the view that if the whole colony was going to get into the act, then ‘the
towns should assert their claim to a larger share of representation, and especially
Perth and Fremantle’—but he would be prepared to support the original motion.140
With a country-town divide shaping up in the House, and the original motion
risking defeat, the magisterial Steere calmly summed up the competing principles
of electoral representation and suggested the most reasonable way to resolve the
issue:
It was very difficult to determine what causes or considerations should be regarded as
entitling a district to increased representation, or to any parliamentary representation at
all. One could not say that population alone gave a district a claim to increased
representation; neither could one say that revenue, or the value of exports or imports,
ought to be their sole guide in determining this question. They must take all these
circumstances, combined with other considerations, into calculation.141
And, all ‘considerations’ considered, he believed both the north and the south
should get additional representation!
McKenzie Grant begged to differ. In fact, Grant was incensed at the way his
motion had been highjacked by the south; and in a robust defence of his original
motion he stressed that the north had been a neglected ‘milch-cow’ for the south
for years while its settlers had been left ‘utterly forlorn’ by the metropolitan
Government—and when, finally, ‘some justice’ was to be done to the region:
it was proposed, in the same breath, to give two more to the South as a sort of makeweight. He would not thank them for that. The result would be, they would have no
stronger voice in that House than they now had: their claims would be outweighed by
other considerations, as they had been in the past.142
A stinging rebuke—but not one which had much effect on the next speaker. Within
minutes of Grant finishing, Harry Venn, the member for Wellington, spoke in
favour of the amendment, but ‘for no other’ reason than that increasing the
members in the Council, ‘further increased the influence of the representatives of
the people in that House’ which, in turn, would help ‘tutor and prepare the public
of the Colony for the advent of those freer institutions which, in common with all
Englishmen, were their heritage’.143 Next up was Thomas Carey from the
neighbouring Vasse District who was only prepared to grant additional
representation to the north, because the south had not made out a strong enough
case for an increase—he particularly ridiculed Williams’ community of interest
claim by pointing out that there was ‘scarcely a country district in the Colony’ that
wouldn’t qualify under that heading.144 Approaching the topic from another angle
was Charles Crowther from Greenough who warned that the Council ran the risk of
descending into ‘chaos’ if they tinkered with the representation system too much
‘by putting a new patch here and a new patch there’—if a more ‘radical change’
150
was required, then they should effect it properly by bringing on responsible
government.145
Possibly it was the allusion to responsible government that galvanised the first
response from an official member. The Colonial Secretary, Lord Gifford,
immediately rose and cautioned the councillors that unless they were determined
‘to go into the question of the reorganisation of the whole electoral system of the
Colony’, they should simply support the original motion which the ‘consensus of
opinion’ seemed to favour.146 And he thought the consensus of opinion was correct,
not just for the reasons already given, but also because, ‘It was impossible for one
single representative to possess a practical knowledge of the wants and
requirements of a territory so great in extent as our Northern territory’.147 Gifford
probably sighed when he was followed by the member for Murray and Williams,
Septimus Burt, who naturally supported the bid for increased representation of the
Williams part of his electorate. Burt also supported the north’s bid, but principally
for the unrelated reason already put forward by Parker—that by increasing the
membership of the Council they would increase its clout and prestige.
The second last speaker in this very protracted debate was the Attorney General, A.
C. Onslow, who supported the north’s bid on account of its ‘enormous tract of
territory’.148 Irrespective of the north’s small population, Onslow agreed with the
Colonial Secretary that:
it would be obviously impossible for the hon. member for the North to patrol the whole
district, to address the electors and to excite in the minds of the setters an interest in
politics. But this means of intercommunication, and of interchange of thought, between
electors and their representatives, would be afforded by the proposed increase of
representation,—at any rate to greater extent than it could possibly take place at
present.149
As for the south’s claims, Onslow snorted that with less than two to three thousand
men, women and children per electorate, ‘not counting the aboriginal population’,
it would be ‘impossible…to find electorates more adequately represented,
numerically speaking’.150
George Randell, nominee member, but a former elected member for Perth, closed
the debate. Randell’s contribution was a curious one: he put in a last plug for
population as the ‘most important factor’ in electoral representation because a
‘legislative assembly was not called together to represent territory, but to represent
the wants and wishes of the people who inhabit that territory’—a much saner
proposition, he thought, than representing the ‘sheep or the stock depasturing in the
district’.151 But he also sought to assure Grant, as Steere had previously, that all the
unelected members of the Council were still virtual delegates of the north’s
interests because they sat in the Council ‘not as the members for any particular
district, but as representing the whole Colony, and he knew of nothing likely to
arise to give them greater interest in one part of the country more than another’.152
Finally, it was time to vote on the issue: Parker’s amendment was voted down on
the voices and Grant’s original motion was passed. Ten days later the Governor
forwarded a Bill entitled An Act to increase the number of Members to serve in the
Legislative Council, accompanied by a Message praising the councillors for their
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‘wise decision’ in limiting the increase to two members.153 The Bill was read a first
time the following day, was briefly considered in committee on a couple of
occasions, and passed on 6 September 1882. Royal assent to 46 Vict., No. 24 was
proclaimed on 24 February 1883, and the elections for the two new members were
held on 26 April for the Gascoyne (won by Maitland Brown, who had recently
resigned from the Council) and on 23 May for North District. And, as predicted,
the Governor took the opportunity of appointing the Director of Public Works to
the Legislative Council.
Apart from gaining three additional members for the Legislative Council, what had
the Amendment Act debates resolved with respect to the principles of electoral
representation? Basically, nothing. As previously, it was broadly accepted that
boundaries should be drawn to give all areas of settlement a voice—even if less
populated areas had to be subsumed within bigger districts with which they didn’t
necessarily share a community of interest. As previously, population was broadly
accepted as a significant factor in representation, but certainly not the overriding
one—an interesting outcome considering Britain, after the Reform Acts of 1832
and 1867, had set about eliminating small (i.e. ‘rotten’ or ‘nomination’) electorates,
and was only three years away from passing the Redistribution of Seats Act 1885
which, as Eric Evans has commented, was, with its ‘politically neutral boundary
commissioners’ and ‘[r]adical redistribution of country seats’, the ‘first systematic
attempt to relate parliamentary representation to population size’.154 (Indeed,
Geoffrey Alderman goes further and claims that ‘after 1885, it was individuals who
were represented in [the British] Parliament, not communities’.155) But in Western
Australia’s sparsely populated territory of one million square miles—with
rudimentary transport and communication systems—even the staunchest advocates
of voting parity could see the necessity of giving vast electorates some leeway.
Still, even if nothing had actually changed and the colony’s boundaries would
continue to be decided on an ad hoc basis by far from ‘politically neutral’ MPs, at
least the competing principles of electoral representation had finally entered public
discourse at an official level. Similar debates would soon become a fixture of
parliamentary sessions.
Parker Again…
During the debates on McKenzie Grant’s motion for increased northern
representation, several snide references were made to Stephen Parker’s ‘favourite
measure’—the introduction of responsible government.156 The members didn’t
have long to wait for it. Only a couple of weeks later, on 30 August 1882, Parker
finally fulfilled his election pledge to his constituents and moved that a—
…Humble Address be presented to His Excellency the Governor, praying that he will be
pleased during the present Session of the Legislative Council to introduce a Bill to amend
the Constitution, by conferring on the Colony a system of Responsible Government.157
Parker had learnt much from his previous failed attempt, and his changed tactics
reflected this. His current motion put the responsibility for introducing the Bill onto
the Government—which had worked in 1874 and so, he hoped, had thereby set a
‘precedent’—while he set himself the task of proving that the Council was in
152
favour of the proposal and that the time was now ‘opportune’.158 The fact that
Parker’s speech commenced with him chiding his fellow councillors for ‘smiling’
and exhorting them to treat the subject with ‘all seriousness’ suggested, however,
that he was going to have his work cut out convincing them.159
Parker’s opening gambit was to claim that everyone—including the Colonial
Office—had ‘admitted from the very first’ that Western Australia’s current
constitutional set-up was a ‘mere stepping-stone’ to eventual self-government.160
That accepted all round, Parker maintained that all that needed to be established
now was whether the colony had finally reached the stage when it should take the
next step and ‘throw off its constitutional trammels’.161 In demonstrating that the
colony was ready, Parker proceeded to revisit, almost one by one, Steere’s 1875
series of resolutions in favour of responsible government—resolutions which, he
relentlessly reminded the House, had been passed by an overwhelming majority.
And with every resolution he brought up, Parker argued—citing figures from
statistical tables on occasion—that the case for constitutional change was
considerably stronger in 1882 than it had been in 1875. After working through
Steere’s arguments in favour of self-government, Parker then added some
additional ones—that the Australian colonies had recently begun to consider a
possible future union, but Western Australia’s inability to join this federation as an
equal and autonomous member, because still answerable to Downing Street, was
holding back the process, and
the fact that the Liberals are in power at home, and there is very little doubt our efforts to
secure the privileges of self-government would be more likely to prove successful, and
that we should be treated with more liberality than if a Conservative Government were in
power.162
Next Parker tackled the arguments used against the immediate introduction of
responsible government. First, he challenged the exorbitant costs and losses
allegedly involved in inaugurating the change, claiming that the colony would
probably only be £5,000 per annum down, but would gain control of Crown lands
(and of the Budget) as ample compensation. He then mocked his opponent’s
‘trump card’—the lack of men of leisure and means etc. to form the Government—
declaring that such an argument was a ‘libel upon the colonists’, and that he
himself would be prepared to lead the new administration.163 Finally, Parker spent
a considerable amount of time assuaging the ‘dread’ of the members that
responsible government would usher in manhood suffrage:
The position of this Colony appears to me to be analogous to that of quiet, steady-going
Tasmania rather than of democratic and restless Victoria, whose goldfields, I suppose,
attracted to its borders some of the greatest ruffians in the world. The franchise in
Tasmania, I find, is a £7 household suffrage. There is no manhood suffrage there,
although it entered upon Responsible Government twenty-six years ago, when Victoria
did.164
All that was required, Parker continued, was for Western Australians to ‘exercise
the same prudence and display the same caution in the management of our political
affairs as Tasmania and New Zealand have done’ and manhood suffrage could be
avoided.165 Those reassuring observations out of the way, Parker then added that
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perhaps the fear of manhood suffrage was overstated; and he quoted the ‘opinion’
of an elderly ‘gentleman’—and one of Swan River’s founding settlers—that:
the reason why this Colony had not made more progress than it has done in the past is in a
great measure due to the little interest which the lower classes take in public affairs, and
that in order to induce them to do so, we ought to reduce the franchise.166
Parker spoke at great length: he was passionate and persuasive and well prepared,
and his motion was warmly seconded by Thomas Carey.
Then James Lee Steere rose to oppose the motion, soberly declaring that the series
of resolutions which he had proposed and championed eight years before, and
which had been quoted so extensively throughout the evening, were no longer
applicable to the colony’s current situation. On the contrary, Steere argued that the
colony was progressing well under the present regime and that this could be
jeopardised if it took on self-government prematurely and ended up with the same
brand of responsible government existing in the eastern colonies. Steere had a
point. Since the advent of responsible government, the eastern colonies had
experienced numerous financial scandals; corruption and political patronage were
rife; and the New South Wales Parliament, as noted earlier, had become infamous
for the riotous, drunken and occasionally violent conduct of its members—unlike
the ‘almost unvarying calm propriety of the Legislative Council of Western
Australia’, as the editor of the West Australian put it.167 Indeed, only a few months
after Steere’s speech, a member of the New South Wales Legislative Assembly
sadly declared that: ‘The very term ‘honourable members’ is a stigma, and a satire,
and a reproach’—an assessment endorsed by modern historian J. B. Hirst who has
commented of the New South Wales Parliament of this time that, ‘Nothing seemed
to disqualify a person in the electorate’s eyes from a seat in the house—neither
near illiteracy, nor a prison record, nor a reputation for drunkenness…the
degradation of parliament [was] complete’.168 Steere did not have to spell out that
the risk of such degradation was even more likely in Western Australia with its
disproportionately large population of ex-convicts. Steere also underlined an
additional risk if the Council pressed ahead with Parker’s motion—that if the
British Government did agree to grant self-government to Western Australia, it
would restrict the privilege to the southern portion of the colony and would hive off
the north and institute a new Crown colony there. (Lord Kimberley had given
Robinson approval to drop the odd ‘hint’ to this effect in the previous year,
accepting the Governor’s suggestion that separation would be a ‘powerful
argument’ against responsible government.169) Steere concluded by urging the
other members to defeat Parker’s motion decisively, ‘in order that there may be no
doubt at all as to the opinions of the majority of hon. members on the subject’.170
No one else spoke. The vote was taken and it was decisive: five in favour and
twelve against—an almost exact reversal of the numbers when the resolutions for
responsible government were passed in 1875.
Robinson duly informed the Secretary of State of the latest development, and
cautiously signed off that:
although I believe that the country generally is still satisfied with the present state of
public affairs it is impossible to say in the rapidly changing circumstances of the Colony
that the demand for Representative institutions will be much longer delayed.171
154
But even Robinson probably expected the delay to be longer than seven months,
which was when Parker again formally raised the issue in the Legislative Council.
Parker made his move on 18 April 1883—midway between Governor Robinson’s
departure from the colony and the new Governor’s arrival—and he once again
changed tactics. This time he didn’t introduce resolutions in favour of responsible
government or seek to introduce a Constitution Bill; instead, he moved:
That an Humble Address be presented to His Excellency the Administrator [Chief Justice,
Sir Henry Wrenfordsley], praying that he will be pleased to ascertain at the earliest
possible opportunity from Her Majesty’s Secretary of State for the Colonies, for the
information of this House, the terms and conditions upon which Responsible Government
will be granted to Western Australia.172
And while Parker did want the colonists to be informed officially and in ‘precise
terms’ which grants they would lose, exactly what pensions and Civil List they
would be expected to provide, and whether a bicameral legislature was mandatory,
the condition that he really wanted to know about was whether the colony, upon
receiving self-government, would be partitioned—because, as he made clear to the
councillors—
He was not prepared to accept…[responsible government] at the loss of a large extent of
territory now forming part of this Colony. He was not prepared to accept it, if it entailed
the separation of the Kimberley District, or the Northern Districts of the Colony,—
districts which had been discovered, opened up, and colonised at the expense of the
Colony, and through the enterprise and energy of its people. Surely, if anybody had a
claim to these districts it was those who had discovered and opened them up for
settlement.173
The response from the other councillors was extraordinary: one by one they praised
and ‘congratulated’ Parker for his ‘wise and prudent’ action in seeking a definitive
statement from the Imperial Government.174 Now, obviously, voting in support of
Parker’s motion would have the useful result of shelving the issue for some time
(taking into account the usual turnaround time from the Colonial Office), but there
also comes across in the debate a sense that even the most committed opponents of
self-government acknowledged that ‘before long the change was inevitable’ and
that it was appropriate for the colony to arm itself with a definitive statement of
conditions from the Imperial Government.175 There was also strong support for
Parker’s non-partition stance, with Septimus Burt providing what would soon
prove to be the movement’s battle cry: ‘When we go in for Responsible
Government, we must have the Colony, the whole Colony, and nothing but the
Colony’.176 The motion was passed unanimously, and the next day the Council was
prorogued by Wrenfordsley who promised to forward the motion immediately to
the latest Secretary of State, the Earl of Derby.
Lord Derby’s reply was received by Western Australia’s new Governor, Frederick
Broome, who had assumed control of the Government on 2 June 1883. (As an
aside, the new Governor—a former pastoralist, poet, journalist and LieutenantGovernor of Mauritius—informed the locals that he preferred to be known as
Napier Broome, while his titled wife, who was a well-known travel writer, was to
be called Lady Barker. Just to add to the confusion and amusement, ‘Lady Barker’
took on the Governor’s surname after he was knighted in the following year.177)
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Unfortunately, Lord Derby’s despatch wasn’t received by Broome until 30 August
1883—six weeks after Broome had opened his first session of the Legislative
Council and received a rather confronting Address in Reply which referred to ‘that
“good time coming,” and which now certainly loomed very near, when the Colony
shall govern itself’.178 Indeed, only five weeks after the Council’s opening,
McKenzie Grant pointedly asked the Colonial Secretary whether the Governor had
received a reply to Parker’s request for terms and conditions. The answer, of
course, was that there was no reply as yet, and the next day Parker moved that ‘in
the opinion of this House the time has arrived when it is highly desirable that the
Colony of Western Australia should adopt a system of “Responsible
Government”’.179
Why did Parker decide against waiting for the very terms and conditions which he
had requested only four months earlier? Certainly no one in the Council gave
credence to his claims that ‘ample time’ had passed for a reply from the Secretary
of State—or that ‘the Home Government had determined not to reply…until they
had before them the fact that this House had actually affirmed that a change in the
constitution was desirable’.180 More plausible reasons given by Parker for his
current motion were that he was encouraged by the uniform expression of opinion
in the Council four months earlier that responsible government was inevitable, and
the fact that the federation question had been gaining prominence ‘of late’ and he
feared that:
So long as we remained a Crown dependency, so long would we remain the despised
Cinderella of the family; and, so long as we remained the Cinderella of the family we
could never expect to be admitted on terms of equality with our more fortunate sisters.181
More to the point, there had also been some significant changes ‘of late’ in the
Council. Within the past four months Maitland Brown had decided to support the
immediate introduction of responsible government and had successfully contested
the new Gascoyne seat on that platform, and his former seat of Geraldton had been
won by another supporter of self-government (Edward Wittenoom)—as had the
additional seat for North District (Alexander McRae). Furthermore, the extra
official member of Council, James Thomas the Director of Public Works, was also
in favour of constitutional change. Were these changes enough to tip the balance?
From comments dropped during the ensuing debate it appears nobody really
believed they would be, but a general election had to be called within eighteen
months and Parker and Brown clearly felt that it was important to force a vote on
the issue so that constituents would know exactly where their future members stood
when the election did take place. Brown, in seconding Parker’s resolution, made
this strategy quite explicit:
Surely the present was an opportune time to bring forward this question. The present
Council would shortly expire: it had only about twelve months more to live; there would
be only one more general session before its term expired. And he thought it was well that
the people of the colony should know, on the eve of the coming elections, how many of
their representative members had made up their minds for the change, and how many of
them had not, and who they were.182
In fact, Brown hoped that ‘such a formidable minority’ would vote in favour of the
motion as would ‘justify the Governor in at once referring the question to the
country, so that it might be settled one way or the other, as soon as possible’.183
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A discussion followed in which the impending general election featured prominently.
While a number of the members could see the merit in councillors putting on the
record where they stood on the issue of responsible government for the benefit of
their constituents, others argued against an election being precipitated while the
colonists were still ‘in the dark’ as to the British Government’s terms and conditions
(or ‘pains and penalties’ as Marmion couched it).184 Steere summed up the majority
(but not ‘formidable’ majority) position well when he referred to Parker’s ‘singular
inconsistency’ in calling for terms and conditions from the Imperial Government and
then acting before they had been received.185 Steere concluded his speech by
proposing an amendment: that the Council ‘deems it inadvisable, pending the receipt
of such information, to express any definite opinion with regard to a change in its
Constitution’.186 Parker’s resolution was then voted on by the elected members and
non-official nominees and lost by eleven votes to eight (surely a ‘formidable
minority’), but Steere’s delaying amendment was then put and carried.
Eight days later Broome finally received Lord Derby’s ‘numbered’ despatch (i.e. a
despatch whose contents could be disclosed and even published) which requested
the Governor to furnish the Colonial Office with more information before it, in
turn, could provide the colonists with the information they requested. In particular,
Derby called for a ‘full and exhaustive’ report which ‘should be accompanied by a
return as far as it can be corrected to the latest date, of the population, land sold and
leased, and receipts and expenditure, in the several districts of the Colony’.187 Even
without this information, however, Derby raised the separation bogey, claiming
that ‘it appears to me, as at present advised, that it would be necessary’ to partition
the colony—particularly with reference to the electoral representation of the vast
and isolated areas of the north:
It is not easy to perceive how the growing requirements of places at a very great distance
from Perth can be adequately provided for by a Responsible Government, with the seat of
administration and legislation in that city: and even if an equally good seat of Government
north of Perth could be selected, it would still remain difficult, if not impracticable, to
secure an adequate representation of the very different interests now growing into
importance in the various parts of so large a colony.
And this wasn’t the only electoral aspect of responsible government troubling the
Colonial Office. In a confidential despatch received by Broome on the same day,
Derby requested a supplementary report of a more controversial nature on ‘the
numbers and character of the expiree class, and their influence upon the general
population of the colony’, as well as Broome’s opinion as to whether ‘the full
status of citizenship could be safely accorded to members of this class’ if the
colony were granted self-government.188
Broome immediately sent the Secretary of State’s numbered despatch to the
Council, and when he prorogued the House a week later he very graciously
informed the members that:
Your Honorable House has, I think wisely, deferred expressing an opinion in favor of the
adoption of Responsible Government. Glad as I should be to see Western Australia take
such a forward step during my Administration, I am inclined to agree with those who
consider there are circumstances which show that the time to take it has hardly yet come.
But this is a subject as to which I feel it my duty to watch, rather than attempt to guide,
public opinion.189
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A fortnight later Broome was able to write to the Secretary of State that:
No action was taken by the Council upon your Lordship’s Despatch, nor have the organs
of Responsible Government in the Press urged further agitation at present. But of course
the subject cannot be regarded as in any way disposed of, and it will probably come
forward again next session.190
Broome also advised Derby that his Government would keep the separate district
accounts as requested, and that he would prepare the requested reports after
completing a fact-finding tour through the colony.
On 9 April 1884 Broome finally sent off his report on the state of the colony’s
finances and his views as to its readiness for responsible government. On the latter
question he informed the Secretary of State that:
Though I see no valid reason for withholding free institutions from this Colony, after its
inhabitants shall have expressed a general and decided wish to take upon themselves the
burden and the responsibility of that form of government, I am strongly of opinion that
until such a wish shall have been expressed, which certainly it has not been as yet, it
would be a mistake to make this great and irretrievable change. Furthermore, while I
concede that the Colony has reached a stage at which a claim to its birthright, if
deliberately insisted upon, should not be refused, I nevertheless think that Western
Australia would do well to delay its majority for a time, until its wealth and population
shall have still further increased…191
And given the ‘extreme paucity of the white population’ in the north—in addition
to the reasons put forward already by the Secretary of State—he recommended that
the north should be hived off from the south at the granting of self-government and
‘erected into a Crown colony, administered on an economical basis, by a
Lieutenant-Governor, subordinate to the Governor at Perth, and assisted by a local
Council of Advice’.
Holding these views, the ‘mode of proceeding’ Broome recommended the
Secretary of State to take was to ‘intimate that Responsible Government would not
be refused if a very decided and general wish for it should find utterance at the
elections which will take place next year’. And on the subject of elections Broome
outlined that the colonists currently returned an impressive crop of ‘the most
leading, most intelligent, and most public-spirited men of the Colony’ and that he
felt confident similar candidates would be returned under responsible government.
He did, however, go on to express doubt as to whether the colony contained
enough men of ‘means and leisure’ to administer an enlarged self-governing
administration, although he conceded that ‘the deficiency is not, however, so
serious as to be absolutely prohibitive’. Broome also referred to the electoral
impact of the expiree class, and noted that while—
The presence of a convict, or ex-convict, element in this population cannot, of course, fail
to be harmful for years to come…it has not, I think, engendered a political defect so
injurious as to greatly alter the conditions under which Responsible Government can be
granted.
Indeed, Broome matter-of-factly pointed out that expirees already voted and ‘the
Council could not be better constituted than at present’ before going as far as to say
that an expiree elector ‘may be, and often is, as good an elector and member of
158
society as a man with a better record’. Which was a very conciliatory stance to take
considering that his report was going to be tabled in the Legislative Council and
commented upon by the ex-convict owned Morning Herald.
In a confidential despatch sent to Derby by the same mail, however, the Governor
was less effusive about the colony’s expirees, declaring that while he was happy
for them to exercise the vote, the existing ban on them taking up a seat in the
Council must be retained as a ‘vital safeguard’:
So long as no expiree can enter the Legislature the convict class can only take a direct part
in politics through the newspapers, where they do some harm. But their exclusion from
the Legislative Council prevents them from acquiring any real power in the State, and
such power should not, for many years to come, be allowed to get into their hands in this
community. Were it so allowed, it would certainly be seized and traded upon by
discreditable and unscrupulous individuals who, unfortunately, are the cleverest and most
active members of the class. I think my view of this matter would be fully shared by the
Legislative Council, and by the portion of the community whose status is not affected.192
This warning was repeated by Broome in his confidential report on the ‘Numbers,
Characters, and Influence, of the Expiree Class in Western Australia’ which, after
‘considerable delay’, he mailed to the Secretary of State on 8 August 1884.193
Considering that Broome’s report revealed that the number of expirees in the
colony was currently 2,600 out of a non-Aboriginal adult male population of only
10,300—and that these expirees already made up more than one-sixth of the 3,967
voters on the colony’s electoral rolls (and almost one-third of the electors in the
Toodyay electorate), his recommendation that they be prevented from voting in one
of themselves is understandable. And it was a recommendation with which Lord
Derby ‘fully’ concurred.194
Lord Derby did not concur, however, with Broome’s recommendation that the
colonists should be granted responsible government if ‘at the general election of
next year, there should be a strong expression of opinion in favour of the
change’.195 Derby pointed out that there were a number of ‘important political and
financial questions’ that would need to be resolved first, and he anticipated
‘considerable difficulty’ in sorting them out. He did make a considerable
concession, though, in agreeing that ‘if’:
the electors should declare themselves very generally and decisively in favour of a change
in the constitution…Her Majesty’s Government would not refuse to examine the details of
the arrangements which it would be necessary to make if Responsible Government should
be introduced…
Broome laid this despatch before the members on 29 August 1884 and astonished
everyone by dissolving the Council and issuing the writs for the ‘general election
of next year’ just over a fortnight later.
Not only was the 1884 general election called prematurely (the Council wasn’t due
to expire though ‘effluxion of time’ until early 1885) but the election dates set out
in the writs spanned 20 October to 12 November, which meant that candidates in
some districts—including Perth and Fremantle—had only five weeks in which to
convince electors to vote ‘very generally and decisively’ in favour of selfgovernment. Immediately conspiracy theories spread that the Governor and others
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opposed to responsible government had, by calling ‘hurry-scurry’ elections, ‘stolen
a march’ on those in favour of self-government, and by this ‘piece of political
trickery’ intended ‘as far as possible, to “gag” any decisive expression of public
opinion upon this one political question of the day’.196 In fact, while Broome did
hope that an early election would help ‘terminate a period of political unrest and
uncertainty’, the principal reason the elections were called early was because
Broome had requested, and been granted, six months’ leave of absence from the
colony to visit England and he wanted the elections out of the way before he left in
November.197 (He actually departed from the colony on the day the last elections
took place in the north.)
Whatever the cause, the election period was short and, as the editor of the West
Australian pointed out, because ‘it was supposed there was ample time to arrange
at leisure for the approaching electoral campaign…no preliminary steps even had
been taken either by the constituencies or by intending candidates’.198 Now the
editor, being viscerally opposed to responsible government, was delighted at this
outcome which, quite shrewdly, he considered would be more of a handicap for
those pushing for change:
What there is not time for is to enable the fiery ‘reforming’ spirits at head quarters to
interfere with the country elections, to bring central influence to bear upon those elections
and to foist candidates of central nomination upon the electors; there is not time to enable
a party, apparently quite devoid of organization, to manufacture machinery for agitation
and to undertake aggressive operations in the provinces; there is not time, in short, to
induce the constituencies to return members other than those whom they would desire to
return if let alone.199
There were a number of casualties of the tight timing. Harry Venn lost his former
seat of Wellington by two votes, according to the Inquirer, principally because ‘he
did not personally canvas the electors’, while James Lee Steere in a letter to the
West Australian on 14 October 1884, cited the lack of time to canvass as one of his
reasons for not re-nominating after seventeen years in the Council.200 (Steere,
however, was appointed to the Council as an unofficial nominee member by
Broome on 11 July 1885.) Similarly, the leader of the responsible government
movement, Stephen Parker, who was one of Perth’s leading barristers, was forced
to apologise on the hustings that, ‘He had no time to undertake a personal canvass
of the district’.201 Instead, the charismatic Parker and his running mate, Dr Edward
Scott, resorted to sending a fairly lacklustre postcard to the electors of Perth urging
them to ‘come to the poll and vote for your humble servants’—and while Parker
was returned as one of Perth’s two members, he did not triumphantly head the poll
as he had in the 1880 election.202 (Parker’s victorious opponent, Sir Luke Leake,
also benefited from the West Australian urging Perth electors to plump—i.e. to
vote only for Leake in this two-member electorate—and explaining in simple terms
how to do so because of the ‘somewhat hazy notions upon the subject’.203
Interestingly, this advice was heeded and almost all of Leake’s votes were plumps
which, as a speaker pointed out at the declaration of the poll, meant that although
Leake topped the poll, ‘he was not the choice of the majority of the
constituency’.204)
Considering how much hinged on the results of this particular election,
campaigning was intense, although in this period of unpaid MPs—and, now,
160
substantial nomination deposits—seven of the thirteen seats were still uncontested,
or ‘walkovers’ as the locals called them. It is misleading, however, to automatically
equate uncontested seats with elector apathy. In numerically small electorates—
which often had very decided opinions one way or another on the issue of selfgovernment—the colonists would grill potential candidates regarding their views,
and requisition those who were deemed ‘suitable’. Accordingly, challenging
candidates who already had the support of most of the local community would be
futile. An excellent report of such candidate vetting appears in the West Australian
on 2 October 1884 with respect to the Newcastle or Toodyay electorate where
George Shenton was endorsed and returned unopposed—but only after he pledged
himself to oppose self-government.
Indeed, there was little apathy in the 1884 election campaign. Letters flooded the
press, town criers called citizens to political meetings throughout the colony, and a
‘monster meeting’ in support of responsible government was held in the ‘premier
constituency’ of Perth where hundreds marched through the city with torches and
banners proclaiming ‘Self Rule’ and ‘Britons’ Birthright’ before assembling at the
Town Hall for a packed public meeting.205 (The Inquirer estimated that 1,600 were
in attendance, including ‘sixty or seventy ladies’, which was an impressive turnout
in such a small community.206) A huge fillip to the pro-responsible government
movement mid-campaign were comments from former Governor, Sir William
Robinson, who in addressing the Adelaide Young Mens’ Christian Association on
29 September spoke scornfully of the ‘intermediate form of Government in West
Australia’ declaring it ‘about the most troublesome to work of any with which I am
acquainted…it is neither the one thing nor the other’.207 But the big guns against
responsible government—the ‘probable loss’ of the revenue-raising north and the
likelihood of universal suffrage being introduced and ‘throwing a deal of power
into the hands of men who have no stake or interest in the colony’—were also
relentlessly played up by candidates on the hustings.208
The separation bogey was largely neutralised by self-government candidates, who,
like Parker, countered that responsible government—which would give the north
‘strong solid’ representation in an enlarged and autonomous local legislature—
would probably appeal more to northern separatists than Crown colony control by
Imperial masters twelve thousand miles away.209 But the threat supposedly posed
by the lower orders and bond class—particularly the likelihood of them being
enfranchised under responsible government—was less easy to allay. Indeed, fear of
the ‘immense majority’ of working men within the colony was stoked by the West
Australian which made much of (false) reports that a railway contractor candidate,
Edward Keane, had invited railway employees—‘three or four hundred roughmen,
excited perhaps with drink’—to York on election day to support him, and that these
‘gangs of excited roughs…these non-voter navvies’ would intimidate the
‘respectable voters’ and perhaps even have ‘the place and the election at their
mercy’.210 Throughout the election period the West also kept up a dour commentary
on the progress of the Third Reform Act in Britain—which sought to extend the
existing borough household and lodger franchise to county (country) workers—
informing its readers that:
They have proposed suddenly to add to the present 3,000,000 voters another 2,000,000
taken wholly from one class of the population, and from that class which is the least
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educated and has the least stake in the country. They have proposed, in short, completely
to swamp, and as far as possible render nugatory, the votes of the educated and propertied
classes, by this enormous addition to the voting power of that other class which they have
found most easily manipulated by their wire-pulling and most easily influenced by their
platform oratory. They have sought to establish, that is to say, an absolute tyranny of the
numerical majority…211
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Finally, after all the meetings, marches and articles, the gazetted polling days
arrived. Surprisingly, hot-bed-of-radicalism Fremantle was uncontested this
election which may explain why election day in Perth—with no need to compete
with the ‘Portonians’—was in a much lower key. While there were the usual bands
and banners in the city, the day was not treated as a de facto public holiday as in all
the previous elections—a decision condemned by the editor of the Inquirer:
We cannot help thinking that the storekeeepers would have acted much more gracefully if
they had closed their stores for the day, and so have allowed their employés to vote when
they liked, instead of obliging them to ask for leave of absence from business as a favour
to enable them to exercise their highest privilege and bounden duty as electors.212
Moreover, the Perth poll also got off to a disastrous start when electors found the
Town Hall doors still bolted at 10 a.m. and Sir Luke Leake had to hammer with his
walking stick to get the caretaker’s attention. A quarter of an hour late, an
embarrassed returning officer got the poll underway, but he had to deal with an
even more eventful finale to polling when electors stampeded into the Town Hall at
8.45 p.m. to hear the results and ‘one aged citizen…very narrowly escaped being
killed by persons trampling on his body’ (as the Inquirer breathlessly reported
it).213 A punch-up on the stage after the results were announced concluded ‘about
the most enthusiastic public meeting that has ever yet been held in Perth’.214
Fortunately, polling day was more decorous in the other contested electorates and
complaints about the elections were few—the principal one being that a country
elector who tried to cast an absent vote at the Fremantle Court House was
prevented from doing so because the resident magistrate was also absent and no
one else was authorised to sign the paperwork. The editor of the Inquirer
recommended that in such cases the ‘presiding Justice’ should be ‘empowered’ to
witness the forms.215
When the final results were in, the 1884 election saw the numbers in the Council
on the issue of responsible government remain, as Broome informed the Secretary
of State, exactly ‘where it was, i.e., about half (certainly not more) of the elected
members might be expected to vote for its adoption, and half against’.216 This, of
course, was not the decisive result needed to bring about constitutional change, and
Broome continued to Lord Derby that the ‘general feeling seems to be, that the
present constitution has a new lease of life, and that Responsible Government has
receded for a while’. Or, as the West Australian crowed, ‘relieved from the incubus
of a useless agitation’ the colony’s MLCs could now ‘devote their energies solely’
to the more mundane administration of the colony.217
Before moving on from the 1884 General Election, one last noteworthy fact should
be mentioned—that in the Newcastle, or Toodyay, electorate the resident
magistrate, and hence returning officer, was Octavius Burt who, in 1891, would be
appointed Under-Secretary of the Office of the Colonial Secretary (the civil service
162
department with responsibility for conducting parliamentary elections) before
eventually being designated ‘Officer in charge of Electoral matters generally’ in
1897 and ‘Chief Electoral Officer’ of the newly created ‘Electoral Department’ in
1901.218 While Burt didn’t actually get to conduct a poll in his time at Toodyay,
because the district’s highly popular member, George Shenton, kept being returned
unopposed (and, possibly, because the district, as one critic waspishly commented
‘shows so little interest in politics that it seems to be under a chronic dose of
chloroform’)—he nonetheless received hands-on experience in voter registration
and the revision court process.219 This practical insight into election management
would clearly be an advantage to Burt in his subsequent management of agencies
overseeing elections and, with few exceptions, Western Australia’s chief electoral
officers for the next hundred or so years, would be recruited from civil servants
who had had similar practical exposure to the electoral process.220
The New Lease of Life (on its Last Legs…)
Governor Broome was back in the colony by June 1885 and called the Legislative
Council together for its customary mid-year session on 22 July. While he had
referred to the colony’s Constitution having a ‘new lease of life’, Broome was
mindful that it was unlikely to be a long one; and in an effort to promote ‘the
satisfactory working of the present constitution, so long as it lasts’, he proposed
increasing the Executive Council by two additional unofficial members—to be
chosen from and by the current members of the Legislative Council.221 This was an
increase which governors since Weld’s time had been authorised to make by their
Royal Instructions; which had been used for the first time in the previous session
when James Lee Steere had been appointed to the Executive Council on 5 August;
and was a measure which Broome believed would lead to ‘an increase of the
influence and participation of the people of the Colony in its government’—by
which he hoped to make the current regime ‘as tolerable and acceptable to the
people as possible’.222 Making the current set-up tolerable and acceptable to the
citizenry, however, was the last thing Parker and his supporters wanted to do: they
just wanted the existing constitutional arrangements killed off entirely.
Furthemore, Steere’s appointment to the Executive Council in the previous year
had not been well received by the colonists. As B. K. de Garis has pointed out,
Steere was a ‘trusted confidant and ally’ of Broome, and his appointment to the
Executive Council had been ‘not so much to democratise that body as to bolster the
Governor’s position vis-à-vis his recalcitrant officials’ within it—a claim
confirmed by Broome’s admission to Lord Derby in a confidential despatch that,
‘The presence of Mr. Steere in the Executive Council during the late Session was a
source of strength and a great advantage to me in many ways’.223 Indeed, Steere’s
decision not to run for the Legislative Council in the 1884 elections, although
blamed on the lack of time to canvass, was also motivated by an expected voter
backlash against him for joining the nominees he himself had once so insistently
denounced (‘my only wonder is that any gentlemen can be induced to accept such a
position’, as he sneered in 1873) and for thereby compromising his independence
as an elected representative.224
Accordingly, public meetings to protest against Broome’s proposal were
immediately called in Perth, Guildford, Bunbury and York. The Perth meeting
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(held the night before the Council was due to discuss the proposal) attracted an
estimated nine hundred colonists and was addressed by Parker who, in a speech
punctuated by loud cheering, lashed the proposal as completely unconstitutional
because: it upset the statutory 2:1 ratio of the Council and ‘the Government would
be strengthened at the cost of the elective element’; because an executive
councillor was sworn to secrecy about Executive Council deliberations and, hence,
if also a legislative councillor ‘he could not be answerable to his constituents for
any advice he gave’; and because such a ‘radical political alteration’ should first be
ratified by the electorate.225 A petition echoing Parker’s sentiments, i.e. opposing
the proposal because it is ‘fraught with danger to the Constitution and may tend to
materially interfere with the liberties, privileges, and independence’ of the Council,
and ‘humbly’ requesting that consideration of the proposal be postponed until it
had received ‘the approval of the Constituencies’, was circulated and adopted at the
meeting.226
The petition from the meeting was tabled in the Council on the following day, and
the ensuing debate on Broome’s ‘very gracious and liberal concession’ (Steere’s
description) was highly acrimonious with Parker swiftly moving an amendment
that the Council ‘regrets that it feels bound to refrain from nominating any of its
members to His Excellency’ because the measure appeared to be ‘wholly
unacceptable’ to the populace, and because, as he relentlessly hammered home in
his follow-up speech, it would be ‘unconstitutional to adopt that change without
giving the people a voice in the matter’.227 And another election on the issue of
constitutional change was, of course, the last thing the Government wanted. After
lengthy debate the vote was called and Parker’s amendment was narrowly defeated
by eight votes to ten (the official members abstained from voting at Broome’s
request) with the result that the original motion in support of the proposal was
passed. Considering the degree of opposition to the measure within the Council and
the community, however, and the fact that agitation for a referendum-style election
on the question would be intense, Broome decided not to press ahead with his
‘popular concession’, and informed the Secretary of State in very gracious terms
that those opposing it: ‘acted within their perfect rights, and I should be very sorry
if it were thought that I in any way censure or regret their attitude in the matter’.228
So Parker did, in fact, have a win. It is also important to record that while Parker
did not want to improve the existing system of government, he was keen to
improve other aspects of Western Australia’s legal and electoral systems. Indeed,
Parker introduced an Election Petitions Amendment Bill on 9 September 1885 in
an attempt to ameliorate the draconian penalties imposed in the colony for electoral
bribery. The motivation for Parker’s Bill was the Supreme Court’s recent voiding
of the 1884 election result in the Wellington electorate (which had seen candidate
David Hay returned after beating former member Harry Venn by two votes) on the
grounds that Hay had driven two electors to the poll—an action which was
specifically proscribed by s. 38 of the Legislative Council Ordinance (and similarly
barred under the constitutions of the sister colonies). While Hay was duly
convicted of bribery and lost his seat, the court accepted his claims that he had
committed the offence in ignorance of the Act. Accordingly, Parker contended that
seven years’ worth of serious civil disabilities, on top of the forfeiture of his seat,
was too onerous a punishment for ‘such a venial offence and when the candidate
acted in mere ignorance’.229 Parker argued that some appeal mechanism should be
164
built into the current statute so that while candidates and agents who were ‘wilfully
guilty of bribery, or even negligently guilty’ would still be punished, the Supreme
Court justices would have scope to waive penalties for those who had ‘erred simply
through ignorance’—a power which was currently unavailable to them.230
There was a degree of sympathy expressed in the Council at this line of
argument—especially since some of the sister colonies only enforced civil
disabilities on those convicted of bribery until the next general election rather than
for seven years. But unfortunately Parker had framed his Bill to be retrospective so
as to exonerate Hay. (Incidentally, both Hay and Venn were pro-responsible
government, so Parker’s intervention was disinterested.) This retrospective aspect
of the Bill was completely unacceptable to the Attorney General and troubled the
rest of the members (even Parker admitted that ‘it was not as a rule a good
principle to make legislation retrospective’) with the result that the second reading
was denied by a thumping eighteen votes to one, and the Bill, as Hansard reported
it, was ‘thrown out’.231
The same year did, however, see a successful move to change the colony’s
Legislative Council Ordinance: a well-supported resolution calling upon the
Government to introduce a Bill to increase the membership of the Legislative
Council, so that the seventy or so Kimberley electors on the North District electoral
roll could return their own member—a move prompted by the recent discovery of a
payable goldfield in the Kimberley, which could, according to the resolution’s
mover, the North District’s Alexander McRae, lead to a ‘tenfold’ increase in the
Kimberley’s population within months.232 Although Steere protested against the
principle that ‘because a district may be entitled hereafter to increased
representation, it was entitled to it now’, he was in the minority and the resolution
was passed.233 A tit-for-tat motion introduced three days later calling on the
Government to grant the southern Eucla area its own electorate because if it was
‘desirable and just’ to give an extra member to the ‘far-away pastoral district of the
North, it was equally desirable and just to give an extra member to the far-away
pastoral district of the South’ was not, however, successful.234 First off, Stephen
Parker pointed out that the scantily populated Eucla did not possess a ‘Resident
Magistrate, a clerk, and a court-house, and all the paraphernalia required by the Act
for the preparation of the electoral roll and for carrying on an election’.235 But even
after the resolution was reworded so that it called for the existing Plantagenet, or
Albany, electorate (which included Eucla) to be granted an additional member, the
motion was defeated—possibly because the debate had quickly descended into a
bidding war with various members pressing increased representation claims for
Victoria Plains, Dandaragan, Yatheroo, Murchison and Northampton—and even
the ‘municipal institutions of the colony’!236
In passing the resolution for increased northern representation at the tail end of the
1885 session the councillors knew that any representation Bill would be a full year
away—but with the present Council only a year into its five-year tenure there
wasn’t any great urgency. Or so they thought in 1885. The 1886 session, which
opened on 21 June, however, saw a significant change in the make-up of the
Council. First, anti-responsible government member, Septimus Burt, had been
appointed Acting Attorney General in March 1886 and, as an official nominee
member of Council, had resigned his seat of Murray and Williams—which was
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won in the 12 May by-election by responsible government advocate, Captain
Theodore Fawcett. Then, in the same month, one of the Council’s staunchest
opponents of responsible government, the Speaker, Sir Luke Leake, died and was
replaced in the 15 June Perth by-election by long-standing self-government
candidate, Dr Edward Scott. Finally, Robert Sholl replaced the retiring Maitland
Brown in the Gascoyne by-election on 20 May, although as Sholl, like Brown, was
in favour of self-government, there wasn’t a gain to the responsible government
movement in this instance.
In the wake of these changes, Steere had been voted in as Speaker, and Parker
became the leader of the elected members—a majority of whom were now
pledged, as Edward Scott highlighted in proposing the presentation of the Address
in Reply, to ‘do their best to put that movement into active motion’.237 Which may
explain why the Acting Colonial Secretary, Matthew Smith, was all affability and
conciliation when he moved the second reading of the Legislative Council Act
Amendment Bill (Increase of Members) on 2 July, assuring the members that the
Government not only supported the Kimberley obtaining a member (when the year
before the Colonial Secretary had argued there was ‘no necessity’ for the increase)
but would also look kindly on any other requests to increase representation in the
colony, thereby helping additional ‘public men’ gain parliamentary experience
before ‘the time came when it might be found expedient to adopt an alteration of
the constitution’.238
With improbably bad timing, however, a ‘split’ occurred in what was by then
interchangeably termed the ‘Liberal’, ‘Responsible Government’ or ‘Reform’
Party.239 On the second day of the session Harry Venn, the member for Wellington,
‘without any consultation or intimation whatever to the other members of the
party’—and when the leader of the group, Stephen Parker, was ill and absent from
the Council—put on notice that he would seek leave to introduce a motion in
favour of the adoption of self-government—a move opposed by most of the
responsible government group because they believed it would be poor tactics to
bring up constitutional change before crucial new land regulations due to be
introduced into the Council were dealt with.240 To complicate matters, Venn’s
motion was scheduled to be introduced after the second reading of the Increase of
Members Bill—and, as Parker later pointed out, if Venn’s motion was successful
‘there will be no occasion for the present bill’.241 Parker accordingly sought to have
the Bill’s second reading delayed ‘until the larger question of Responsible
Government has been disposed of’.242 The other councillors, however, were keen to
lock in the additional member for the Kimberley while it was on offer—especially
since that member could subsequently have ‘a voice in settling the question of
Responsible Government’—and voted against Parker’s motion.243
So the councillors turned to the Increase of Members Bill. The debate took place
on three occasions over a one-week period and is intriguing to read through
because, for undocumented reasons, the councillors went 180 degrees on the
issue.244 On the first day there was a ‘unanimous feeling’ in the Council that the
Colonial Secretary’s offer to enlarge the scope of the Bill should be taken up—with
several key members recommending an increase of up to twelve members.245 (An
increase ridiculed by Septimus Burt because it would give one member to every
150 electors in the colony and would see some districts with only twenty or thirty
166
names on their electoral rolls.) When debate resumed six days later, however,
Marmion outlined that a completely different ‘feeling appeared to have come over
the majority of hon. members’, who now thought it would be ‘unwise’ to seek
more than a single member for the Kimberley (and the matching Government
nominee).246 But, Marmion continued, the councillors would like the new member
to be elected before the next session of Council—which would not be possible
under the registration and revision court dates currently laid out in the Legislative
Council Ordinance. Accordingly, on the following, and final, day of debate a
clause was inserted into the Bill bringing the statutory electoral deadlines forward
by six months for Kimberley’s first electoral roll. Three days later the Bill was
passed and, as the Legislative Council Act Amendment Act 1886 (50 Vict., No 10),
was assented to on 28 July 1886.
On the following day, after languishing on the Notice Paper for almost the entire
session, Harry Venn’s motion in favour of responsible government finally came on
for consideration—to be immediately postponed for another fortnight so that the
councillors could continue to focus on the ‘great question, vitally affecting every
interest in the colony’: the land regulations.247 As a fortnight’s postponement
would see the issue of responsible government raised in the final weeks of the
session, which obviously would not leave enough time for it to be dealt with
properly (especially since Venn was not recycling Weld’s 1874 Constitution Bill,
but intended that a new one be drafted from scratch), Stephen Parker urged that the
question be held over to the following session of Council at which he pledged to
introduce it himself if he had the party’s backing. Venn refused, dramatically
declaring: ‘I am still determined—whether I stand alone or not—that the question
shall come before this House during the present session’.248 (Which was a very
Parker-like stance when you think of it.) While Venn’s timing was unquestionably
poor, his speech on 13 August in support of the adoption of responsible
government was not. Indeed, his plea for the colonists to be given a ‘transcript’ of
the British form of Government which ‘from usage and adoption, has become the
birthright of every British subject’, and under which, he reminded the members, the
sister colonies had advanced so impressively, was eloquent and compelling—as
was his denunciation of the ‘bastard form’ of Government with its ‘shadows of
despotism’ which Western Australia currently had to ‘struggle under’.249
Accompanied by cheers from the Strangers’ Gallery, Venn concluded by urging the
advocates of responsible government to honour the commitments they had made to
the colony’s electors and vote in favour of constitutional change.
Venn, of course, had the Reform Party members over a barrel. Many were formally
pledged to vote in favour of responsible government and did so—even though most
regarded Venn as operating ‘outside the party’ and would clearly have preferred
Parker to lead the process of change (which, if successful, included the likelihood
of his becoming the colony’s first Premier).250 Ironically, however, another
supporter of responsible government, Edward Wittenoom the member for
Geraldton, was pledged to his constituents to support any measure which would
further the likelihood of separation from the south, and as Venn had claimed that
responsible government would help prevent separation, Wittenoom felt obliged to
vote against it.251 (Quite probably similar reasons prompted the North District’s
McKenzie Grant, also regarded as a strong supporter of self-government, to vote
against the motion, although he did not speak in the debate and disclose his reasons
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for doing so.252) The rest of the elected members, however, were simply opposed to
the motion on principle—particularly at the fag end of a parliamentary session
when, as Charles Crowther put it, they were ‘getting anxious to return to their
homes, sick and tired of the session with all its harassing work’.253 Accordingly,
Venn’s motion was voted down by eleven votes to eight (with nominees voting and
officials abstaining). As a concession to the electors of the colony, however, the
members immediately passed an amendment, which had been proposed earlier in
the evening—to postpone the ‘consideration of this question’ until the ‘next’
session of Council.254
Given a majority of the elected members were now in favour of responsible
government; that the Council had given its imprimatur for the ‘question’ to be
raised again; and that there was a need to rein in loose cannons like Venn, it is not
surprising that a new ‘Reform Association’ (‘resuscitated’ from the old ‘Reform
League’ as McKenzie has described it) was formed in December to agitate for the
immediate introduction of self-government.255 Stephen Parker was unanimously
elected as president, and its committee included, among other leading, but
predictable, Westralian reformists, John Winthrop Hackett who, as business
manager and soon-to-be editor of the (hitherto) stridently anti-responsible
government West Australian, was clearly a useful recruit.256 Within a fortnight of
its founding, the rebadged Association had signed up 400 members and it soon set
about establishing branches across the colony, holding public meetings in support
of responsible government, conducting enrolment registration drives (more than
500 new electors were added to the Perth roll in the following year), and getting
pro-responsible government articles and letters into the local press with the aim, as
Parker put it, of ‘educating the people up to their responsibilities and duties’.257 Not
surprisingly, the West Australian reported in a very positive editorial that the new
reform grouping ‘revealed a more statesmanlike understanding of the duties
incumbent upon those who seek to bring about constitutional change than any of
their number has hitherto displayed’.258 Undoubtedly the colonists mused whether
the new group would also see more success ‘than any of their number had hitherto’
achieved.
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7
Constitution Making
It is a great pity that, give as much as you will, you
can’t please the colonists with anything short of
absolute independence...
Sir Frederick Rogers
Jubilee
The much-anticipated 1887 session of the Legislative Council opened on 16 June,
only days before the fiftieth anniversary of Queen Victoria’s accession to the
throne was due to be marked by Empire-wide festivities. Considering that Western
Australia’s foundation was almost coterminous with Victoria’s accession, the
‘Golden Jubilee’ was celebrated with particular gusto in Western Australia—with
the wholehearted support of the members of the Legislative Council who voted
£5,000 to commemorate the event, unanimously approved an effusive
‘congratulatory telegram’ to Her Majesty on behalf of the colonists, and almost fell
over one another in topping Stephen Parker’s protestation of ‘loyalty and devotion
to her throne and person’.1 So it seems somewhat perverse that it was in this year
that the Council finally—and with a substantial majority—voted in favour of
severing the ties with ‘our gracious and beloved Sovereign’ and adopting
responsible government.2 But, as Governor Broome observed to the latest Secretary
of State, Sir Henry Holland, soon after the vote, such a result was a ‘foregone
conclusion’ given the pro-responsible government additions to the House since the
previous year’s session (which, he failed to mention, also included his own recently
appointed pro-responsible government nominee, Daniel Congdon).3
Indeed, the colony’s electors—boosted over the past few years by an influx of
immigrants from the sister colonies who were accustomed to self-government—
had made it unmistakably clear over the past twelve months that they wanted
responsible government.4 This desire was also undoubtedly fortified by the ‘public
scandal’ of a protracted and very public feud between the volatile Governor
Broome and several of the colony’s leading officials (the Attorney General, Alfred
Hensman; the Surveyor General, John Forrest; and the Chief Justice, Alexander
Onslow)—a scandal which, as Stephen Parker remarked, would have been quickly
resolved under responsible government because a ‘minister who could not agree
with his fellows would simply have to retire’.5 Accordingly, the colony’s
disgruntled electors hastened on responsible government! First, by-elections held in
Geraldton and Greenough, saw Edward Keane and Alfred Hensman (the recently
resigned Attorney General), both ardent champions of self-government, replace
members who had voted against Venn’s 1886 responsible government motion,
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while the inaugural Kimberley election held on 1 February 1887 returned Reform
Association member Alexander Forrest. Equally significant, over this period
constituents in some electorates also held meetings and ‘released’ their local
members from previous election pledges to oppose self-government.6
In addition, the Responsible Government Party should have had the vote of
Alexander Richardson who was elected in the North District by-election only two
days before Council opened. Richardson, however, was unable to take his seat until
the election writ, with his name ‘endorsed’ on it by the district’s returning officer
as prescribed by s. 29 of the Legislative Council Ordinance, was returned to the
Governor—and this was expected to take at least two months because of the
infrequent steam ship service from the remote north. While it was permissible to
telegraph loyal addresses to the British Monarch, as well as documents for use in
the colony’s courts, Western Australian law did not allow election writs to be sent
or returned telegraphically. Stephen Parker immediately inquired in the Council
whether the Government would introduce ‘any measure’ to ‘remove the present
difficulty’ so that Richardson, and similarly placed members elected in the future,
would not be barred from the House while election writs made their way back to
the metropolis.7
The (recently knighted) Colonial Secretary, Sir Malcolm Fraser, was guardedly
non-committal, merely acknowledging that while the ‘matter was…worthy of
consideration’, no other Australian colony that he was aware of had made
provision for telegraphing election writs (of course, none was so geographically
vast and burdened with such rudimentary transport systems that it was an issue)
and that he was ‘not at present prepared to express an opinion’ as to whether a fasttracked Bill should be introduced.8 Six days later, however, the other member for
North District, Alexander McRae, forced the Colonial Secretary’s hand by
successfully moving that the Government introduce a Bill to extend the provisions
of the Telegraphic Messages Act 1874 (38 Vict., No. 6) so that election writs could
be legally transmitted by telegraph. Although the Attorney General outlined that
any proposed Bill, if passed, would first have to be sent back to England for the
royal assent, and therefore couldn’t help Richardson, the Telegraphic Messages
Act, 1874, Amendment Bill was introduced a month later and passed without
debate within a fortnight. (Royal assent to the Act—An Act further to amend and
extend “The Telegraphic Messages Act, 1874” (51 Vict., No. 26)—was proclaimed
on 29 February 1888, and thereafter the ‘advantages of the Electric Telegraph’
were extended to election writs and returns to writs.9)
Even without Alexander Richardson’s vote, and even if all of Governor Broome’s
nominees voted against self-government, the elected members still had the
numbers to carry a motion in favour of responsible government. Broome realised
this and made quite a point in his Opening Address to the Council of having
received ‘further correspondence’ from the Secretary of State
to the effect that it would not be practicable to surrender to a Parliament representing a
small population, principally resident in the Southern Districts, the control of all the vast
territory now included in Western Australia.10
—A scenario which Broome had recently warned the colonists at an Agricultural
Society Dinner would ‘be the ruin of Western Australia at present’.11 The
170
Governor’s highlighting of the Secretary of State’s ‘threat’—which Broome then
followed up with a threat of his own: not to support a new Loan Bill for public
works while major constitutional change was on the agenda—was almost
uniformly condemned by the members in their Address in Reply speeches.12 And
the threat(s) clearly didn’t deter Stephen Parker who promptly handed in a petition
from the electors of Perth calling for the ‘immediate introduction of Responsible
Government’, before putting on notice that he would be moving a motion to that
effect.13
Which on 6 July Parker did for the first time as leader of and ‘on behalf of, a united
party, who were determined…to stand unitedly until they saw the privilege of selfgovernment bestowed upon the colony’.14 The party’s resolution was two-pronged,
with the second part designed to combat any Imperial threat to hive off the north:
That in the opinion of this Council the time has arrived when the Executive should be
made responsible to the Legislature of the colony. 2. And that it is further the opinion of
the Council that Western Australia should remain one and undivided under the new
Constitution.15
While the ensuing debate was lengthy (the Council didn’t adjourn until two in the
morning) and every member, with the exception of the official members, spoke and
registered an opinion, it was very much a going through the motions debate
because, as nominee member William Loton observed, discussion was ‘futile
altogether’ considering the colony’s electors had returned a ‘large majority’ of
members ‘pledged’ to vote in favour of the motion.16 Furthermore, a crowded
public meeting strategically held in the Perth Town Hall only two days earlier,
which had seen resolutions in favour of the immediate introduction of responsible
government carried unanimously, had underlined that the ‘mass of the people’, and
not just electors, supported constitutional change, too.17
As a consequence, even members previously opposed to self-government now
accepted, as did Sir Thomas Cockburn-Campbell, that the ‘wisest course’ was to
‘join hands with the moderate men on the other side, and endeavor to secure the
best, safest, and most safe-guarded Constitution which, based upon the experience
of the other colonies, we would devise’.18 Which was really the only course the
conservatives could take at this stage given the presence in the House—and
popularity within the community—of avowed democrat Alfred Hensman who had
refused an invitation to join (and be contained by) the Reform Association and who
was promoting a far more radical constitutional package than Parker. (Possibly
anticipating such allegiances, at the Town Hall meeting Hensman had derided the
‘considerable number of rather late conversions’ to the responsible government
cause as the ‘very worst examples of death bed repentance he had ever heard of’.19)
Indeed, such discussion as there was in the Chamber that night tended to focus on
the north-south separation ‘bugbear’, with most members endorsing Parker’s view
that:
They had the right to take upon themselves self-government for the whole of Western
Australia. The Imperial Government had no right to divide the colony unless they passed
an Imperial statute enabling them to do so; and if North and South were bound together
and ready to adopt Responsible Government, it was scarcely likely that the Imperial
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Government would go the length of introducing a bill into the Imperial Parliament to
divide the colony against the will of the inhabitants.20
Highest Privilege and Bounden Duty
When the time came to vote on the resolutions, which Parker had assumed would
be voted on as a whole, George Randell successfully moved that both parts of the
motion should be voted on separately. (Which was a rather odd proposal because if
the first resolution was accepted, nobody was going to vote against the second; and
if the first was knocked back, there wouldn’t be any reason to vote for the
second—but it was very late by this stage!) Accordingly, the first part of the
motion was put and, as predicted, passed by a handsome thirteen to four majority
(with William Marmion, George Shenton, Charles Harper and the officials
abstaining), while the second motion was passed on the voices. Finally, after
seventeen years of stepping-stone government, the Council had voted to move on.
Governor Broome informed the Secretary of State of the vote by the outgoing mail
in a despatch which conveyed his own ‘fullest support to both of the
Resolutions’.21 With reference to the first resolution, Broome stated quite simply
that:
my conviction [is] that Responsible Government ought now to be granted to Western
Australia, for the reason that the Colony has progressed to the stage at which such
institutions may be adopted, and has passed the stage at which the Government can be
satisfactorily carried on under the existing constitution…
Broome then explained his turnaround on the issue of separation (having
recommended in 1884 that the north be set up as an autonomous Crown colony if
the south were granted self-government) outlining that since the opening of the
Kimberley goldfields the population of the region had increased by an influx of
eastern colonists ‘accustomed to be masters of the political situation; and I believe
these people would strongly object to be included in a Crown Colony’. Broome
did, however, advise that as the north would probably one day demand separation
as a fully self-governing colony or ‘Colonies’ in its own right—a fate anticipated
and accepted by almost everyone, including Parker—a separation clause should be
embedded in the new Constitution Act (as it had been in the Imperial Enabling Act
to which the New South Wales Constitution had been scheduled) to become
operative when Her Majesty ‘may deem fit’.
Broome then briefly counselled Sir Henry as to the sort of Constitution he thought
would work in Western Australia—or, perhaps more to the point, would be
acceptable to the colony’s electors to whom, in draft form, it would be submitted at
the next general election. First, he strongly recommended a bicameral legislature—
‘It would not, I imagine, be seriously proposed to have a single chamber, and I
need not discuss this point’—comprising a Legislative Assembly of not less than
thirty members and a Legislative Council of not less than fifteen. Broome then
recommended that this Legislative Council should be elected rather than
nominated. To differentiate this House from the Legislative Assembly, however,
Broome urged a ‘sufficient’, i.e. a high franchise, as opposed to a ‘reasonably
substantial’ one for the Lower House (which would appease the more conservative
elements within the community who wanted a bulwark of property) and that the
colony should be divided into five or six electorates each returning three members
apiece. ‘This distribution of representation…by areas, rather than by numbers’,
172
argued Broome, ‘would help to give fair play to the interests of the northern and
the out-lying districts, which might otherwise be overridden by the towns and more
peopled centres’. Broome, did however concede that it might make sense for the
Upper House to be nominated by the Governor for a ‘short term’ to begin with, as
the ‘population in some of the proposed districts would be at present so small that a
double electoral distribution and machinery, for the two Houses, would be perhaps
premature’. With the frequent deadlocks occurring between elected Chambers in
the eastern colonies clearly in mind, Broome also recommended that the
Legislative Council should be permitted to reject money bills which had other
measures tacked to them, but that the Legislative Assembly could—with a twothirds majority and after an eight-month interval—pass any such measure
previously rejected by the Council. (A proposal which colonial constitutional
authority A. Berriedale Keith later hailed as ‘dictated by common sense’ and ‘a
drastic anticipation of the Imperial Parliament Act, 1911’.22) Finally, Broome
recommended that ‘some special arrangement…to ensure the protection and good
treatment of the northern Native population’ should be made (imperative in the
wake of Reverend J. B. Gribble’s 1885–1886 exposé of the widespread illtreatment, and sexual exploitation, of Aborigines in the Gascoyne) and suggested
that the recently established Aborigines Protection Board be ‘vested, independently
of the Ministry, in the Governor’ and be funded to the tune of £5,000 per annum to
further indigenous interests.23
Broome signed off by urging the Secretary of State to respond promptly because
the colony’s finances were up in the air until it was confirmed whether Western
Australia would remain undivided and therefore able to raise a Loan Bill on the
strength of the whole colony’s resources; and he also requested ‘telegraphic
permission’ to introduce a Constitution Bill into the Council ‘as soon as possible’,
as it was his intention that any Constitution Bill would go through the Council
twice. The first time through, he explained, the Bill would receive a ‘preliminary,
but careful and thorough consideration’ and upon reaching the third reading stage it
would be submitted to the colony’s electors ‘with whose then chosen
representatives would rest the final adoption of the measure’.
A week later Broome sent ‘Message (No. 16)’ to the Council outlining that until a
reply was received from the Secretary of State, discussion of a Loan Bill and the
1888 Estimates would have to be deferred.24 Accordingly, the Council would soon
be prorogued, but it would be reconvened for a second session towards the end of
the year when Broome hoped that the colony’s finances and the consideration of
the Constitution Bill could both take place. A copy of this Message was forwarded
by Broome to the Secretary of State with another blunt reminder that it was
‘absolutely necessary’ for the colony’s finances that the Council receive the British
Government’s decision regarding separation by the time the Council reconvened in
December.25 Almost equally necessary was the Secretary of State’s ‘authority’ to
introduce the Constitution Bill, which Broome and the Attorney General were
currently drafting. If this authority was not received it time, Broome sketched out
the likely result:
the elected side of the Legislative Council will almost certainly table a complete set of
resolutions, the consideration of which would be equivalent to the consideration of a Bill,
and would prejudge, and possibly prejudice seriously in some important details, the actual
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measure to be afterwards introduced by the Government with the concurrence and by the
authority of the Secretary of State.
Highest Privilege and Bounden Duty
The Council was duly prorogued on 20 August, and a fortnight later Broome
received a promising telegram from the Secretary of State: ‘prepared to accept both
resolutions in principle with reservation details. Special provisions government of
Northern District, protection of natives; wait for despatch’.26 Not so promising,
however, was the Secretary of State’s next telegram which arrived a few weeks
later with the curt advice that the introduction of a Constitution Bill in the
upcoming session was ‘premature’ and that ‘Her Majesty’s Government trust
Legislative Council, before passing resolutions as to details, will await views of
Her Majesty’s Government, which will be sent out as soon as possible’.27
The promised despatch had not arrived, however, by the time the Legislative
Council reconvened on 15 December 1887. Furthermore, while Broome had made
public the Secretary of State’s first telegram, he had kept quiet about the follow-up
one and a more recent despatch advising that the British Government could not
‘give at present even a qualified approval’ to a new loan for public works while the
constitutional question was in limbo.28 Accordingly, the councillors met at ‘this
Special Session’ expecting to discuss a Constitution Bill, only to be informed that
one would not be introduced after all and that the Secretary of State had effectively
embargoed further consideration of the question—and, to top it off, that for as long
as the constitutional issue remained ‘hung up’ they were barred from raising a loan
to inject into the economy—an economy which, in his Opening Address, Broome
had claimed was starting to slow down.29 The councillors, with few exceptions,
‘almost boiled over with indignation’ and made no attempt to hide their displeasure
at what seemed to be yet another example of Colonial Office high-handedness.30
Within a week the members passed possibly the most defiant resolution ever
proposed in the House: that a telegram be sent to the Secretary of State informing
him that the Legislative Council ‘regrets’ that the ‘views’ of the Imperial
Government regarding self-government for the colony had not yet been received
and that ‘before providing for the financial requirements of the year 1888, requests
to be informed of the date on which those views may definitely be expected’.31
This not so veiled power of the purse threat taken care of, the councillors
immediately resumed a torrid Address in Reply debate which was heavily laced
with criticism of the British Government, the Secretary of State and the Governor,
and which saw the adoption of an Address which also ‘placed on the records of the
House’ the councillors’ ‘surprise’ and ‘disappointment’ that Her Majesty’s
Government thought a Constitution Bill was ‘premature’, because ‘in our opinion it
is of the utmost importance to the Colony that the change should be no longer
delayed’.32 While this wording may seem fairly tepid after the resolution, the
decision to politicise the Address in Reply—which was traditionally a bland
paragraph-by-paragraph reflex of the Governor’s Address—was regarded as
‘unprecedented’.33 Broome cabled the resolution to the Secretary of State on the
following day and added a postscript of his own: ‘Reply by telegraph’; Sir Henry
did so a few days later, on 26 December, but gave away nothing, merely informing
Broome that ‘full particulars’ were in a despatch he had sent a fortnight earlier.34
The shipping time for despatches at this time was five to six weeks. Perhaps
knowing that when Sir Henry’s despatch did arrive, there would be a massive
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amount of work to plough through, the councillors voted a week later to adjourn
for two months—but not before they had once again shown defiance by refusing to
vote full supplies for 1888. Broome was right: the current system was no longer
working.
By the time the Council reconvened on 12 March 1888, two despatches from the
Secretary of State had been published in the Government Gazette. The first, dated
12 December 1887, outlined that the British Government did not feel that it was
their ‘duty to object’ to self-government for the colony, but that they had serious
objections to handing over one million square miles to 40,000 settlers
‘congregated’ in the south.35 Sir Henry referred to ‘Representations’ having been
received by Her Majesty’s Government on this point—and this, in fact, was the
stumbling block and cause of the delay. When the sister colonies had agitated for
responsible government decades earlier it was in the wake of the Canadian
rebellions when proponents of colonial self-government such as Lord Durham and
Sir William Molesworth had the sympathetic ear of successive Liberal
administrations—as well as the backing of influential anti-imperialists who urged
the dismantling of the Empire as a cost-cutting exercise. Accordingly, the eastern
colonies were not only empowered to take on self-government in the 1850s after
the passing of the Australian Colonies Government Act, but almost had it forced
upon them with Secretary of State Sir John Pakington, in an 1852 despatch to New
South Wales Governor Sir Charles FitzRoy, writing that it had become ‘more
urgently necessary than heretofore to place full powers of self-government in the
hands of a people thus advanced’, before concluding that it was his ‘sincere wish
that this great change may be speedily and satisfactorily effected’.36 (Similar letters
were soon forwarded to the other colonial governors by the succeeding Secretary of
State, the Duke of Newcastle.) Indeed, the attitude of Her Majesty’s Government to
the colonies in the mid-century is nicely captured, even if sent up, in Thomas
Carlyle’s essay ‘The New Downing Street’ (1850):
Constitutions for the Colonies are now on the anvil; the discontented Colonies are all to
be cured of their miseries by Constitutions. Whether that will cure their miseries, or only
operate as a Godfrey’s-cordial to stop their whimpering, and in the end worsen all their
miseries, may be a sad doubt to us. One thing strikes a remote spectator in these Colonial
questions: the singular placidity with which the British Statesman at this time, backed by
M’Croudy [economists] and the British moneyed classes, is prepared to surrender
whatsoever interest Britain, as foundress of those establishments, might pretend to have in
the decision. “If you want to go from us, go; we by no means want you to stay: you cost
us money yearly, which is scarce; desperate quantities of trouble too: why not go, if you
wish it?”37
While the degree of anti-colonial sentiment of the 1850s and 1860s is now widely
refuted by historians, there was, nonetheless, a perception at the time, as the editor
of the Inquirer put it in 1865, that ‘the feeling of the Mother Country with regard to
its colonies, has very much changed of late years: there is no longer the same desire
to retain them—our own, perhaps, especially’.38
To whatever extent it had ever existed, the mother country’s cavalier attitude
towards the Empire started to change in the 1870s when other newly industrialised
nations, seeking resources and market share, attempted to secure their own colonies
(culminating in the ‘Scramble for Africa’ in the 1880s). Great Britain, her
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supremacy under threat, rapidly developed a heightened appreciation of the value
of ‘Greater Britain’—which expanded by a massive 4,750,000 square miles
between 1874 and 1902.39 And the value of Empire was unremittingly reinforced
by the press; by leading social commentators such as the art critic, John Ruskin,
who declared at the 1870 Slade Art Lecture that Britain ‘must found colonies as
fast and as far as she is able, formed of her most energetic and worthiest men’; by
eminent and best-selling historians including Sir John Seeley (The Expansion of
England, 1883) and J. A. Froude (Oceana, 1886); by influential lobby groups such
as the Imperial Federation League; and by the forty-nine different immigration
agencies in existence in the late 1880s.40 Furthermore, as François Bédarida has
observed with more than a little Gallic hyperbole, Britain experienced a major
economic downturn between 1885 and 1887 which led to significant
unemployment and public agitation: ‘Bursting out of the poor quarters of London,
howling mobs in rags, such as had not been seen since 1848, spread general alarm
and added fuel to socialist propaganda’.41 The same howling mobs also underlined
to the British ruling class the benefit of having somewhere else to ship them. As a
result, when Western Australia no longer sought to be retained by the mother
country, numerous ‘Representations’ flooded the British press, and were made in
the Imperial Parliament, to the effect that this one-million-square-mile patrimony
of the mother country—which could support millions of Britain’s surplus
population—must not be given away to a comparatively minuscule group of
settlers.
In his first despatch, the Secretary of State put forward a ‘scheme’ for reconciling
the interests of both sides and ‘possibly providing a solution of the difficulty’.42
Basically, Sir Henry proposed that a newly self-governing Western Australia
would remain ‘one and undivided’, in the sense that it would not be officially split
and a northern Crown colony established, but that the British Government would
keep control of legislation relating to Crown waste land above the 26th parallel and
that all revenue from the sale of such land would be preserved in a separate fund
for any northern colony(ies) that might subsequently be established—which, of
course, was de facto separation. (And at a lower latitude than had been anticipated
by the colonists: demarcation at the 26th parallel put considerably more land in the
northern division than the southern.)
The Secretary of State’s second despatch, dated 3 January 1888, contained some
equally unpalatable proposals regarding the sort of Constitution the Imperial
Parliament was prepared to sanction for Western Australia. First up, Sir Henry
argued that given Western Australia’s scanty population, she should make do with
a ‘single elective chamber’ until the ‘white population’ had reached ‘(say) 80,000
inhabitants’, so that the ‘best men’—he obviously didn’t think there would be a
surplus—could be ‘concentrated’ in one House.43 (Queensland, by contrast, had
been permitted a bicameral legislature with approximately 25,000 white
inhabitants.44) Moreover, once this second Chamber had been called into being by
an Order in Council, Sir Henry strongly recommended that it be nominated ‘at any
rate at first’, and that it not be fettered by Broome’s proposed deadlock mechanism:
involving as it does a departure from the fundamental principle of parliamentary
government, where two houses exist, viz., that they shall have co-ordinate powers and
equal authority in the passing of laws. The occasional but temporary inconvenience of a
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deadlock between the two houses, great as it is at the time, may work its own cure, by
inducing a spirit of moderation and mutual concession on the next occasion of a dispute…
Sir Henry did agree, however, with Broome’s proposal to safeguard Aboriginal
interests by leaving them with the Aborigines Protection Board rather than the new
legislature (a humane decision given the volume of correspondence the Colonial
Office was receiving around this time relating to the appalling exploitation of
Aborigines in the northern pearling and pastoral industries).45 Sir Henry requested
Broome to submit his proposals to the Legislative Council and return ‘any
resolutions’ that ‘may’ be made upon them—‘as this Despatch will require an
answer before the Constitution Act can be introduced’.
As can be imagined, the Legislative Council Notice Paper was soon awash with
resolutions. The first set brought forward, on 21 March, were Alfred Hensman’s
thirteen ‘Provisions to be introduced into the Constitution Bill’.46 As this was a
back door way of discussing a Constitution in direct contravention of the Secretary
of State’s direction that his proposals were to be answered first, Hensman
countered that he was he was tired of the time-wasting to-ing and fro-ing with
Downing Street and that it was imperative to have a detailed debate on the
proposed Constitution so that the colony’s electors would have something concrete
in front of them at the upcoming general election. Furthermore, as his were a very
radical set of proposals (unicameral legislature, household and lodger suffrage,
triennial parliaments, abolition of property qualifications for members and payment
of expenses to MPs) that were not likely to be endorsed by the House, but might
prove popular with electors—and would-be electors—he was keen to get them out
into the public domain. Oddly, however, Hensman did not actually speak to any of
the provisions in his lengthy introduction, and readily agreed that the debate on
them be postponed until after Stephen Parker’s resolutions were discussed—
perhaps because he astutely (and correctly) surmised that Parker’s resolutions,
although diplomatically framed as ‘Resolutions traversing [the] Secretary of State’s
Despatches’, would immediately set off a debate on the ‘Provisions to be
introduced into the Constitutional Bill’ anyway.47 He could always pursue his
‘ultra-radical’ agenda then.48
Parker’s seven resolutions came up for discussion two days later. The first three
resolutions tackled the principal issue of separation head on and affirmed that
indicating a ‘possible future boundary’ was ‘premature’ and the proposed line
‘most undesirable’; that it was ‘unnecessary’ for the British Government to reserve
legislative control of northern waste lands because it already had a ‘right of veto
upon all such legislation’; and that the separate land sales revenue fund was ‘a
needless complication’ as very little northern land was sold (almost all was
leased).49 The fourth resolution insisted that the Constitution should provide for a
bicameral legislature from the start; the fifth called for the second Chamber to be
‘elected by the people’; and the sixth urged that the two Chambers should have ‘coordinate powers and equal authority…in the passing of laws’ and that it would be
‘highly desirable that definite provision should be made for peaceable and final
settlement of disputes’. The final resolution repudiated the suggestion that
Aboriginal interests should be overseen by a ‘body independent of the local
Ministry’.
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While Parker’s resolutions were debated by a committee of the whole House over
four long sittings, there was a remarkable degree of consensus on most points. The
first three ‘separation’ resolutions were galloped through because all the members
agreed that keeping the north and its resources and revenue bound up with that of
the south currently made sound economic sense for both regions, and that
quarantining northern finances would actually injure the north because it would
deter the metropolitan Government from undertaking costly public works in the
area. Similarly, the final resolution was disposed of quickly because the members
unanimously agreed that it was an outrageous ‘insult’ and slur on the colony to
suggest that the Western Australian legislature was ‘not fit to be trusted to look
after the interests of the natives’.50
The fourth resolution in favour of a bicameral legislature, although passed without
opposition in the end, was debated extensively because three members, led by
Hensman, argued that it was undemocratic, if not despotic, to set a smaller and less
representative body above the people’s elected representatives in the Lower House—
and that if a more conservative set of members as a brake was insisted upon, then
they should still sit in the same Chamber as the people’s representatives, as had been
the case in Western Australia since 1870. Those in favour of an Upper Chamber
pointed out that the people’s representatives often got it wrong, and that a reviewing
Upper House provided the ‘opportunity of reflection by checking hasty legislation on
the part of the representatives of the people’.51 In supporting this line, Sir Thomas
Cockburn-Campbell showed that he was well up with electoral practice elsewhere in
the world by citing the example of Switzerland which, although it had a unicameral
legislature, provided a review mechanism in the form of citizen-initiated plebiscites
where ‘almost every year measures passed by the representatives of the
people…were sent to the Referendum, and generally reversed’.52 But the members
were in no mood for electoral exotica such as this. Indeed, most quite indignantly
rejected the idea that Western Australia should be the only colony in Australia not to
have a bicameral legislature ‘on the lines of the English constitution’—particularly
when it was crucial to ‘dovetail in, as much as possible, with the rest of the
Australian colonies, in view of federation’.53 Parker rather testily summed up the
members’ views: ‘they always had in their minds the adoption of a Constitution
similar to those prevailing in the neighboring Australian colonies…They did not
wish to go in for an experiment that might turn out badly’.54 (And the desire of
Western Australians to mesh in with the sister colonies in the decade or so preceding
federation should not be underestimated. In the following year, for example, the
Legislative Council passed the Chinese Immigration Restriction Act 1889 after a
‘Meeting of Representatives of Australasian Governments…resolved that it was
desirable that uniform Australasian Legislation should be adopted for the Restriction
of Chinese Immigration’.55) A final strong argument raised in support of an Upper
House was that it was essential to protect the rights and interests of minorities:
‘which they would not have if there was only one Chamber representing the
numerical majority’.56 And, of course, the ‘minority’ that the members most wanted
to protect was themselves, as Alexander Forrest bluntly acknowledged:
He thought it was very necessary that those who had property in the colony, and who had
invested all they possessed in it, were entitled to a fair share of representation in
Parliament, and that it would be only equitable…that this class should have a voice in the
legislation of the country, which they could only have through our having an Upper
House…57
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Such protection, Forrest warned the members, would be even more essential once
the Lower House was elected by manhood suffrage—which, he glumly and
accurately prophesised, would come ‘sooner or later’.58
The Secretary of State’s ‘single chamber experiment’ killed off, the members then
turned to the question of whether the second House should be nominated or
‘elected by the people’.59 In urging that it be elected, Parker claimed that they
needed ‘a strong House capable of dealing effectively, if the occasion arose, with
the Lower House’—and only one which had the ‘status’ of being elected and
having a ‘hold upon popular feeling’ would have the required ‘backbone’.60 Not
surprisingly, nominee member George Randell disagreed, arguing that there was
evidence from the other Australian colonies (of which New South Wales and
Queensland had nominated Upper Houses) that nominated Chambers were
‘superior’, and that nomination—not being restricted by the high property
qualification that applied to elected members—meant that the ‘choice of members
would extend over a higher range of intellect and general capacity…than by
election’.61 (And he had a point: many professional men in Western Australia failed
to meet the property qualification.) Furthermore, Randell suggested that
nomination would bring into the legislature men who would not come ‘forward
voluntarily to submit themselves to the turmoil and, as had been said, the mire of a
contested election’.62 Edward Scott countered, however, that a Legislative Council
election, which even Randell had conceded would be likely to have a ‘more
restricted franchise and a somewhat high property qualification’ would not be
‘such an excitable affair as a contest for a seat in the Lower House’.63 Interestingly,
the ‘complex arrangement’ of conducting Upper and Lower House elections
according to different statutory rules, qualifications and electoral boundaries, and
the ‘good deal of confusion’ this might cause, was put forward as a reason by
Harry Venn for nominating legislative councillors for at least the first five years
until the public had received the ‘large amount of training or education required’.64
Towards the tail end of the debate Alexander Forrest raised a final argument in
favour of election: that nomination would undoubtedly see the appointment of
members almost exclusively ‘from within a radius of a few miles from Perth’,
whereas election would guarantee the representation of the whole colony.65 Soon
after, the vote was taken and, as anticipated, ‘election by the people’ had the ayes.
Having thus far knocked back every proposal put forward by the Secretary of State,
the members, in considering resolution six, finally agreed with him in rejecting a
‘deadlock’ provision in the new Constitution. Part of the reason why the resolution
failed was because Parker’s wording—‘it is highly desirable that definite provision
should be made for peaceable and final settlement of disputes’—was hopelessly
vague and did not commit to any particular deadlock measure.66 But even when
Parker, faute de mieux, recommended Governor Broome’s earlier proposed model
and Venn suggested a joint-sitting model, the councillors clearly felt that it was
injudicious, having just voted for a strong elected Upper House, to then undermine
its role and prestige, and turn its members into ‘political eunuchs’, by allowing it to
be overridden any time it came into conflict with the Lower House.67 And once
again, the members expressed deep reservations about Western Australia being the
only colony in the Australian group to adopt such a ‘radical’ ‘innovation’, agreeing
with George Shenton’s assessment that: ‘None of the other colonies had attempted
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to solve this difficulty, and it was not for this colony to enter upon political
experiments’.68
No sooner were Parker’s resolutions passed than Hensman announced that he
would be abandoning his previously deferred ‘Provisions’ in deference to ‘a certain
number of similar resolutions’ about to be introduced by Harry Venn.69 Venn,
however, also abandoned his resolutions and simply moved one: ‘That the question
of a Constitution Bill for Western Australia be referred to a select committee, and
that the Resolutions passed by this House be considered as instructions to that
committee in drafting a Constitution Bill’.70 Venn didn’t add a great deal, just that
he hoped his resolution would ‘bring this question of Responsible Government
somewhere within a measurable distance of some point of finality’.71 The Speaker
immediately informed the House that only the Government could legally bring in
such a Bill because a Civil List involved a money measure. Nothing daunted,
Marmion proposed as an amendment that the Governor be requested to bring in the
Bill, again using Parker’s resolutions as a guideline. While doubt was expressed by
several members as to whether Broome would agree to this request, seeing it would
involve him doing ‘that which his special instructions tell him not to do’, the
motion was passed anyway.72
Broome, of course, was ‘not in a position’ to flout the Secretary of State, but he
pledged that he would ‘endeavor to bring about the earliest possible settlement of
the Constitutional question’.73 Just over a week later he prorogued the Council for a
short break, but not before the shock resignation of Stephen Parker who, having
been involved in a failed business enterprise, was filing for bankruptcy, and
therefore had to vacate his seat (in compliance with s. XVI of the 1842 New South
Wales Constitution Act which had been brought into operation by the enactment of
the Western Australian Legislative Council Ordinance).74
Broome kept his pledge and shot off a somewhat brave despatch to Lord Knutsford
(Sir Henry having recently been created a peer) which contained a ringing
endorsement of the Legislative Council’s resolutions against separation and in
favour of a fully elected bicameral legislature. Indeed, if anything, Broome was
even more robust than the members had been in criticising the proposed unicameral
legislature. This ‘ultra-development of democratic institutions, even in this
democratic continent’, Broome gamely informed the Secretary of State, was
‘inadvisable’, without precedent ‘within the limits of the British Empire’,
‘inexpedient’ and likely to cause ‘irremediable harm’—not least because it would
immediately put Western Australia’s Constitution ‘out of harmony’ with the sister
colonies and would also ‘strike a blow at the position, already attacked by some, of
the Upper Houses which are the safeguards of the other Australian States’.75 In
fact, somewhat ironically, Broome—the appointee of a prior Liberal
Government—cautioned Lord Knutsford, a Conservative Minister, in general
terms against making Western Australia’s new Constitution too democratic: ‘the
danger of carrying democratic precept to its highest pitch at one bound in a young
and politically untried community, with the special past circumstances of this
Colony [i.e. convictism], would surely be very great’.76 (It should, however,
probably be borne in mind that Broome wrote these words of caution on the same
day that radical democrat and ‘working-class champion’, John Horgan, beat bluechip conservative candidate Septimus Burt in the Perth by-election on a platform of
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manhood suffrage, abolition of the property qualification for MPs and
unicameralism.77) Broome signed off this fairly confronting despatch with the
observation that as ‘Politics and public affairs here have been almost brought to a
standstill by the impending change of Constitution’, the ‘earliest settlement’ of the
issue was paramount.78 Enclosed was a draft Constitution Bill framed by Broome and
his new Attorney General, Charles Warton (a former Tory Party member of the
House of Commons—where he had ‘earned eccentric repute’ and been widely
loathed for being a ‘champion Bill Blocker’) which incorporated many of the ‘usual
provisions of a Colonial Constitution Act’ and all but No. 7 of Parker’s resolutions.79
Broome’s and Warton’s draft Bill also incorporated a number of conservative
provisions to ‘guard the new constitution very carefully against mob rule’—
safeguards which Broome informed Knutsford were ‘the desire also of every one
belonging to the Responsible Government party who is qualified to form an
opinion of value on the matter’.80 Indeed, only six weeks before Broome sent off
the Constitution Bill he had forwarded a petition, organised by what he referred to
as the colony’s ‘strong’ conservative ‘minority’, which argued that responsible
government ought not to be introduced into a colony where the total electorate of
‘not more than 4,500 by the last official information’ was ‘largely composed of exconvicts’, but should be deferred until ‘the convict element should have ceased to
exist in the electoral body’.81 While Broome commented that this petition ‘signed
by a body of most respectable and sterling settlers’ should not ‘override’ the
colonists’ quest for responsible government, he was clearly pleased to cite it as
‘evidence of the wisdom of not casting the new Constitution in too radical a
mould’.82 (It comes as no surprise that Broome’s despatches of this period were
soon angrily condemned in the Council as ‘breathing with Conservatism’.83)
It is worth examining the principal legislative and electoral features of Broome’s
and Warton’s ‘decent, respectable, conservative’ draft Bill (Warton’s description)
because, after being subjected to an inordinate amount of discussion and horsetrading with the Colonial Office, most of them did, in fact, survive in recognisable
form in Western Australia’s 1889 Constitution Act—or come into force not long
after.84 And, perhaps almost equally importantly, it is revealing to uncover the
reasons why certain provisions of the Broome–Warton draft were not incorporated
in the Western Australian Constitution, but were instead excised by the Imperial
authorities or voted down by the local legislature.
Accordingly, the new ‘Parliament’ of Western Australia proposed by Broome and
Warton was to consist of a fully elected bicameral legislature comprising a fifteenmember Legislative Council, presided over by an elected President, and a thirtymember Legislative Assembly, overseen by an elected Speaker (cll. 2, 8, 9 and 23).
Both Houses would be able to pass laws for the ‘peace, welfare, and good
government of the said Colony’, but only the Lower House could ‘originate’ any
Bills for ‘appropriating’ revenue or for ‘imposing, altering, or repealing any rate,
tax, duty, or impost’ (cl. 2). The quorum for the Council would be five, exclusive
of the President, and ten for the Assembly exclusive of the Speaker, and
decisions—including making changes to the appointment of returning officers or
making new provisions regarding the issuing and return of writs and the timing and
location of elections—would be ‘decided by a majority of votes of the members
present’, excluding the President and Speaker, respectively, who only held casting
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votes (cll. 25, 26 and 56). Any amendments to the ‘number or apportionment of
representatives’ in the legislature, however, were to be decided by an ‘absolute
majority of the whole number of the members’ (i.e. one half plus one) in both
Houses at second and third reading stages and be followed by a ‘joint address’
from both Houses to the Governor ‘stating that such Bill has been so passed’ (cl.
56). Any other proposed change to the constitution of either Chamber, or to ‘alter
the provisions of this Act’, had to go through similar hurdles as well as being
‘reserved for the signification of Her Majesty’s pleasure thereon, and a copy of
such Bill shall be laid before both Houses of the Imperial Parliament for the period
of thirty days at the least before Her Majesty’s pleasure thereon shall be signified’
(cl. 57).
The Executive, or Cabinet, of the new Parliament would comprise the Chief
Secretary (aka Colonial Secretary), Attorney General, Treasurer, Commissioner of
Crown Lands and Director of Public Works (cl. 30). One member of the Executive
would become Premier (although reference to the ‘Premier’ only appears in
Schedule B and not in the body of the Bill) and at least one Executive member
would have to come from the Upper House (cl. 30). The new Legislative Assembly
would, as with the existing Legislative Council, be elected for five-year terms; a
session of Parliament would have to be held at least once a year and not more than
twelve months apart; and the Governor would continue to convene and prorogue
sessions, dissolve the Legislative Assembly, and issue writs for Legislative
Assembly general elections (cll. 4, 3 and 6).
Elections for the Lower House would be on the existing Legislative Council
franchise—i.e. the franchise set out almost forty years earlier in the 1850
Australian Colonies Government Act and subsequently liberalised throughout
Australia—but the qualifying residency/possession periods for the franchise in the
1850 Act would be doubled to twelve months (cl. 36).85 This change to the 1850
Act was the handiwork of the Attorney General who later admitted to the Council
that he believed a ‘decent length of residence to qualify for a voter’ (he personally
favoured two years) was the ‘most conservative’ safeguard in the Bill and one
which would protect the colony’s electoral rolls from being swamped by ‘every
bird of passage, here to-day and gone to-morrow’.86 Members would be chosen
from fifteen electoral districts, thirteen of which were currently in existence and
which would retain the same names and boundaries as set out in the 1870
Legislative Council Ordinance and the three subsequent Constitution Act
Amendment Acts (cl. 31). The existing Kimberley District, however, was to be
split at the 126th degree of east longitude into two new electorates: East Kimberley
and West Kimberley (cl. 31). The more populous Perth and Fremantle districts
would return three members apiece; the sparsely populated West Kimberley and
Murray and Williams would return one member each; and all the others would
return two (cl. 31). Unlike the previous arrangements for multi-member electorates
where the whole district returned both members, Broome’s draft Constitution
proposed that all Lower House multi-member electorates would contain electoral
‘sub-districts’ to be ‘defined and designated by the Governor in Council’ in the
first instance (cl. 31). In a despatch to Lord Knutsford, Broome advocated this
change because it would ‘prevent a merely local majority in one portion of a
district from returning all the members for the district, and so crushing the power
of the remainder of the constituency’—which, preventing any town element in a
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district from swamping the presumably more conservative outlying element, would
have ‘obvious advantages of a moderating tendency’.87
The fifteen Legislative Council members would be elected from five ‘Divisions’
across the colony returning three members each—although the Governor in
Council would be empowered to nominate members if there were any unfilled
vacancies (cll. 32 and 8). The compilation of separate electoral lists for
Legislative Council electors under the higher franchise was prescribed by cl. 34.
The returning officer for each of the five Upper House divisions would be the
existing returning officer for the principal Lower House electoral district within
the division—e.g. the returning officer for the Legislative Assembly District of
Perth would oversee the conduct of elections for the Upper House ‘Metropolitan’
Division (cl. 33). The franchise qualifications for the Legislative Council were
for all categories of entitlement, except license-holders, double those for the
Legislative Assembly, ensuring that the Council would be the bulwark of
property so desired by the members (cl. 35). In addition, members of the Council
would not face dissolution en masse, like those in the Legislative Assembly, but
would, like the elected Upper Houses of the sister colonies, be subject to fixed
and staggered re-election with one member from each division facing election
every two years (cl. 8). Such a ‘gradual reconstitution’ of the Upper Chamber,
Broome advised Lord Knutsford, would ‘secure it against entire re-election upon
any sudden wave of political opinion, which might possibly be evanescent and
mistaken, and which would in any case have full play at a general election of the
Lower House’.88
The same age and property qualifications would apply to election to either House
i.e. being at least twenty-one years of age and possessing a freehold estate worth
£500 (half the existing rate) or £50 annual value (the existing rate), but in future
such property would have to have been owned for twelve months before any
election rather than simply at the time of the election (cll. 10 and 12). The election
of any member who did not possess the property qualification would be
automatically voided, and a new writ issued, and any member who sat and voted in
the legislature before submitting a sworn declaration regarding his property
qualification or after losing or disposing of the said property, would be liable for
punitive £200 per day fines (cll. 11 and 14). The list of those disqualified for
election or nomination included members of the ‘other’ legislative Chamber,
Supreme Court justices, the sheriff, clergymen, Government contractors,
undischarged bankrupts, aliens and those previously convicted of treason or felony
(cl. 15). The election or nomination of anyone from this list would also be
automatically voided, and if such a disqualified member then sat and voted in the
legislature, the penalty was a boggling £500 fine plus legal costs (cll. 16 and 19).
Reasons for having a seat declared vacant were similar to the existing list: insanity,
swearing allegiance to ‘any foreign Prince or Power’, failure to attend two
consecutive sessions of the Parliament without permission etc., and anyone from
this list (with the exception of the insane) sitting and voting would also face the
previously mentioned £500 fines (cll. 18 and 19). Apart from these specified
provisions, ‘existing laws’ governing ‘the mode of election, and all other matters
concerning elections, shall remain and be in force, both in respect of elections to
the Legislative Council and the Legislative Assembly’ (cl. 33).
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This new Parliament, under Broome’s draft, would be responsible for all the waste
lands of the colony (with the exception of designated ‘Native Reserves’) and
revenue arising from them, but if it was subsequently deemed desirable to
‘divide’—and further ‘sub-divide’—the colony, such a power would be enshrined
in the Constitution (cll. 44 and 45). Broome hoped these sections would appease
both the Secretary of State and the locals. The new legislature would not, however,
be in charge of Aboriginal affairs, with Broome holding firm to his original
proposal that the Aborigines Protection Board, under the control of the Governor,
retain this responsibility—with increased and guaranteed funding and the authority
to establish reserves (cl. 52).
One of the last sections in Broome’s draft Bill, cl. 60, related to ‘appointment to all
[new or vacated] public offices under the Government’ which, finally, would
become vested in the Governor in Council (the Ministry of the day). While only the
very top public service appointments such as Chief Justice or heads of public
service departments were currently made by the Secretary of State in England,
there was considerable resentment in the colony that most of the remaining
appointments were ‘entirely and unreservedly in the hands of the Governor’, who
frequently exercised patronage towards family and favourites.89 (And Broome was
no exception: his career was dogged by accusations of favouritism—including, in
Western Australia, the appointment of Captain Barker, a relation of ‘Lady Barker’,
as his private secretary.90) Indeed, only the year before, the humbly born Alexander
Forrest had forcibly condemned the existing patronage system in Western Australia
during the Address in Reply:
the way in which such appointments had been made of late years was a disgrace. The
practice of pitchforking juniors who happened to belong to certain aristocratic families
over the heads of well-tried public servants, who had borne the heat and burden of the
day, was enough to make a man curse the day he ever entered the public service. Interest
and favoritism carried the day; merit and length of service went unrewarded.91
Lord Knutsford received Broome’s draft Constitution on 27 June 1888. By the end
of the following month, which was almost record time for the Colonial Office, he
sent back a despatch laying down the ‘points of principle connected with
Responsible Government upon which I felt it my duty to insist, although I therein
differed from the views of the Legislative Council and of yourself’—basically, that
Western Australia’s self-governing legislature could not have control over the sale
of northern waste lands nor of Aboriginal affairs.92 Knutsford was prepared,
however, to compromise on the form of the new legislature, agreeing that it could
be bicameral; but he made it clear that this Upper House should be nominated ‘at
all events in the first instance, and until the population of the Colony has
considerably increased’ with nominees holding six-year appointments—a provision
which the editor of the West Australian shrewdly attributed to a Colonial Office
desire to build in a ‘Conservative safeguard against the recklessness of a colonial
democracy’.93 Just over a month later Knutsford mailed off a ‘re-cast’ version of
Broome’s Constitution Bill, which incorporated these three ‘points of principle’—
which in the case of control of the colony’s waste lands resulted in all references to
land, north and south, being completely excised from the Bill to be dealt with via
regulations—and a range of less contentious amendments (including, as shall be
seen later, sensible improvements to some of Broome’s electoral provisions).94
184
No doubt to Broome’s great relief, Knutsford’s draft Constitution was handed to
him on 9 October 1888—the day before the Legislative Council was to reconvene.
While the new draft Bill was not formally presented to the Council until a week
later, as Broome wanted to make a few ‘slight amendments’ to it first, the covering
despatch, in which Knutsford made it quite clear that he would only submit the
Constitution Bill to the Imperial Parliament for approval if the three ‘points of
principle’ were ‘maintained’, was read out aloud to the members on the opening
day.95 Predictably, most of the members were outraged at Knutsford’s stance,
especially since he had again recently refused the colony permission to raise a loan
for public works (now urgently needed to service the newly proclaimed Pilbara and
Yilgarn goldfields) while the constitutional issue remained unresolved. This
refusal, added to the fairly grim picture Governor Broome had painted of the
colony’s finances in his Opening Address—that the colony had not escaped the
prevailing world-wide economic depression and was likely to be in deficit by the
end of the year—led to a another long and rebellious Address in Reply debate in
which the despairing members bitterly railed against the Secretary of State.
Mercifully, only five days later the Constitution Bill and a companion Aborigines
Bill ‘to provide for certain matters connected with the Aborigines’ (i.e. ensuring
their continuing guardianship by the Aborigines Protection Board under the
Governor) arrived in the Chamber. In ‘Message (No. 1)’ which accompanied the
Bills, Broome outlined that the draft Constitution was only to be debated to the
second reading stage, at which point a general election would be called: the
‘principle and details’ of the Bill would then be finalised by the newly returned set
of councillors.96
The Colonial Secretary formally moved the second reading of the Constitution Bill
on 2 November in a speech which was, not surprisingly, light on ‘principle and
details’. In fact, Sir Malcolm did little more than summarise the main half a dozen
points of the recast draft: that Knutsford proposed a nominated Legislative Council
of ‘not fewer than 15 persons’ and an elected Legislative Assembly of thirty
members from thirty single-member and newly redrawn electorates (an
improvement on Broome’s recycled boundaries and messy sub-electorates); that
the colony could be divided, and re-united, in the future (the original draft had not
covered this contingency); that the new legislature, as flagged in the Colonial
Office despatches, would not have control of northern waste lands nor of
Aboriginal affairs; and that the new Constitution could be amended much more
easily than under the Broome–Warton version (accordingly, the only Bill which
would require reservation for the signification of Her Majesty’s pleasure would be
a Bill to render the Legislative Council elected, and only such a Bill or Bills
altering the constitution of the Assembly or Council would require absolute
majorities at the second and third reading stage of the whole number of members of
both Houses—i.e. Knutsford had also swept away the ‘joint address’ and sojourn in
the Imperial Parliament provisos—which, of course, meant that electoral laws and
other provisions in the Constitution Act itself could be altered by simple
majorities).97 As an interesting aside, Knutsford’s excision of most of the clogs on
legislative amendment is reminiscent of Lord John Russell’s drastic liberalisation
thirty years earlier of similar clogs in the reserved New South Wales Constitution
Act which Russell deftly sabotaged by inserting a clause in the Imperial Enabling
Act authorising all amendments to the New South Wales Constitution to be passed
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by a simple majority—which enabled the new Parliament under self-government to
repeal, by a simple majority, the two-third majority provisions in the Act!98
Stephen Parker, who had sorted out his finances and was back in the Legislative
Council after being elected unopposed in the 12 September 1888 Vasse byelection, was the first to speak. This moment had been a long time coming and
Parker, like most of the members, was determined not to alienate Lord Knutsford
and jeopardise the Bill by spurning all the ‘points of principle’—especially since
Parker believed that northern separation was inevitable and that the extraparliamentary control of Aboriginal affairs was ‘virtually in operation at the
present time’.99 Parker was, however, loath to give way on the elected Upper
House, and underlined to the assembled members that the Australian Colonies
Government Act gave the colony a statutory ‘right of choice in this matter’, that the
British Government had not interfered with the choices made by the eastern
colonies, and that the Legislative Council had unanimously resolved that election
was the appropriate choice to make for Western Australia:
The spirit of the age, we may say, is now in favor of election, in political matters. We
know that in every part of the civilised world almost public opinion largely preponderates
in favor of giving the people themselves a voice in all matters concerning the public
welfare, and a direct voice in the election of those who are to be entrusted with the work
of legislation and administration. If we are to accept the principle of nomination, as
regards one of the two branches of the Legislature, how can it be said that the people have
a voice in the matter.100
Indeed, the only ‘compromise’ on the issue Parker would consider was that the
Upper House could be nominated for a start-up period of six or so years, but that at
the end of this time these nominees had to resign and thereafter be elected—and
that this changeover ‘should be so provided in the present bill’ as Parker was not
convinced that an Upper House would otherwise ‘consent to such an act of selfeffacement as to pass a bill providing for the extinction of their own House’.101
And while he was dealing with elections, Parker also recommended that the
property qualification for members of the Lower House should be scrapped, and
that the qualifications for the franchise should be lowered and broadened—
I think it would be better for us, in starting with our new Constitution, to lay the
foundations of it on as broad a basis as we safely can, and reduce the electoral franchise
and liberalise it as far as we can, rather than to have a clamour raised, immediately after
we entered upon Responsible Government, for a reduction of the franchise—as we
certainly should if we adopted this bill as it now stands.102
If this sounds reminiscent of Lord Macaulay’s ‘Reform, that you may preserve’, it
was because Parker had pragmatically assessed the risk of not extending the
franchise to a populace which was daily being swelled by easterners who were
inured to manhood suffrage and unlikely to put up for long with ‘living in slavery,
as they called it, under the present constitution’.103
In concluding his speech, Parker proposed an amendment which simply stated:
‘That this House, while otherwise agreeing to the main provisions of the bill,
objects to pass any measure which provides for a nominated Upper Chamber’.104
The remainder of the debate then turned on this single provision of the Bill
(although a number of members, with their thoughts clearly on the impending
186
general election, also contrived, like Parker, to put on the record their views
regarding liberalising the franchise and abolishing the property qualification). As
was to be expected, the arguments for and against election or uncapped nomination
to the Upper House had all been heard before—in fact, they were basically a
reprise of the arguments first raised in 1874 when Governor Weld’s draft
Constitution also provided for a nominee and swampable Upper House. The major
difference in the current debate, however, was that while a number of members
denounced nomination as ‘an exploded idea’ and urged ‘a sort of revolution’ rather
than budge on the principle of election, other pro-election members were prepared
to sacrifice principle and ‘accept a Constitution Bill even with some blots upon it’,
as they feared that the colony’s economy could not withstand further delays caused
through slugging it out with the Secretary of State.105
The councillors reached an impasse on the issue which was not broken even when
Marmion moved that Parker’s ‘bold uncompromising’ amendment include the
before-mentioned ‘compromise’ of initial nomination and subsequent election.106
While this addition would make the amendment a more conciliatory one to
telegraph back to Lord Knutsford, the Speaker clarified for the members that
passing it would mean that the ‘bill will not be now read a second time’.107
Shelving the Bill, even if only temporarily while Broome had a telegraph rally with
Knutsford, plainly troubled the members: apart from risking the Bill, they would,
as Marmion commented, also have to face the charge from electors that ‘we were
never in earnest at all upon this question of Responsible Government’.108 Looking
for an escape, a number of members argued that ‘this is not the time to decide
whether we shall have a nominated Upper House or an elected one; it is for the
electors of the colony to decide these questions at the hustings, when they return
their representatives to deal with this bill finally’.109 This convenient line of
reasoning won the night, and when put to the vote the amended amendment was
lost thirteen to nine and the motion for the Bill’s second reading was put and
passed—although it should be noted that the minority consisted exclusively of
elected members, while only five of the majority were elected. (While the official
members had abstained from participating in recent debates and divisions on the
question of responsible government, believing it to be, as the Attorney General put
it, ‘one which ought to be settled by the elected and nominated members of the
House’, the embargo had been lifted in this session because the adoption of
responsible government was now a given and because it was felt by Broome that
the officials could give their ‘assistance to pass…[the Bill] in such a form as the
Government may agree it is desirable’.110)
The next day Broome wrote a despatch informing Knutsford that the Colonial
Office’s draft Constitution had passed the second reading—even though it
contained provisions which were ‘not very agreeable to the Colonists’.111 With a
great deal of pluck, Broome then put in a final pitch for an elected Upper House,
arguing that the majority of the elected members were ‘hostile’ to the idea of a
nominated Chamber and they were ‘supported by a considerable preponderance of
public opinion throughout the Colony’—including the ‘balance of even
conservative opinion’. This widespread opposition, Broome continued, would
undoubtedly lead to an even greater number of pro-election representatives being
returned to the Legislative Council at the upcoming general election, with
consequent ‘Delay and difficulty’ in passing the Bill. To avoid this, Broome
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‘strongly’ recommended that Knutsford accept a ‘modification’ to the provision
(basically Parker and Marmion’s ‘compromise’)—‘that, while the new constitution
should begin with a nominated Upper Chamber, the Act should provide for an
elected Upper Chamber, either in six years’ time, or when the population of the
Colony shall have increased to 60,000 souls’. Broome signed off urging Knutsford
to telegraph his reply as soon as possible so that the ‘final decision on this
important point’ could be made public before the general election took place.
The Electorate’s Turn
Governor Broome dissolved the Legislative Council a month after writing this
despatch and issued the writs a fortnight later on 21 December. The following day
the election dates, spanning 21 January to 4 February 1889, appeared in a special
edition of the Government Gazette along with a list of the returning officers and the
central and district polling places. With only a month to the first election, the
campaign period was comparatively short, especially considering that the period
would also be punctuated by the Christmas–New Year and Australia Day public
holidays. Broome, however, was keen to keep up the pace and had informed Lord
Knutsford that he hoped the Constitution Bill could be passed by the new
Legislative Council immediately after the elections—and ‘Perhaps this would
allow of the Imperial Bill being passed during the session of 1889 [at
Westminster], and of Responsible Government being introduced here about
September or October next’.112 Lord Knutsford, however, was in no such hurry and
he was certainly not in favour of Western Australian electors being ‘asked to
pronounce upon’ the Constitution Bill before it was finalised and, more to the
point, ‘approved by Her Majesty’.113 He replied to Broome requesting that the poll
be postponed, but as this despatch reached Broome a few days after the writs had
been issued, the electorate was not denied its opportunity to influence the
Constitution by the choice of members they returned.
Agonising over who might be the ‘right’ representative, however, did not turn out
to be an issue in most of the constituencies because all of the candidates advocated
or, at the very least, acquiesced in the inevitability of, responsible government.
Furthermore, there was a high degree of consensus among the candidates as to
what was the best sort of Constitution to deliver the new political order, with
almost all supporting election for the Upper House; a broadening of the franchise;
the abolition, or reduction, of property qualifications for members; and triennial or
quadrennial terms of Parliament. Indeed, the wry observation of the editor of the
West Australian regarding the contest in Perth could apply to the elections as a
whole:
The coming Perth election is unique of its kind. It will involve a contest, and a keen one,
when apparently none is necessary. No less than four candidates are in the field…Three of
these candidates are of one mind as to the precise form which the new Constitution should
take, while the views of the fourth candidate, if they diverge at all, do so by little more
than a hairbreadth.114
In fact, the almost uniformly liberal sentiments voiced by candidates, newspaper
editors and correspondents in the 1889 election campaign is one of the most
noteworthy features of the election, and contrasts markedly with the more
188
conservative line taken in previous elections when the convict presence had been
more prominent and there had been fewer ‘carpetbaggers’ from the eastern
colonies agitating from the sidelines.115 Even the previously arch-Establishment
West Australian (dubbed the ‘The Official Doormat’ by a rival paper), came out
with the following solid endorsement of liberalism in an editorial just prior to the
issue of the writs:
Upon the advancement also, of liberal principles generally, we are all agreed. By
whatever names modern political parties call themselves or are called, every man of
intelligence nowadays takes his stand upon Liberalism to the best of his understanding,
upon doing right and justice to all classes, upon promoting the good and happiness of the
people and upon supporting all measures having progress as their aim and end.116
It is interesting, however, that while the West zealously supported election of the
Upper House, and was in favour of the abolition of the property qualification for
members, the extension of the franchise to lodgers, and shorter parliamentary terms
(and, for good measure, published editorials around this time lauding workers’
associations for ‘legitimately guarding the interests of a fine and deserving body of
men’), the paper still cautioned against adopting manhood suffrage which, it
claimed, produced parliaments that were: ‘less capable, less intelligent and
moderate, more selfish, intriguing and unruly than those based upon a moderate
qualification of electors’.117 The West’s qualified embrace of liberalism within a
community whose ‘instincts are liberal…beyond the conception of its Imperial
rulers’, but which was also sparsely populated and ballasted by ex-convicts,
probably mirrored that of many Western Australians.118
There were others in the community, however, particularly t’othersiders, whose
support for liberalism was not hedged about with caveats; and in the weeks
preceding the issue of the writs three different ‘Liberal’ or ‘Progressive’
associations—again ‘resuscitated’ out of the old Reform Association, or ‘Reform
Party’, which had broken into separate camps over the Upper House issue—were
formed in Perth and Fremantle to promote ‘the advancement of liberal principles
generally’.119 At a practical level, these associations encouraged registration of
electors; sought to ‘educate the voters by public discussion of matters of current
interest’; and worked to ‘secure the return’ of candidates who endorsed the most
liberal manifestos (ascertained after circulars were issued to all candidates
‘catechising them as to their political views’) by instructing electors at political
meetings how to cast a formal vote—particularly how to plump—for Liberal
Association candidates, and by handing out the first how-to-vote cards in the
colony.120
Notwithstanding the campaign period for the 1889 general election being short,
which would clearly hinder the canvassing of country constituencies, campaigning
was slow to commence, with the ‘first in the field’, a candidate for Perth,
addressing electors on 31 December—ten days after the writs were issued.121 The
belated start was just as well, however, because by the time the next candidate
fronted a public meeting in Fremantle on 4 January, the Secretary of State’s
telegraphed approval to the ‘compromise’ of initial nomination and eventual
election for the Upper House had been made public and thereby defused the only
major area of contention in the campaign.122 That there was now almost nothing for
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candidates to disagree over helps to explain the exceptionally high number of
uncontested seats in the election (only five of the fourteen electorates were
contested) with most constituencies seeming to share the sentiments of a Northam
correspondent that it ‘would be only a right and just act’ to send back the old
members ‘to aid in completing the work [they] had begun’.123 Indeed, some former
country MLCs were returned even ‘without addressing their constituents either
personally or by written address’, as one indignant member of the Liberal
Association later pointed out.124 On a more practical note, the small number of
contested elections would also have been due to would-be candidates deciding not
to run because there was ‘little to be gained from contests which would give them
but a very short Parliamentary tenure’.125 After all, like their Governor, most
Western Australians hoped that within twelve months the colony would again be
facing the polls—to elect one House of a new and expanded bicameral legislature.
While the lack of contests and general consensus made the 1889 elections,
according to the West Australian, ‘more important than interesting’, there was still
plenty of excitement in the five seats that were contested.126 Packed and rowdy
meetings (and often outside ‘overflow’ meetings) took place in halls, mechanics
institutes and hotels in these electorates; and in Fremantle where the Liberal
Association fielded Dr Adam Jameson, ‘an out and out Radical’ and ‘an outsider’
(i.e. from Perth), against long-standing and highly respected local identity William
Marmion, there was a succession of tumultuous public meetings which verged on
riot.127 It was no surprise, therefore, that election day in Fremantle was
commensurately ‘riotous’—notwithstanding that a contingent of mounted troopers
and additional police officers from Perth were on standby to bolster the local
constabulary.128 As with previous elections, the town was plastered with placards,
bills and flags (the Liberal Association apparently left no wall untouched);
candidates and their supporters wore ‘colours’; mounted bands wound through the
streets; and many workers enjoyed the day as a half-holiday. Unlike previous
elections, however, the ‘greatest uproar prevailed’ for the whole day. The huge
crowd milling around outside the Town Hall broke into regular brawls and
skirmishes, while inside the Hall the beleaguered returning officer ‘could scarcely
get on with his work’ because of the din and intermittent punch-ups amongst
queuing electors. To cap off a torrid day, the formal declaration of results was
greeted with ‘uproarious behaviour’ by the losing candidate’s supporters, after
which the ‘crowd dispersed amid scenes of the greatest disorder, yelling and
hooting being heard in every direction’.
The wild finish to the Fremantle poll is understandable, however. The Liberal
Association’s candidate, Dr Adam Jameson, lost out to the two winning candidates,
William Pearse and William Marmion, by eight and six votes respectively—
although in reality Jameson had polled more votes than either candidate because
most of the twenty-nine ‘informal’ votes cast in the Fremantle election were
intended plumps for him.129 Unlike elections today where electoral officials must
admit a vote where the voter’s intention is clear, the returning officers at the 1889
election had to reject votes which did not comply exactly with s. 9 of the Ballot
Act—which required electors to indicate a preference by a mark in the box printed
opposite the candidate’s name.130 Therefore, the ballot papers of Jameson’s
enthusiastic plumpers who put two crosses in his box, instead of just one, were
automatically disqualified (and the majority of Jameson’s votes were plumps at the
190
instigation of the Liberal Association). Also disallowed were crosses outside the
printed boxes or writing the preferred candidate’s name in the box or, indeed,
anywhere else on the ballot paper. Interestingly, electors at municipal elections at
this time cast a formal vote by writing the preferred candidate’s name on the ballot
paper, and the differences between the two methods of voting was blamed for
much of the confusion. To avoid such problems at future elections, the West
Australian recommended that the colony adopt the method of voting used
elsewhere in Australia (with the exception of South Australia) in which the
candidates’ names were printed in alphabetical order on the ballot paper and the
elector simply scored a line through all of the names except that of the candidate(s)
for whom he was voting.131
In contrast to the Fremantle election, polling day in the other contested seats was a
fairly serene affair. The Toodyay election at Newcastle was ‘marked…by extreme
quiet all round, in spite of the fact that party spirit ran rather high’, while the Perth
election was described thus by one reporter:
Very few indications of the contest appeared on the surface, yesterday. Indeed, it is
doubtful whether, even in the days when the return of certain candidates in Perth was
regarded as a foregone conclusion, there ever was a tamer election in the city. But for the
number of men who congregated in front of the hall, the few posters placarded about the
city, and a certain amount of activity amongst a few of the leading supporters of each
candidate, a stranger in Perth would, probably, have been unaware that such an event of
extraordinary interest as an election was proceeding. Few of those scenes which usually
distinguish such occasions occurred, and the humours of an election about which there is
generally so much to say were, to use a common phrase “conspicuous by their
absence”.132
And not all thought that abandoning the fervour and centuries’ old pageantry of
elections was a bad thing. Certainly, it could be argued that a less than breathless
attitude towards elections, such as that evinced by the West’s Northam
‘correspondent’ that ‘we are far too busy and prosaic a people to be moved from
the even tenor of our way by such a common place event as an election’, was a sign
of a maturing democracy where electors took participation in the political system
not only as a right but also in their stride.133 Low-key elections were also seen by
some as being more ‘modern’ and progressive (and cheaper to run) so this was also
a factor. The Liberal Association candidate for Perth, John Horgan, for example,
had earlier announced to his supporters that ‘he would have no colours as he
considered the wearing of such a relic of the past, a custom of bye gone
elections’.134
Moreover, Western Australia was not alone in registering a tapering off of election
rituals and ceremonies at this time. Frank O’Gorman in a study of nineteenthcentury English election campaigns has noted that: ‘During the middle third of the
nineteenth century the traditional culture of the English election campaign went
into decline’—a decline he attributes to the consolidation of party organisations
and the increasing ‘respectability’ of the electorate.135 Eric Evans has also noted the
increasingly ‘sanitised’ nature of English elections; but while he agrees with
O’Gorman that the ‘vulgar street theatre elements of electioneering were not to
Victorian middle-class taste’, he principally attributes the transformation of
elections into ‘a sober, serious, respectable business’ to changes in how elections
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were conducted—particularly the increase in the number of polling places and the
1872 Ballot Act’s abolition of pubic nominations and open voting.136 Evans’
quotation from the Times report on the first by-election after the passing of the
Ballot Act is telling:
No bands of music paraded the town. No colours or banners were seen in procession. The
church bells were silent…Both at Pontefract and Knottingley the topic was the dullness of
the election. ‘It hardly seemed like an election’, the tradespeople said; and they were
right.137
Indeed, the Times quotation sounds very similar to one in the Adelaide Times
fifteen years earlier, after the first South Australian election under the secret ballot:
Everybody appeared resolved to inaugurate the working of the new Constitution by
indulging in a holiday. Not that the voting in itself was productive of any amusement: on
the contrary, a more melancholy sort of ceremony was never witnessed, and, either from a
dread of the Electoral Act or something else, the voters seemed almost as much afraid to
hazard a laugh or a joke as they would have been at a funeral…as to music, we are
assured that a boy was taken into custody and locked up at the Station for daring to excite
the people by playing on a penny whistle.138
One very positive result of taming elections, however, was that it removed a barrier
to women’s participation in the electoral process—a point made by the British
Prime Minister, William Gladstone, who had railroaded the Ballot Act 1872
through the Imperial Parliament:
It was one thing to ask that women should have imposed on them the duty of going up to
the open poll and recording their votes in public, and quite another to ask that they should
be allowed to enter a quiet compartment of the polling-place and record an independent
vote under the saving shelter of the ballot.139
Decorous elections, are not, however, always squeaky clean. And so it turned out
with the 1889 elections in Western Australia with the supposedly sedate Perth
election prompting an election petition to the Supreme Court—alleging
incompetence and partiality on the part of the returning officer; impersonation of
electors (including deceased ones); and illegal conduct on the part of an electoral
agent—charges which, although rejected by the court, prompted the legislature to
stir itself and pass the colony’s first Electoral Act later in the year.140
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8
Battle Royal
I have no wish to go very far or very fast. My own
impression is that, in the political changes which are
inevitable in our time in all countries…it is an
advantage to the country that these great changes
would be made rather by steps than all at once.
John Bright
A ‘decent, respectable, conservative’ Constitution (with Liberal Additions…)
The 1889 general election left no doubt that the colony’s electors decisively
supported the immediate introduction of responsible government. More
specifically, as the West Australian summed it up, the electorate by an ‘immense
majority’ had also ‘declared against a Single Chamber, against manhood suffrage,
[and] for a reasonable compromise of the controversy upon the rival principles of
election and nomination to the Upper House’.1 Before the last election writ had
been returned to the Governor, however, this cosy unanimity started to dissipate
and the various stakeholders in the colony’s political system began to mobilise: the
finer details of the Constitution Bill had yet to be finalised and in these details—
regarding the franchise, property qualifications for members, registration periods
and so forth—there was enormous scope to influence the political lineaments of the
colony for years to come.
In a post-election editorial the West Australian (whose ‘ultra-conservative’ former
editor, Sir Thomas Cockburn-Campbell, had been one of the few former MLCs
dumped at the election) warned the colony’s old guard to arm themselves against
the ‘new forces springing up in their midst’:
they must learn that…old standing, social influence, established reputation—all the
forces, the sentiments, the ‘old colonist’ institutions which have hitherto held undisputed
sway, will in the future count for little or nothing; that those who trust in them will
infallibly go to the wall and that power will rest with the active spirits who are eager to
exhibit their lights and fight for place in the foreground…2
Among the ‘energetic and effective steps’ the West advised the Establishment to
pursue were ‘registration, organisation, and general political activity’—steps which
a somewhat demoralised Liberal Association, at a public meeting in the same
week, was also urging its members to take. Indeed, the Liberal Association in this
brief ‘pause’ before the Legislative Council was summoned to pass the
Constitution Bill, took the opportunity to take a ‘wide survey of their
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position…[and] future policy’ and considered tactics which would extend the
Association’s reach and ‘influence’.3 Crucially, several speakers also made it clear
that the big issue at stake for the Association vis-à-vis the upcoming Constitution
Bill was the ‘franchise question’—and, so as not to jeopardise public support for a
broader franchise, the Association resolved to shelve its more radical demands for
manhood suffrage and ‘one man one vote’ (i.e. the abolition of plural voting in the
colony)—which must have been difficult to abandon given that their star candidate,
John Horgan, had lost in the Perth election, as he spat out at the declaration of the
poll, because of ‘the proxy votes…the votes of the propertied class who live
outside of the district’.4
Indeed, on the ‘franchise question’ there was concern expressed throughout the
colony that the more liberal franchise spruiked and endorsed at the late elections
was not actually provided for in the draft Constitution Bill—and, that even if it
was, under current registration provisions, those to be enfranchised would miss the
registration and revision deadlines and be prevented from voting (at this stage, it
was still hoped that the next general election would be held towards the end of the
current year).5 Unless this issue was sorted out, the West Australian cautioned, the
colony would face a general election to fill the new Parliament and then, soon after,
another election if the franchise was liberalised (and most members had pledged
themselves upon this question).6 To avert back-to-back elections and disruption to
the new Government, the West advised members to insert the new franchise
provisions into the Constitution Bill and to provide for the immediate compilation
of a new electoral roll to include those newly enfranchised. Going further, the West
also urged the incoming Council to frame a ‘full-blown and carefully considered
Electoral Bill’ along with the new Constitution because—
Measures of that kind in a growing colony are always subject to tinkering and
amendment. And since it is highly undesirable that the Constitution Act should be
exposed to frequent attack, for this reason alone everything connected with the franchise
and the machinery of elections should be eliminated from it…7
The sixth and supposedly final Legislative Council under representative
government met to consider ‘the one great question’ on 13 March 1889.8 Governor
Broome’s Opening Address was short and to the point and he advised the members
that their treatment of the Constitution Bill should be the same if they wanted the
Bill signed off and the requisite Enabling Act passed by the Imperial Parliament
during its current session, which was expected to last until August. Indeed,
underlining the need for a quick turnaround on the Bill, Broome reminded the
councillors that in ‘regard to any amendment likely to involve further
correspondence and reference’, the new Constitution would be capable of
amendment ‘in the usual way by the Colonial Legislature, at any date after it comes
into force’.9 Within minutes of Broome exiting the Chamber the Constitution Bill
and companion Aborigines Bill were re-introduced and read a first time.
On the following Monday the Colonial Secretary, Sir Malcolm Fraser, rose to
move the second reading so that the Council could finally move beyond principles
and get to work on the details—or what Fraser dubbed the ‘marriage settlements’—
of the Bill.10 Fraser didn’t spend long reviewing the Bill’s provisions: as he pointed
out, with the exception of the Secretary of State sanctioned amendments regarding
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the Upper House, the Bill was the same one the members had considered—and
passed by a majority at the second reading stage—in the previous session. He did,
however, linger quite noticeably over the issue of the franchise, urging the
members to accept the electoral provisions as they stood, thereby ensuring that
only citizens ‘with some stake in the colony’ could vote, as he ‘could not, himself,
agree that the vagrant who wandered from colony to colony, who stopped perhaps
for only six months in one place, should be regarded in the same light as the thrifty,
respectable, sturdy settler’.11 In concluding, Fraser endorsed Governor Broome’s
counsel that any amendments likely to cause delay should be stood over until after
the Constitution was enacted.
Appropriately, it was Stephen Parker, the leader of the elected members, who rose
to support the second reading and he, too, exhorted the councillors to hold back on
‘those liberal amendments we all have in mind until a time when we may safely
pass them, without fear of jeopardising this measure at all’.12 While almost to a
man, the members who followed Parker agreed that they must take care not to
‘improve’ the Bill ‘out of existence’, many still argued that some changes could be
made without imperilling the Bill and, in fact, should be made because:
stability should be the main point we should look at in laying the foundations of our future
Constitution. If we gloze over all imperfections now, and leave the bill to be altered byand-bye we shall not have that stability we wish.13
Indeed, this line was repeatedly pressed by two of the most conservative members
of the Council, William Marmion and Sir Thomas Cockburn-Campbell (now
installed in the Council as a nominee member after his recent election loss)—the
latter of whom astutely declared during one debate that, ‘I am not the kind of
conservative who wishes to secure himself in a house of cards, which I know will
be blown down by the first breath of public opinion’.14
The prospective changes to the Bill ‘in the direction of making it acceptable to the
people,—so far acceptable as they safely can’ were, of course, the ‘liberal
amendments’ Parker had advised the members to postpone—viz. the widening of
the franchise, the shortening of the proposed five-year terms of Parliament and the
abolition of the property qualification for MPs.15 For good measure, a few
members also protested against the swampable Upper House, and the fact that the
current draft Constitution did not require newly appointed minsters to resign and
recontest their seats as was the constitutional practice in England and all but one of
the sister colonies. Ironically, several members also picked up on Parker’s earlier
observation that:
We are…in passing this bill as it stands, placing a great deal of trust in the Imperial
authorities, with regard to the control of our lands, for there is nothing in this bill which
gives us any authority in respect of the lands of the colony.16
And, unlike Parker who announced his complete confidence in the Secretary of
State delivering on his promises, they expressed misgivings—and, worse,
foreshadowed amendments—about being left to the ‘tender mercy of the Imperial
Parliament’.17 Finally, after two nights of highly detailed discussion (which, as
several members complained, was not supposed to take place at this stage) the
motion for the second reading was passed—but a despairing Attorney General
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closed the debate with the prophetic observation that ‘if all these questions are to
be re-opened and introduced into the bill, then good-bye to the passing of the bill
this session’.18
The next day the Council formed itself into a committee of the whole House with
Sir Thomas Cockburn-Campbell as Chairman of Committees. Over the following
fortnight the councillors progressed through the Bill with impressive speed: whole
chunks of the Bill were ‘Agreed to, sub silentio’, while others were whipped
through notwithstanding the odd protest against the ‘indecent way in
which…matter was being pushed through’.19 On the ‘liberal amendments’,
however, the debates were predictably involved and fervid and they did, on
occasion, result in substantial amendments to Knutsford’s draft.
The first ‘win’ for the councillors was with cl. 6 which empowered the Governor in
Council (i.e. the Ministry of the day) to swamp the Upper House with additional
nominees—a provision which existed in all nominated Upper Houses in the
Empire including, most famously, the House of Lords—and which had been
invoked recently (and somewhat notoriously) in New South Wales where Governor
Carrington, ‘contrary to his own personal opinion on the subject, acted upon the
advice of his Ministers’ and packed the Upper House with nominees ‘for party
purposes only’ so that the Government could force through legislation.20 While this
deadlock-breaking provision would, in fact, only have been in operation in Western
Australia for six years at the utmost, because at that stage the Legislative Council
would become elected, it triggered a spirited discussion, possibly because the
councillors had fought so hard to obtain a revising Upper Chamber in the first place
and didn’t want to see it capable of being circumvented so easily. Furthermore, as
Edward Keane, now one of the members for Perth, matter-of-factly pointed out, as
there was no proposal that ‘a Ministry should be allowed to manipulate’ Western
Australia’s Legislative Council once it was to be elected, what was the justification
for it to be manipulated when it was nominated?21 So, by a narrow margin, the
councillors rejected the ‘safety-valve’ of the English Constitution, voted for a
constitutional ‘innovation’, and capped the numbers of the Upper House at
fifteen.22
While dealing with the proposed membership of the Legislative Council the
members also tweaked cl. 6 so that no member could hold an ‘office of profit under
the Crown’ other than being a Minister or ‘an officer of Her Majesty’s sea or land
forces’ (Knutsford had permitted one-fifth to do so) and also upped the quorum for
the Upper House in cl. 10 from five to seven. This latter amendment was slammed
by the Attorney General, who reminded them that the House of Lords, with its 520
peers, only had a quorum of three and that Western Australia’s:
…Upper House would probably consist of quiet, easy-going, and perhaps infirm old
gentlemen, chosen principally for their wealth, their long experience, and their age; and it
might be a difficult thing sometimes to get together seven of these old gentlemen when
there was only some formal business to be done.23
Furthermore, as the Colonial Secretary pointed out, when vacancies occurred or
election writs were outstanding, it might be impossible to obtain a quorum and
parliamentary business could be brought to a standstill.24 The members, however,
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were undaunted and subsequently, when considering cl. 29, reduced the Upper
House members’ disqualifying period of absence (without permission) from the
Chamber (a session) to match that of Lower House members (two consecutive
months) because, as Alexander Richardson put it, ‘we ought to guard against these
old fogies…neglecting their duties too much’.25 (As an aside, this insistence on the
legislative councillors actually showing up for parliamentary duties would have
been endorsed by English constitutional authority Walter Bagehot who grimly
predicted in The English Constitution that ‘Some time or other the slack attendance
in the House will destroy the House of Lords’.26)
The next tussle was over the duration of the new Parliament. Most of the members
had pledged themselves at the 1889 general election to secure a shorter term than
the quinquennial one proposed in cl. 14 of the draft Bill, with a number supporting
the triennial terms current in New South Wales, Victoria and South Australia
(Queensland would adopt triennial terms in the following year). Accordingly, two
amendments appeared on the Notice Paper—one for quadrennial and one for
triennial terms. Parker moved the amendment for four-year terms on two grounds:
first, that while he expected the colony would eventually copy the sister colonies’
triennial parliaments, he thought it was safer not to do so ‘at one step’, and also
because Western Australia’s Upper House would eventually face staggered reelection every two years which would ‘synchronise very conveniently’ with
quadrennial terms for the Lower House.27 Fortunately, debate on this issue was cut
and dried; the subject had been literally done to death in previous sessions and
again only three days earlier when the motion for the second reading took place
and Sir Thomas Cockburn-Campbell in a ‘short Parliaments are bad’ speech had
lugubriously outlined that shorter parliaments meant more elections and—
We know what a political election entails. We know what unpleasantness and expense,
and worry, and anxiety, and humiliation it involves, and how intensely disagreeable it is
to men of any sensitiveness of temperament to have to go through the ordeal.28
The other members, however, were clearly made of sterner stuff than the Baronet;
and some, such as Marmion, also stressed that if the Council did not make a
concession to the ‘strong feeling’ in the community for shorter terms, they would
face ‘further agitation’ to amend the Bill the minute it was passed.29 When put to
the vote Parker’s four-year compromise amendment was passed by a solid sixteen
to seven, prompting Edward Scott to abandon his push for triennial terms.
The next ‘liberal amendment’ up for discussion was the property qualification for
members of either House of the new Parliament in cl. 18 (which was possession of
a freehold estate worth £500 or £50 yearly value). The councillors, without debate,
agreed to scrap the proposed property qualification for nominees to the Upper
House—indeed, it was accepted that this provision was probably a drafting error—
because it was generally ‘considered undesirable to limit the choice of the Crown
in the appointment of its nominees’.30 Parker’s argument that equally there was ‘no
reason for limiting the choice of the electors’ with respect to the elected members
of the legislature was not, however, successful and his amendment to strike out the
property qualification was voted down fourteen to ten.31 This result was somewhat
surprising considering that a majority of the elected members supported its
abolition and claimed they had overwhelming public support on their side—indeed,
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even die-hard conservatives such as Marmion and Cockburn-Campbell insisted that
the Council would face ‘mischievous agitation hereafter’ if they didn’t drop the
qualification, because ‘the people themselves will not stand it’.32 And, certainly,
the arguments in favour of abolishing this ‘monstrous doctrine’ seemed
compelling: it blocked many worthy candidates from public office (the colony’s
modestly paid professional class which had long been excluded, had recently been
joined by settlers from the northern pastoral electorates who had difficulty
obtaining enough freehold land to qualify); it had been successfully done away
with in Britain and the sister colonies (with the exception of Tasmania); and,
perhaps above all, it was redundant because, as several members pointed out, the
colony’s very high franchise qualification for electors had sieved out the ‘dregs’ of
the populace and, therefore, the colony could ‘safely entrust’ such a ‘decent
respectable’ electorate to return suitable members.33 The Government, however,
was committed to getting the Bill passed in as unaltered a state as possible and the
executive and official nominees lined up as a bloc against the change, and in
unison with the seven elected members who still believed that the ownership of
land provided a ‘rough and ready test’ of fitness for office, as well as a
‘Conservative safeguard’, they won the day.34 It was no surprise, therefore, that the
follow-up amendment to this clause—to scrap the requirement for the qualifying
‘estate’ to be possessed for twelve months prior to nomination or election—was
also lost.
The House then turned to those provisions in the Bill which disqualified otherwise
qualified citizens from being elected to or sitting in the new Parliament. Clause 23
contained the standard blacklist (judges, clergymen, undischarged bankrupts and so
on) but, unlike the Imperial and sister parliaments, also banned convicted felons—
which, of course, barred the legislature to any of the colony’s still sizeable exconvict class. William Pearse moved an amendment to have this ‘cruel’ ban lifted
so that a man ‘who, perhaps, in his early days, had committed some youthful
indiscretion, and repented of it all his life, and become a good and respectable
citizen’ would not be ‘for ever debarred’ from the Council.35 The assembled
members, however, were unmoved: they hadn’t fought tooth and nail for
responsible government to wind up sharing the Members’ Lounge with exconvicts, and there certainly hadn’t been public demand for this change. The
amendment sank without debate. With greater justification, the members also
refused to lift the stringent ban in cl. 24 on Government contractors (and even
those merely going guarantor or surety for a contract) being elected to the
Parliament—even if this clause also ‘shut out every man who happens to have a
small contract with the Government to supply a few tons of hay, or to build a
culvert’.36 Interestingly, Governor Weld had proposed barring Government
contractors from the Council in 1871 (in direct response to a select committee
recommendation that Government officers should be barred) but the members
successfully opposed the ban at that time.37 Presumably, with the significant
amounts involved in Government sponsored public works projects in the 1880s,
this conflict of interest clause was now seen to be imperative for openness and
accountability. (Certainly Knutsford’s draft had considerably beefed up the
Government contractor provisions in the Broome–Warton version.)
The next big election-related debate arose with cl. 29 and the circumstances in
which members of the new Parliament would have to vacate their seats. The usual
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causes were listed—insanity, swearing allegiance to a ‘foreign Prince or Power’,
excessive and/or unauthorised absence from the legislature, and accepting an office
of profit under the Crown. Under the last category, however, the Bill exempted
ministerial offices of profit under the Crown, although Britain and all selfgoverning British colonies (except South Australia) required a member of
Parliament upon being appointed to the Ministry to submit himself to his
constituents for re-election. This re-election provision had been in force in Britain
since the time of Queen Anne and was designed to be a mechanism, as Septimus
Burt (once again back in the Council as an elected member via the North District
by-election of 28 July 1888) explained, to secure full and stable terms of
Government:
The mere fact that members knew they would have to seek re-election would operate very
forcibly indeed against mere factious opposition for the sake of office, and afford a
safeguard against a too ready assumption of the reins and responsibility of Government,
by men who had no reasonable prospect of having a following in the House or in the
country.38
And as proof of the provision’s usefulness as a brake, Burt reminded the members
that South Australia had experienced more changes of Ministry than any of the
sister colonies. Burt also argued that the provision was not as onerous as it
appeared because ‘it was very seldom indeed that ministers were opposed when
they went back for re-election; constituencies, as a rule, were rather proud than
otherwise of being represented by a cabinet minister’.39 Burt accordingly moved to
incorporate the provision, and he was seconded by George Randell who claimed
the ‘safeguard’ was particularly crucial for such a sparsely populated community as
Western Australia’s where there was a real risk that responsible government might
‘degenerate into government by clique’ beset by ‘intrigue and factious
opposition’.40 (And considering the degree of intermarriage among the gentry in
the colony, Randell did have a point.41)
The Attorney General, however, who had deliberately omitted this requirement
from the original draft Constitution—as had Governor Weld in 1874—was
astounded that the councillors would want to introduce it when ‘the feeling in the
mother country was increasingly against the practice, as a most inconvenient one,
and presenting no commensurate advantage’.42 Just to make sure the members
knew exactly what they would be letting themselves in for, Warton outlined that
not only would there be ‘a positive waste of two or three weeks of valuable time,
possibly at a busy period of the session’ every time there was a change of Ministry,
but the exercise was also pointless as ‘not one man in fifty who went to the country
upon the acceptance of office in England lost his seat’.43 (And, of course, in the
odd case when a would-be Minister was not re-elected, the whole time-consuming
process would have to start again!) Indeed, according to Warton, British ‘statesmen
of all parties’ viewed the provision with disfavour and evaded it upon technicalities
whenever they could.44 The Colonial Secretary, who had earlier congratulated the
Council on escaping the requirement, strongly backed Warton’s claims and
underlined the ‘vexatious delay and the trouble and inconvenience’ the provision
would cause to members in Western Australia with its ‘magnificent distances’—
particularly those representing the remote northern electorates with their scattered
populations.45
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With commendable honesty, Burt conceded at this point that, ‘A Ministry wouldn’t
offer a member office, if he represented a very remote constituency’—which, of
course, immediately prompted northern members, Alexander Forrest and
Alexander Richardson, to scramble to their feet and register their opposition to the
motion.46 The vote was called soon after and resulted in a tie which was broken
when the Chairman of Committees, Sir Thomas Cockburn-Campbell—who had
raised the issue in the first place at the second reading stage—used his casting vote
in favour of ministerial re-election. Marmion was aghast at this decision and as a
‘further test’ he used a procedural technicality to have the vote re-taken and, with
luck, reversed.47 Warton again pleaded with the members not to vote for a measure
they would live to ‘regret’, but the councillors voted, this time, fourteen to eleven
for the measure (nominee member James Morrison inexplicably swapped sides and
Parker, who didn’t vote in the previous division, also voted to support it).48 This
very deliberate embrace of ministerial re-election was significant in that the
southern members had for years bent over backwards to propitiate their northern
colleagues on most issues in the Council; so the fact that they were prepared to
vote for a measure which was demonstrably prejudicial to northern members—and
could prove an expensive hassle to all members—reveals the extent to which most
‘agreed that their main object in framing this Constitution Act was to ensure
stability’.49 Presumably Western Australia’s political system was perceived to be
sufficiently stable by 1947 when the provision was finally abolished with
the passing of the Constitution Acts Amendment (Re-election of Ministers) Act
1947.
The councillors next turned to the Constitution Bill’s proposed new electorates.
The thirty single-member Legislative Assembly electoral districts and five multimember Legislative Council electoral divisions had been drawn up under the
direction of the Surveyor General and Commissioner of Crown Lands, John
Forrest, and had subsequently been considered and reported upon by a select
committee (chosen by ballot) comprising Sir Malcolm Fraser, John Forrest,
William Marmion, Edward Scott, Harry Venn, William Loton and George
Shenton.50 Although the committee did make minor amendments to some
boundaries, and recommended eleven name changes, they agreed, by and large,
with Forrest’s distribution which had unequivocally privileged areas of
settlement or interests, even if scantily populated, over the metropolitan centres
with the greatest population. Accordingly, although the combined population of
Perth (8,000) and Fremantle (5,400) was more than one-third of the colony’s
44,000 (non-Aboriginal) total, they would only hold six of the thirty seats, or
one-fifth of the representation, while, in contrast, the East and West Kimberley
electorates with a combined total of about 600–700 would return two
representatives, and the remaining northern electorates of Roebourne, De Grey,
Ashburton, Gascoyne and Murchison with a combined population of 3,400 would
return five.51 (The ‘old’ northern electorates of Geraldton, Greenough and Irwin
with a combined population of 3,500 would also return three members.)
Considering that Perth and Fremantle had originally returned one-third of the
representatives (four out of twelve) when representative government was
inaugurated in 1870, and were still returning one-fourth of the representatives
(four out of seventeen), the new allocation of seats constituted a plunge in
metropolitan representation.
200
Not surprisingly the one dissenting voice on the select committee was that of
Edward Scott, one of the members for Perth, who insisted that a rider be appended
to the report requesting that Perth should score an extra seat for the combined
suburbs of Canning and Wanneroo at the expense of one of the new southern
districts. When the matter was raised in the Legislative Council, however, Scott
received no support. The former member for Perth, Stephen Parker, thought that
Perth and Fremantle had done very well with their six proposed representatives,
while the other current member for Perth, Edward Keane, claimed he was ‘well
satisfied’ with Perth’s allocation—although he jokingly observed that even if he
wasn’t, ‘as these country members had a majority in the House, it was not much
use for his hon. friend and himself to try and get anything for Perth’.52 The
boundaries, notwithstanding their gross malapportionment, were accordingly
ratified, with Scott possibly consoling himself with the thought that while Perth
with its 8,000 denizens might only return three members, he was still better placed
than Sir Henry Parkes who complained around this time that—
I live in a Sydney suburb, which is separated from the City by one of the arms of Port
Jackson. This suburb [Balmain] contains more than two thirds of the number of people in
Western Australia. Its 30 000 people send only four members to our Parliament, whereas
44 000 persons in Western Australia have a Parliament of their own.53
The new electorates out of the way, the councillors next turned to the question of
who would be doing the electing and under which electoral laws. Clause 38 of the
Bill proposed to leave ‘the existing laws relating to the qualification of electors, the
mode of election, and all other matters concerning election’ in force unless
‘otherwise provided’ in the Constitution. There was some mild discussion as to
whether the Government ought to otherwise provide with respect to one electoral
law at least, i.e. to prohibit candidates from canvassing personally either from the
date of their nomination or on and immediately preceding election day. The trigger
for this proposal was the recent Perth election petition trial where the Chief Justice
had censured candidates for ‘buttonholing electors on the stairs of the Town
Hall’—an action which he believed was ‘derogatory to the dignity of the House’.54
While a number of the councillors—many of whom, it should be remembered,
were members of the Perth gentry—also shared the view that the ‘personal touting
for votes’ was distasteful and degrading, the Attorney General scoffingly dismissed
the proposed ban as taking ‘too refined an idea altogether of the position of a
parliamentary election. There were plenty of traps already in the way of an
unsuspecting candidate, without introducing fresh ones’.55 In the course of his
speech, however, Warton did confirm the interesting news that the Government
was considering introducing the colony’s first stand-alone Electoral Act.
Until this took place, however, the existing electoral laws would continue, so
Stephen Parker promptly moved a motion to lower the franchise in the colony
under the provisions of the Constitution. Parker’s proposal was that the proposed
property qualifications for Legislative Assembly voters—the existing Legislative
Council property qualifications, which had been imported unaltered into the
Constitution Bill—should be reduced by exactly ‘one-half’ which would then place
the colony mid-way between its ‘present somewhat conservative franchise’ (which
was higher than the franchise requirements back in Britain) and the manhood
suffrage of the sister colonies.56 Parker admitted outright that he personally did not
support manhood suffrage (and mused aloud whether he ever would), and that his
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‘principal object’ in introducing his amendment ‘is not that I think it would admit
any large number of additional voters, but that I think it is a concession we ought to
make to the agitation that is going on in favor of a more liberal franchise’.57 Sir
Malcolm Fraser snorted that with such ‘half-hearted’ championing he didn’t favour
the motion’s chances.58 Fraser was right, and the councillors voted down the
amendment, somewhat insultingly, ‘on the voices’—notwithstanding Septimus
Burt’s derisive outburst that:
to attempt to set up any bulwarks or safeguards was all rubbish. They would all have to
come down…It was simply a question of one statesman or party outbidding another for
the popular vote. They knew it was so in England, where the rival parties were outbidding
each other for the sake of popularity. They were coming to women’s vote now. They were
not satisfied with admitting all sorts and conditions of men to the franchise, they must get
the women in too…59
Which for the record was the only time women and the franchise were mentioned
during the whole debate on the Constitution Bill—and which was one mention
more than Aborigines and the franchise received. Indeed, in cl. 42 of the
Constitution Bill, Aborigines, unlike women, were explicitly excluded from the
60,000 ‘souls’ population threshold at which the elected Upper House would come
into force—although this was possibly because gauging the number of Aborigines
in the colony was, in Governor Broome’s words, ‘absolute guess-work. It is quite
impossible to fix a figure’.60 (Some estimates, however, go as high as 25,000.61)
Nonetheless, Aborigines could technically register to vote if they met the franchise
qualifications (a point clarified by Stephen Parker in 1890), although given that
they had been systematically dispossessed of their land, and usually received only
subsistence wages or their ‘keep’ when employed, most of the colonists probably
shared the pessimistic view of former Governor Sir William Robinson that: ‘I do
not think we can ever look forward to a time when the aboriginal native of
Australia will exercise the franchise’.62
To return to the Constitution Bill: a motion to strike out the new requirement in cl. 39
for Legislative Assembly electors to have held their various property qualifications
for at least twelve months before registration, instead of the existing six months, was
also voted down on the voices. Not unexpectedly the Attorney General, who had
been responsible for this tougher requirement, spoke in defence of it:
If they wanted to keep West Australia for West Australians, and not have the
constituencies invaded by a rabble coming, no one knew whence, who arrived here just in
time, perhaps, to take part in an election and who, next day, might be out of the colony,
they ought to insist upon at least a year’s residence.63
In fact, the provision was especially critical for Western Australia, Warton
continued, because in the colony’s numerically small electorates, ‘the scale might
be turned by some thirty or forty worthless vagrants who had no interest in the
country and no business to be on the roll’.64 Warton’s finishing stroke, however,
was probably informing the members that ‘The strongest efforts of the ultraRadicals in England…were directed against this residence clause more than against
any other part of the qualification question’.65
On the issue of liberalising the franchise by broadening it, which new member
Cornthwaite Rason reminded the Council was ‘one of the burning questions of the
202
day’ at the 1889 general election, the members were prepared to honour their
pledges and finally extend Legislative Assembly voting rights in cl. 39 to lodgers
who had occupied a room or rooms in an electoral district for at least twelve
months prior to registration, at a weekly rental of not less than four shillings (which
added up to the magical £10 per annum rent which qualified their married peers for
the householder suffrage).66 This extension of the franchise which would ‘include
all respectable mechanics and working men’ was regarded by a majority of the
councillors as appropriate on logical and equitable grounds, as well as for the wellworn reason that ‘it would be regarded as a liberal concession outside, and to a
very great extent do away with further agitation in the direction of liberalising or
widening the franchise, for some time to come’—and they had a point, as it was
later estimated that with the inclusion of lodgers, close to 90 per cent of the
colony’s adult male population would be eligible to vote.67 Nonetheless, the motion
was nearly scuppered as being too difficult to implement—the same reason that
had seen a proposed board and lodging franchise abandoned eighteen years earlier
when a Legislative Council select committee had first recommended it.68
And, indeed, the lodger franchise was highly complicated, with the members
opposed to it (basically, the Government Bench and some members from nonurban electorates who thought the provision discriminated against rural workers
who often laboured, rather than paid, for lodging ‘under their parents’ or their
masters’ roof’) highlighting some of the pitfalls: Would rooms in barns and stables
qualify? Would intermittent occupation suffice? Would occupation of two rooms in
different electorates lead to plural voting? Would a dozen lodgers dossing in a
common room all qualify? And who would make these determinations?69 Septimus
Burt, with his Queen’s Counsel hat on, then outlined that after the lodger franchise
had been introduced in England it had been followed by a rush of litigation to
clarify such issues, and he strongly advised the Council to ‘leave this question to be
dealt with in an Electoral Bill’.70 While a handful of members supported this tack
in preference to bogging the Constitution Bill down—especially, the Commissioner
of Crown Lands, John Forrest, who hurrumphed that now was not the time to go
‘revolutionising the electoral system of the colony’—the amendment’s mover,
Marmion, stuck to his guns and sensibly proposed that if the members at least
‘agreed to the principle of the amendment, the necessary machinery for carrying it
out might be provided hereafter’.71 At that, the members wound up the discussion
and voted in favour of the lodger franchise by fourteen to ten—an appropriate
outcome considering most of the elected members had pledged themselves to their
constituents on this issue.
Marmion wasn’t so lucky with his next amendment to cl. 39, however—a similar
extension of the franchise to holders of a miner’s right under the Goldfields Act
1886 who had held the right and resided on a declared goldfield for twelve months
prior to registration and were still in residence on a declared goldfield at the time
of the election and had resided there twelve months previously. Notwithstanding
the multiple residency safeguards built into the amendment, John Forrest spelt out
for the councillors that this motion would see ‘hundreds of miners, who had simply
paid £1 for their miner’s right, exercising the same privilege as the £10
householders, and, possibly, swamping the voice of the country electors’ who
could, in turn, become effectively ‘unrepresented’.72 To illustrate his point, Forrest
cited the Toodyay electorate with its 300 registered voters which, because it
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included the Yilgarn goldfields, would have its electoral roll swelled by 200 miners
‘at one stroke’ if the amendment were passed—and which could see the mining
proportion of the electorate easily doubled or trebled by the time the next roll was
compiled.73 While Forrest was not opposed to suitably registered miners voting for
their own separate goldfields representative, the Colonial Secretary promptly
quashed this prospect with the observation that ‘he did not think anyone would
venture to say that our goldfields had yet attained that importance that they ought
to have the right of returning their own member’.74 The final speaker, Alexander
Richardson, not only concurred with the Colonial Secretary that the goldfields were
not sufficiently developed to warrant special treatment, he also challenged as
‘humbug’ the notion that they should ever receive special treatment.75 Instead, he
dismissed the amendment as ‘simply manhood suffrage under another name, and
manhood suffrage in a very objectionable and one-sided form,—manhood suffrage
extended to those districts only in which there happened to be a goldfield’ rather
than to those districts where workers wielded the very same picks and shovels
down a well.76 The amendment was lost on the voices.
By this stage very few election-related provisions of the draft Constitution
remained to be considered. The question of election lists was raised briefly in
reference to cl. 41 of the Bill which stated that such lists were to be made up in
accordance with the laws ‘now in force’. Clearly, this was no longer a viable
provision considering the recent scandal regarding the Perth electoral roll and the
fact that a new Electoral Act ‘to provide for the Registration of certain Electors’
was in the offing (indeed, the Electoral Bill was introduced into the Council six
days later), so Stephen Parker had no trouble in getting an amendment through that
the lists should be made up in accordance with the law ‘in operation at the time’.77
The next tranche of clauses, from cll. 42 to 53, related to the Legislative Council
once it became elected and almost all of them were not debated at all, but agreed to
sub silentio. Possibly the members thought it highly likely that these provisions
would be revisited and ‘dealt afresh with’ immediately before they were due to
come into operation which is, in fact, what happened.78 In summary, these clauses
provided that six years after the first summoning of the new Parliament under
responsible government or when the population reached 60,000 (non-Aboriginal)
‘souls’, the Legislative Council would become elective with fifteen members being
returned from five electoral divisions; that those members would then elect a
President who would issue writs for Council by-elections; and that members would
retire in rotation at two-yearly intervals. Surprisingly, even debate on the
qualifications for the Legislative Council franchise was over in a matter of minutes;
and the slight discussion which did take place was not over the fact that the
property qualifications for the Upper House in this new Part III of the Bill had been
raised even higher than those Broome originally proposed (Broome had simply
doubled all the existing Legislative Assembly qualifications, whereas the current
Bill doubled the freehold qualification, trebled the rest and, of course, omitted a
lodger franchise) but whether the non-payment of municipal rates should disqualify
electors.
By 28 March the councillors had finally reached ‘Part VII—Miscellaneous’—the
concluding clauses of the Bill. And it was here, somewhat bizarrely, that the whole
process nearly derailed. In dealing with cl. 73, the amending clause, the Colonial
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Secretary, without notice, moved that ‘any bill dealing with the Civil List,
ministerial salaries, retiring pensions, the grant to the Aborigines Board, and other
charges upon the Consolidated Revenue fund’ should have to be ‘reserved by the
Governor for the signification of Her Majesty’s pleasure thereon’.79 This was a
contentious amendment considering that under the Constitution Bill such areas
were within the competence of the legislature to change as it saw fit, without a
time-consuming reference back to England. Not surprisingly, the councillors felt
this to be yet another affront to the colony and a clog on the new Parliament’s
independence; and coming only the day after they had very ungraciously ratified
statutory funding to the independent Aborigines Protection Board—‘a downright
insult to the colony’—they were starting to feel fractious.80 Even with Fraser
insisting that he was ‘under instructions’ from Lord Knutsford to implement the
amendment (and cautioning them ‘in a friendly way’ that it ‘would be impolitic to
resist it’) the motion went to a vote and, while passed fourteen to nine, it was
rejected by such key players as Parker, Marmion and Scott.81
The Colonial Secretary was trounced, however, in the last stoush over the Bill—
Septimus Burt’s eleventh-hour amendment to cl. 76 to defer the coming into
operation of the new Constitution Act until the entire control and management of
the southern waste lands of the colony were legally vested in the local legislature.
While a number of the members concurred with Burt’s view that it ‘did seem to
him futile to go in for this new Constitution and have no land with it’, most up to
this stage had been prepared to trust Knutsford to deliver on his promise to delegate
to the Western Australian legislature his own delegated powers to make land
regulations—even if most also shared Burt’s opinion that ‘A regulation is not a
law. It is no law at all, nor has it the force of law; it is a mere sham’ and, to make
matter worse, a ‘sham’ that would still have to be referred back home for Imperial
approval.82 However, when Parker, also a lawyer, outlined that Knutsford was
probably incapable of giving the colonists even this limited power of framing
regulations, as it was a legal principle that a delegate cannot delegate powers
(delegatus non potest delegare) he literally turned the debate at a stroke: a
thumping eighteen to six decided to ‘make a stand, and take the risk of the bill
being delayed’ and voted for the amendment.83
Within minutes of this dramatic vote, the committee finished with the Bill proper.
The drama continued, however, with the Schedules, when the elected members—
impervious to the alternating protests and cajolings of the Government Bench—
voted en bloc for reductions ‘from the top of the list to the bottom’ in the Civil List
salaries for the Governor, Clerk of the Executive, Chief Justice and Puisne Judge
(which Broome had proposed to increase with the inauguration of responsible
government) and similarly, when dealing with the pension Schedule, trimmed all
the proposed pensions—and almost halved that of the Attorney General, Charles
Warton, who had only been in the colony, and in fact the civil service, for less than
three years.84 The slashing of Warton’s entitlement was not unexpected, however,
given that his arrival in the colony had been preceded by a rash of articles—
including extensive reprints from high-profile English newspapers—ridiculing the
appointment of the ‘uncouth’ and unqualified ‘Bill Blocker’ as a shameless
example of Tory ‘wire-pulling’ which made ‘people despair of decent relations
between England and her Colonies ever being established’.85 Sadly, it was on this
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rather mundane note that the Constitution Bill completed its first pass through the
Council.
Governor Broome immediately informed Knutsford that the Bill had made it
through the committee stage and catalogued the principal amendments—in
particular, the new proviso in cl. 76 relating to the vesting of the Crown lands. He
concluded his despatch with the observation that, ‘It could scarcely have been
expected that the Bill would have sustained fewer amendments’ and warned that it
might, in fact, be ‘further altered’ when recommitted to the House.86 However,
after the Constitution Bill was recommitted five days later on 3 April, an
undoubtedly relieved Broome was able to relay to Knutsford that ‘no further
amendments of any importance were carried’.87 Indeed, the only substantive
amendments were fixing rather than capping the Upper House nominees at fifteen;
abolishing the ‘practically inoperative’ requirement that electors had to have paid
up their municipal rates before being allowed to vote; and vesting the power to
suspend or remove civil servants earning over £100 per annum in the Governor in
Council rather than the Secretary of State.88 But it should be noted that while not
‘carried’, very strenuous attempts were made to get the members to reverse their
recent decisions vis-à-vis ministerial re-election and the retention of a high
property qualification for members. Also not carried was an amendment proposed
by the Secretary of State via telegram, and only received by the councillors on the
evening of 3 April, that the Council ‘ought’ to increase the Attorney General’s
pension to at least two-thirds of his existing salary.89 Notwithstanding that they
were directly flouting Lord Knutsford, and might be risking the Bill, the elected
members would not accept that Warton’s short stint in the colony warranted an
ongoing £400 per annum from the public purse (especially since Broome was
constantly enjoining them to exercise the strictest economy) and they refused to
budge as a point of principle.
Two days later the Constitution Bill and the companion Aborigines Act were
finally read a third time and passed. The exultant councillors promptly appointed a
select committee ‘to consider the necessary enlargement of the Legislative
Chamber, in view of a change of the Constitution’, and rewarded themselves with a
five-day adjournment.90
When the Council reconvened on 10 April, prayers were no sooner over than
‘Message (No. 12)’ from the Governor, containing the text of the latest telegram
rally with the Secretary of State, was read out. Broome’s chatty telegram (he was a
former journalist) was all sweetness and light; he informed Knutsford that the
councillors in ‘most fair and loyal manner’ had passed the Constitution Bill
‘without material alteration’, and recommended that it
may be accepted, without further negotiations or correspondence. Would urge that Act of
Parliament be at once drafted for introduction immediately on arrival of Bill in England.
Time all important to Colony.91
Knutsford’s curt telegram, by contrast, signified that while quadrennial terms and a
lodger franchise would be acceptable to the Colonial Office, the vesting of the land
proviso and the reductions to the Civil List salaries and Warton’s pension would
not.92 With Knutsford’s ‘Do not agree to amendments’ still ringing in their ears, the
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members were then read ‘Message (No. 13)’ from Broome which returned the
Constitution Bill with a tranche of amendments—including the land proviso and
Schedule amendments that Knutsford was insisting on.
With the exception of an amendment to bring the Upper House quorum back down
to five again, Broome’s proposed changes were trivial tidy-up provisions, and all,
including the quorum amendment, were ‘put and passed’ within minutes.
Knutsford’s desired amendments to the land proviso and Schedules—basically
amendments requiring the members to reverse their recent decisions—were,
however, debated at much greater length and with more fervour than they had been
the first time around. Predictably, the land proviso amendment generated the most
angst, but the elected members held firm and one after the other endorsed Parker’s
assessment that without a statutory guarantee that the land would be vested in the
legislature, ‘we shall find ourselves with self-government and the very mainspring
of self-government gone, the motive power, the sinews of war, the public estate,
taken from us’.93 When the vote was called, the original majority in favour of the
proviso remained unchanged. Realising that in rejecting the Secretary of State’s
‘sham Constitution’ they had probably done their dash anyway, the elected
members gamely stuck to their original decisions regarding the Schedules.94
Broome wasn’t so expansive in his next telegram to Knutsford. He merely stated
that the members ‘insist’ on their previous decisions, and that he intended to
prorogue the Council within a few days ‘unless business from you’.95 Knutsford
instantly replied that he, too, insisted on his amendments, and finished with an
ultimatum: ‘In order to enable introduction Imperial Parliament this Session, better
not prorogue till points at issue have been settled as required’.96 The telegrams
were tabled in the Council, the Bill and Knutsford’s amendments were resubmitted,
and Broome’s advice in the accompanying Message (No. 19) was that the game
was up and the amendments should be accepted. The problem with this advice,
however, was that the elected members’ commitment to the full and unfettered
control of the land had, if anything, hardened. This was a consequence of Broome
telegraphing Knutsford five days earlier with the query ‘Responsible
Government—Will Legislature completely control lands South latitude twentysix?’ and receiving the far from reassuring reply (tabled in the Council only two
days previously) that while this was Knutsford’s ‘intention’ he ‘cannot undertake
Imperial Parliament will not make some modifications’.97 After such an admission,
Parker argued that there could be no justification for surrendering on the land issue.
Nonetheless, the councillors didn’t want to antagonise unnecessarily the man they
would be relying on to champion the Bill through the Imperial Parliament;
accordingly, many supported Parker’s proposed compromise that they hold firm to
the land proviso and capitulate on the Schedules and thereby ‘reduce the points in
dispute between the Secretary of State and ourselves to one’.98 Once this position
had been reached, Rason sensibly proposed an adjournment in which Broome
could telegraph Knutsford and see if now he ‘might be induced to give way’.99
When the Council reassembled on 25 April, there was good news for a change. In
response to Broome’s telegram: ‘If you agree add to Act of Parliament clause
ensuring validity of regulations…it may facilitate matters’, Knutsford had cabled
back ‘will insert clause’.100 This ‘distinct promise’ to guarantee parliamentary
sanction for the transfer of land control to the Western Australian legislature by
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means of a clause in the Enabling Act won over most of the elected members’.101
But not all. After listening to six councillors in a row express support for
Knutsford’s ‘almost entirely satisfactory’ pledge, Parker rose to point out that
nothing had really changed.102 Knutsford had given ‘no assurance’ that his
promised land clause ‘will be agreed to’, so if they struck out their own land
proviso they could still wind up with responsible government sans control of the
land.103 To protect themselves from this contingency, Parker urged the members to
support a measure originally proposed by Broome and subsequently placed on the
Notice Paper by nominee member James Morrison, viz. to provide in the draft Bill
that the Constitution would come into force ‘only when the Legislative Council
shall have requested the Governor, by Address, to proclaim it’.104 Thus, if the new
Constitution did not come with control of the land, they could simply not enact it.
A number of members following Parker agreed with his assessment and advice, but
when the vote was taken, a substantial majority (fifteen to six) voted to strike out
the land proviso in cl. 76 without inserting the new proviso. The amendments to the
Schedules were passed without demur or division.
The votes had been taken late on a Friday night and the members, as Richardson
observed, were ‘tired of fighting the matter’.105 Over the weekend it appears they
had serious second thoughts about having excised the land proviso safeguard, and
took the ‘opportunity of perusing’ a spectacularly ungracious memorial to the
Secretary of State drafted by Sir Thomas Cockburn-Campbell which spelt out how
‘under protest’ and ‘greatly against their own inclinations and those of the
country—Your Memorialists have deferred to your wishes’, and how they only did
so on the strength of Knutsford’s pledge to guarantee the vesting of the land.106
When the councillors met on the following Monday the memorial was presented to
the House and, notwithstanding warnings that it was ‘suicidal’ and ‘calculated to
get the back of the Secretary of State up’, it was passed and joined the Constitution
Bill in the outward mail—along with a covering despatch in which Broome
counselled Lord Knutsford that should ‘any difficulty arise’ in Westminster with
regard to the ‘promised transfer’ of land, it will be ‘explained…that this transfer is
absolutely necessary if Responsible Government is to be established on the usual
and recognised basis in Western Australia, and if the Colonists are not to be kept in
a perpetual state of discontent and irritation’.107 Broome prorogued the Council the
next day after jauntily informing the councillors that ‘Our labours are ended’ and
that he had ‘but little doubt’ that responsible government would be in instituted in
the colony before the year’s end.108 Indeed, Broome was so confident that a new
round of elections would soon be taking place, that he advised the members he
would probably have to recall them for another short session in a couple of months
to consider the colony’s new Electoral Bill (the previous one, as shall be discussed,
having been withdrawn two days after it was introduced).
A ‘decent, respectable, conservative’ Electoral Act
The Council ‘specially called together…to consider a new Electoral Bill’ met on 23
July 1889; and while the Electoral Law Amendment Bill was read a first time, the
‘somewhat uninteresting and unimportant’ topic of electoral legislation (George
Randell’s words) was instantly sidelined by the latest developments regarding the
Constitution Bill.109 In his Opening Address Broome informed the Council that
while the Enabling Bill had passed the House of Lords, there were major concerns
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that it would face opposition in the House of Commons and might not be passed
during the present session of the Imperial Parliament.110 On the following day this
news was confirmed by a telegram from Lord Knutsford in which he explained
that:
In view of opposition to Western Australian Responsible Government Bill on both sides
of House, and period of Session as well as necessary work to be accomplished, much
regret that impossible to pass Bill before prorogation, but still hope that second reading
can be got later, so as to affirm principle of constitutional change.111
The disappointment and anger of the members at this news can be imagined. They
had repeatedly compromised and capitulated on the Constitution Bill ‘to suit the
wishes, soothe the prejudices, and correct the mistakes of the Home Government’,
as Venn fumed, and to find that even this ‘modified and mutilated’ measure was
encountering opposition was beyond galling.112 Nonetheless, the news that the Bill
was facing obstacles was hardly unanticipated. As outlined previously, the
councillors had long been aware that there was concern in Britain, stoked by the
press and various emigration and philanthropic stakeholders, at the Imperial
Government signing away 1,000,000 square miles of land—‘the heritage of the
British people, of British paupers’—to 40,000 colonial ‘land-grabbers’ who might
block British emigration at a time when Britain was looking for an outlet for its
surplus population.113
The councillors promptly turned to what action they could take to pressure the
House of Commons into passing the Enabling Act during the current session. After
hours of intense debate, which included proposals to send off ‘hard facts and
figures’ to rebut the land-grabbing accusations, and even a proposal by a couple of
‘weak-kneed’ members—including, somewhat unbelievably, Sir Thomas
Cockburn-Campbell—to surrender on the vesting of the land, they settled for the
following fairly challenging resolution to be cabled to Lord Knutsford:
That this House desires to express its strong and unalterable opinion that the colony has
now reached a stage of development when the present Constitution is no longer adapted to
its circumstances, and that the anticipated delay in the passing of the Enabling Bill will
most seriously affect its material prospects, will give rise to universal irritation, and deal a
fatal blow at that trustful confidence in the fair dealing and justice of the House of
Commons which has hitherto been reposed in a body credited throughout the civilised
world with a reputation for sympathy with and active support of the principles of selfgovernment, which is enjoyed by every other colony of Australia, and which is now
demanded by Western Australia in accordance with the provisions of the 32nd section of
the Imperial Statute, 13 and 14 Vict., c. 59. The Legislature earnestly requests that the
Imperial Government will reconsider their position in regard to the Enabling Bill, and, in
the interests of this Colony, so seriously menaced by any further delay in the introduction
of self-government, will still endeavor to pass the measure during the current session of
Parliament. There is but one opinion throughout the whole of Australia as to the extreme
unwisdom and injustice of shelving the Western Australian Constitution Bill for another
year.114
Immediately after the vote, Parker proposed a follow-up resolution requesting the
Speaker to telegraph all the sister colonies’ governments and legislatures with an
appeal for their help—specifically, to instruct their agents general in London to
lobby the British Cabinet with ‘the necessity, in the interest both of Western
Australia and of the Australasian group generally’, for the Enabling Bill to be
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passed immediately.115 The resolution was passed unanimously. The members had
done all that they could. Finally, they could turn to the Electoral Bill—a measure
which was viewed as ‘the finishing touch to the preparations for another form of
Government’.116
The genesis of what would become the 1889 Electoral Act (An Act to consolidate
and amend the Law relating to Elections to the Legislature, 53 Vict., No. 23) was
the election petition of defeated former Perth MLC, John Horgan, to unseat both of
the successful candidates—Dr Edward Scott and Edward Keane—in the 1889 Perth
election. Horgan, a solicitor, cited a number of grounds in his petition including
that the returning officer, Sheriff James Broun Roe, permitted the winning
candidates to have the assistance of scrutineers during the counting of votes but
tried to prevent Horgan’s scrutineers from being in attendance, and that Roe
conducted the count in such a grossly unprofessional manner that a recount would
establish that Horgan and not Keane (who only won by a five-vote margin) should
have been returned. More seriously, the petition also alleged that the corrupt
practice of personation of electors, both dead and alive, took place—including by
one of Dr Scott’s election agents—and that some ‘double votes’ were also taken at
the poll.117
While justices Onslow and Stone, after sitting as an election petition court for six
days, held that no corrupt practices had been proved (although the Chief Justice
somewhat contentiously remarked that the ‘case was full of suspicion’ and
‘wrongful’ acts) and dismissed Horgan’s petition, it was clear from the evidence
tendered during the trial that the electoral roll in the Perth electorate was in a fairly
appalling state, with minors and deceased electors appearing on the list, and thirdparties putting electors on the roll without their knowledge.118 Indeed, the most
jaw-dropping moment in the whole trial was when petitioner Horgan was forced to
concede that he had put two of his sons, both minors, on the electoral roll using
property that he owned as the franchise qualification—and airily claimed in
defence of his fraud that ‘numbers of people did the same thing’.119
It was also obvious from the evidence presented to the court that the returning
officer had not complied with statutory requirements, with his manifold sins of
omission and commission including: his not making the required declaration of
office; his ‘most indecent’ refusal to prevent canvassing within the polling place;
his failure to bundle and seal the ballot papers and counterfoils before examining
the voting lists; his lodging of unsealed election material with the Clerk of the
Legislative Council; his destruction of unused ballot papers; and his decision not to
report, and name, multiple voters on his return certificate to the Governor, because
‘I know that the list is full of mistakes’.120 Although the justices decided that Roe’s
non-compliance did not warrant the whole election being invalidated under s. 18 of
the Ballot Act, he was subjected to the public mortification of being censured by
the Chief Justice for having ‘neglected his duty’, and being ordered to pay his own
legal costs.121 Not surprisingly, the Colonial Secretary’s Office, which oversaw
elections, was also dragged into the affair. Horgan basically accused the
Government of an attempted cover-up in delaying the publication of Roe’s return
certificate, which he believed ‘would have assisted him as to whether he had
grounds for his petition’.122 Considering that Roe’s certificate sat in the Colonial
Secretary’s office for almost a month before finally being gazetted—two days after
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Horgan served a subpoena on the Governor demanding its publication—the delay
was noted with disapproval by the justices.123
Perhaps the most ironical feature of the trial, however, was the fact that even if
Horgan’s petition had succeeded there was serious doubt as to whether personation
of electors could have voided the election anyway. Stephen Parker, as defence
counsel for Dr Scott, was the first to raise the point that the ‘law here was in rather
a peculiar position as regarded personation’, i.e. in Western Australia, personation,
although a felony under the Ballot Act 1877 and punishable by imprisonment, was
not one of the acts of bribery and corruption listed in the Legislative Council
Ordinance as voiding an election, nor was it included in the list of offences for
which a candidate was responsible for the actions of his agent.124 As his coup de
grace, Parker then argued, from British case law, that ‘the common law could not
supplement a penalty upon that imposed by the statute’—in other words, the
common law could not be invoked to void the election in the present case.125
Extensive legal argument and citing of legal cases followed this revelation; and
while finally there was general agreement that due to a ‘curious mishap’ in the
local legislation, personation by an agent did not lead to the candidate losing his
seat—as it did in the English Ballot Act 1872 on which the local Act was based and
in the current English statute the Corrupt and Illegal Practices Prevention Act
1883—there was a difference of opinion between the Chief Justice and Justice
Stone as to whether the common law could be imported to void the election.126 The
Chief Justice believed it could, arguing that ‘if the punishment was not in the
statute, they must look for it in the common law’, while Stone counterclaimed that
the legislature having explicitly provided a stiff punishment for the actual
perpetrator of the personation, there was no scope to top up the penalty via the
common law.127 Fortunately, as the personation by Scott’s agent had not been
proved, the justices did not have to come to a determination on the issue.
The justices’ report on the petition with its adverse finding that the Perth electoral
roll ‘contained the names of many persons who were not entitled to vote at the said
election’, was presented to the Legislative Council on 15 March 1889; and, not
surprisingly, Parker and Scott were the first in the Chamber to call for measures to
remedy the ‘evil’ of defective electoral lists so as to ensure the ‘purity’ of
elections.128 A week after it was tabled, the councillors formally set aside time to
consider the report, and after minimal debate (presumably because they were
reluctant to hold up the Constitution Bill) resolved that in view of the ‘probable
unsatisfactory compilation’ of electoral rolls throughout the colony, electoral
registration provisions should be tightened and new revised rolls prepared before
the next general election.129 The original resolution proposed by Parker, and
seconded by Scott, recommended that the new registration clauses should be
inserted into the Constitution Bill; but George Shenton countered that it would be
wiser to effect the amendments through a separate Electoral Act, pointing out that
as the members were all resigned to there being another session of Council before
the Constitution Bill was enacted, the Government could introduce a new Electoral
Bill when the House reconvened.130 Shenton’s amendment was put and passed and
the amended resolution was immediately forwarded to Broome.
Although the resolution did not refer to James Roe’s official negligence, it had
been noted in the justices’ report; and during the petition debate it was also
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commented upon by Parker who spoke warmly in defence of Roe, claiming that the
sheriff had ‘tried to do his duty strictly and honorably’ but, like the rest of the
colony’s returning officers—who, Parker reminded them, were not paid for their
additional time-consuming duties as were their counterparts in the sister colonies—
was not a lawyer and had not been given special directions as to his duties by the
colony’s Crown Law officers.131 As such, Parker continued, ‘we can hardly wonder
that these laymen do not carry out to the letter the duties required of them by the
Act, which in many instances is somewhat difficult to construe’. Parker
recommended that in future the Government ‘issue special instructions’ regarding
election procedure to assist the returning officers (which occurred in some of the
sister colonies); and while he didn’t go so far as to recommend the setting up of a
dedicated agency or official to coordinate elections within the colony, he did, in
fact, highlight the need for this. Tellingly, by the next election, electoral officials
would be issued with gazetted instructions; by 1897 there would be an ‘Officer in
charge of Electoral matters generally’; and by 1901 an ‘Electoral Department’ with
a ‘Chief Electoral Officer’ would be established within the Department of the
Colonial Secretary.132
Only eleven days after the resolution was passed, the Attorney General, without
notice, moved the first reading of a Bill ‘to provide for the Registration of certain
Electors, and for other purposes’.133 This was a lightning fast response to the
members’ request, especially considering the Constitution Bill had only finished its
first transit through the Chamber a few days earlier; but when the second reading
was moved the next day it was clear that the Electoral Bill was not up to scratch.
Indeed, when summarising its provisions, Warton apologetically described it as
‘only a skeleton’ that would benefit from a good select committee—and
considering the Bill contained only eight clauses while the Victorian equivalent
had roughly 150, he was wasn’t overstating the case.134 The biggest defect of the
Electoral Bill, however, was that it did not intend to ‘attack the present system of
registration at all—in case the present Constitution might continue for some time
longer—but simply to provide for the registration of any fresh claims’.135 Although
the councillors agreed to the second reading, they were plainly underwhelmed and,
believing that there wasn’t enough time left in the current session to rehabilitate the
Bill, they blocked (undoubtedly with some satisfaction) ‘Bill Blocker’ Warton’s
bid for it to go to a select committee. In view of this refusal, the next day Warton
informed the House that the Government had abandoned the Bill.
But only temporarily as it turned out. Broome, in fact, was also keen to see the
colony’s electoral law straightened out, and confided to Lord Knutsford that a
‘decidedly conservative’ Electoral Act could exert ‘an influence most desirable and
valuable at the outset of responsible government’.136 Accordingly, Broome
personally appointed a Commission which consisted of his militantly conservative
Attorney General, the reliably right-thinking Burt and Parker, and the recently
knighted Speaker, Sir James Lee Steere—as well as Robert Fairbairn, the Resident
Magistrate of Fremantle, who had fifteen years’ hands-on experience as a rural and
metropolitan returning officer. Over the parliamentary recess the commissioners
drafted the Electoral Bill, Mark Two, which, unlike its predecessor, set out to
consolidate the colony’s electoral law—currently scattered through a handful of
statutes—as well as to amend it, although as Broome explained to Lord Knutsford,
the Bill would not ‘not touch’ the franchise, members’ qualifications or boundaries
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‘these questions having been dealt with and settled by the Constitution Bill’.137
Rather, Broome continued, the Bill’s objectives would be to ‘to regulate procedure,
to ensure complete and correct rolls, and to guard against fraud and malpractice,
which are known to be possible and to exist under the present law, and which it is
desired to get rid of before the first general election under the new constitution’.
The new Electoral Bill came before the Council on 29 July 1889 when Warton
moved its second reading. In overviewing its provisions, Warton informed the
House that the commissioners had unanimously agreed that the crux of the Bill—in
keeping with the ‘spirit of the Constitution Bill’—was to ensure
that the electorate of Western Australia should consist of West Australians. I mean by
that, that pains should be taken that the Government of this colony should not fall into the
hands of persons who come here from any part of the world, stay here a very few months,
and then somehow or other get on the electoral lists.138
As a result, not only would entirely new electoral registers be compiled, but
rigorous new registration procedures would also guarantee that they would be
‘composed only of persons who are entitled to get there and to remain there’.139
Warton then proceeded to tick off some of the provisions in the Electoral Bill
which would make sure this actually happened. Basically, the commissioners’ Bill
mandated that in future all would-be electors would have to apply for registration
personally and in writing using one of nine customised claim forms covering
‘every possible kind of claim’ (as opposed to the one-size-fits-all claim form in the
Legislative Council Ordinance, which, in fact, was only used after a would-be
elector had been refused registration).140 On these forms claimants would have to
describe in precise detail the property which gave them their entitlement and also
declare that they were not minors or subject to any disqualifying legal incapacity.
These application forms would then have to be signed, witnessed and
countersigned—and any deliberately false statements would incur a prohibitive
fine. Policing registration would be a new officer called the ‘Electoral Registrar’
(in most cases the magistrate’s clerk who had done the job previously) who was to
assess each application and reject doubtful or deficient ones.141 And to keep the
electoral registrars focused on the job, the Bill contained a penalty of up to £50 for
any ‘wilful or grossly negligent act of commission or omission’.142 As previously,
any rejected or challenged claims could be taken to a revision court, which retained
all its previous powers to perfect the rolls, although its job was made easier by the
provision that the Registrar General of Births, Deaths and Marriages had to send
the electoral registrar an annual list of all adult males who had died within the
electorate to assist the weeding of deceased electors from the roll.143 Finally, to
ensure that all stages of the registration, objection and revision process received
maximum public scrutiny, the commissioners extended all the deadlines laid out in
the Legislative Council Ordinance. Thus, the process of producing an electoral
register under the Electoral Bill would take five months (10 April to 8 September)
as opposed to eleven weeks (10 April to 24 June) under the Ordinance.
While the commissioners may have completely overhauled the electoral
registration process, they made few substantive changes to the colony’s other
electoral laws, which in most cases had been simply transferred en bloc from
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previous Acts. The few changes which were made included: removing the
requirement for candidates to provide written notice of their intention to nominate
ten days before the election because the Bill provided for a separate nomination
day; abolishing the requirement that nomination forms be endorsed by six electors;
instructing the returning officer to declare sole candidates elected on nomination
day rather than waiting for election day; permitting all election-related paperwork
to be transmitted by telegraph; lessening the existing draconian punishment for
candidates convicted of bribery and corruption (the disqualification from sitting in
the House would be until the next general election instead of the existing seven
years); and prohibiting the use of hotels and restaurants for political committee
rooms.144 (After long-standing criticism that hotels were ‘the centres of illicit
corruption and illicit management’, Britain had finally banned the use of hotels as
committee rooms in 1883 with the passing of the Corrupt and Illegal Practices
Prevention Act 1883.145 The slow take-up of this reform might be explained by
some Western Australian towns not having alternative buildings to serve the
purpose.) Before concluding his overview of the Bill, Warton did, however,
mention that a major change to electoral practice had been contemplated by the
Commission—to return the hearing of election petitions to the legislature—and
whilst it had not been adopted, he believed it was a sound suggestion which the
councillors themselves might like to revisit.
Never one to be outmanoeuvred, Parker promptly informed the councillors of other
sound suggestions which hadn’t made it into the draft Bill—viz. to ban personal
canvassing by candidates after nomination day and to make enrollees pay a one
shilling registration fee as in Victoria—and he strongly urged that the Bill be
referred to an enlarged select committee, representing ‘all shades of opinion’,
where the pros and cons of these measures could be fully canvassed.146 Considering
that the commissioners had clearly disagreed on a range of electoral issues, and that
there was plenty of time to devote to the Bill in this uncrowded session, the
councillors turned the Bill over to a select committee comprising one-third of the
House (Steere, Warton, Cockburn-Campbell, Randell, Venn, Harper, Keane and
Marmion).
Marmion presented the select committee’s report and a reprinted copy of the Bill,
incorporating the committee’s amendments, on 7 August; and a committee of the
whole House was set down for two days later.147 Notwithstanding that it was
reprinted, the select committee’s Bill was, in fact, not radically dissimilar from that
of the commissioners (although Schedule A now featured seventeen individual
registration claim forms covering the existing Constitution, the reserved
Constitution, and qualifications to the Legislative Council once it became elective).
Indeed, as far as the core registration provisions went, the select committee’s only
significant amendment was to prohibit lawyers from assisting in the hearing of
claims and objections in the revision court because, as Marmion put it, ‘the object
was that common sense should prevail, and that no legal quibbles or technicalities
should be introduced to obfuscate the brains of the gentlemen composing these
courts’.148 Given that the members would also have been aware of the much
criticised dominance of lawyers in the English electoral scene, where solicitors had
been dubbed ‘the real Parliament makers’ because of their near monopoly in
organising electoral registration and managing election campaigns for candidates,
this amendment was easily passed.149
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Similarly the select committee had no trouble persuading the councillors to change
the manner of marking the ballot papers from the current mark in the square system
to the strike-through method (used by all the sister colonies except South Australia)
in which electors drew a line through the names of all the candidates for whom
they did not wish to vote.150 (South Australia had also originally used the strikethrough method, but changed to a cross in the square system in 1858 in part ‘to
save ink’.151) This change to a more expensive method of marking the ballot paper
had been recommended to the committee by Sir Thomas Cockburn-Campbell who
had earlier championed it in the West Australian after the high number of informal
votes cast at the 1889 general election. Ironically, however, while a desire to bring
Western Australian electoral practice more into line with the sister colonies would
also have been behind this amendment (federation was only twelve years away),
the discarded cross in the box method would be the form adopted for
Commonwealth elections by the Commonwealth Electoral Act 1902 and reverted to
by Western Australia in 1904.152
The select committee’s final significant amendment—to prohibit candidates from
personally canvassing electors or addressing political meetings from the day of
nominations—met with some opposition and was forced to a division.153 By and
large, the councillors were relieved that they would no longer have to press hands
and tout for votes, but quite a few argued that a total ban on addressing election
meetings for the last ten or so days of the campaign was going too far—especially
if a candidate had the misfortune to be ‘libelled right and left’ after nominations
closed.154 (South Australia, from which this measure—often referred to as the
‘gagging clause’—was copied, actually imposed the ban from the issuing of the
writs.155) After fairly heated debate this ‘too utterly un-English’ amendment was
passed fifteen to seven; and C. T. Stannage has very aptly commented that the
voting list confirms that the decision was a win for the ‘country conservative bloc’
who viewed personal solicitation as a ‘city thing’ and felt ‘repugnancy for the
increasing necessity of town hall oratory in electoral politics’.156 Another equally
likely, although unstated, reason why the amendment received such strong support,
however, is that muting candidates for a large part of the election campaign would
prove more of a handicap to newcomers (those whom Warton and the councillors
were so keen to keep out of Government) than it would to old settlers who had an
incumbency advantage and probably a solid network of local canvassers to speak
on their behalf.
The remainder of the changes made to the commissioners’ Bill by the select
committee were trivial, as were the changes made to the select committee’s Bill by
the House, and the Electoral Bill passed its third reading four days later on the last
day of the session. In his Prorogation Speech Broome referred to the reserved Bill
as a measure which he believed would ‘prove, in years to come, one of the
strongest and best safeguards’ of the new Constitution.157 The members
undoubtedly shared Broome’s appraisal, although they possibly wondered if the
colony would ever get the Constitution that would need such safeguarding. Not
only had they been informed that the Enabling Bill had been withdrawn by the
British Government, but a recent unofficial telegram had stated that the Bill would
also be referred to a House of Commons select committee in the following year
with respect to the vesting of lands and also, somewhat ominously, to consider the
‘extent over which we should exercise the rights of self-government’.158 Indeed,
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such was the councillors’ anxiety that they passed two resolutions in the final
twenty-four hours of the session to strengthen Western Australia’s position. The
first was a motion proposing the sending of Western Australian delegates to
England to ‘give such information and explanations as will remove the
misapprehensions which appear to exist, so as to ensure that the Constitution Bill
will become law without further delay’—with the favoured delegate being the
Governor himself.159 The second was a memorial to Lord Knutsford requesting the
extension of Broome’s soon-to-expire term as Governor until the new Constitution
was in place, to forestall the risk of being sent a replacement ‘entirely opposed to
Responsible Government, a Governor who would in no way sympathise with our
aspirations for free institutions’.160
Taking on the Mother Country
The last session of the Legislative Council under representative government met on
25 October 1889 ostensibly to deal with the 1890 Estimates; but naturally the topic
that dominated most of the session was the ‘critical position’ of the Enabling Bill
which, within months, was to be resubmitted to a largely hostile House of
Commons and, most likely, face a thorough filleting in a select committee as
well.161 In his Opening Address Broome did not mince his words, urging the
councillors to ‘study every possible and reasonable means of conciliating the
strong opposition’ to the Enabling Bill to ensure it was passed in a ‘form at all
likely to be acceptable’.162 Broome’s forceful injunction was not lost on the
members who were all aware of a recent proposal being floated in England—and
championed by the Times—that the boundary line for the vesting of the lands in the
colony should be drawn at the 121st meridian of longitude, instead of the 26th
parallel of latitude (the division currently in the Enabling Bill), with the supposedly
temperate land to the south-east of this being available for mass British
immigration—and, further, that the British Government had provided in cl. 8 of the
Enabling Bill that any Western Australian legislation restricting the immigration of
British subjects would have to be reserved for the signification of Her Majesty’s
pleasure.163
The first fight-back measure of the councillors was a resolution calling on their
former Governor, Sir William Robinson (who, having been recently appointed as
Broome’s replacement, had diplomatically let it be known that this time around he
was firmly behind the colony’s quest for self-government—which was hardly
surprising given his recent derisive assessment of the colony’s hybrid system of
Government as ‘neither fish, fowl, nor good red herring’) to use his ‘influence and
experience in support’ of Western Australia during his upcoming visit to
England.164 The councillors’ second measure was to follow up a suggestion
telegraphed by Lord Knutsford that they choose an unofficial member of the
Council to accompany Broome as part of the Colony’s lobbying delegation to
England.165 In fact, after the usual hand-wringing over costs, the councillors voted
to fund both Stephen Parker and Sir Thomas Cockburn-Campbell; and then,
conscious no doubt of Cockburn-Campbell’s recent somersaults on the land
question, debated the merits of two competing sets of ‘instructions’ to bind the
delegates on the trip. The first set, moved by Septimus Burt, directed the delegates
to push for the original Enabling Bill with its north-south division; to deal with any
proposed changes to the Bill ‘according to their cognisance of the views and
216
wishes of this Council’ (telegraphing home as much as necessary); to enter a
‘protest’ against any unacceptable changes; and, finally, to insist on the inclusion
of an opt-out clause in the Bill whereby the Council could refuse to adopt it if the
unacceptable changes were insisted on by the British.166 The second radically
different set, proposed by Charles Harper, directed the delegates to try and secure
control of all the lands of the colony; but, if this failed, that they could acquiesce in
an east-west division at the 121st meridian if this would secure the Bill. As with
Burt’s resolution, the delegates were also to insist on an opt-out clause if any
unacceptable provisions were inserted in the Bill.167
Unfortunately, a lengthy stoush followed (which William Loton bitterly pointed
out would soon be relayed to the colony’s opponents in England via Hansard and
press reports) in which a number of councillors admitted they were more than
happy to sign away the eastern strip of the colony—containing Kalgoorlie and
Coolgardie no less!—to retain the settled northern parts of the land. The majority
view, however, was that even if the east-west demarcation was more advantageous
to Western Australia, it would be poor tactics to abandon the north-south division
already agreed to by the British Government and the House of Lords. Swapping
boundaries at this stage, it was argued, would make the councillors look as if they
didn’t know their own minds, while the gained northern territory would probably
secede some time in the future. More to the point, facilitating the immigration of
‘the sweepings of the gutters and alleys of the old country’ to the south-eastern
portion of Western Australia would instantly forfeit the support of the eastern
colonies who, over the past couple of months, had been loyally cannonading
England with telegrams and addresses in support of Western Australia’s bid.168
Indeed, the final fight-back measure passed by the Council was aimed at further
leveraging the assistance of the sister colonies: it was resolved that John Forrest
and William Marmion would be sent east when the Enabling Bill was about to be
re-introduced into the Commons to stamp out any ‘vague and erroneous notions’
(such as Sir Henry Parkes’ unhelpful proposal that an Australian inter-colonial
conference determine the boundaries) and to orchestrate the sending of suitably
worded cables—a mission touchingly described by the feisty Marmion as ‘a labor
of love’.169 (Unfortunately, to Marmion’s and Forrest’s chagrin, this mission was
‘countermanded’ by Knutsford two days before it was due to depart.170)
The Legislative Council was prorogued on 4 December and soon after Broome,
Parker and Cockburn-Campbell steamed to England. The decision to send them
was vindicated when the House of Commons, after permitting the second reading
of the Enabling Bill to take place on 27 February 1890 (threats by the Bill’s
opponents to block the second reading were not carried through), ordered that it be
referred to a nineteen-member select committee containing the Bill’s arch-enemy
Sir George Campbell.171 Beginning on 13 March the select committee sat for
twelve sessions and subjected its nine witnesses to a staggering 3,336 questions
(totalling more than 200 pages of transcript in British Parliamentary Papers)
before it concluded on 6 May.172 The catechism was not as much of an ordeal as
the witnesses may have feared, however, because a succession of Dorothy-Dixers
such as ‘If this Bill does not give…full control of the land, would not it be received
with a certain amount of dissatisfaction and disappointment?’ made it fairly clear
that a number of the committee members, including the chairman, Under-Secretary
of State for the Colonies, Baron Henry De Worms—who at the second reading
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stage had, in fact, warmly endorsed the Bill—shared the Westralian view that the
colony was being treated ‘very scurvily’ by the mother country.173
Even without sympathetic leading questions, the Western Australian delegation put
in a class act, hammering home that the British Government’s proposal to reserve
regulative control over the ‘large but very ineligible strip of land’ north of the 26th
latitude or over the ‘perfect desert’ east of the 121st meridian would be pointless
because neither area was fit for European settlement; and that even if they were,
the Secretary of State, based 16,000 miles away, would simply follow any land
regulation advice tendered to him by the Western Australian Governor, who would
in turn be advised by the local Executive—so the land would, in all but name, be
controlled by Western Australia anyway.174 Moreover, the delegates continued, if
the advice tendered to the Secretary of State was to tighten up the land regulations
(which was likely) this, allied to the fact that the south would begrudge spending
money in the north, would spur northern demands for separation—and then the
British Government would either have to set up a Crown colony—which would be
anathema to the northerners and the British—or hand the land back to the south.
And to top it off, even if the ‘perfectly absurd’ Imperial reservation of land did take
place, witness after witness testified that it would be completely incompatible with
federation which would ‘kill’ the provision stone dead.175 The delegates then saw
off the Bill’s Immigration clause, firstly by reassuring the committee that underpopulated Western Australia actually wanted migrants more than Britain wanted to
get rid of them; and then—and this was a master stroke—by asking whether the
British Government, with its non-discriminatory policy towards Chinese-born
British subjects, really wanted to be involved in Australian immigration
considering that the country had enacted coast-to-coast Chinese Immigration
Restrictions Acts. (Western Australia’s had only gone on to the statute books a few
months earlier.) It was no great surprise, therefore, when the select committee
resolved at its final sitting that Western Australia should have unfettered control of
all her lands and full responsibility for her immigration legislation—and amended
the Enabling Bill accordingly.
What was a surprise, however, was that throughout the hearings the Westralian
delegates were subjected to adverse questions and comments about the ‘very
limited franchise and the tolerably high property qualification for members’ in the
colony’s Constitution Bill, with one committee member inquiring whether there
would be ‘any objection’ to the Bill being amended, because in the select
committee’s opinion all Western Australians should ‘have a voice in the
Government’.176 (Which was a bit steep given that roughly 40 per cent of adult
males in Britain were unenfranchised at this time!177) This line of interrogation was
also highly exasperating considering that during the Constitution debates the West
Australian legislative councillors had not felt themselves free to liberalise the draft
returned from Lord Knutsford, convinced that as it had the imprimatur of ‘a
Conservative Minister of a Conservative Cabinet’, and would subsequently have to
‘receive the approval of a Conservative Government’, it ought to retain (at least
until it was passed) its conservative lineaments—a view confirmed by the frequent
appearance of a ‘Do not agree to amendments’ cable from Knutsford when they did
make changes.178 (Although, if the members had thought about it calmly,
Knutsford did not disallow the changes to quadrennial terms and the introduction
of a lodger franchise.)
218
The response of the Western Australian delegates to this unexpected challenge was
firm and united. One after the other they stressed to the committee that under the
terms of the Australian Colonies Government Act the colony had ‘a statutory right
to arrange our franchise and our constitution exactly as we like’; that the Imperial
Parliament ‘has got no business to interfere with us in the least’ in the matter; and
that any interference would be resented in the ‘strongest degree’.179 Indeed, the
delegates must have been fortified by the testimony of the first witness called to the
hearing, the Colonial Office’s legal adviser, John Bramston, who within minutes of
commencing his evidence announced that since the passing of the 1862 Australian
Colonies Government Act (25 & 25 Vict. c. 11) Western Australia was no longer
bound by the double proviso in the 1850 Australian Colonies Government Act
(which although authorising the colonies to make such electoral changes as they
wished, also mandated that the statutes embodying these changes had to be
reserved and tabled in the Imperial Parliament). In short, according to Bramston,
‘Western Australia has the power now under Acts of Parliament to introduce
responsible government upon such terms, as to the election or nomination of
members, and as to the qualification of electors or of members, as it thinks fit,
without recourse to the Imperial Parliament’.180 Now Bramston’s interpretation of
the effect of the 1862 Act was, according to leading Western Australian
constitutional law authority P. W. Johnston, actually a fairly eccentric
misinterpretation—one which was unsupported by ‘policy or purposive’ reasons
and ‘not representative of the prevailing understanding’.181 (Numerous examples
can be cited where post-1862 secretaries of state, colonial secretaries, newspaper
editors and so forth referred to Western Australia still being bound by the double
proviso, and even Parker at the select committee hearing—no doubt to the other
delegates’ dismay—flatly contradicted Bramston’s view.) Irrespective of the
correctness of Bramston’s view, however, it helped to create an impression at the
hearings that the House of Commons was only getting an opportunity to appraise
Western Australia’s constitutional arrangements, as Governor Broome put it, ‘by a
sidewind as it were’ (i.e. because of the land question) and that, as Broome
continued, ‘Parliament may not think it right to take advantage of such an
opportunity’.182
But just in case the British had thoughts of interfering anyway—which would
entail the reopening of both the Constitution and Electoral Bills—the delegates
vigorously defended the former’s existing provisions. In fact, Sir Thomas
Cockburn-Campbell stoutly denied that the Constitution Bill was illiberal, claiming
that it delivered ‘practically manhood suffrage’—and considering that £10 in
Western Australia at the time was the equivalent of £5 in Britain, he was close to
the mark.183 (As mentioned earlier, it was estimated that up to 90 per cent of
Western Australia’s adult males would be eligible to vote under the new
Constitution.) Governor Broome, however, took a different tack. He conceded that
the Bill did have ‘some conservative restrictions’, but maintained that ‘the
Legislature have done wisely to elect to begin their new career’ with such
safeguards because in a ‘small community there is some danger, if you do not
begin with a little conservatism, of too great a financial rush at first, and this might
lead to financial difficulty and even absolute disaster’.184 He also pointed out that
the sister colonies had not commenced self-government with manhood suffrage and
that the majority of Western Australian colonists were still not in favour of it (and
previous references by Broome to the substantial number of expirees already on the
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colony’s electoral rolls provided the subtext for the colonists’ opposition). But, like
Stephen Parker who followed him, Broome reassured the sceptical committee
members that the ‘conservative restrictions’ would ‘all vanish in time, and I have
no doubt that in a few years the colony will come to the same radical institutions as
the other colonies’.185 Fortunately, the repeated assurances of imminent electoral
reform, particularly those from Parker—whose attempts to remove the property
qualification from the Constitution Bill and liberalise the franchise were on the
record—and who, as one of the select committee members observed, was ‘likely,
when this enabling Bill is passed, to be the first Prime Minister of Western
Australia’, satisfied the committee and they did not press the matter.186
The Enabling Bill’s opponents in the House of Commons, however, were not so
easily appeased, claiming that the Western Australian Constitution Bill with its
nominated Upper House, property qualification for members and restricted
franchise was the handiwork of a British Conservative Government and equally
conservative local legislature—and that ‘the whole measure was so Conservative in
character that it could not possibly be acceptable to the people generally in the
colony’.187 To render the Bill more acceptable, they urged that the property
qualification for the Lower House should be scrapped and manhood suffrage
introduced. The Westralian delegates and the Governor-elect meanwhile kept up
their indefatigable lobbying and a deputation of Australian agents general met
W. H. Smith, First Lord of the Treasury and leader of the Government in the House
of Commons, who—after hearing ‘representations of a character which swept away
final obstacles’—‘promised that Parliament should not be prorogued until the Bill
was passed’.188
Smith kept his word, and in the end both Houses of the Imperial Parliament
deferred to the recommendations of the select committee and passed the Bill as
amended. In the context of what must have been fairly serious behind-the-scenes
string-pulling, William Heseltine’s observations are worth noting:
Recalling, perhaps, the broken ties of 1773, the British Government tightened its ranks to
withstand the forces of those who opposed self-government for Western Australia with
full control of her lands. The opposition was overwhelmed by those who saw more clearly
the future lines of development of the British Commonwealth of Nations.189
The amended Enabling Bill received the royal assent on 25 July 1890, thereafter
being officially, and somewhat confusingly, known as the Western Australia
Constitution Act 1890 (53 & 54 Vict., c. 26). This, of course, paved the way for the
Queen to assent to Western Australia’s Constitution Act 1889—which comprised
the First Schedule to the Enabling Act—and on 15 August 1890 by Order in
Council she did so.190 The ‘long-delayed and priceless boon of self-government’
had finally been achieved, and an unexpectedly one and undivided Western
Australia could turn its attention to the elections which would fill one Chamber of
the new bicameral legislature.191
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9
Responsible Government
The colonists are now to govern themselves, and they
have had given them as fine a patrimony as ever any
people were started with in this world.
George Walpole Leake
The Decent Respectable Acts in Operation
Sir William Robinson, with Western Australia’s new Constitution stowed in his
luggage, arrived at the ‘lavishly decorated’ Albany jetty on 18 October 1890.1
During a ‘ship of State’ speech in the Albany Town Hall a few hours later he made
the inevitable ‘At last she moves’ reference and the addresses continued at
numerous stops along his seventeen-hour rail trip to Perth (lit every mile and a half
by bonfires during the night and ‘practically decorated from one end to the other’).2
After a gala welcome at the Perth Railway Station at noon on Monday 20 October,
Robinson was driven past festooned buildings and under triumphal arches to the
Town Hall where he was sworn into office. And while during this, his third term as
Governor of Western Australia, Robinson would be assuming the less taxing role
of a ceremonial Viceroy—or ‘practically a cypher’ as his elder brother and former
Governor of New South Wales, Sir Hercules Robinson, once described the role—
he still had his work cut out for him until the new regime was up and running.3
Indeed, Robinson’s first challenge was to hose down a constitutional storm because
most of the local press, and at least one executive councillor, ‘clamoured’ for him
to commission a Ministry straight after the proclamation of the Constitution Act
(which had been scheduled for the following day) instead of deferring its
appointment until after general elections, as planned by Robinson.4 The imbroglio
was due to the fact that the old Legislative Council would expire from the moment
the new Constitution was proclaimed, but because of an ‘omission’ the
Constitution did not ‘provide for the administration of the Colony during the
interval between the Proclamation…and the installation of the first responsible
ministry’ (as Robinson explained the ‘difficulty’ in a confidential despatch to Lord
Knutsford).5 Robinson believed, however, that postponing the commissioning of a
Ministry until after elections was not only the correct constitutional course, but was
‘inferentially contemplated by the Act’; and he provided a comprehensive
justification for his decision in a Minute to the Colonial Secretary which was
published, at Robinson’s direction, in an ‘Extraordinary’ edition of the Government
Gazette:
the course which I ought to adopt appears to be pretty clear. What right have I to assume
that Mr. A, Mr. B, or Mr. C will be elected a Member of Parliament? What right have I to
221
assume that this candidate or that will, if elected, be supported by a working majority?
And how, therefore, can I possibly select any Ministry until the country has done its part,
and furnished me with a Parliament from which to make my selection? On the whole, it
appears to me that until the country has decided on its representatives, and the Legislative
Council has been created, I am bound, so far as the selection of the first Parliamentary
Ministry is concerned, to maintain a passive attitude, and simply to make some temporary
arrangement to keep the Government machinery going until the new Executive—the first
Responsible Ministry—is in a position to take charge.6
Highest Privilege and Bounden Duty
This, of course, was reason enough, but a few paragraphs down Robinson pointed
out that it would also be highly inappropriate to make an interim appointment
because it would give an ‘unfair advantage to the Ministry provisionally selected,
as they would of course go the country with a certain degree of prestige which the
representatives of the other party would not possess’. Finally, Robinson outlined
that appointing an interim Ministry would ‘throw the selection of the first
Legislative Council…into the hands of one political party’ and he knew ‘as a
matter of fact, that the Government responsible for the Act never for one moment
contemplated that the first Legislative Council would be appointed by either
political party’. Robinson concluded his apologia somewhat acerbically, basically
telling the impatient colonists to have a cup of tea and a good lie down: ‘I may say
that it almost appears to me that too much importance has been attached to the
point. What material difference can it make whether Ministers are appointed now
or a few weeks hence?’
As well as sorting out the first constitutional glitch (more would follow), Robinson
was also heavily involved in ‘Proclamation Day’. This much-awaited day, as well
as the following one, had been gazetted as a bank holiday to accommodate an
exhaustive programme of dawn-to-dark solemnities and festivities including gun
salutes, bell ringing, church services, a massive public procession and children’s
festival, sporting contests (including a special ‘Aboriginal Race’ with a £1 first
prize), a torchlight parade, banqueting and balls.7 The indisputable high point of
Proclamation Day, however, was when the Acting Chief Justice Sir Henry
Wrenfordsley, in the presence of almost one-sixth of the colony’s (white)
population and ‘considerably more than one half of the juvenile population of the
colony’, read out the Proclamation by which Western Australia’s new Constitution
was declared from that day to ‘taketh effect’.8
So that the Constitution could really ‘taketh effect’, Robinson issued the election
writs on the following day. In fact, even without the ‘somewhat embarrassing
position’ of a political interregnum, s. 5 of the new Constitution mandated that the
inaugural Parliament had to be ‘called together for the first time at some period not
later than six months after the commencement of this Act’, so there wasn’t time to
waste.9 It was fortunate, therefore, that the colony’s new Electoral Act 1889 had
received the royal assent on 1 May 1890 (three and a half months before the
Constitution Act was assented to) and been proclaimed in the colony on 26 June; and
equally fortunate that s. 31 of the Electoral Act provided that the registers could be
prepared ‘as though the Reserved Bill intituled “The Constitution Act, 1889,” were in
force’ and that s. 41 of the Constitution Act authorised the Governor in Council to
‘make such arrangements, appoint such persons, and fix such dates and periods’ as
required for the ‘convenient holding of the first general election under this Act’. As a
result, His Excellency the Administrator, Sir Malcolm Fraser—even before receiving
222
telegraphed instructions from the Governor-elect in England to have ‘everything
ready for the immediate holding of the elections as soon as the Constitution Bill is
proclaimed’—had, on 15 July, gazetted returning officers and electoral registrars, as
required by the Act, and set a punishing two and a half month timeline for
registration and the compilation of new electoral rolls (spanning 10 September for
close of registration to 26 November for despatch of completed rolls to the returning
officers).10 Accordingly, by the time the first contest in the 1890 general election
took place, the colony’s ‘revised and purified’ electoral register—containing just
under 6,000 electors—was ready.11
The dates set out in the writs for the first elections under responsible government—
and cited in history books and election handbooks thereafter—spanned 27 November
to 5 December for the ‘Date of Nomination’ and from 5 to 12 December for ‘taking
the Poll if any’.12 In the following week, however, the dates for the East Kimberley
electoral district were pushed back after Robinson issued a ‘Writ of Supersedeas’—
i.e. a writ to stay proceedings—due to unspecified ‘circumstances’, before issuing a
fresh election writ, so the actual election timetable became 27 November to
16 December for nominations and 5 to 29 December for polling.13 Notwithstanding
the undoubted honour of being returned to the first Parliament under responsible
government, and the exhortations of the West Australian that ‘colonists of education
and position’ not abandon the ‘political life’ to ‘the mere stump orator and the carpet
bagger’—the West’s epithets for candidates endorsed by the Liberal Association—
only eleven of the thirty seats were contested; and, with the exception of the East
Perth and Sussex electorates which both saw three contenders fight it out, the
elections were straightforward two-way contests.14 B. K. de Garis has very properly
attributed the high proportion of uncontested seats to the fact that ‘the pool of men
eligible and willing to stand was still small and some of the old hands preferred to
hold back in the hope of being nominated to the Legislative Council’.15 But if the
roll-call of returned candidates is checked, it will also be seen that eighteen out of the
thirty were former legislative councillors who had been instrumental in obtaining
self-government for the colony, so the most likely reason for the lack of contests is
that potential contenders judged their chances with appreciative electors were too
slim to bother.
In the eleven seats where a poll did take place, electioneering was intense, and
well-attended and widely reported political meetings took place throughout the
colony. (Indeed, even sole candidates tended to make the obligatory set speech to
constituents.) Interestingly, while many of the candidates claimed that it was
difficult to campaign ‘owing to the fact that no Ministry yet being appointed no
policy is, therefore, before the country to criticise’ (and there wasn’t a party line to
support because there weren’t any ‘parties or organised groups in the field’, at this
stage), most of the candidates enunciated a similar vision for the colony with an
emphasis on public works, development of mineral resources, and land settlement
schemes.16 Furthermore, almost all the candidates, and not just those backed by the
Liberal Association, supported some measure of electoral reform. The abolition of
the property qualification for members was uniformly endorsed, while a majority
of candidates pledged to support some form of liberalisation of the franchise—
ranging from a reduction to a £5 householder entitlement for the more reluctant
reformers to full-blown manhood suffrage for the liberal and radical candidates
(although, conservative William Marmion also plumped for manhood suffrage
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presumably on the grounds that it would stem ongoing agitation). In addition, two
candidates, George Randell and William Paterson, advocated extending the vote to
‘ladies who had property in their own right’—which was decidedly advanced
considering that New Zealand, the first country in the world to grant female
suffrage, was still three years away from doing so.17 This level of support for
electoral reform was considerably more pronounced than that shown at the
previous general election, but as the West Australian put it, most of the leading
public men since that time ‘seem to see their error’—a conversion which could
largely be attributed to the censure Western Australia’s conservative Constitution
had received in the Imperial Parliament.18 Moreover, electoral reform had strong
popular support in the colony—particularly in the urban electorates—and not
endorsing it would, frankly, have been political suicide in many seats. To stiffen
the resolve of candidates, however, much of the press kept up a pro-reform
message, Liberal Association members interrogated candidates about their reform
credentials at political meetings, and even the Catholic Church weighed in by
hosting—not without controversy—a public meeting at which unanimous
resolutions in favour of the immediate abolition of the property qualification and
introduction of manhood suffrage were passed.19
As returning officers under s. 45 of the Electoral Act were to declare sole
candidates for an electorate ‘duly elected’ on the day of nomination, returns started
to come in from 27 November, and just over a week later polling day coverage
appeared in the press. With the exception of some brawling in York, however, it
appears that election day in most seats was a fairly sedate affair at which electors
‘refused to enthuse’, and the old English tradition of shouldering the successful
candidate was only reported in a couple of electorates.20 Nonetheless, of those
registered to vote, there was an impressively high turnout (averaging 77 per cent—
ranging from 62 per cent in Swan to 84 per cent in Perth and North Fremantle),
although one elector commented in a letter to the press that this figure could have
been higher if there had been more polling places, claiming that in his electorate of
East Perth many would not vote as ‘a working man will have to walk perhaps two
or three miles, and lose a quarter of a day to record his vote’.21 And many observed
that there would have been more electors on the rolls in the first place if not for the
impossibly complicated application forms drafted by Warton, which even enrollees
from the ‘educated classes, hardly knew how to fill in’.22 Adding to the enrolment
confusion, inconsistencies between two of the application forms and the
Constitution Act—‘owing to the clumsy and unhappy manner in which
the…Attorney General expressed himself in this Electoral Act’—were spotted and
a notice regarding them was gazetted before registration commenced.23 And even
after the mistakes were corrected, an enormous number of lodgers were still unable
to register because Warton had framed the lodger claim form very conservatively
insisting that the same lodgings had to be occupied for the past twelve months,
which knocked out lodgers who had merely changed lodgings from one side of the
street to the other. On top of the difficulty in completing the forms, there was also
the hassle of personally applying for enrolment, with reports of colonists from
outlying districts failing to register.24 Indeed, the fact that the 1890 electoral roll
contained fewer entries than the previous year’s roll (which excluded lodgers and
the last twelve months’ worth of population increase) signalled that major
amendments to the Electoral Act would need to be implemented before the next
poll took place.25
224
The last seat in the election was declared on 16 December, and the ‘Return of
Members composing the First Parliament under “The Constitution Act, 1889,”
52nd Victoria, No. 23’, as it appears in the 1890 Blue Book was as follows: W. L.
Baker, East Kimberley; Sep. Burt, Ashburton; M. F. A. Canning, East Perth; B. D.
Clarkson, Toodyay; J. Cookworthy, Sussex; E. F. Darlot, Murchison; L. V. de
Hamel, Albany; J. Forrest, Bunbury; A. Forrest, West Kimberley; C. Harper,
Beverley; A. Y. Hassell, Plantagenet; E. Keane, Geraldton; G. Leake, Roebourne;
W. T. Loton, Swan; W. E. Marmion, Fremantle; S. H. Parker, York; W. Paterson,
Murray; W. S. Pearse, North Fremantle; S. J. Phillips, Irwin; F. H. Piesse,
Williams; T. F. Quinlan, West Perth; G. Randell, Moore; A. R. Richardson, De
Grey; E. Scott, Perth; R. F. Sholl, Gascoyne; J. G. Lee Steere, Nelson; D. Symon,
South Fremantle; G. Throssell, Northam; W. Traylen, Greenough; and H. W. Venn,
Wellington. A few years later a conservative Minister, Henry Lefroy, matter of
factly summed up the composition of the first Legislative Assembly under
responsible government as ‘possibly the most conservative body of men ever
collected in a Legislative Assembly in Australia’.26
Even before the last return was telegraphed, Robinson set about ‘getting the
servants of the new Constitution into harness’ as the West Australian put it.27 On
15 December a Proclamation was gazetted notifying the returned MLAs and yet-tobe-nominated MLCs that the first session of the new Parliament would be held on
30 December 1890; and on the following day the Executive Council met to select
the members of the Legislative Council. The nominees to the Upper House had to
be determined quickly because a Premier could not be commissioned to form a
Ministry until the Legislative Council was in place, as s. 6 of the Constitution
mandated that ‘at least’ one ministerial position had to be allocated to the Upper
House. Accordingly, Robinson, with the advice of a full complement of executive
councillors, finalised the nominations in a remarkably short meeting; and the
fourteen nominees were duly invited to take up the offers while the press
speculated (with suspicious accuracy) on their identity.28
By 22 December Robinson had thirteen ayes and one refusal. In Executive Council
it was decided to leave the last two nominations ‘to be filled on the advice of the
incoming ministry, in case they should require to use them in connection with the
formation of the Government’ (as Robinson later informed Knutsford), so
Robinson finally ended all speculation and called on John Forrest to form the first
Ministry under responsible government.29 The choice of Forrest may seem
unexpected given that Stephen Parker (newly a Queen’s Counsel) had been ‘long
looked on’ as the ‘logical first Premier’ in the colony because of his decade-long
championing of self-government—and, further, had been spoken of as the ‘likely’
first Premier of Western Australia when he appeared before the House of
Commons select committee less than eight months previously.30 Since then,
however, John Forrest’s claims to the position had been put forward very
strenuously by Forrest and his supporters; and during the election campaign Parker
himself seemed to have bowed to Forrest’s right to ‘the first call to the
Premiership’.31 The decisive factor for Robinson, however, and which would have
saved him from accusations of bias in appointing his good friend Forrest to the
position, was that more of Forrest’s supporters than Parker’s had been returned at
the elections and, therefore, the appointment was made ‘in obedience to public
opinion’.32
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While Forrest worked on his Ministry, the thirteen legislative councillors
nominated thus far were officially appointed on 24 December. As listed in the 1890
Blue Book they were: J. G. H. Amherst; E. R. Brockman; T. Burges; R. E. Bush;
Sir T. Cockburn Cambpell; M. Grant; E. Hamersley; G. W. Leake (the father of the
G. Leake returned for Roebourne); J. H. Monger (who had resigned from the
Council in 1875 after S. S. Parker brought a bribery petition against him, but was
now seemingly rehabilitated in the public mind); W. D. Moore; J. Morrison;
G. Shenton; and J. A. Wright. Although the nominees included some of the
colony’s most esteemed pioneering names, as well as some prominent members
from the old Council, the appointments still caused a minor constitutional frisson,
as a number of colonists argued that the new Executive Council should have made
the nominations rather than the old, irresponsible, conservative, caretaker one—
notwithstanding Robinson’s arguments to the contrary.33 More to the point there
was considerable disquiet expressed that most of the nominees represented ‘one
class, the landowners of the community, and but one type of opinion, that which
may be called the high Conservative’—with prophesies that such a Council could
‘strangle at their birth the newborn forces of activity and progress’.34
Predictably, Forrest’s proposed new Ministry did not provide a ‘high Liberal’
antidote. Rather, as numerous commentators have observed, the list included
‘influential business-men and landowners, mostly with interests in northern
properties’—namely, John Forrest, Colonial Treasurer; George Shenton, Colonial
Secretary; Septimus Burt, Attorney General; William Marmion, Commissioner of
Crown Lands; and Harry Venn, Commissioner of Railways and Director of Public
Works.35 Robinson, of course, acquiesced in Forrest’s selection, and the Ministry
was formally appointed and gazetted on 29 December, with the new ministers
being introduced to their departments in the afternoon. On the same day, Robinson
also appointed J. W. Hackett as the fourteenth nominee to the Legislative Council.
(The final councillor, R. W. Hardey, was appointed on the following day.36)
All the major appointments out of the way, the new Parliament met as scheduled
on 30 December: the Legislative Assembly convening in the old Legislative
Council Chambers next to the Town Hall and the Legislative Council in the former
General Post Office building on St George’s Terrace. While this was in fact the
first sitting of the first session of the first Parliament, the gathering was a
deliberately brief and low-key housekeeping affair in which the most important
event was the swearing in of members and the election of a Speaker, because under
s. 31 of the Constitution only he could issue writs for Legislative Assembly
vacancies—and the ministerial re-elections needed to be proceeded with as quickly
as possible. Accordingly, after a no-frills opening by commissioners (not the
Governor) the Upper and Lower House members swore the Oath of Allegiance,
and the Legislative Assembly (re)elected Sir James Lee Steere as Speaker because
‘so long as he occupies the position we shall hear of no disorder or unruly scenes in
this Assembly’—a reference which would have resonated considering the local
press had made much of the recent expulsion of a member—‘kicking, struggling
and threatening vengeance’—from the New South Wales House of Assembly.37 In
addition, the legislative councillors were informed that Sir Thomas CockburnCampbell had been appointed by the Governor to be their President; the seats of the
four Lower House ministers and George Leake (who had resigned from his seat of
Roebourne that day after deciding that he needed to remain Crown Solicitor after
226
having missed out on a post in the Ministry) were declared vacant; and the two
Chambers voted to adopt the ‘rules, forms, and usages of the Imperial Parliament’
until they could draw up their own.38 Three hours later both Houses adjourned until
the 20 January 1891 when the official gala opening of the new Parliament—
containing its returned Ministry—would take place.
Public Works, Public Works, Public Works, Public Works, Public Works…
The ministerial by-elections were set down from 16 to 24 January, but, as
anticipated, between 8 and 17 January all the ministers were declared elected
unopposed at nominations. The grand opening of Parliament—with the members of
both Houses gathered in the Legislative Council Chamber—went ahead as planned,
and it was undoubtedly with much pride and relief that the members heard
Governor Robinson open his Address with the observation that: ‘The inauguration
of Parliamentary and Responsible Government in Western Australia is this day
complete’.39 His Excellency’s next observation was not quite so uplifting, however.
On the contrary, Robinson informed the packed Chamber that because the new
ministers had only been appointed a few weeks previously, and had spent most of
their time since then coming to grips with their departments, they had been unable
to put together much of a legislative package. Indeed, he continued—
They have been unwilling to commit the Colony to anything more than was absolutely
necessary until they had been brought into personal communication with Parliament, and I
anticipate that you will therefore consider it desirable that the present session should not
be unduly prolonged, and that, with the exception of certain necessary and pressing
measures, new Legislation may, as far as possible, be deferred until next session.40
Nonetheless, Robinson assured the assembled members that the new Government
had still managed to frame one major piece of legislation: a Loan Bill to authorise
the raising of £1,336,000 to fund a range of public works—including railways,
harbour improvements, telegraph extension, developments on the goldfields, land
surveys, public buildings, new rolling stock, a lighthouse at Cape Leeuwin and so
forth—which the Government was ‘confident’ would ‘attract population, develop
our mineral resources, encourage the settlement of the land, [and] greatly increase
facilities of transit’.41
In concluding, Robinson gave an additional reason for the first session not to be
‘unduly prolonged’: Western Australia had been invited to send representatives to
the first National Australasian ‘Federation Convention’, at which a federal
Constitution would be drafted, and they had to be in Sydney by 2 March.42 In view
of the abbreviated legislative programme outlined in Robinson’s Address,
proroguing the Parliament by the end of February did not seem unachievable.
As there was really only one big item in the Governor’s Speech to discuss, it was
inevitable that the Address in Reply debate in both Houses turned on the Loan Bill;
and while members cavilled about detail, almost all—including the unofficial
Leader of the Opposition (such as there was) Stephen Parker—endorsed the
Government’s public works policy.43 After all, as one member drily noted, ‘No
Ministry would have ventured, in the face of public opinion, to have come before
this House, without proposing a loan for public works’.44 Interestingly, however, a
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number of members also referred to the other topic favoured by the electorate—
electoral reform—which had not featured in the Governor’s Speech. Predictably, it
was Parker who first raised the issue in the Legislative Assembly with an
expression of extreme ‘regret’ that the Governor’s Speech had made ‘no mention’
of abolishing the property qualification for members or of reducing the franchise;
and while he conceded that it might be impractical to pursue electoral reform in the
Parliament’s first session, and even that public works ought to take priority, he
contended that the Government should nonetheless have signalled its commitment
to electoral reform ‘hereafter’—whereas they had, in fact, given ‘no indication
whatever of the intention of the Government in this matter’.45 Such a stance was
unacceptable, Parker argued, not only because the colonists had ‘generally
expressed’ their wish for electoral reform, but because of the representations made
to the House of Commons select committee that such reform would be pursued
immediately once Western Australia received its new Constitution—
representations which had ‘smoothed the passage of the Bill’.46 Believing that it
would be a breach of faith towards the Imperial Parliament not to act upon these
assurances, Parker flagged that before the session closed, it would be his ‘duty, if
no other member does it’ to ‘bring the matter before this House’.47
A number of the members who followed Parker agreed with his criticism—in
particular, the somewhat radical member for East Perth, Marinus Canning, who
stated that the Government could hardly be unaware of the ‘popular feeling in
favor of the immediate amendment of the Constitution Act’ considering that every
member in the House who had been returned after a contested poll was pledged to
work for the abolition of the property qualification and the liberalisation of the
franchise.48 Canning, however, was also outraged by the appointment of the Upper
House by the old Executive Council (an appointment which he held was
unconstitutional) and the Government’s ‘grave breach of constitutional usage’ in
allocating the pre-eminent portfolio of Colonial Secretary to legislative councillor
George Shenton—‘a gentleman who cannot in any way be regarded as a
representative of the people’.49 Attempting to kill two birds with one stone,
Canning moved an amendment to the Address in Reply that ‘while recognising the
importance of the subjects submitted in Your Excellency’s Speech, we decline to
proceed to their consideration until Advisers appointed in accordance with
Constitutional usage have been called to Your Excellency’s Council’.50 The
amendment didn’t even get a seconder, but Canning was undeterred.
A fortnight later he moved for leave to introduce his Constitution Act, 1889,
Amendment Bill, which sought to abolish the property qualification for members
and reduce the franchise. While this time Canning got a seconder in Timothy
Quinlan, the member for West Perth, he also landed a barrage of criticism from the
House. First up was the Attorney General, Septimus Burt, who although personally
in favour of both the measures proposed in the Bill, pointed out that it was unheard
of for a private member to initiate a Reform Bill, and that the proper course for
Canning to have followed would have been to move a resolution that the House
affirm the desirability of constitutional amendment. Burt’s principal criticism,
however, was that if Canning’s Bill became law it would involve the immediate
dissolution of the House and the resignation of the new Government, and the
colony, which had effectively been at a standstill for the past few years, would be
subjected to ‘the turmoil of another general election, with the possibility of another
228
Ministry and another policy, and everything to be gone over again’.51 In view of
such wholesale disruption, Burt outlined that the Government could not
countenance Canning’s Bill; but he reassured the House that when electoral reform
could ‘be dealt with without upsetting the work of the country, I think it will be
found that the Government are quite prepared to deal with the subject’.52
Notwithstanding, his own earlier commitment to bring electoral reform ‘before this
House’, Parker echoed almost word for word the arguments put forward by Burt
for not proceeding with Canning’s Bill. Possibly realising that this looked
inconsistent, he explained that he had ‘never dreamt’ of doing more than moving a
resolution affirming the desirability of electoral reform; and, as he still believed
that this was the constitutional course to take, he urged Canning to withdraw his
motion, so that such a resolution could be introduced later in the session if there
was time once the Loan Bill and the Estimates were out of the way.53 A succession
of the ‘pledged’ then followed, and their opposition to Canning’s Bill is best
summed up by Lancel de Hamel’s rebuke: ‘He was, as he had said, pledged to this
change in the Constitution Act, but he was not pledged to harass the Government
or attempt to interfere with them just as they were first starting the colony on a
career of (as he hoped and trusted) progress and prosperity’.54 After six speeches in
a row deprecating any disruption to the current Government—including one by
David Symon whose candidacy in the 1890 election had been supported by the
Liberal Association and the militant Fremantle Lumpers’ Union—Canning
attempted to persuade members that his Bill need not involve a dissolution.55 But
clearly the members shared the view expressed earlier by Sir James Lee Steere that
‘It would be most unconstitutional to alter the qualification of members and
electors without a fresh election being held under the altered franchise’, with the
result that when the motion was put to the vote it was knocked back by a swingeing
twenty-one to three.56
Even though there were now only three weeks left in the first session, another piece
of amending electoral legislation was successfully introduced into the Parliament—
but this time by the Attorney General. Entitled the Officials in Parliament Bill, the
measure sought to make two changes: first, that any member who took on the
‘Office of Profit’ of Acting Governor would not have to vacate his seat (as
currently required under s. 29 of the Constitution); and, second, that any Minister,
after re-election, would not have to face his electorate yet again if he accepted an
additional portfolio or a different one ‘in immediate succession to the other’.57 As
these amendments were self-evidently sensible and uncontentious, the Bill passed
through both Houses with minimal discussion and no amendments, and became the
Officials in Parliament Act 1891 (54 Vict., No. 6) on 26 February—the final day of
the first session.
Although the first session under responsible government had been short and light
on legislation, the best part of 1891 passed before it was summoned again. Indeed,
in opening the second session on 7 December 1891, His Excellency the
Administrator, Chief Justice Alexander Onslow, apologised for the delay, which he
attributed to difficulties with the Loan Act 1891. (In short, the colony had only
been able to float £250,000 worth of the loan in the depressed post-Baring crisis
London money market—the world’s leading money market—with the result that
the Government had been preoccupied with re-jigging the public works wish list.)
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While the loan and public works again dominated the Governor’s Speech, the
Government made sure that this time electoral reform also received a mention with
Onslow outlining that before the next general election took place, the Government
was of the ‘opinion’ that the property qualification for members should be
abolished and the ‘Franchise placed on a more satisfactory footing’.58 Onslow
continued, however, that in view of the ‘many pressing matters which instantly
require attention’ (i.e. the loan and public works), the Government was not
prepared to introduce the necessary legislation immediately and precipitate an
election; rather, the legislation would be introduced as ‘soon as the state of public
business permits’, with the ministers concurring that it would be ‘most unwise’ to
try and do so during the present session.59
It is difficult to believe that the Government expected that such a vague pledge of
electoral reform ‘hereafter’ would propitiate Canning who, rather than Parker, was
increasingly being referred to as the Opposition Leader in the Chamber. And, of
course, it didn’t, with Canning expressing ‘profound disappointment, not to say
dismay’ at the Government’s stance during the Address in Reply debate.60 But
while a number of his fellow MLAs in the course of the same debate also
reaffirmed their support for electoral reform, most still expressed their reluctance to
bring on a general election and disrupt Government business. Realising that
dissolving the Parliament was the sticking point, and that any reform involving the
franchise would require such a dissolution, Canning decided to jettison the
franchise in the short term and try to secure the abolition of the property
qualification instead—a constitutional amendment which he maintained did not
necessitate a dissolution because the Victorian Parliament had passed an Act
abolishing the property qualification in 1857 and didn’t go to the polls until two
years later.61 Accordingly, on 17 December Canning moved a resolution calling for
the property qualification ‘to be at once abolished’, and barely drew breath before
reminding the House of the Victorian ‘precedent’.62 In the rest of his short speech
Canning also reminded the House that the Imperial Parliament and all the sister
colonies had discarded the ‘obnoxious provision’ years before and that the
Westralian delegates to the House of Commons select committee had given
assurances that Western Australia would follow suit as soon as possible.63 Canning
also repeatedly quoted the criticism of renowned British constitutional authority,
Sir Irskine May, that the property qualification was ‘invidious and unjust; and from
its beginning to its end it had been systematically evaded’, before calling upon the
members ‘in the name of consistency, of expediency, and of legislative morality’ to
support his motion.64
Appropriately it was Parker who had been invited to second the resolution. Parker,
however, exceeded his brief and announced that if the Government introduced a
Bill to abolish the property qualification, he would feel it his ‘duty’ to his
constituents, as well as an act of good faith towards the House of Commons, ‘to
move also for considerable alterations in the franchise, and I look on this motion as
a step in that direction’.65 Parker then outlined why he believed changes to the
franchise should not be delayed any longer—basically, if the franchise was revised
at once it would enable potential electors to meet the statutory electoral registration
deadline of 10 April in the following year, which, in turn, would entitle them to
vote at any election called after 1 October 1892. (And, he added, such a timeframe
would still give the Government almost another full year in office to pursue public
230
works before needing to go to the polls.) Conversely, if the changes were
postponed, then the newly enfranchised would not be able to vote until after
October 1893, and ‘I ask hon. members, Will it be fair to their constituents to put
them off till the end of 1893?’66
With such an intention flagged, it was no surprise that the next speaker, de Hamel,
moved to amend Canning’s resolution on the spot and ‘boldly and honestly call
upon the Government to introduce, at the next session of Parliament, a bill which
will deal with both questions’.67 The amendment was seconded, and after receiving
the endorsement of Premier (now ‘Sir’) John Forrest, who revealed that the
Government’s ‘intention at present’ was to introduce the necessary legislation
during the next session anyway (and who also spelt out that it would be the
Government’s ‘duty to resist’ the original resolution because, contrary to
Canning’s protestations, the Government believed that abolishing the property
qualification would necessitate an immediate dissolution), it was swiftly passed by
the House.68
It was almost a year later before the ‘next session of Parliament’ met on 3
November 1892; and while the Governor’s Speech commenced with the latest
instalment in the loan saga, Robinson soon progressed to the topic of constitutional
reform and outlined that the Government would be submitting a Bill to abolish the
property qualification and extend the franchise, as requested, and which also
proposed to add two members to the Legislative Council and three to the
Legislative Assembly to provide ‘special representation’ for the colony’s major
gold mining districts.69 In addition, a Bill amending the Electoral Act would be
submitted to the Parliament to incorporate flow-on changes to the electoral system
(and presumably also to correct Warton’s ‘miraculous blunders in drafting’ for
which the Act—along with its complexity—was by now infamous).70
The full details of the Constitution Act Amendment Bill were laid before the
Legislative Assembly a couple of weeks later when Premier Forrest moved the
motion for the second reading and in no-nonsense fashion walked the members
seriatim through all twenty-three clauses of the ‘excellently drawn and most
concise Bill’.71 Only the three changes cited in the Governor’s Address, however,
were of any major significance and it was on these that Forrest concentrated.
The first significant change outlined was the addition of three electoral districts—
Yilgarn, Pilbarra and Nannine—to the Legislative Assembly and the addition of
two members to the Upper House (once it became elective). Adding seats would,
of course, require new redrawn electoral boundaries for the Legislative Assembly,
and Forrest explained that the Bill also proposed to amend the existing
constitutional formula of five Upper House electoral divisions returning three
members apiece to allow the two largest divisions—‘Metropolitan’ containing
Perth and Fremantle and ‘South-Western’ containing the Murray, Wellington,
Bunbury, Nelson, Sussex, Williams, Plantagenet and Albany districts—to be split
into four electoral divisions returning two members each. While this proposal
would give the populous urban and south-west areas an increase in representation,
the canny Forrest skipped over this incendiary fact, and referred instead to a
community of interest argument (‘sea-coast’ versus ‘raspberry jam and sandalwood
country’) for the southern split.72 He also outlined that the boundaries would be
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submitted to a Legislative Assembly select committee, as this was now standard
practice, and that all the members would ‘have an opportunity of expressing their
views’ on the boundaries.73
The next major amendment detailed by Forrest was the proposed scrapping of the
property qualification for members of both the Legislative Assembly and the
Legislative Council (again, once the latter became elective). With such an
abolition, Forrest somewhat quaintly declared, the ‘sole qualification’ for
membership of the legislature in future would be that the person was a male British
subject, at least twenty-one years of age, not subject to any legal incapacity, and
who had resided in the colony for twelve months.74 The new provision, Forrest
proudly continued was ‘more liberal than prevails in most countries. It is certainly
more liberal than exists in the most liberal Constitution of Australia—that of South
Australia’.75 And Forrest was right: in the other colonies, prospective Upper House
members faced additional restrictions such as three-year residency qualifying
periods; being at least thirty years old; and, in Victoria, ownership for at least
twelve months of £100 worth of freehold property; in addition, some of the sister
colonies also insisted that members of the Lower House had to be on the electoral
roll.
The ‘most important’ provisions of the Bill discussed by Forrest, however, were
those which proposed to liberalise the franchise for both Houses of the Parliament:
an issue of particular significance considering the (non-Aboriginal) population of
the colony had swelled from 48,000 in 1890 to almost 60,000—the threshold at
which the Upper House was to become elective.76 Forrest dealt first with the
proposed new franchise for the Upper House which would lower the existing
property qualifications of the usual adult, male British subject without legal
incapacities who had resided in the colony, and possessed or occupied his
qualifying property, for at least twelve months before registration, by up to onehalf in the case of the freehold qualification, by two-thirds in the case of Crown
leases and licenses, and, somewhat anomalously, by only one-sixth in the case of
leasehold estates and the householder qualification. In addition, the Bill proposed
that from the passing of the Bill, anyone on the electoral roll of a Municipality or
Road Board District for holding rateable property of not less that £25 per annum
would be automatically enrolled on the relevant Legislative Assembly electoral
roll—a provision copied from the Victorian Act which, Forrest correctly pointed
out, would simplify the compilation of electoral rolls. (And which would
ensure that property owners would get on the parliamentary roll without lifting a
finger.)
For the Lower House, the Bill retained all the existing conditions and
qualifications, except the ineffectual lodger provision, although in future, all but
the leasehold provisions would only need to have been owned or occupied for six
months prior to registration.77 In addition, the Bill halved the freehold qualification
to £50 and that of Crown leases and licences to £5 per annum and extended the
scope of the householder qualification to include ‘any house, warehouse, countinghouse, office, shop, or other building’.78 And, as with the Legislative Council, the
Bill proposed to transfer the names of electors on a Municipality or Road Board
District electoral list onto the corresponding Legislative Assembly electoral roll
although, unlike the Legislative Council, this would occur no matter how
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minuscule the rates paid. As previously, property owners could continue to vote in
every Legislative Assembly seat where they met the franchise requirements. The
big change to the Legislative Assembly franchise, however, was a new clause
entitling the aforementioned male British subject of at least twenty-one years of
age without legal disabilities to enrol to vote after simply residing in the colony for
twelve months—of which the last six had to be in the electorate for which he was
claiming enrolment. This was effectively the Chartist dream of manhood suffrage,
although the Forrest Government had chosen to follow the lead of Victoria—‘the
premier colony’—in insisting on a twelve-month qualifying residence in the colony
(rather than South Australia, New South Wales and Queensland which only
required six months) although the Government did not choose to follow the
premier colony in only requiring a three-month residence in the particular electoral
district.79 (This, however, was not the only time the Premier showed a selective
approach when copying other jurisdictions: a point underlined by Robert Sholl later
in the session: ‘When it suited the hon. gentleman he quoted Victoria, but, when it
didn’t suit him, he left Victoria severely alone’.80)
It is interesting to note that in detailing the new franchise provisions for both
Houses, Forrest didn’t even bother to mention the proviso that ‘No aboriginal
native of Australia, Asia, or Africa shall be entitled to be registered, except in
respect of a freehold qualification’.81 It may seem odd that having specifically
excluded Aborigines from manhood suffrage and the lesser (and more easily
obtained) property qualifications, the Bill actually permitted them to claim the
franchise at all on the basis of the freehold qualification, but this was possibly a sop
to the Imperial Parliament and Exeter Hall—especially since Forrest was trying at
the time to persuade the Secretary of State to agree to the scrapping of the
Aborigines Protection Board with its ever-increasing funding. Similarly, Forrest
didn’t discuss the retention of the existing franchise disqualification which barred
those who had been ‘convicted of treason, felony, or any infamous offence’ unless
they’d done their time or been pardoned, nor the new one which disqualified those
‘of unsound mind or in the receipt of relief from Government or from any
charitable institution’—which could be a very useful corrective to manhood
suffrage.82
Once he had run through the Bill’s provisions Forrest summarised the measure as a
moderate one which, although ‘framed upon a liberal basis’, did not ‘go in for
radical or revolutionary measures’—and one which would meet the clearly
expressed wishes of the electorate for electoral reform.83 And from the
Government’s ‘desire…to be moderate in all things’ standpoint, he urged those in
the House who would have preferred alternatively a more liberal or a more
conservative Bill, to show a conciliatory attitude and accept the Government’s
compromise without amendment or division—particularly, as he believed that the
Upper House would be warier of rejecting the Bill if it was passed unanimously by
the ‘elected portion’ of the legislature.84 It is worth quoting an excerpt from
Forrest’s blunt speech of warning to the members, because it also gives an insight
into his purportedly ‘conservative’ Government’s own pragmatic approach to
change:
I am convinced that this Bill will become the law of this colony, even if it is not passed at
the present moment, and therefore I would advise those who think we are going too fast to
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give freely now what they will have to give in the end, and which will not redound much
to their credit if they give it grudgingly…and to those who think we have not been liberal
enough, I say if you get a Constitution more liberal than the people of the mother country,
from which we or our fathers came—a more liberal Constitution than that of the great
colony of Victoria—I say accept it in the same spirit in which it is offered. Do not go
striving after what you cannot get…Whatever you do, you cannot get anything more
now.85
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Before concluding, Forrest highlighted another compelling reason why he hoped
the Bill would be accepted without amendment:
we want to bring our institutions into harmony with those of our neighbors. I do not think
it a good thing for the colonies in this continent of Australia to have opposing lines in
regard to their constitutions. When this Bill passes, we may say that the whole of the
continent is under the same law; for, whatever minor differences may exist in regard to
the Constitutions, they will be all framed on the one principle, and the franchise will be as
liberal in one colony as in another.86
Naturally, Forrest’s plea for compromise and unanimity went completely
unheeded. No sooner had he sat down than a procession of liberal-leaning members
itemised the various amendments needed to render the Bill ‘as nearly as possible a
perfect measure’ (notwithstanding that a number of them acknowledged that the
Bill was, in fact, far more liberal than they had expected the Forrest Government to
frame), with all but one demanding that the qualifying residency period for the
franchise be halved, and others putting in a plug (ambit claims?) for triennial
parliaments, the abolition of plural voting, payment of members and the removal of
property qualifications for the Upper House franchise.87 On the other side, a small
minority of conservative-minded members, appalled by this ‘almost revolutionary
measure’, suggested their own raft of amendments, i.e. reinstating the property
qualification for the Upper House; giving property-owners dual votes; and upping
the age limit for membership of the Legislative Council to thirty.88 Robert Sholl, in
fact, was so opposed to the Bill he attempted to defeat it by moving an amendment
that the Bill be read a second time this day six months. This motion only received
six votes, so the second reading took place, but somewhat ominously almost every
member who had spoken to the Bill had referred to the need for changes to take
place during the committee stage.
But surprisingly, almost no changes were made. While, the more conservative
members had a win with their move to increase the age limit for membership of the
Legislative Council to thirty—an amendment the liberals probably didn’t care
much about either way as the likelihood of a young blade being elected to the
Legislative Council was probably close to zero anyway (and possibly why the
Forrest Ministry had proposed such an ultra-liberal measure in the first place)—
their attempt to reinstate the property qualification for the Upper House at double
the existing rate was defeated (although by only one vote as several members
reneged on their election pledges). Also defeated was their attempt to reinstate the
property qualifications for the Upper House franchise at the existing levels.
Regarding these failed amendments, militantly conservative member Robert Sholl
was unfazed, taunting the liberals with the fact that the more radical the Bill, the
less likely the Upper House was to pass it. And as for the liberals, they failed to
secure their principal amendment of reducing the residency period for the Lower
House franchise to six months. In addition, the House signed off the new electoral
234
seats and boundaries, after only making the minor amendments recommended by
the select committee—notwithstanding some vigorous debate in which the usual
competing claims of representation of population versus representation of
resources/industries were aired. On 9 December the Bill passed its third reading
with the required absolute majority, and was forwarded on the same day to the
Upper House, where it was read the first time.
The Bill could have had no better advocate in the Legislative Council than new
member Stephen Parker who had also been appointed Colonial Secretary on
11 October in place of George Shenton (who, in turn, had replaced the recently
deceased Sir Thomas Cockburn-Cambpell as President of the Legislative Council).
While Forrest may have neutralised one of his principal liberal opponents by this
appointment—a tactic which, as Colin Hughes has pointed out, enabled Forrest to
maintain his ‘continuous’ ministries—he still had no shortage of the ultraconservative variety in the Upper House, with whom Parker, in his new role as
Government spokesman, would have to deal.89 In moving the Bill’s second
reading, Parker ardently endorsed its provisions, reminding the House that the
conservative restrictions in the existing Constitution Act were anathema to the
locals and the Imperial Parliament, and that it was time Western Australia
honoured the assurances made to the latter that it would introduce electoral reform.
The majority of the Upper House members begged to differ, however, and either
denounced the granting of manhood suffrage outright or else dissembled that the
change was premature or should first be submitted to the colony’s electors. While
Parker countered that the Bill could be amended in committee, and almost pleaded
with the members to at least allow the second reading, Edward Hooley’s
amendment that the Bill be read a second time this day six months was passed by a
nine to five majority after one of the shortest constitutional debates in Western
Australia’s history.
The fact that the so-called House of Review refused to allow the Bill a second
reading did not go down well in the colony, and ‘accentuated’, as J. S. Battye has
observed, the ‘general feeling that a nominee Chamber was a bar to progress’.90
Nevertheless, Governor Robinson’s comments in his Prorogation Speech on
13 January 1893 that ‘my Ministers hope and believe that, on further consideration
[the Bill] will meet with the approval and support of both Houses of the
Legislature’ would have gone some way to propitiate disappointed liberals that,
despite the setback, electoral reform was not off the agenda.91 Furthermore, the
handful of positive references to female suffrage made throughout the session
would have provided an enormous fillip to suffragists within the colony—as would
the passing of a motion to fund improvements to the Ladies’ Gallery in the
Legislative Assembly, so that women could listen to the debates in comfort.
The ‘liberal-conservative measure’
Because the Forrest Government had recently opted to bring forward the end of the
financial year from 31 December to 30 June, Governor Robinson had the ‘pleasure’
of opening the fourth session of Parliament on 5 July 1893, about five months
earlier than usual.92 It was presumably also with pleasure that Robinson was able to
refer to Western Australia’s sound financial situation, driven by successive gold
strikes, including, in the last year, those at Coolgardie and Kalgoorlie—especially
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considering the ‘financial crisis’ and bank suspensions which, he sombrely
reminded the members, had recently devastated the eastern colonies.93 Because the
parliamentary recess had been abridged and the Government had still been unable
to float the final tranche of the public works loan in London, Robinson did not,
however, have the pleasure of unveiling a ‘startling or exciting’ programme for the
fourth session.94 Indeed, the only measures he outlined in any detail were modest
public works, further restrictions to the admission of Chinese citizens, a
Homesteads Bill and, as foreshadowed in his last Prorogation Speech, the reintroduction of the Constitution Act Amendment Bill. While the restriction of
Chinese under the Imported Labour Registry Act dominated the Address in Reply
debates, with most of the discussion along the lines of ‘I do not object to the
introduction of Chinese as servants, but they must be brought here just as you
would import a shipment of horses…They should have no rights of citizenship’,
most members also referred with interest to the extension of rights of citizenship to
non-Asiatics under the Constitution Act Amendment Bill—with a couple of its
opponents in the Legislative Council provocatively musing out aloud whether the
Government had ‘modified’ it in any way so that ‘there may be some chance of its
becoming law’.95
The short answer was ‘No’, as Forrest informed the members when he moved the
Bill’s second reading on 17 July. In fact, apart from proposing to boost the
membership of the Legislative Council to twenty-one rather than seventeen, with
the members to be returned equally from the seven electoral divisions ratified in
the previous session, the Bill was ‘identical’ to the one which had been passed by
the Legislative Assembly only seven months earlier.96 Not only was the Bill almost
identical, but so was Forrest’s speech in support of it, with the only new element
being an uncharacteristically vigorous defence by the Premier of the innate
decency and commonsense of the ‘whole mass of the people’ about to be
enfranchised by the Bill:
We must not think that all the wisdom and all the honour and uprightness are centred in a
few. We must give to the mass of the people, to the people as a whole, credit for as much
honour and unselfishness as we claim for ourselves, and we must remember that in this
world every one tries to do the best he can for himself. We must expect that people will
not act contrary to their own interest…97
As the personnel of the Legislative Assembly were, with one exception, also the
same as those who voted overwhelmingly in favour of the Bill the year before, the
second reading took place after a fairly short discussion and, this time, without any
token motions to defeat it.
Given all these factors, a very short committee stage for the Bill in the Legislative
Assembly would also have been predicted. But as it turned out, debate on the Bill
dragged on for three weeks and seven sittings including a protracted recommittal
(as opposed to a week and three sittings previously) with a blizzard of new and
recycled amendments and entirely new clauses being proposed—although, after
lengthy and intense argument, most were withdrawn or defeated. Indeed, when the
Bill finally received its third reading in the Assembly, the only significant change
was the Attorney General’s new clause that the ban on Aborigines, Asians and
Africans being able to qualify for the franchise except as freeholders be extended
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to ‘include persons of the half-blood’ which, perversely, was agreed to without a
syllable of opposition.98 While it may seem curious that the Bill was gone over so
thoroughly the second time around, the explanation lies in the fact that the colony’s
population having recently surpassed 60,000, the Upper House would soon become
elective and, it was anticipated, more liberal in its composition—particularly, if the
Bill, with its reduced Upper House franchise provisions, was passed.99 More to the
point, the 12,000 migrants currently entering Western Australia each year—mainly
t’othersiders with generally progressive political views—would also be
enfranchised under the manhood provisions of the Bill and ‘very shortly be in the
position to outvote’ the 6,000 Westralians on the electoral rolls.100 Accordingly, the
conservative members made the most of this last-ditch opportunity to preserve
conservative elements in the Constitution (although it should be noted that the
more radical members countered with their own grandstanding amendments—
including a bid for ‘one man one vote’ which was buried nineteen to three).
Among the raft of unsuccessful amendments proposed by the conservative
members in the Legislative Assembly to preserve the conservative tenor of the
Upper House, one is worth discussing—the proposal, moved without notice by
Joseph Cookworthy, that the propertied electors of the Legislative Council include
the ‘spinster, widow, or feme sole’ (technically ‘single woman’, but including those
who were separated or divorced).101 As Cookworthy was an avowed opponent of
manhood suffrage, and female suffrage was usually championed by the more
radical/liberal side of politics, he would seem an unlikely exponent of the cause,
but in his short and businesslike speech he very cogently put the case for propertied
women obtaining the vote.102 As with most suffragists, he started with the moral
high ground and contended that it was not ‘right and just’ that:
women who maintained themselves and their families, women engaged in business and
other occupations; women who perhaps employed the very men who, under this law,
would have a right to vote…themselves would be debarred from exercising the same
privilege.103
Next he argued that as propertied women in Western Australia had been voting at
municipal and school board elections for more than twenty years without
‘objection’, granting them the parliamentary franchise was ‘only an extension of a
principle already recognised’.104 Finally, he outlined that the New Zealand
Parliament was considering enfranchising women, and that leading British
Conservative statesmen, such as Lord Salisbury and Mr Balfour (past and future
British prime minsters) supported women’s enfranchisement, as did Sir Henry
Parkes who was frequently cited for his ‘great capacity and wisdom’.105 What
Cookworthy did not say, but everyone knew was the driver of his motion, was that
he considered property-owning women would provide a conservative
counterweight to the unpropertied young men about to be enfranchised by the
residency clause of the Bill.106
Self-confessed ‘Conservative to the backbone’ Robert Sholl, however, had no
qualms about outing Cookworthy’s amendment as the conservative strategy that it
was, spluttering that propertied women ‘were more likely to exercise the franchise
wisely than some of the pets of the Premier, who might be found hanging about the
corner of the Town Hall, waiting for somebody to given them sixpence, to take to
the nearest publichouse’—a view endorsed almost verbatim by fellow conservative
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Bernard Clarkson.107 However, while all the conservative stalwarts may have been
opposed to manhood suffrage, not all were convinced that enfranchising women
was the remedy. Alexander Forrest, for example, was clearly troubled by the
motion and, invoking the separate spheres ideology so prevalent in the Victorian
period, argued that ‘he did not believe in ladies mixing up in politics. He though
the proper place of a woman, whether she were a widow or a spinster, was to look
after her home, and not to be running about all over the place, at elections’—
misgivings which were later echoed by both Frederick Monger (who had entered
the Assembly via the October 1892 York by-election a few months after his MLC
father, John Monger, had died) and Frederick Piesse.108
Not surprisingly, the ambivalence shown towards the motion in the conservative
ranks was mirrored among the liberals where members had to decide how to deal
with a measure which the majority supported, but which they also realised had
been proposed for an illiberal purpose. Most decided to support the ‘graceful
tribute’ to the ladies anyway.109 Lancel de Hamel—a former member of the British
Conservative Party, but by this stage often viewed as ‘a liberal exponent of the
most liberal ideas’—led the way by seconding the motion with the ‘greatest
pleasure’; and was soon followed by (intermittently) radical-ish George Simpson
(who had replaced Edward Keane at the December 1891 Geraldton by-election)
who enthused that ‘he should never give a heartier vote so long as he had the
honour of a seat in that House than the one he would give that evening in favour of
this motion’.110 Simpson’s approval was particularly significant because he
acknowledged what the conservatives were trying to do and the rough justice of it:
the Upper House was supposed to protect the rights of property, and as women, he
believed, were the most conservative class in the world as regards politics, he thought it
was only right and proper that they should have a voice in the election of members who
were supposed to represent and protect property.111
—Although his principal reason for supporting the measure was his belief that ‘the
inclusion of women among the electors would purify our elections; it would make
our political meetings respectable, and it would improve the political tone of the
whole colony’.112 (The Angel in the House beatifying the body politic!) George
Throssell and Thomas Molloy, meanwhile, supported the Bill mainly in
acknowledgment of the support women voters had given them at municipal
elections—and ribbed Alexander Forrest for not doing so, considering that Forrest
had secured the mayoralty of Perth with the help of women’s votes. (Forrest,
however, was not the only ‘separate sphere’ conservative prepared to countenance
women’s involvement in canvassing and fund-raising for the benefit of male
candidates viz. the British Primrose League.113)
Conversely, a few key metropolitan liberals who represented the most populous,
and reputedly radical, of the constituencies withheld their support. The first was
Timothy Quinlan, member for the largest metropolitan electorate, West Perth, and
a passionate advocate of manhood suffrage. In repudiating the amendment Quinlan
expressed his quite legitimate concern at its ‘ulterior object’; unfortunately, the
actual ‘reason’ he gave for his opposition was:
his experience of ladies at municipal and other elections had been that they were
somewhat weak in mind. [SEVERAL HON. MEMBERS: No, no.] He said so with all
238
respect for the ladies. They were liable to be led away by political agitators, at election
times, and persuaded to vote for this or that candidate without due consideration…His
own opinion was that ladies, like cats, were best at home.114
South Fremantle MLA Elias Solomon, although equally opposed to the
‘Conservative amendment’ because of fears that it would ‘make the boon [of
manhood suffrage] almost useless’, at least put on the record that he ‘did not say
that women were mentally inferior to men’; while North Fremantle member,
William Pearse, drew upon years of parliamentary experience and diplomatically
conceded that women would use the franchise ‘wisely and well’—before voting
against it on the grounds that the measure was premature.115 Marinus Canning, the
ultra-liberal member for East Perth was unable to vote on the measure because he
was Chairman of Committees—but his attitude towards it can perhaps be gauged
by his unsuccessful attempt to have the amendment ruled out of order. All of which
seems to illustrate that the indifference, and even antipathy, towards women’s
rights which first-wave and second-wave feminists often encountered in the leftwing brotherhood—determined to secure its own rights first—was not an unknown
phenomenon in nineteenth-century Western Australia.
Also withholding support from the amendment was the Forrest Ministry which was
more than a little taken aback to have ‘such a stupendous alteration of the law as
this amendment contemplated’ sprung upon them with absolutely no warning on
the Notice Paper.116 Aptly, the first Government member to oppose the amendment
was the Attorney General, Septimus Burt, who had drafted the Bill, but his
impromptu arguments against the amendment were surprisingly flimsy—and
further undercut by his admission that he was personally in favour of the principle
of female suffrage and ‘had no reason to disagree with anything that had been said
by those who had expressed their intention to vote for the amendment’.117 When
debate on the amendment resumed two days later, however, a highly prepared
Premier was the first to speak, with a three-pronged defence against the motion.
First, Forrest maintained that if the amendment were passed it would prove to be
the thin edge of the wedge and women would soon demand the right to vote on the
same basis as men, i.e. residency only, as well as the right to be elected to the
Parliament. Forrest clearly regarded this scenario as so self-evidently unthinkable
that he didn’t feel the need to say any more about it, and immediately proceeded to
his second, and principal, argument which was that:
the persons to whom this amendment would give the franchise had not been consulted, for
the women of the colony had never expressed, as far as he knew, any strong opinion, nor
any opinion at all, as to desiring a vote for Parliament; and although it might be very
gallant and very generous on the part of hon. members to give to an important section of
the community what they had never asked for, and what, as far as he knew, they did not
desire, still hon. members did not usually act in that manner.118
And it must be admitted that Forrest had a point. When British Home Secretary,
Herbert Gladstone, advised British suffragists in 1908 that ‘a demonstration of
force majeure’ was required to convince the Government that women were
indisputably committed to securing the vote, this was after Britain had already
witnessed decades of feminist lobbying and seen more than two dozen private
members’ bills for female suffrage voted down at Westminster.119 Indeed, the first
petition calling for female suffrage had been submitted to the House of Commons
on behalf of women as early as 1832 by ‘Orator’ Hunt; and after the second
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petition was tabled by John Stuart Mill in 1866, the ‘Cause’ had been pursued
unremittingly by hundreds of feminist suffrage organisations. In 1908 alone the
Annual Report of the Women’s Social and Political Union (one of the largest and
most militant of the suffrage organisations in Britain) recorded that: ‘5000
meetings had been held, thirteen by-elections contested, 130 women imprisoned,
and 100,000 publications sold’.120 In Western Australia, by contrast, the only
organisation championing female suffrage—the local branch of the Woman’s
Christian Temperance Union (WCTU)—had only been set up in September 1892
and was yet to hold its first public meeting on the topic of the female franchise.121
(Such a public meeting did, however, take place in October 1893, in conjunction
with the first Annual Convention of the Western Australian branch of the
WCTU.122)
Forrest’s final argument against the measure was that votes for women had not yet
been adopted in any part of the British Empire ‘which fact alone should be
sufficient to make hon. members pause before adopting it here without careful
consideration’—although he was dissembling here as a Bill to enfranchise
unpropertied European and Maori women had already been passed by a huge
majority in the New Zealand Lower House (and, as the Electoral Act 1893, would
be signed into law less than two months later on 19 September).123 In concluding,
Forrest insisted that the ‘proper course’ would be for Cookworthy to move—‘in the
next session’—that a Bill enfranchising women be introduced.124 Which was
another instance of Forrest dissembling because everyone in the Chamber knew
that if the Constitution Act Amendment Bill passed (and this was still expected to
happen) then the Legislative Assembly would have to be re-elected before the ‘next
session’ under the new franchise provisions—and the likelihood of the newly
returned Chamber passing a measure which would again alter the franchise and
necessitate another general election was negligible.
Showing a united ministerial front, Marmion and Burt joined Forrest in opposing
the amendment. Marmion’s contribution to the debate was delicious: a highly
muddled outpouring in which he expressed his indignation at the amendment’s
‘invidious distinction thus made in favour of property’ (which was a bit rich
considering the Constitution Act Amendment Bill was riddled with invidious
distinctions regarding men’s franchise entitlements and property) only seconds
after he had sketched the horrors of the unpropertied domestic servant or grown-up
daughter wielding the vote ‘equally with her master’ or pater.125 He also insisted
that ‘women themselves did not want to be canvassed and worried into voting at
elections’—completely ignoring the fact that both registration and voting at the
time were voluntary—and urged the members to retain the status quo in which
women already exercised influence vicariously ‘through their husbands, fathers,
brothers, or friends’.126 And poor old conflicted Burt wound up the Government
case by stressing that as it seemed unjust to exclude married women property
owners from the franchise—and improper to include divorced ones—and very few
single women would qualify under the amendment anyway, the enfranchisement of
women—‘although the principle was good’—should be delayed until the
Government could further consider it.127
The proponents of female suffrage had no difficulty picking apart the
Government’s case, with a number deriding the ‘invidious distinction’ line of
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argument and pointing out that, ‘They had gone cautiously to work in extending the
franchise to the men, and why should they not adopt the same course with the
women?’128 As for the principle of female suffrage being new, Simpson scoffed
that it was ‘as old as the hills’ and that he had personally stood for the measure as a
candidate, while the highly respected Sir James Lee Steere calmly underlined that
‘some of the most eminent statesmen in England’ had been supporters of the
principle for ‘years past’.129 And as for Forrest’s big gun argument that women
hadn’t demonstrated any interest in female suffrage, the best rejoinder came from
Bernard Clarkson—‘as to agitation, he maintained there had been none among the
men of the country in the direction of manhood suffrage, or, at any rate, there had
been quite as much agitation in favour of the one as of the other’.130 Which,
disregarding one public meeting in support of manhood suffrage at the Perth Town
Hall in the previous year, and the extraction of election pledges from candidates,
was not far from the mark. Even Forrest himself had acknowledged ‘what has been
termed the indifference, on the part of the people on this question’ when
reintroducing the Bill at the beginning of the current session, confirming that the
Government had brought the measure forward again ‘without any pressure
whatever being brought on us by any person or section of the community’.131
Interestingly, however, the ease with which men in the colony received manhood
suffrage is not a fact universally acknowledged by male historians.132
F. K. Crowley, for example, has referred to Western Australian women being
‘passive recipients’ of the vote, without being so casually dismissive of Westralian
men who were also enfranchised without a succession of Peterloo massacres or
forcible feeding at Holloway Gaol.133
Finally, the vote on the amendment was called and it was lost by a paper-thin
thirteen to twelve. With such a tantalisingly close result—and one in which a
number of the ‘noes’ actually expressed their support for female suffrage in
principle—it was no great surprise that the next day when the franchise provisions
for the Legislative Assembly came up for debate, Robert Sholl moved (again
without notice) that all the franchise entitlements—with the exception of the
residency clause—apply to the ‘widow, spinster, and feme sole’, because ‘if a case
was worth taking up at all, it was worth fighting for to the bitter end’.134 Sholl did,
however, spare the members a lengthy recapitulation of the arguments in favour of
female suffrage, simply urging that: ‘Some hon. members said they looked upon it
as a conservative measure, others said they thought it was a liberal measure; but he
looked upon it as simply a just measure, this giving of a vote to those who were
fairly entitled to it’.135 Suggesting a degree of collaboration, Cookworthy extended
the bipartisan theme, informing the members that in the current House of
Commons there was a majority pledged to support votes for women of whom ‘179
are on the Liberal side and 176 on the Conservative’, while Simpson read out a
glowing report from the Governor of Wyoming (one of the handful of American
states which had adopted female suffrage) regarding the ‘beneficent effect of pure
womanhood upon the elections’.136 There was a little more rehashing of points on
both sides before a clearly peeved Forrest expostulated that he was fed up that the
debate on the Bill was ignoring the ‘main principles’ and had ‘dwindled down’ to
women’s rights!137 Calls of ‘Divide, divide!’ immediately followed and the
amendment was lost thirteen to ten (one former ‘pro’ was out of the Chamber, and
another, William Paterson, swapped sides).138 But still the cause wasn’t
abandoned…
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The final stab at enfranchising women occurred on the Bill’s recommittal on
9 August when George Simpson re-proposed Cookworthy’s original amendment,
expressing the hope that now ‘the first alarm’ had subsided, it might stand a better
chance.139 Another bout of intense debate followed, but, with the exception of
William Traylen arguing for women’s right to vote on the grounds that they could
push for the consideration of legislation affecting the ‘protection of their own sex’
(and he rather daringly referred to ‘certain houses in Murray Street’ being one such
case), little in the way of new argument came up.140 Forrest again expressed his
displeasure at the debate being commandeered, although he was slightly more
conciliatory this time, announcing that ‘He did not oppose this proposal upon any
principle’; rather, he simply ‘appealed’ to the members to postpone the issue until
the colonists expressed a desire for legislation on the matter.141 The amendment
was narrowly defeated for the third time, but the high level of support shown
towards the ‘graceful tribute’ suggested that the issue was not going to go away.
The Constitution Bill was passed in the Legislative Assembly on 14 August and
was re-introduced into the Upper House a week later by Stephen Parker who, when
moving its second reading, deftly pitched the Bill to both sides of the House by
praising its liberal reforms, whilst reassuring the conservatives that as the multiple
voting rights of the propertied had been preserved: ‘I am not sure that this is not
rather a Conservative than a Radical measure’.142 A short and rather pointless
debate followed in which members largely argued as to whether the ‘liberalconservative measure’ was more conservative or liberal, but notwithstanding their
disagreement they unanimously allowed the Bill a second reading.143 But that was
the end of the unanimity. Within minutes of the committee stage commencing
Edward Hooley (who had moved the motion which blocked the Bill’s second
reading in the Council the previous year) proposed two amendments which Parker
prophesised would similarly ‘damn the bill’.144
The first was to cap the increase of Upper House members at eighteen rather than
the proposed twenty-one, and the second was to reduce the number of electoral
divisions in the Bill from seven to six. The first amendment may seem bizarre given
that the proposed increase would boost the membership and might of the propertyholders’ fortress by 40 per cent (the Legislative Assembly’s would only go up by 10
per cent under the Bill, as some of the MLAs had protested), so that the
reconfigured Council would become two-thirds the size of the Lower House instead
of exactly half (the proportion which generally existed in the other Australian
colonies). Hooley’s opposition, however, was due to the Bill also proposing to give
Perth and Fremantle an electoral division each (they were currently lumped together
in one division under the Constitution) thereby increasing the proportion of
metropolitan members in the Upper House to six out of twenty-one, instead of the
three members out of fifteen currently set out in the Constitution. This boost to the
metropolitan representation would only actually bring it up to parity with the
significantly less populous northern and southern regions which would also return
six members under the Bill, but as the towns were regarded as ‘hot-beds of
radicalism’ by the conservatives, and the rural areas jealously guarded their existing
Constitution Act over-representation in the Upper House, Hooley was implacably
opposed to the metropolitan increase.145 Consequently, he was more than content to
reduce the Legislative Council’s overall numbers as long as the reduction was solely
borne by the metropolitan area; and he believed this could be achieved by
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amalgamating Fremantle with the Perth electorate in the Bill. Despite the protests of
John Hackett that this proposal ‘practically wipes Fremantle out of existence’
(because Perth contained considerably more electors than Fremantle) and would
also ‘lead to endless friction’ between two towns already notorious for their rivalry,
and Parker’s warning that it could sink the Bill, a majority of members voted in
favour of both amendments.146 (Interestingly, among the conservative majority were
brand-new nominees Harry Anstey and John Hassell, which later prompted
members of the Assembly to query why Forrest hadn’t ensured sympathetically
minded appointees for this last session of the Council considering he knew that the
Constitution Bill was the main issue.147)
To ensure they really did ‘damn the Bill’, however, the conservative majority in the
House continued with its extreme makeover. First, they voted in favour of
increasing the residency requirement for members of the Upper House to two years
(after toying with three years), and then considered an amendment to reinstate the
property qualification for MLCs—which was only voted down after Parker urged
that it would eliminate almost all northerners who ‘possess sheep and cattle, but no
freehold’.148 Then Anstey (seconded by Hassell) proposed extending the tenure of
MLCs to nine years elected on a triennial rotation (instead of the six years and
biennial rotation as currently proposed)—which led an exasperated Hackett to
remonstrate that: ‘Really I think we are going stark, staring mad. We have been
spending the best part of our time in trying to prevent people from coming into the
House, and now we are trying to keep them here until they become of unsound
mind’.149 This amendment was also the final straw for an almost apoplectic Parker
who flailed it as ‘the most preposterous that has ever been made to any legislature
during the present century…It is tantamount to saying that members shall not be
amenable to outside influence, which is nothing short of a parody on
representation’.150 The conservative members, however, loved it—particularly
James Morrison (although he personally favoured life terms) who had previously
argued against six-year tenure because of ‘the enormous number of elections it will
involve’.151 In fact, after mentioning that eight of the original fifteen Legislative
Council nominees had died or resigned, Morrison maintained that ‘Time will work
all the elections that are necessary’.152 The motion passed eight to six.
Obviously feeling on a roll, Morrison next proposed to replace ‘man’ with ‘person’
in the Legislative Council franchise clause, which would grant female suffrage to
women, married or not—which sensibly killed off objections that gay divorcees
were being enfranchised at the expense of the respectable matron.153 In support of
the amendment he repeated many of the arguments aired in the Legislative
Assembly; and in opposing it, Parker—who prior to his promotion to the Ministry
had expressed his support for female franchise and been the colony’s most
committed advocate of married women’s property rights—dutifully pressed the
Government line of deferring the measure until some agitation had been shown in
its favour. Unfortunately, two other long-standing advocates of female suffrage
also abandoned women. George Randell, who had publicly expressed support for
women obtaining the franchise as early as 1876, and as late as the motion for the
Bill’s second reading six days previously, inexplicably bowed to the Government’s
‘time is not yet ripe line’ and simply urged women to ‘let us know their opinions’,
while Hackett, who called himself a suffragist in ‘theory’, also sighed that the
measure was premature.154 The amendment was lost on the voices.
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Also defeated was the most controversial amendment proposed during the whole
debate: the motion to strike out the residency qualification for the Legislative
Assembly franchise. As it was widely known that manhood suffrage was virulently
opposed by most of the members in the Council—and was a non-negotiable
principle for the Legislative Assembly—it had been feared all along that this clause
would be the one to sink the Bill. And, in fact, the clause only scraped through by
one vote after Parker and Hackett outlined that without manhood suffrage there
would be no electors in the three new mining electorates and, further, that all
lodgers would be disfranchised because the manhood suffrage clause had replaced
the lodger clause. Not all the members accepted the decision graciously, however:
the Bill passed its third reading on 11 September after a dramatic last-minute
attempt by Morrison to have it rejected, lapsed for want of a seconder.
The Legislative Assembly was advised by Message on 11 September that the Bill
had been passed ‘subject to the amendments contained in the Schedule annexed’,
and went into a committee of the whole House a fortnight later to consider its
response.155 Of the twelve scheduled amendments, the Assembly agreed to four.
The first was simply a verbal amendment; the second, also a verbal amendment,
was the Council’s wish that ‘Electoral Divisions’ be renamed ‘Electoral Provinces’
which had been moved by Hackett because ‘it will add importance and dignity to
the constituencies of this Chamber, and reflect importance, and dignity, and weight
on the gentlemen who represent them’ (which prompted Parker to suggest
‘dukedom’); the third was the requirement that Upper House candidates be resident
in the colony for two years before being eligible to stand for election; and the
fourth dealt with amending money Bills (important, but not in the context of this
discussion).156 The remainder, which related to the nine-year terms and the
reduction of Legislative Council members by the ‘effacement of Fremantle’, were
rejected because, as Forrest expressed it, long terms would make members
‘indifferent to the wishes of their constituents’, while the merging of Fremantle
into Perth would be inequitable on the grounds of population and would also
transform Perth and Fremantle’s ‘present healthy emulation into animosity’.157
Statutory tag continued two days later when the Legislative Council met as a
committee of the whole to consider how they would deal with the eight
amendments rejected by the Assembly. The ‘effacement of Fremantle’
amendments were dealt with first with Parker urging that as the Council should be
representing ‘people and intelligence’ and not ‘sheep or sand’, they should give
way.158 Somewhat surprisingly, two members who had formerly voted for the
amendment agreed, giving as their reason, ‘It is better to have the Conservative Bill
this is, than throw it out simply on the question of whether Fremantle is to have
three members or not, and ultimately have to assent to a far more Radical one’.159
Notwithstanding these defections, when the vote was taken it was tied and
following constitutional convention, the President, Sir George Shenton (the latest
knight in the legislature), threw his casting vote in with the ‘noes’. Parker’s
subsequent motion, that the nine-year term group of amendments ‘be not insisted
on’, was, by contrast, acquiesced in by a majority without one word of
discussion.160 Given this hint of compromise, Hackett promptly moved that ‘this
House does not insist on any of its amendments’ and spelt out to the members: ‘the
only matter between the two Houses now is whether Fremantle shall be
disfranchised or not. The Lower House was unanimous that it should not be, and
244
we were equally divided. That being so, I ask hon. members is it worth while
perpetuating this conflict…?’161 But wiping out Fremantle’s representation was not
the only issue at stake, as the Bill’s most vehement opponent, Morrison, made
clear—
I will not say there are not good arguments against disfranchising Fremantle, but what we
wish is to do our utmost to stop the Bill, which is a bad one, from passing, We object to
the principle of the Bill as a whole, and especially that part of it which relates to six
months residence being sufficient to entitle a man to vote.162
The vote was once again tied and lost on Shenton’s casting vote. The Council had
thrown down the gage to the Assembly.
Forrest’s counter-attack was masterful. He moved that a conference be held
between the two Houses to try and reach an amicable resolution of the question—
i.e. a backdown by the Council. In the event of the Council sticking to its
amendments, however, Forrest informed the members—but in reality he was
addressing the intransigents in the Upper House—that his Government intended to
accept every amendment, notwithstanding they would ‘really spoil the Bill’,
because he believed that the most important thing was to get the Bill—and
manhood suffrage—on the statute books.163 Fremantle’s stolen representation, he
outlined, would undoubtedly be rectified in the following session. Having called
the Council’s bluff, it was perhaps somewhat surprising that the five Upper House
members appointed to the conference still insisted on the amendments. When they
returned to the Council and tabled their report advising the members to hold firm,
however, Parker simply moved, without any discussion, that the amendments not
be insisted on. Realising that any further opposition was futile, a majority of one
voted to give way. Forrest had won.
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10
And Yet More Constitutional
Tinkering…
I mean to continue in the future as I have in the past.
The time is not yet ripe—the time is not yet ripe…
Louis Esson, The Time is Not Yet Ripe
Clawback
Given the changes to the franchise in the Constitution Act Amendment Bill, a
general election for the Legislative Assembly would, in line with constitutional
convention, need to be held—and at roughly the same time as the inaugural
election for the Legislative Council. Before either set of elections could be called,
however, the existing Electoral Act needed to be amended to give effect to some of
the changes introduced in the Constitution Bill, and also to sort out Warton’s
defective registration provisions. Forrest moved the motion for the second reading
of the Electoral Bill 1893 on 4 October—the same day that the Legislative Council
capitulated on the Constitution Bill amendments. Ironically, though, after all the
manoeuvring to secure manhood suffrage for the ‘whole of the masses’, the Bill
Forrest was now advocating threw a number of roadblocks in the way of the
masses who might try to exercise it (while doing much to ease the way for
propertied colonists to register and vote). Quite simply, it appears that the
pragmatic Forrest was attempting to conciliate his Government’s conservative
support base after the recent liberal concessions—and, as C. T. Stannage has
outlined, Forrest’s ‘ability to represent himself to the colony at large as the
protector of all interests’ was a decisive factor in his decade-long retention of the
state premiership.1
Which, of course, was not how Forrest presented the measure to the Assembly.
Rather, he claimed that the Bill—which would repeal and replace all the
registration and roll compilation sections in the existing Act and add some new
offence and penalty provisions—was a close ‘counterpart’ of Queensland’s
Elections Act 1892 which had been drafted by Chief Justice Sir Samuel Griffith:
‘one of the ablest Parliamentary draftsmen in Australia’.2 But while Forrest
enthused about Western Australia’s signal good fortune in being able to use for
‘guidance’ the most recent Australian legislation on the subject, it soon became
obvious that he and Stephen Parker (who was Acting Attorney General while
Septimus Burt was out of the colony) had shamelessly cherry-picked those
provisions from the Queensland Act which suited the Government’s don’t-frightenthe-horses agenda.3 Accordingly, Forrest informed the members that the Bill, like
246
Queenland’s Act, did not contain any provision enabling the transfer of electors
from one district to another, even if this did cause ‘a little hardship sometimes’
(especially for itinerant workers who had qualified under the residence
qualification); but unlike Queensland’s Act, the Bill only provided for annual
rather than quarterly registration.4 Similarly, the Bill prevented illiterates from
registering for the vote unless they could sign the enrolment claim form, whereas
Queensland permitted illiterates to make their mark; and the Bill did not adopt the
principal innovation of the Queensland Act: the contingent vote, a form of optional
preferential voting.5 Finally, the Bill provided the machinery for Municipality and
Roads Board annual electoral lists to be sent to electoral registrars—which enabled
propertied male ratepayers (including illiterate ones) to get on the parliamentary
electoral roll ‘without any action on their part whatever’—although this provision
was only in operation in Victoria.6
Nonetheless, most of the provisions in the Electoral Bill were copied from the
Queensland Act and for the apparent reason that they made it more difficult for an
unpropertied and mobile newcomer to register and vote, thereby helping to
perpetuate, according to Stannage, ‘the dominance of the landed interest in the
legislature’.7 First up, the Bill proposed to adopt Queensland’s single, generalpurpose enrolment claim form which required considerably more information
about the enrollee and his franchise entitlement than Warton’s seventeen
customised claim forms (eleven questions’ worth, in fact).8 In addition, the claim
form had to be declared before and attested by: ‘a Justice of the Peace, or an
Electoral Registrar, or the Head Male Teacher of a Government School, or an
Inspector, Sub-Inspector, or Sergeant of Police…or a Postmaster’, instead of being
simply filled in and ‘countersigned by a witness to his signature’ as in s. 6 of the
current Act.9 And the penalty for any false answers on the claim form, or for
making a false declaration, were those of ‘wilful and corrupt perjury’.10 Apart from
the difficulty of locating one of the authorised witnesses in many of the remote
parts of the colony—and the claimant’s likely loss of wages in doing so—the Bill
further enacted that the attesting witness must ‘if he is not personally acquainted
with the facts, satisfy himself by inquiry from the claimant or otherwise that the
answers to the questions are true’, and ‘certify’ that he had done so.11 And to
ensure that witnesses did not attest claims without this ‘personal knowledge or full
inquiry’, the penalty was a fine of up to £50 as well as a ban on being registered or
voting at a parliamentary election (and being a justice, if a JP) for two years from
the date of the conviction.12 Which would make any witness chary of signing an
unknown t’othersider miner’s claim form!
All registration claims and objections were to be processed and revised much as
they were under the existing Electoral Act (with the revision court to be known as
the ‘Registration Court’ and the ‘Electoral Register’ renamed the ‘Electoral Roll’)
although the electoral registrar, once in receipt of the ratepayer electoral lists, was
to add missing ratepayers to the parliamentary electoral lists (and, conversely, flag
‘objections’ to those on the parliamentary electoral lists who had dropped out of
the latest ratepayer lists).13 Similarly, elections were to be conducted as laid out in
the 1889 Act, with the exception that the Bill would give officers in charge of
polling places more scope to interrogate electors. As well as being able to ask
electors the existing questions as to identity and multiple voting, electors in the
future could be asked point-blank if they were ‘disqualified from voting?’, while
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those who qualified under the clearly second-class residency qualification could
also be asked: ‘Have you been within the last nine months bona fide resident for a
period of one month within this Electoral District?’ and ‘Where was your
residence?’14 In addition, all electors could be asked to swear a ‘solemn declaration
against bribery’.15 And to further ‘secure the purity of elections, as far as possible’,
the Bill added a slew of new electoral offences including ballot box stuffing,
intruding into the polling place, obstructing or disturbing elections, removing a
ballot paper from a polling place, and wilfully misleading the electoral registrar.16
Penalties for some of the existing electoral offences were also significantly
increased (particularly for wilfully neglectful returning officers, whose penalty had
been doubled to £200).17 As a sweetener, however, formal provision had at last
been made for remunerating returning officers, electoral registrars and other
polling officials for their time-consuming electoral duties.18 And, finally, all the
registration and roll compilation deadlines were brought forward to enable the rolls
to take effect from 1 June in every year, which would mesh in better with the new
financial year starting on 1 July.
Possibly because the Bill was viewed as largely meeting the ‘wishes of both sides’
of the legislature and the session was almost at an end, the Electoral Bill was not
subjected to the same ordeal as the Constitution Bill. In both Houses the Bill was
ushered through the committee stage in one short sitting with most clauses assented
to en bloc (which, as shall be seen later, was a big mistake). The Legislative
Assembly, in fact, only passed one minor amendment: adding the ‘officer in charge
of any police station’ to the list of attesting witnesses; and even in the Council,
where Parker took advantage of this final opportunity to tweak the Bill, he only
suggested three amendments—all of which were passed with minimal debate.19
The first was to require enrollees to sign their claim forms in the presence of the
attesting witness (as they did in the existing Act); the second was to strike out a
clause enabling candidates who withdrew within two days of nominating, to not
forfeit their nomination deposit; and the last was a new clause denying
absent/proxy voting entitlements to those who qualified under the residential
qualification.20 In arguing for the last amendment, Parker sketched a scenario
which would have been quite commonplace in the booming colony at the time:
In Fremantle the Government employ about 150 men on the harbour works at the present
time, and on 15th February next they will be entitled to be put on the roll for North
Fremantle. If the Government were to cease the work these men would probably be
scattered abroad, and if an election took place, would it be right that these men should be
allowed to vote for a representative for North Fremantle by proxy when they had no
longer any interest whatever in the place?21
When the Bill was returned to the Assembly, Forrest was more than happy, this
time, to accept the Council’s amendments, and even quoted Sir Samuel Griffith
in support of the stripping of absent voting entitlements from itinerant workers:
‘our system of government is adapted for a settled people, who have residences,
and not for a nomadic population. When men are wandering about, they are not
entitled to so large a share in making the laws of the country, as people who are
settled’.22 (Griffith, incidentally, was on the roll for six different Queensland
electorates in 1892.23) After some very tepid opposition, the amendments were
ratified by the Assembly, and the Electoral Bill, along with the Constitution Act
Amendment Bill, was assented to on 13 October 1893—the last day of the
248
session. It was also meant to be the last day of the First Parliament under
responsible government; and the members no doubt already had their minds on
the upcoming ‘General Election for both Houses of Parliament’ referred to in
Robinson’s Prorogation Speech.24
Regrettably, in all the haste, no one had spotted that the new electorates and
amended franchise provisions contained in the Constitution Act Amendment Act
1893 could not, according to s. 14 of that Act, come into force until the existing
Legislative Assembly was dissolved. And as work on the rolls would need to
commence in January (the month designated in the Electoral Act 1893 for the
compilation of ratepayer electoral lists and the furnishing of lists of deceased adult
males by the relevant Registrar of Births, Deaths and Marriages) and could not be
completed before 1 June, a dissolution would leave the colony without a
Parliament for more than six months. Such an interregnum was clearly
unacceptable to the Government, so the Parliament was reconvened on
20 December 1893 to rush through a Bill ‘to authorise the immediate preparation
of the new electoral rolls, to be compiled in accordance with the Constitution Act
Amendment Act, 1893’—but without the need for a dissolution.25 Furthermore, as
electoral appointments had recently been gazetted, and a number of enrolment
claims forms complying with the provisions of the new Act already sent in, the
authorisation was backdated to 1 November 1893.
Naturally, the members were far from pleased at being recalled a few days before
Christmas to sort out a legislative ‘bungle’.26 And they were even less thrilled
when the amending Bill was introduced and they realised that they would be
debating more than the authorisation of new electoral rolls because the
Government had discovered additional legislative slip-ups that needed rectifying.
(Basically, the Electoral Act 1893 had repealed, but not re-enacted, two important
provisions from the 1889 Electoral Act: the first was the requirement for joint
owner/occupiers of property to specify the value of their share of the property and
the names and addresses of the other owner/occupiers on their enrolment claim
form, and the second was the section dealing with mortgagee and trustee franchise
entitlements.) And to top it off, the Government had decided to take ‘advantage of
the present occasion’ to amend the Telegraphic Messages Act 1874 so as to allow
election material to be telegraphed without being sent and received ‘in the presence
and under the inspection of some Justice of the Peace or Notary Public’—which
would make the conduct of elections easier in remote constituencies where often
the only available JP was the returning officer.27
The members took their revenge. The legislative councillors passed a ‘Protest’ at
the Bill being piloted through the Upper House by a private member (Stephen
Parker, their only Minister, was away ill) and made a number of snide observations
about the slack drafting of legislation, while the Assembly members turned what
should have been a short going through the motions Address in Reply debate into a
two-day censure of the Forrest Government—in particular, ministers’ recent
taxpayer-funded electioneering jaunts around the countryside. But after three days
of spleen everyone had had enough: all the clauses were passed without
amendment, and the Electoral Rolls Act 1893 (57 Vict., No. 34) was signed into
law on 22 December.
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Thanks to the Electoral Rolls Act, the new rolls were ready by 1 June 1894. On the
same date the Legislative Council was dissolved by Robinson; and on 2 June the
writs for both the Legislative Assembly and the Legislative Council were issued
and gazetted. While it made sense for both sets of elections to be held close
together, so that the resulting ‘turmoil and probable stagnation of business’, as
Lancel de Hamel described it, would not be unduly prolonged, Forrest had also
made it clear in the previous year that he did not want the elections to take place
simultaneously and, further, that he desired the Assembly to go to the polls first.28
Accordingly, the nomination dates for the Assembly were set down from 12 to 25
June with polling to take place from 14 June to 3 July, while the Legislative
Council dates followed almost immediately after the Assembly elections, with
nominations on 7 July and polls on the 16th—a time lag which enabled two
unsuccessful candidates for the Assembly to have a second (equally unsuccessful)
tilt at the Council.29
Although everyone knew that the elections would be held around June–July,
electioneering was well underway from the beginning of the year, with most
candidates issuing highly detailed manifestos in the press or at public meetings
months before the issue of the writs. Quite possibly they were spurred on by the
activities of the newly formed Progressive Political League—the political arm of
the Trades and Labour Council (TLC) and replacement for the now-defunct Liberal
Association—and the candidature of the first independent ‘Labour’ candidate in the
colony, the TLC secretary, George Chitty Baker, who, given he split the antiForrest vote by running against another liberal candidate, Matthew Moss, was
trounced by William Pearse in the North Fremantle electorate.30 Indeed, unlike the
1890 general election when candidates stood as Independents or ‘free lances’
because there wasn’t a Government in existence to oppose, nor an opposition party
even if there was, the 1894 campaign saw the commencement of a party system in
the colony—or what J. S. Battye has referred to as ‘a nucleus of an opposition’.31
(And the new Parliament would finally see the formal election of a Leader of the
Opposition: initially, George Randell, and from 1895, George Leake.) Accordingly,
many candidates indicated that they were ‘Ministerialist’, i.e. pro-Forrest and his
ministers (the ‘Weld Club Party’ as one radical newspaper dubbed the
Establishment grouping); ‘Oppositionist’ i.e. opposed to the ‘present Tory
Government’; or ‘Independent’ (but often with the caveat that they would side with
the Forrest Government on major issues).32
Notwithstanding this, there was a striking uniformity of views among the
candidates, with a great many advocating a continuing public works programme as
well as support for additional electoral reforms including female suffrage (WCTU
members had lobbied candidates on this issue), triennial parliaments, payment of
members, reduced qualifying residency periods in the colony, district transfer of
votes, and all Legislative Assembly elections to be held on the same day instead of
being staggered. A number of candidates also recommended comprehensive reform
of the civil service—especially the abolition of recruitment by patronage—while
others threw support for federation into the mix, which was not surprising
considering Sir Henry Parkes had addressed the largest meeting ever held in the
colony on the subject in March. It would not be too cynical to attribute the almost
uniformly progressive nature of the candidates’ platforms to the fact that the
colony’s electoral rolls had, since the introduction of manhood suffrage, more than
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doubled—so candidates were now pitching for the votes of ‘residence’ electors,
who were more likely be aligned with liberal rather than conservative policies.33
Such divergence as there was among policies related to the long-standing issues of
protection versus free trade; the amendment of land laws, including the possible
introduction of a land tax on unimproved land; and the question of whether
Western Australia should follow the sister colonies and impose a system of free,
compulsory and secular education in place of the current dual system.
Despite all the early campaigning, by the time the elections actually rolled around
only fifteen of the thirty-three Legislative Assembly seats were contested, and of
these only three electorates saw more than a two-way contest. Twenty-six of the
thirty former MLAs were returned, and one ‘new’ member, George Randell, had
previously sat in the Legislative Council. The four former MLAs defeated at the
polls (Marinus Canning, Lancel de Hamel, Thomas Molloy and Timothy Quinlan)
had all been fairly liberalish, but they were replaced by members who were equally
or even more progressive. Canning, for example, was replaced by the Progressive
Political League and TLC sponsored Walter James who was passionately
committed to political and social reforms and who would go on to become an
influential, even if short-lived, Premier. In fact, the only significant point of
difference between James and Canning was that Canning, like fellow defeated
liberals Quinlan and Molloy, supported the dual education system, whereas James
opposed it.34) Similarly, the three new goldfield members—Frederick Illingworth,
Frederick Keep and Charles Moran—were generally politically advanced, as would
be expected considering their constituent base.
Unlike the Assembly, the Legislative Council saw all electoral provinces
contested, but this was hardly surprising considering that three candidates were to
be returned for each province at this inaugural election with the candidate with
the most votes securing a six-year term, the next most successful a four-year
term, and the least successful a two-year term. (Subsequent Legislative Council
elections would see the staggered, or rotational, mode of election stipulated for
Upper House seats in full swing, with a single member being elected biennially
for each province for a six-year term—which would promptly see unopposed
elections become the norm.) As well as there being a good chance of being
elected with three vacancies per province, plumping, i.e. only casting one or two
of the three votes available, was also possible at the Council elections, and this
may have tempted a few more candidates into the ring because well-organised
plumping could give popular local candidates a significant edge—especially
when there weren’t many electors to organise, as was the case with most of the
Upper House electorates. The Council elections all took place on the same day
and, unlike the Legislative Assembly, there was, as Battye put it, ‘considerable
alteration in the personnel’.35 In fact, only five of the former fifteen members
were returned (Daniel Congdon, John Hackett, Richard Hardey, Stephen Parker
and George Shenton) who were all of a more liberal cast than arch-conservatives
Messrs Harry Anstey, Edward Hooley, Edward Hamersley and James Morrison,
who all came in a mortifying last at the polls.36 However, Battye is correct in his
assessment of the new Council, that while ‘composed of men more in touch with
the life of the community than were those of the nominated body…it was still a
cautious rather than a progressive Chamber’.37
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Given that the latest self-styled Leader of the Opposition, Lancel de Hamel, had
been defeated in the election in his contest for Yilgarn (and actually died a few
months later from typhoid he contracted whilst on the goldfields), and that a
majority of the returned members were prepared, however grudgingly, to support
the previous administration, Forrest and his former ministers continued in
Government. (The West Australian put the Government’s supporters at nineteen,
versus thirteen opposed.38) While the Ministry may not have changed, however, it
was fairly obvious that the new legislature would be more liberal-minded and
receptive to electoral reform than the old one—especially considering that the
population of the colony in the last twelve months had increased by almost 15,000
potential electors ‘most…who have lived under liberal and free institutions, and
under progressive Governments’.39 When the first session of the first fully elected
Parliament met on 25 July 1894, however, Governor Robinson’s Opening Address
revealed that there weren’t any electoral reform measures in the offing. Rather,
Robinson outlined that the overriding focus of the Forrest Government was, as
hitherto, ‘to promote the progress and development of the mineral resources of the
colony…[and] to encourage the occupation and improvement of the lands’ by
means of a programme of public works.40 Still, as the new member for West Perth,
Barrington Wood, observed when moving the Address in Reply, the Government’s
‘policy of public works only’ would be the only one ‘acceptable’ to the Parliament,
and was ‘only echoing the beating of the great heart of this country, inasmuch as
95 per cent. of the whole population are desirous that these works should be
commenced at once’.41 More to the point, no one in or out of the Ministry was
going to propose any electoral changes, if they resulted in the newly elected
Assembly having to go back to the polls. Nonetheless, that electoral reform would
eventually make it back on to the Notice Paper was indicated when goldfields
member Frederick Illingworth (who had advocated a range of electoral reforms
during the election campaign) asked Forrest whether it was the intention of the
Government to amend the Electoral Act during the current session, and received
the fairly encouraging reply that it was the Government’s ‘hope to be able to deal
with the question next session’.42
While there weren’t any big-ticket electoral reform measures proposed during the
1894 session, it is worth briefly noting that two Constitution Act 1889
Amendment Bills (which would not precipitate elections) were passed. The first
(58 Vict., No. 37) was a one-clause Bill to repeal the much-resented s. 70 of the
Constitution which compelled the funding of the autonomous Aborigines
Protection Board. This Bill was passed in defiance of the wishes of the Colonial
Office after three years’ worth of correspondence from Forrest requesting the
abolition of the provision and a resolution passed by both Houses of the
Westralian Parliament in 1893 calling for the abolition of the Board, had been
fobbed off by the Secretary of State. (And, as it turned out, the 1894 Bill, which
had to be reserved for the signification of Her Majesty’s pleasure thereon under s.
73 of the Constitution, would be similarly fobbed off and eventually lapse!) The
second Act (58 Vict., No. 15), lessened the draconian penalties imposed on
parliamentarians who contravened, no matter how trivially or unwittingly, the
contractor provisions of the Constitution Act. In future, while the disqualification
from Parliament would still apply to any infringement of the provisions, the
financial penalty would be reduced from £500 to £200, and any action against a
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member would have to be brought within three months of the member sitting or
voting in Parliament after the breach so that potential suits wouldn’t hang
indefinitely over the heads of MPs.43 In addition, the plaintiff—who, if successful
in his suit, pocketed the penalty as a reward for theoretically ‘preserving the
purity of Parliament’—would in future have to pay £100 into the court as security
for costs before any legal action could commence in an attempt to deter
speculative suits or ones ‘prompted by pique or spite, or some personal feeling’.44
Somewhat controversially, the Act also included a retrospective section so that
‘No action or other legal proceedings shall lie or be further maintained or
continued, if already commenced’ against members for breaches ‘alleged to have
been committed before the passing of this Act’—which bailed out the member
for Greenough, William Traylen, who had recently been charged with violating
the contractor provisions by printing The Journal of the Bureau of Agriculture
(after he had been assured by legal counsel that it was not illegal to do so).45
Some ‘pungent’ Resolutions…
The 1895 session of Parliament was opened by commissioners on 4 June, at least a
month earlier than expected, only to be adjourned on the same day until 25 June—
at which date, the Government assured the members, the Parliament would be
ceremonially opened and His Excellency the Administrator would deliver the
Governor’s Speech. As this was the second time in eighteen months that the
members had been summoned early to sort out a glitch, some very serious
grovelling took place in the Parliament. The blame this time, however, lay with
some mad technicalities in the Constitution Act which no one had previously
noticed. Section 29 mandated that the seat of a member who accepted ministerial
office ‘shall thereupon become vacant’—but that such a member was ‘eligible for
re-election’. Alexander Richardson had, six days after the last prorogation of
Parliament, accepted the appointment of Commissioner of Crown Lands (in place
of William Marmion who, along with Stephen Parker, had recently resigned) and
therefore needed to face his constituents. Unfortunately, Richardson had accepted
the ministerial appointment before resigning his seat, and as s. 29 automatically led
to his seat being deemed ‘vacant’ it was no longer possible for him to go ahead and
actually resign it. Normally, this would not be hugely significant, but under
s. 20 (1) of the Constitution Act Amendment Act 1893 the Speaker could only issue
a writ, when the Parliament was not in session, if a vacancy was due to ‘death or
resignation’. Hence, for almost the whole parliamentary recess De Grey had been
without a member and Richardson, although acting in his portfolio, had been
unable to seek re-election. (Edward Wittenoom, who had replaced Parker in the
Ministry at the same time, had fortuitously ‘evaded’ this farce by resigning before
accepting the appointment.46) Now, the Government could have waited until the
Parliament was due to meet in July to declare the De Grey vacancy; but as this
would have denied them Richardson’s vote until he was re-elected, they preferred
to subject the members to the inconvenience of a one-day sitting (lasting all of
twenty-three minutes in the Council) so that they could reconvene the session with
a full complement of supporters in what was an increasingly hostile Chamber.
(Forrest, of course, vehemently denied this was the motivation, claiming instead
that such an important Minister as Richardson could not be spared from the
Parliament while a protracted northern election took place.)
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Richardson was re-elected on 17 June, and the second session resumed on 25 June
with the Acting Governor, Sir Alexander Onslow, presenting the by now déjà vu
‘Public Works and Loans’ Opening Address. At the tail-end of Onslow’s lengthy
catalogue of prospective or completed public works, however, there was, as George
Leake (who had finally thrown in the crown solicitorship and entered the Assembly
as the member for Albany) sneered, a ‘feeble reference to new legislation’ that the
members would be asked to consider.47 One such Bill was for the ‘Amendment of
the Parliamentary Electoral Law’, so it appeared that Forrest had kept his 1894
undertaking to Illingworth to amend the Electoral Act.48 Illingworth correctly
assumed, however, that the proposed electoral amendments would not include
increasing the representation of goldfields electorates where, he reminded the
members during the debate, approximately 20,000 of the 38,000 adult males in
Western Australia currently lived—although such electorates only returned three
members.49 Notwithstanding another goldfields member, Charles Moran, also
blasting the under-representation of miners as inequitable and unreasonable,
Forrest did not refer to an increase in goldfields representation when he touched
upon the Electoral Act in his Address in Reply speech. But if he hoped the issue
would go away, he was mistaken: within weeks he would be forced into a
humiliating backdown.
Illingworth gave Forrest six days to think the issue over before asking on notice
whether ‘it was the intention of the Government to bring in a Bill to amend the
Constitution Act, by providing for such a re-distribution of seats as would give
more equitable representation in this House to the goldfields and other centres of
population’.50 Forrest’s retort that the Government had no intention to do so ‘at
present’ (which was not as conciliatory or encouraging as ‘next session’) led to
Illingworth moving, a month later, that:
the decision of the Government in reference to the question of redistribution of seats is not
satisfactory to this House; and is not in harmony with the expressed desire of the mining
districts, nor is it in accord with the opinion of the majority of the people of this colony.51
—A motion which, Illingworth breezily acknowledged, was framed in the form of
a want of confidence motion in the Government. The motion was certainly
regarded as such by the Government with the Attorney General unequivocally
informing the members that, ‘The Government…stand or fall to-night on the
question that the present time is not opportune for a redistribution of seats’.52 Given
this, there was no way the motion would pass, because no one was prepared to oust
the Forrest Government and face the electorate—including, it should be noted,
Illingworth himself who had admitted during the Address in Reply debate only five
weeks earlier that, ‘I am not anxious myself to see them defeated’.53 So what was
the point of a stillborn motion?
Obviously, it was all to do with tactics. Not only did Illingworth know that the
motion was doomed—he jokingly admitted to the members that ‘I could not
believe that the Forrest Ministry could be shifted even with dynamite’—he also
claimed during the debate that he had framed the resolution as a no-confidence
motion precisely because he didn’t want it to succeed in the present session.54 (He
refused to ‘disclose’ why he didn’t want the resolution passed immediately, but the
likeliest reason is that it would be more advantageous to deal with increased
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representation in the session immediately prior to the next general election when
the goldfields would contain thousands more miners and electors.55) What
Illingworth did want, however, was a full-scale parliamentary debate on the subject
of electoral malapportionment in which the Government would be ‘forced’ by the
House to deal with the problem.56
In moving the motion, Illingworth presented an array of statistics sourced from
the Registrar General’s return and the colony’s electoral rolls to prove just how
inequitable the current distortions in the Legislative Assembly electorates were.
He outlined that while eleven rural members in the House (i.e. one-third of the
total) cumulatively represented 887 electors, and seven northern members
represented only 365 electors, the member for West Perth on his own represented
1,859.57 He further pointed out that where the southern districts returned nine
members to represent 2,944 electors, the 3,002 voters in Perth and 2,237 electors
in Fremantle only had three members apiece. It was, however, the extreme underrepresentation of the goldfield electorates, where approximately 20,000 adult
male taxpayers were represented by only three members, that most concerned
Illingworth—and he underlined to the House that if the goldfields were
conservatively estimated to hold only 13,000 adult males and these males were
represented at the ratio that applied in the northern electorates, the goldfields
would be entitled to return 135 members! The statistics were shaming and so was
Illingworth’s impassioned conclusion:
Is it fair or just, or within the range of what is called British fairplay, that such a state of
things should exist as they do at present? They are worse than those which existed in
Great Britain before the passing of the Reform Bill, and here, in the 19th century, we have
gone back to those conditions. I sincerely ask hon. members to face this question and give
justice to all people, whether they are on the goldfields or anywhere else.58
The other advantage of having framed the resolution as a no-confidence motion
was that it effectively compelled the members to face the question and express an
opinion. And like a good barrister who never poses a question unless he knows the
answer beforehand, it is clear that Illingworth had set the Government up to hear
almost all the members—including steadfast supporters—state that while they
would vote against the motion because they did not wish to defeat the Government,
they wholeheartedly supported the principle of more equitable representation in the
colony—and particularly for the goldfields. And this widespread support for the
goldfields is understandable: not only were the goldfields bringing enormous
prosperity to the colony, but with the advent of ‘deep mining’ in the mid-1890s (as
opposed to the earlier alluvial rushes) they were now also attracting settled
populations.59 By the end of the debate, the Government’s refusal to consider the
question ‘at present’ appeared decidedly out of step with public opinion; and the
Attorney General, after a rather furious defence of the Government’s treatment of
its ‘pick and shovel population’, conceded that, ‘It is probable that, before the next
general elections, the House will be asked to consider the question in some way or
another’.60 This admission was promptly upgraded to a ‘promise’ by Illingworth,
who exulted that: ‘The position now is that we have a declaration from all sides of
the House that the principle I have behind this resolution is to be brought into
effect some time’.61 The outcome was, as fellow goldfields member, Moran, had
predicted earlier, a ‘numerical defeat’ but a ‘moral victory’.62
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The goldfields members had more to congratulate themselves about when the
Government’s Electoral Bill ‘to consolidate and amend the laws relating to
Parliamentary elections’ finally came up for discussion in the Legislative Assembly
on 24 September, and Septimus Burt outlined that while the Bill made ‘very little
alteration’ to existing electoral law, the two principal changes it did make would
materially facilitate goldfields residents getting on the roll.63
The first amendment, which Burt called the ‘main object’ of the Bill, was to reduce
the time it took to get on the electoral roll by establishing quarterly registration in
the colony.64 Henceforth, claims for enrolment, whether approved or objected to by
the electoral registrar, would be submitted directly to a ‘Quarterly Registration
Court’ to be held in January, April, July and October.65 The court would adjudicate
on all claims and objections, and would also rule on registration claims made orally
by claimants on the day. All claims which had been approved would be entered
into a register in the court and would subsequently be transcribed by the electoral
registrar into a ‘Quarterly Electoral List’.66 This list would then be ‘exposed to
public view’, and objections to any names entered on it could be made to the
electoral registrar, as previously, with the quarterly electoral list being revised at
the next quarterly Registration Court.67 The list, after this second revision, would
become known as the ‘Quarterly Electoral Roll’ and would be ‘deemed an addition
to the Annual Electoral Roll’, and entitle anyone on it to ‘vote during the then
current year’ if an election were called.68 Accordingly, a qualified claimant could
be registered as an elector within months of submitting his application—a huge
advance on the old annual registration system.
The second main amendment of the Bill was to increase the number of officials—
particularly ones associated with mining—who were authorised to attest
registration claim forms. In future any warden or registrar of a goldfield, mining
registrar, licensed surveyor, public notary or clerk of Petty Sessions could act as a
witness.69 This would obviously be an improvement for the remote mining areas
where, as Illingworth later pointed out, ‘perhaps within an area of 80 or 100 miles
there has been only one man who was competent, under the law, to receive the
claims for registration’.70
As Burt had outlined, very few other changes had been made to the existing
electoral law. The compilation and revision of the annual electoral roll would take
place much as they did under the existing Acts, although the various deadlines
were altered slightly and the annual Registration Court would be held on the same
day throughout the colony, so that ‘the date will become impressed on the mind of
everyone’.71 The new registration and witnessing provisions in the Bill were so
clearly a ‘distinct advance in our electoral law’ and an ‘immense gain to those who
advocate popular rights’, that the second reading was approved without
opposition.72 Indeed, the only reservation expressed about the Bill was that that it
hadn’t altered the franchise, with one member advocating the enfranchisement of
women and another the holders of miners’ rights. Burt in lawyerly fashion
explained, however, that as franchise qualifications were set out in the
Constitution, such changes could only be effected through a Constitution Act
Amendment Act. Given that the only amendments the members were interested in
were beyond the scope of the Bill, the committee stage was short and amicable. In
fact, only one significant change was made and this, too, was another win for the
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goldfields and other remote constituencies. Charles Moran moved that the clause
banning candidates from personally soliciting electors from twelve hours before
nominations should be struck out as it was a handicap in remote constituencies
where members had to canvass large electorates and where nominations often
closed twelve days before polling (as opposed to two or three days in the
metropolis). While there was some opposition in the Chamber to getting rid of the
provision altogether, the Attorney General, with Forrest’s agreement, successfully
moved a compromise amendment which shifted the ban to twenty-four hours
before the commencement of polling.
The Bill was received by the Council six days before prorogation; read a second
time without discussion; passed through committee without amendment; and
signed into law on 12 October by Onslow. As the Electoral Act 1895 (59 Vict., No.
31) it repealed and replaced the 1889 and 1893 Electoral Acts and the Electoral
Rolls Act 1893. This consolidation was a welcome move, as the difficulty of
construing a jumble of Acts—the ‘vice of scatter’ common at the time because of
the Western Australian and Westminster practice of ‘indirect amendment’ of
statutes by the enactment of separate Act Amendment Acts—had recently been
highlighted by George Leake, the Leader of the Opposition, and former Crown
Solicitor:
Every Justice of the Peace knows how difficult it is to put his finger on the law in our
present Statute book; for constantly repealed, constantly amended, the principal Act
becomes a hideous thing altogether, and not every lawyer can trace out any particular
principle in these Statutes.73
The hard-pressed electoral registrars and returning officers in the colony were
undoubtedly pleased that now they only had one ‘intricate’ Electoral Act to fathom
instead of three.74
Sir Gerard Smith Takes Over
Before the session was prorogued, the Parliament received official notice that
Governor Robinson had resigned from the service while in England (apparently
highly displeased that although the senior member on the gubernatorial circuit,
his almost expired term was not going to be renewed by Downing Street); so it
was a new Governor, Lieutenant-Colonel Sir Gerard Smith, who opened the third
session of Parliament on 7 July 1896. Smith’s inaugural ‘Governor’s Speech’
had, of course, been written by the Forrest Government, but it is interesting to
note that it had a different emphasis to the ones which had been delivered
previously by Robinson and Onslow. Although the usual paean to colony-wide
public works still featured, the 1896 Opening Address was dominated by an
almost reverent recognition of the importance of the goldfields and the need to
nurture them in view of the ‘unexampled prosperity’ they were bestowing on the
colony.75 This attitude was long overdue considering that the colonial revenue in
the past twelve months had increased from £1,125,940 to a staggering £1,858,695
and the population over the same period had soared by almost 50 per cent to
123,000.76 Now, Forrest being Forrest, public works would obviously be a huge
part of any nurturing, and there was an impressive list of goldfields-related
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improvements mentioned in the Governor’s Speech, with the centrepiece being
C. Y. O’Connor’s £2,500,000 water-supply scheme. But it is significant that the
Forrest Government also acknowledged that electoral rights were a crucial part of
the mix, and the third paragraph of Smith’s speech revealed that the semi-pledge
of increased representation for the goldfields extracted from the Government in
the 1895 session would be honoured in the present session because the ‘rapid
development of the goldfields, and the large population residing upon them, have
made it imperative to increase their representation in both Houses of
Parliament’.77
No details as to how much extra representation were mentioned by His Excellency,
but the seemingly benign reference to the goldfields’ ‘large population’ being the
motive for the increase, promptly saw members rise to denounce any distribution
of electoral representation on such a basis, with the mover of the Address in Reply
in the Legislative Council affirming that, as hitherto, there should be
‘representation of interests, not of heads’.78 Government Minister, Edward
Wittenoom, quickly scotched the revolt in the Council, assuring members that
while the ‘necessity for increased representation’ had been ‘forced upon everyone’,
the changes proposed in the Bill were based ‘not on the basis of population, but
having regard to the various interests of the colony’.79 Rejecting this argument in
the Legislative Assembly, Illingworth in the longest Address in Reply speech ever
made in the Westralian legislature up till then (three and a half hours’ worth as the
Premier later disapprovingly observed) again laid out the most recent statistics
regarding goldfields under-representation, and urged that ‘there must be complete
representation of the people, and not of vacant land’ as this was the ‘only one
equitable principle upon which representation can be based’.80 (Although
Illingworth still conceded some concessions would have to be made for the north
because of its ‘isolated position and sparse population’.81)
Illingworth need not have feared, however, as the Constitution Act Amendment
Bill was more generous than had been generally expected—even if it didn’t quite
satisfy the extravagant demands of the goldfields press. Instead of the four
additional Legislative Assembly seats mooted in the previous year’s debate in
Parliament, the Government proposed giving eight extra Lower House seats to the
goldfields as well as creating a dedicated goldfields electoral province in the Upper
House. While such a distribution of seats was clearly not based exclusively on
population (the goldfields were estimated to contain half the colony’s male
population) it delivered the goldfields about a quarter of the representatives in the
Assembly, which was a massive improvement on its current representation.
Furthermore, although the ‘principal object’ of the Bill may have been to increase
goldfields’ representation, Forrest somewhat daringly admitted that in the case of
the metropolitan area, ‘it is impossible to overlook the question of population’ and
hence the Government believed it was also time to give two more Lower House
seats to the metropolis by hiving off parts from, mainly, Perth electorates and
forming them into separate constituencies.82
Considering that the Government was loath to tinker repeatedly with the
Constitution—especially as amendments often necessitated elections—the Ministry
had opted to sort out a handful of other issues while they had an amending Bill in
258
front of them. Accordingly, the Bill also proposed to better regulate Upper House
elections by stipulating that:
members going out by effluxion of time will retire on a certain fixed date [21 May], and
in each case the new member will be able to be elected before that date, and take his seat
just after the retiring member vacates the seat. That will provide for members of the
Upper House being continuous, and that no lapse of time shall take place between the
retirement of one member and the new member taking the seat in succession.83
In addition, the Bill proposed curing the ministerial resignation-vacancy problem
by providing that the power to issue electoral writs during a parliamentary recess
‘shall extend and apply to a vacancy caused by the acceptance of any one of the
principal executive offices of the Government liable to be vacated on political
grounds’.84 And on the subject of ministers, the Bill also proposed to add a sixth
one to help the Government cope with the substantial increase of work in the wake
of the colony’s recent rapid development (and increasing parliamentary and press
censure of the under-performance of overburdened departments).
As the members had overwhelmingly backed the principle of increased
representation for the goldfields in the previous year, those sections of the Bill
were expected to meet with unanimous support—which they did. In fact,
agreement was such a given that the first four speakers, led by Elias Solomon, the
member for South Fremantle, scarcely mentioned the goldfields, but immediately
pitched for an additional seat for Fremantle while redistribution was on the table.
Fittingly, the goldfields members—now assured that they could soon constitute ‘a
very great power’ in the Parliament—generously supported Fremantle’s bid: partly
because they were committed to the principle of population-based representation
and partly in recognition of the Fremantle members’ support for goldfield interests
over the past few years.85 As almost every other member who spoke, including
those from rival Perth electorates, also endorsed Fremantle’s claim, the Attorney
General, Septimus Burt, when winding up the second reading speeches, indicated
that the Government would not be opposed to adding in another seat during the
committee stage. In the same speech, however, Burt outlined that the Government
would not be supportive of other measures which had been flagged during the
debate—in particular, female suffrage and the payment of members.
The committee stage of the Bill was poorly attended, partly due to George Leake,
the Leader of the Opposition, being away in England. (The Upper House around
this time certainly attributed the under-debated legislation they were being
forwarded to a ‘completely demoralised’ Opposition in the Legislative
Assembly.86) The truant members, however, didn’t miss much. Apart from some
minor amendments and a perfunctory discussion of boundaries, the only
noteworthy debate occurred when Fremantle was voted its extra seat and
Illingworth failed to convince the members that registered miners’ rights should be
sent to electoral registrars twelve months after being issued to enable automatic
enrolment of miners. Indeed, attendance was so ‘thin’ that Walter James, who had
indicated in both the 1895 and the present session that he intended moving a
motion in favour of female suffrage, informed the House when it had disposed of
the final section of the Bill, that he had decided against moving his ‘new clause’ as
there were only fourteen members present.87 But while the Bill completed its first
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pass through the House without the motion being introduced, female suffrage had
not been dropped. Rather, Joseph Cookworthy, who had moved the original motion
for women’s votes in the 1893 session—and been censured for doing so without
notice—this time placed the motion on the Notice Paper—which had the effect of
galvanising twenty-seven members to front up for the debate.
The shrewd tactics didn’t end there. After moving ‘That, in the opinion of this
House, it is desirable, in the best interests of the country, that the principle of
female suffrage should be recognised in the Constitution’—Cookworthy delivered
a speech in support of the principle which was as brief and businesslike as the one
he had delivered in 1893.88 The speech, in fact, was so short it was almost like a
dot-point summary. Women should have the vote on the grounds of: ‘right and
justice’; because they were taxpayers (the argument which had been very
successfully pressed by the goldfields’ members over the past couple of years);
because they should have a voice in framing the laws which they had to obey;
because they already voted in municipal elections; because they had as much
intelligence as men and, generally, impulses that were ‘far purer and higher’;
because both sides of the political divide supported the principle; and, finally,
because women had since 1893 successfully voted in parliamentary elections in
New Zealand and South Australia, so the members need not fear that they were
taking a ‘leap in the dark’.89 The speech was not stirring, but it laid out the
suffragist statement of claim.
Cookworthy was followed by the Premier who, on behalf of the Government,
immediately sought to shut down the debate by requesting that the motion be
withdrawn. In justifying his opposition to female franchise ‘not in the abstract’,
Forrest simply recycled his 1893 arguments, namely Westralian women had still
not demonstrated by a ‘single representation…to the Government or to Parliament’
that they wanted the franchise (which was not the case as there had been a milelong pro-suffrage petition organised by the WCTU, a pro-suffrage deputation to the
Premier, as well as considerable behind-the-scenes lobbying of MPs, and much
pro-suffrage correspondence to the press from women involved with the WCTU
and the newly formed Karrakatta Club); that there was as yet insufficient precedent
for this ‘speculative legislation’ in the British Empire; and that the female franchise
would be followed by demands for women to sit in the Parliament (something
Forrest was opposed to in the ‘abstract’).90 Forrest’s speech was as uninspiring as
Cookworthy’s, but it at least put the Government’s case in the public domain.
Now apprised of the opposition’s arguments, the formidably articulate Walter
James (a barrister) rose to present the burden of the suffragist case in an exhaustive
and impeccably researched speech in which an illustrious roll-call of conservative
and liberal authorities—including William Gladstone, Benjamin Disraeli, Prince
Bismarck, John Stuart Mill, Herbert Spencer, Charles Kingsley, Abraham Lincoln
and Lord Salisbury—were quoted in support of almost every contention he made.
James’ opening and, indeed, principal argument was that female suffrage was a
‘good’ and ‘just’ cause, and for that reason alone it should be granted—particularly
in an age when ‘we proclaim from the housetops that we believe in equality’.91
Opposition to the principle, James continued, was driven by superseded notions of
women’s inferiority and subservient status to men, and to bar modern women the
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franchise on the basis of ‘sex, and sex alone’, was not only an injustice to women,
but harmful to the body politic because it denied society the elevating influence of
‘the great moral storehouse of the community’.92 James then tackled head on
Forrest’s claim that Western Australian women did not desire, and had not agitated
for, the franchise, pointing out that women were generally averse to ‘unwomanly
tactics and loud agitation’ for the very sound reason that if they engaged in public
speaking, torchlight processions and ‘other expedients of political welfare’, their
actions would be immediately deplored by their menfolk who would be just as
likely to ‘urge these facts as reasons for refusing the demand’.93 (The imprisonment
and forcible feeding of British feminists once they commenced ‘agitating’ for the
vote by means of what Emmeline Pankhurst called the ‘argument of the broken
pane of glass’ confirms that women’s anxieties on this score were not astray.94)
That women desired the vote even if they did not publicly agitate for it, however,
could be inferred, James continued, from women’s rapid and enthusiastic take-up
of voting rights once granted, and he cited New Zealand where 78 per cent of adult
women enrolled to vote after the passing of the Electoral Act 1893—of whom
85 per cent went on to vote at the poll.95 And as to why women showed such a high
level of interest in the franchise, James pointed out that modern women
increasingly participated in the public sphere and the workplace, and as a result
found that the law ‘presses upon them more and more’—yet while they had to pay
taxes and obey the law, they had no input into either.96 James then referred to some
of the legislation Westralian women would indisputably like to see amended in
their favour, including the current child guardianship laws which enabled fathers,
after their death, to vest the guardianship of their children in someone other than
the children’s own mothers and the ‘scandalous’ divorce laws which compelled a
woman to prove aggravated adultery, i.e. divorce and some other offence against
her husband (rape or desertion, for example) before she could procure a divorce,
whereas the husband merely had to cite adultery.97
Most of what James said the members would have heard before, but certainly no
one in the legislature had hitherto spoken so persuasively or authoritatively on the
subject. But it was to no avail. The Government was already lined up against the
motion, and for it to succeed it was imperative that it have the full support of the
so-called Opposition within the Chamber. Unfortunately, Illingworth, who was
now de facto Opposition Leader in George Leake’s absence, had only weeks before
declared: ‘finally, absolutely, and forever—my distinct and positive opposition to
woman’s suffrage’.98
Illingworth’s main argument against the principle was the well-worn one that
‘woman has, by the wise Creator himself, been placed in a position of dependence’
and that if the ‘weaker sex’ left this divinely ordained domestic sphere and
participated in politics it would be a step in women’s degradation and undermine
the peaceful haven of the home for men.99 (He was similarly opposed to any
participation by women in the workplace as he believed this put downward
pressure on men’s wages.) Illingworth, however, had backup arguments—although
they were mutually contradictory. The first was that women could not be entrusted
with the vote because they were wildly emotional creatures who would vote with
their hearts and not their heads; the second was that the extension of voting rights
to women would be futile because they would prove to be ‘dual’ votes for their
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menfolk, i.e. women would unthinkingly replicate the voting choice of their
husbands and fathers.100 (And as for women who did not replicate their husband’s
vote, Illingworth objected to them because they imported dissension into the
home!) Inconsistency aside, it seems somewhat surprising that Illingworth resorted
to the dual vote argument given that it had been used against the male workingclass around the time of the Second Reform Act in England when even a cardcarrying liberal such as Walter Bagehot declared: ‘the vote of the inferior working
man is simply the vote of the “wire-puller”’.101 But then, maybe not, given that the
patronising dual votes argument against female franchise was given credence as
late as 1980 by F. K. Crowley who remarked of South Australian women casting
their first votes in 1896:
Most married women were socially conditioned to think politically as their husbands did;
most unmarried women followed the political predilections of their fathers; and it is
possible that the net result of their enfranchisement was merely to increase the cost of
holding elections.102
An observation which ignores the fact that as women generally shared the same
socio-economic milieu as their menfolk it was quite rational for them to develop
similar aspirations and arrive at similar political convictions. Just as their brothers
did.
Illingworth’s final point was to challenge the notion that female franchise would
give the conservatives an edge: ‘St. George’s Terrace will not vote and Murray
Street will’.103 As none of the speakers who followed agreed with this assessment,
however, it seems likely that Illingworth was simply trying to remind members in a
roundabout way that if the motion were successful it could enfranchise the
prostitutes from the Murray Street brothels.
The remainder of the debate was lengthy, but basically saw the above arguments
revisited, with a number of speakers making much of the prospect of newly
enfranchised female electors demanding admission to the legislature (no doubt
fuelled by an article in that morning’s press about a New Zealand Bill to that
effect). Indeed, goldfields member Charles Moran, in a very hostile speech,
actually went as far as to query whether the State would have to fund wet-nurses
for the ‘unsexed’ women who entered Parliament.104
When the vote was taken, female suffrage was again defeated by a very close
margin—fourteen to twelve—with one supposed supporter exiting the Chamber
before the division to the disgust of northerner Robert Sholl who had specially
journeyed down to Perth to vote for the motion. However, although the motion was
lost, the debate was still a key one for Westralian suffragists. To start with, it had
put female suffrage back in the public spotlight less than a year before the next
general election, and as suffragists only needed a handful more members to pledge
support, getting female suffrage taken up as a campaign issue would be crucial. In
addition, the debate clarified for suffragists where their support lay and whom they
needed to lobby—although looking at how the votes had been cast they must have
been dismayed at how much work they had in front of them. After all, the motion
had been proposed by a liberal even though he had previously acknowledged that
female suffrage would indubitably benefit the conservatives whom he disliked.105 It
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was opposed by many of the conservatives, notwithstanding the advantage it would
reputedly deliver to them, although their opposition was less on principle than a
classically conservative ‘time is not yet ripe’ basis; and it was viscerally repudiated
by some of the most radical members in the House—particularly Illingworth and
Moran—notwithstanding their usual advocacy of ‘absolutely democratic’ measures
(for men).106
Female suffrage disposed of, the Government immediately recommitted the
Constitution Act Amendment Bill to insert some necessary but previously
overlooked provisions to guarantee that no one currently on an electoral roll
would be disfranchised by the new electoral divisions (i.e. returning officers had
to transfer affected electors’ names from the existing rolls to any brand new ones,
and residence in an old district was to be deemed equivalent to residence in the
new one for the purpose of the statutory ‘bona fide resident’ question on polling
day).107 The Bill then had a short and unproblematic transit through the
Legislative Council, notwithstanding that the increases to the Assembly would
return the Assembly–Council membership ratio almost to the original 2:1 basis.
Indeed, most of the councillors seemed satisfied with the Bill and the goldfields’
increased representation, although there was some muted criticism that the
agricultural and pastoral areas had not received more in the new dispensation. The
Council passed the Bill on 3 September with only one change: a ‘purely technical’
new clause directing that the three inaugural North-East Province members, who
would be elected simultaneously in 1897—twelve months before the next tranche
of MLCs faced biennial re-election—were to retire in rotation on 21 May in 1898,
1900 and 1902 to keep them in electoral sync with the other members.108
Considering that the new clause had been proposed by the Minister for Mines,
Edward Wittenoom, at the Government’s instigation, the Assembly was happy to
insert the proposed clause and the Bill was assented to by Governor Smith on
8 October. However, as cl. 14 of the Bill had raised all the Civil List salaries, and
under the Constitution any Bill which ‘shall interfere with’ the Civil List had to be
referred by the Governor for the signification of Her Majesty’s pleasure, the
operation of the Bill under cl. 17 was ‘suspended’ until such signification was
proclaimed in the colony.
The day after the Legislative Assembly finished with the Constitution Bill, George
Simpson rose to get the ball rolling on the first of the next round of electoral
amendments: a motion to ‘affirm the principle’ of ‘payment of members, by
making provision for reasonable compensation for travelling expenses and costs of
attendance at the sessions of Parliament’.109 In speaking to the motion Simpson
outlined that payment of members was a just and sound principle because without
some financial assistance from the State, a seat in Parliament would remain ‘the
appanage, the domain, the natural heritage of the rich, and…the power to make
laws for the country shall belong only to the rich’.110 Payment of members, he
continued, was also ‘pretty well world-wide in its acceptance’ with Britain and
Western Australia being the only representative democracies in the world which
had not introduced it—although, he pointed out, the House of Commons had
recently ‘affirmed’ the principle, and Western Australia partially recognised it by
paying ministers, the Speaker and the Chairman of Committees.111 Whatever the
merits or inevitability of payment of members, however, any such payment was an
impost and could only be introduced by the Government—and Simpson was aware
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that the Forrest Government and most of the House were implacably opposed to
the measure.
More to the point, only six weeks previously Simpson himself, although a longstanding advocate of the principle, had sorrowfully conceded in the Chamber that
the measure had been an ‘abject failure’ in practice in the Australian colonies, and,
further, that he was so appalled by reports of recalcitrant MPs being cowed into
compliance by the threat of a dissolution (which would incur election expenses and
put the member’s seat and salary at risk) that he believed payment of members
‘should never be in the hands of any Government’ but should instead come directly
from the pockets of constituents.112 (As an aside, the practicality of constituencyfunded payments had been debunked in the Contemporary Review only three years
earlier by the illustrious proponent of payment of MPs, Sir Gavan Duffy, who
declared that such payments ‘might be classified, like English verbs, into “regular,
irregular, and defective,” the first class being the scantiest’.113) Simpson’s views
had clearly gone almost half circle in the past month or so, but in framing his
motion to cover only reimbursement of expenses and a moderate attendance fee,
rather than a full annual salary, he was actually proposing an alternative payment
model to the customary one: one which would facilitate the entry of less wealthy
men into the legislature and lessen the risk of their independence being
undermined. Such a model, Simpson contended, would prove equitable and
workable—he cited the successful working of a similar parliamentary ‘attendance’
fee scheme in New Zealand—and he offered it to the members as a ‘careful,
cautious, and wise manner’ of giving effect to payment of members—which ‘is
coming in this colony, as sure as to-morrow’s sun will rise’.114
Notwithstanding the motion being in effect a half-measure, the handful of members
in the House who also championed the payment of MPs rallied behind it—possibly
because they shared Henry Lefroy’s sour assessment that it was ‘the thin end of the
wedge, and nothing more’.115 The Government and the rest of the members,
however—composed in the main of representatives from the colony’s well-heeled
gentry families—were entirely comfortable with the notion of parliamentary seats
being ‘the appanage, the domain, the natural heritage of the rich’ and certainly
weren’t going to subsidise ‘professional politicians’ from the lower orders to
challenge their noblesse oblige hegemony.116 (Indeed, many advanced liberals,
such as Victoria’s George Higinbotham, had also in the past seemed comfortable
with non-payment of MPs declaring they preferred the ‘dilletanteism of the wellfed to the greediness of the decidedly hungry’.117) But while the uberEstablishment Septimus Burt blasted the motion thus: ‘payment of members would
destroy the respect that we have built up during the last 20 or 30 years that we have
sat here…I shall oppose it as long as I live…It is bad and detestable in principle’,
the pragmatic (and upstart) Forrest was more conciliatory.118 Indeed, Forrest
blandly informed the members that notwithstanding abuses, ‘the principle in the
abstract was not so bad’ (possibly the fact that Samuel Griffith, whom Forrest
clearly admired, had so believed in the principle that he had attempted to ram it
through the Queensland Parliament via budget tacks had won Forrest over to the
principle), but that he simply did not think the colony was ready for it ‘at the
present time’—especially since there had not been ‘any considerable demand for
this great change’.119 (Had he accidentally scooped up his notes from the female
suffrage debate?) The division was called and, as predicted by Simpson, the motion
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was voted down eighteen to five. But in company with the colony’s suffragists, the
advocates of payment of members could console themselves that they had placed
the measure centre stage before the upcoming elections—and exposed those
members who had reneged on their 1894 election pledges.
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11
End Game
And in these days of discussion, and generally
awakened interest in improvement, what formerly was
the work of centuries, often requires only years.
John Stuart Mill
Federation in the Mix
Given the number of times Premier Forrest had rebuffed reform initiatives in the
legislature on the grounds that the colony’s electors must first demonstrate a
‘demand’ for them, it may seem contrary that he would try to prevent said electors
from having their say on one of the most important changes the colony would ever
deal with—federation. But only weeks after the Legislative Assembly had passed
the 1896 Constitution Act Amendment Bill, Forrest revealed, when moving the
second reading of the Australasian Federation Enabling Bill, that while electors in
New South Wales, Victoria, South Australia and Tasmania would soon be voting
for their colony’s ten delegates to the upcoming National Australasian Convention
(Federation Convention) to be held in Adelaide, he had decided that Western
Australia’s representatives would instead be elected by the colony’s MPs at a joint
sitting of the Parliament. (And as the Forrest Government controlled the numbers
in Parliament, it would, in effect, determine the selection—the ‘Premier’s ticket’ as
a member later sneered.1) In justifying his decision to shut electors out of the
process, Forrest claimed that as the objective of the Convention was the framing of
a new federal Constitution (the original 1891 draft Commonwealth Bill had
effectively lapsed), it was imperative that the ‘very best men’ be sent from the
colony—and he believed that parliamentarians were better placed than the
electorate to make this vital selection.2 First, he pointed out, MPs possessed a
‘greater knowledge of the…men who are fitted by their knowledge, experience,
and education, to take part in this matter…than the ordinary electors living all over
the colony’ and, second, he felt that parliamentarians, as representatives of
constituencies, would exercise the choice ‘with a far greater sense of responsibility’
than those ‘voting simply as an elector in the country’.3
Forrest had, in fact, expressed similar views ‘pretty clearly and definitely’ at the
Federal Council and Premiers’ Conference meetings in Hobart in the previous year,
in stark contrast to the other premiers who had agreed that electors—voting in each
colony as a single electorate—should choose the delegates to the second Federation
Convention because it could then be promoted as a ‘people’s Convention’ as
opposed to the (appointed) ‘statesmen’s Convention’ of 1891.4 In taking a stand
against the consensus view Forrest undoubtedly confirmed the prevailing view on
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the eastern seaboard that the West still had some way to go to catch up with the
democratic sister colonies. To dismiss Forrest’s stance simply as right-wing
paternalism, however, would not be doing him complete justice. Forrest was a
committed supporter of federation as a principle and, further, he recognised that the
movement was inevitable—hence, his desire for Western Australia to participate in
framing the new Constitution even if it stood aloof from any union in the shortterm. But more than anything, what Forrest desired was social change with
safeguards—especially for a fledgling responsible government undergoing massive
economic and demographic transformation. (And it should be recalled that in the
seven years since the inauguration of self-government, Western Australia’s
population had more than trebled and the annual revenue had increased
sevenfold.5)
Indeed, at the Premiers’ Conference gathering at Hobart, Forrest had argued
against the proposal to frame a new Constitution Bill at all as he believed the
original 1891 version, largely drafted by Sir Samuel Griffith, was ideal: ‘so instinct
with the true spirit of well-ordered liberty, so instinct with the true appreciation of
stable and sober laws, so pervaded by the very spirit of toleration and mutual
consideration’.6 And as a leading exponent of ‘well-ordered liberty’ and ‘stable and
sober’ everything, Forrest was naturally concerned that popularly elected delegates
would infuse some not so well-ordered principles into the successor Bill. (Which,
as L. F. Crisp has commented, is exactly what did happen, with the second Bill
being ‘more democratic in both letter and spirit’.7) Forrest’s decision to hand the
selection of delegates to the Government thus becomes comprehensible: the
alternative would see the selection largely determined by the recent influx of ultrademocratic t’othersiders who in a colony-wide electorate—i.e. not quarantined in
their goldfields electorates—would be able to influence the whole quota of
delegates.
Considering that all the members hearing Forrest’s speech would have understood
the subtext, it is a little surprising that Frederick Illingworth rose to second the
motion and, after expressing only the mildest disappointment that the colony’s
electors would not be entrusted with the choice, declared that ‘yet I am fully
prepared to waive that particular point, because to me the important question is as
to the sending of representatives’.8 And given that the Acting Opposition Leader
(while George Leake was in England), and a goldfields member to boot, wasn’t
raising any objections, neither did the rest of the members and the Bill passed
through the House without amendments. It was similarly welcomed in the Upper
House, with the only substantive amendment being one relating to expenses. And
thus Western Australians were denied the opportunity of electing delegates to the
People’s Convention—which was, nonetheless, an improvement on the situation in
Queensland, where the Government had adopted Forrest’s position against popular
colony-wide election of delegates, before eventually ruling against sending any
delegates to the Convention! (Although perhaps it should be recorded that in the
four colonies which did host elections for the delegates, only one candidate who
was not either a former or sitting MP was elected anyway.9)
A large number of Western Australians, however, were soon casting votes in a
different poll—the 1897 general election—which, incidentally, would be the last
Western Australian parliamentary election to be conducted under the general aegis
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of an Office (the Colonial Secretary’s, as previously) rather than a designated
electoral Officer. By July 1897, only months after the election, Octavius Burt, the
Under-Secretary in the Office of the Colonial Secretary, who had been responsible
for overseeing the conduct of elections since his appointment in 1891, would
formally be given the additional title of ‘Officer in charge of Electoral matters
generally’ with an extra £100 per annum attached to the position.10
To return to the 1897 poll: writs were issued on 12 April with gazetted polling days
spanning 27 April to 26 May. Interestingly, this election was called a year earlier
than constitutionally required, with Forrest deferring to the view that ‘the
goldfields should be given the chance to elect representatives for the eight new
seats created the year before’.11 (C. T. Stannage, however, has suggested that a
more plausible motive was that Forrest wanted to get the election over before even
more goldfields types got themselves onto the colony’s electoral rolls.12) Contests
took place in twenty-six of the forty-four Legislative Assembly electorates; and, as
could be expected, federation was one of the campaign issues (particularly in
electorates contested by the ten Federation Convention delegates who had departed
prematurely from the Convention in Adelaide—held from 22 March to 23 April—
so that they could campaign for their seats back in the West).13 And, perhaps
equally predictably, electoral reform was also widely canvassed. As with the 1894
election, candidates tended to present themselves as ‘Ministerialist’, ‘Independent
Ministerialist’, ‘Opposition’—which included the new ‘Political Labor Party’—and
‘Independents’; and the returns for the newly enlarged Legislative Assembly saw
twenty-seven members win seats as ‘Ministerists’, two as ‘Independent
Ministerialists’, eight as the ‘Opposition’ (led by Leake and Illingworth and
including the first ‘Labor’ member, Charles Oldham) and seven who professed to
be ‘Independent’.14 While the Forrest Government was accordingly returned to
power, it was, as Stannage has underlined, ‘seriously weakened’ by the influx of
more liberal-minded ‘recent arrivals’—i.e. colonists who had arrived since 1885
from the more democratically advanced eastern colonies and who were accustomed
to, and more likely to agitate for, constitutional and electoral reform.15 Indeed, in
1890 the new Western Australian Legislative Assembly only contained four ‘recent
arrivals’, whereas after the 1897 election it contained nineteen—a figure which
presumably disconcerted those locally born, whose proportion of the population
had plummeted to thirty per cent by 1897.16
The first session of Parliament after the elections met on 17 August 1897—much
later than many members expected, but a delay necessary to accommodate Premier
Forrest’s belated return from Queen Victoria’s Diamond Jubilee celebrations in
England. The first session was also short—lasting only ten days—with both
Houses focusing almost exclusively on considering, and proposing amendments to,
the draft Commonwealth Constitution, which was due to be re-examined by the
Federation Convention delegates at an adjourned meeting in Sydney commencing
on 2 September. In fact, considering that the colony’s ten MP-delegates needed to
leave Western Australia on 26 August to travel to Sydney, the Bill proceeded
through both Chambers at a cracking pace and any other business was barred.
Which, of course, did not go down particularly well with the non-delegate MPs, a
number of whom made snide comments about the colony ‘going to pot’ so that
MPs could ‘play at federation’.17
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Notwithstanding objections that the ‘time of the colony’ was being ‘unwarrantably
wasted’ in considering the federal Bill, the session was actually profoundly
significant for Westralian parliamentarians because they were compelled to consider,
and basically ratify, a constitutional Bill which contained a raft of liberal measures
which did not feature in their own colony’s Constitution—viz. triennial parliaments,
one vote one value, payment of members and female suffrage (voting rights under
the draft Constitution were to be extended to extant Lower House electors, which
meant women voters in South Australia would be enfranchised).18 The realisation—
welcome or not—that these measures were going to apply Australia-wide, allied to
the widely accepted belief that all the Australian colonies’ constitutions should
harmonise, would soon impact on Western Australian legislation.
The ‘Recent Arrivals’ in Action
The second session of Parliament, which featured a busy, catch-up legislative
programme, convened on 13 October. The first major piece of legislation to be
passed by both Houses was a Bill to bring about the abolition of the independent,
extra-parliamentary Aborigines Protection Board with its ever-escalating funding
(which had shot up from its original £5,000 per annum in 1890 to almost £30,000
per year in 1897, due to the colony’s gold-fuelled economy) and its replacement by
a sub-department—with a fixed £5,000 per annum budget—which would be
answerable to the Western Australian legislature. This Bill was required because
the previous 1894 Constitution Act Amendment Bill scrapping s. 70 of the
Constitution had lapsed, because it had not received Her Majesty’s assent within
the mandated two years. This time around Forrest had the assurances of the new
Secretary of State Joseph Chamberlain (whom Forrest had furiously lobbied in
London during the Queen’s jubilee celebrations) that a new Aborigines Bill would
receive the Queen’s immediate assent.
Less than a week after the Aborigines Bill was disposed off, one of the colony’s
‘recent arrivals’, Henry Gregory, the member for the new goldfields seat of North
Coolgardie, moved the following motion:
That, in the opinion of this House, it is desirable, in order to secure the fullest possible
representation of the people, to affirm the principle of payment of members of the
Legislative Assembly of Western Australia.19
In supporting the motion, Gregory recapped the pro-payment arguments which had
been previously advanced in the Parliament: that the representative system was
‘incomplete’ if electors were ‘restricted in the choice of candidates’; that Western
Australia, unlike Britain, did not contain a ‘wealthy and leisured class’ which could
afford to volunteer its time unpaid to being MPs—with the result that the workers
were perforce represented by the wealthy ‘whose interests are necessarily those of
their own class, and antagonistic to those of the workers’; that most countries with
responsible government had payment of MPs and the House of Commons had
recently affirmed the principle; and that ministers in Western Australia were paid.20
(Curiously, Gregory did not mention that one such Minister, Septimus Burt the
Attorney General, had resigned from the post only a few weeks earlier to return to
full-time private practice, because his ministerial salary was not adequate.) Gregory
then reminded the House that at the recent Federation Convention in Adelaide,
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none of the Westralian delegates—including the Premier—had said a word against
the proposed £400 per annum salary to be paid to federal parliamentarians—and
‘the expenses of attending the sittings of this House are quite as expensive as
would be in the case of members of the House of Representatives’.21
The motion was seconded by another goldfields member, Charles Moran, and was
then enthusiastically endorsed by yet another member representing a far-flung
electorate, Walter Kingsmill, the member for Pilbarra, who underlined the
difficulty and expense in representing remote electorates in a colony as vast as
Western Australia—outlining that in his case travelling down to Perth could take
up to a full month. The next member to speak, Alexander Forrest, the member for
West Kimberley, was the first to speak against the motion, claiming that it was
unnecessary to pay members, when the colony had no shortage of men ‘anxious’ to
be unpaid members—and that payment of the members of both Houses at a modest
£300 per annum would cost the colony’s coffers £26,400 annually—a sum which
‘would very nearly pay the interest on one million of money’.22 Probably realising
that his was a minority view, however, and that a defeat on the question would be
embarrassing for the Government, Forrest—the Government Whip—concluded his
speech by announcing that the issue was not regarded as a ‘party’ question and
members on ‘this side’ were free to vote as they saw fit—a view which was later
confirmed by Premier Forrest.23
The remainder of the debate saw a solid majority of members—many upholding
election pledges—support this ‘democratic, progressive, and most certainly…just
and equitable principle’, with Frederick Vosper, the arch-radical member for the
new and populous North-East Coolgardie seat, deriding the well-heeled Alexander
Forrest’s defence of the status quo as a nonsense, considering the West Kimberley
electorate consisted of
country which would support about a leg of mutton to the square mile, with no population
to speak of, and where it is almost impossible to discover a voter, either dead or alive.24
Almost nothing new was raised in this well-worn subject (particularly in Premier
Forrest’s speech which was basically a verbatim rehash of his 1896 speech against
the principle); and considering it looked likely that the motion would pass
handsomely, much of the debate soon turned on whether the motion was simply an
affirmation of the principle, as its proposer, Gregory, claimed it was, or whether it
required the Forrest Government to actually do anything about it: i.e. to follow the
usual practice and regard the motion as an instruction to introduce a Bill on the
subject. (Considering that no Bill had followed the 1893 Westminster affirmation
in support of payment of MPs, this was a reasonable query.) Premier Forrest,
possibly trying to spook any waverers in the Chamber, signified that if the motion
passed, he believed the Government ‘are practically directed to bring in a Bill’—
but he also stressed several times that it would be inappropriate to introduce such a
Bill without first ‘making it a cry at a general election’.25 Interestingly, leading
Oppositionist, Illingworth, an ardent supporter of the principle of payment of MPs
took a similar stand, claiming that it would be ‘improper’ and ‘indecent’ for the
members to vote themselves a salary without first taking the Bill, or even just the
affirmation, before the electorate—a view echoed by another major Oppositionist,
Walter James.26
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Finally, the five-hour long debate wound up, after one simple amendment had been
passed: to affirm payment of members of ‘Parliament’ rather than simply of the
Legislative Assembly.27 The amended motion was then put and passed by twenty
votes to eleven. The ‘recent arrivals’ had made their mark.
Exactly one week later, another progressive motion was proposed in the Legislative
Assembly: ‘That in the opinion of this House the best interests of the colony
require the extension of the Parliamentary franchise to women’.28 Like the payment
of members motion, this motion was also cast in the form of an affirmation of a
principle, with its mover, Walter James, vigorously denying that he desired
‘immediate legislative sanction’ to the resolution, because this would trigger an
‘immediate dissolution’ and general election—with the result that few members
would vote for the motion in the first place!29 Instead, James outlined that he
simply wanted the principle endorsed; and in pursuit of this he then reiterated the
arguments he had advanced in the 1896 session in favour of female franchise: the
justice of the principle, the improvement of the moral tone of the body politic in
those jurisdictions which had enacted the principle and women’s enthusiastic takeup of the privilege.
The arguments in opposition were also, in the main, a reprise of those put up in
1896, although perhaps stated with more pungency. Illingworth, for example,
concluded his plea for retaining women in the domestic sphere with the following
outburst (labelled a ‘mummified argument’ by an appalled George Leake):
By all the experience in the world, she [woman] has been in subjection; and I will go
further and say that the Creator who made her has placed her in subjection; and woe be to
the Parliament, or to the men, who place her anywhere else.30
Similarly, William George, the member for Murray, evinced an almost visceral
hostility to women who campaigned at public meetings for the suffrage:
…I notice they have got a very long sort of jaw and a very peculiar face. As a rule, they
consist of disappointed spinsters, or of ladies to whom, if they are married, the fates have
not been kind enough to give them families to look after.31
Goldfields member Charles Moran, was also acidic in his treatment of those
championing ‘femocracy’, but soon abandoned jibes to spell out to the ‘recent
arrivals’ from the goldfields that he principally spurned the motion:
on the ground that it is inexpedient and bad policy on the part of goldfields members to
allow the voting power on the coast [where the majority of the colony’s women lived] to
be doubled, while no additional representation is obtained for the goldfields.32
Notwithstanding the advantage that women voters would supposedly render to the
urban coastal electorates—which were more likely to support the Forrest
Government than goldfields constituencies—Forrest did not budge from his
previous line that Westralian women had still not demonstrated sufficient demand
for the franchise. When the division was called the motion was voted down by
seventeen votes to eleven—a blow for James and the motion’s supporters who had
secured the much closer vote of fourteen to twelve only the year before. Ironically,
however, Moran’s explicit warning to the goldfields members not to support
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female franchise as it would bolster the Government’s support base, may have had
the unintended consequence of convincing Forrest et al. that supporting female
franchise at some time in the future could be a useful corrective to the everincreasing voting clout of the ‘recent arrivals’.
On 23 December, what Premier Forrest described as a ‘very trying’ session
closed.33 As trying as it may have been for Forrest, it was even more so for the
reformers. Suffragists undoubtedly were still smarting at the decisive defeat of the
female franchise motion, while the champions of payment of members, although
successful in getting their motion affirmed, had been informed only two days
earlier by Forrest that ‘until the question was considered by the constituencies, the
Government would hesitate to take action in regard to it’.34
The third session of the third Parliament met on 16 June 1898, with warnings by
the Governor Sir Gerard Smith in his Opening Address that the session would
again be a crowded one because the legislative programme was still in arrears from
the disruptions of the previous year. So it was no doubt exasperating for Forrest
and his ministers that on 10 August Walter James, like Stephen Parker a decade
before him, doggedly moved his ‘annual fad’—i.e. another motion to affirm the
principle of extending the parliamentary franchise to women—and the debate
sprawled over three very lengthy sittings.35 It is pointless to go over the arguments
proffered for and against the motion because, as member after member
apologetically prefaced his speech, everything had been said before. What is
interesting to note, however, is the conclusion to James’ speech:
We may fail, I suppose we shall, on this occasion. I feel almost inclined to give a sigh,
and say that the Premier on the next occasion will be found voting for it…We are bound
to succeed: we have right on our side.36
This observation was repeated by a number of members—including, most tellingly,
by Government ministers, the Commissioner of Crown Lands, George Throssell
(whose wife, Ada, was a leading WCTU suffragist) who stressed that ‘hon.
members may rest assured that the time is not far distant when this motion will be
carried by a good majority’, and the new Attorney General, Richard Pennefather,
who, in a speech opposing the motion, commented that ‘the time may come when I
can admit I was wrong on this question to-day’.37
Possibly the realisation that the female franchise was inevitable, and might even be
enacted before the next general election, energised what was slated to be a déjà vu
debate. A number of members engaged in excoriating personal attacks which were
infrequent in the legislature at the time; numerous highly disparaging remarks were
made about women who dared to get on a platform and express a demand for the
vote; and the uber-oppponent of the measure, Frederick Illingworth, reduced some
members to sobs and others to applause by reciting a piece of doggerel in the
Chamber which catalogued all the rights (Illingworth believed) a good stay-in-hersphere woman needed:
The rights of woman—what are they?
The right to labour and to pray;
The right to watch while others sleep;
The right o’er others’ woes to weep;38
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But it wasn’t only having ‘right on our side’ that was likely to deliver women the
suffrage. From the beginning of the session a number of pointed questions had
been asked in the Legislative Assembly by goldfields member, Henry Kenny,
about the massive number of unenrolled adult males in the colony; the difficulties
faced by goldfields electors in getting registered; and the labours of the newly
appointed ‘Inspector of Electoral Rolls’, R. P. Daly, who, since his appointment in
February 1897, had scoured through the colony’s electoral rolls and overseen
almost as many names expunged (7,084) as inserted (10,265) out of a total
enrolment of 30,140 since the latest revision.39 Considering the principal reasons
for electors’ names being struck off electoral rolls were ‘through leaving the
districts…or parting with their qualifications under the Act’, it was predominantly
goldfields members who were being struck off, and the relative numerical
strength—or weakness—of electors on the goldfields versus the coastal districts
would continue to inform debate through the remainder of the session—particularly
the female suffrage debate.40 Indeed, in opposing the female suffrage motion,
Illingworth made much of the fact that approximately 70,000 men in the colony
(the majority living on the goldfields) were not enrolled and ‘surely in a country
like this our first duty should be to obtain votes for the men’; while the day after
James introduced his motion, the Legislative Council saw a resolution calling for a
redistribution of Legislative Assembly seats to secure better representation for the
goldfields fail—but only after John Hackett pointed out that such a motion should
be initiated in the Lower House itself.41
The female franchise motion was finally put on 24 August 1898, and voted down
by a swingeing eighteen to eleven, after a bluff-calling amendment proposed by
Vosper to hold a ‘plebiscitum of the women of the colony, with a view of
ascertaining their opinions on the extension of the franchise to their sex’ (in
response to anti-suffragist Moran’s claim that a referendum would prove that
female franchise was ‘not wanted’) was not even seconded.42 Yet the optimistic
prophecies of James and Throssell would be fulfilled within twelve months. The
eventual about-turn on female franchise would come as no great surprise to the
members. Two days before the 1898 session of Parliament was prorogued,
Illingworth successfully sought permission to withdraw his notice of motion for a
redistribution of seats in the colony, after Forrest indicated that such a motion
would be viewed as a vote of no confidence in the Government.43 The Opposition
was not yet in a position to assume Government—but neither could the claims of
the under-represented goldfields be indefinitely postponed. And as P. Biskup has
remarked of the very real prospect of the goldfields achieving political
ascendancy:
The old order of things was passing away, and the politicians of the older districts looked
anxiously for something which would stop the threatening flood. Since they had their
families about them, and the majority of the miners were either single or had left their
families behind, votes for women was the obvious solution.44
Succumbing…
The 1899 session of Parliament was opened by Governor Smith on 21 June, and
the very protracted Address in Reply debate which followed was dominated by the
topic du jour: federation and, in particular, Forrest’s pledge at the so-called Secret
Premiers’ Conference earlier that year, that the Commonwealth Bill (as amended at
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that Premiers’ Conference) would be submitted to Western Australian electors once
it had been accepted—as it recently had been—by New South Wales electors, but
who had latterly indicated that a Westralian referendum was now conditional on all
the sister colonies’ electors having previously voted to accept the measure. A
number of members also picked up on references during the Governor’s Speech to
‘Electoral’ and ‘Public Service’ legislation being submitted to the Parliament, and
to the Government’s subsequently announced proposal (dubbed the ‘tacked on’ or
‘second edition’ Governor’s Speech by the unimpressed members), that a
redistribution Bill to redress the current disproportion of population in some
electorates—principally goldfield ones—would also be submitted during the 1899
session.45 A final key topic during the Reply speeches was female franchise, which
Forrest had announced at a ‘meeting of Government supporters’ held on 27 July
would also be pursued in the current session given that the Constitution had to be
amended anyway to deliver the redistribution.46
Probably thinking it was still a wise move to lock in the Government’s pledge—or
possibly just for the sheer triumph of it—Walter James moved a female franchise
motion—‘That, in the opinion of this House, early provision should be made for
conferring the Parliamentary suffrage upon women’—on 12 July in the Assembly.47
Unlike the speeches which had accompanied his three previous ‘missionary efforts’
on the same theme, James did not say a great deal this time—merely expressing his
gratitude at the ‘sudden conversion of a great number of members of the House’ and
his belief (undoubtedly to eye-rolling in parts of the Chamber) that such conversions
were ‘thoroughly sincere’ and due largely to ‘the active interest the women
themselves have exhibited in the question during the past few months’.48 The
motion’s seconder, John Higham, took up the sincerity theme, remarking that if
members had only ‘voted according to their convictions we should have had
womanhood franchise in 1896’.49 Illingworth, who not unsurprisingly, was next to
speak, would, however, have none of this—pointing out that:
Four times in succession this House has rejected this motion by steadily increasing
majorities. Nothing has happened, no argument has been advanced, nothing new has been
presented to the people, but suddenly it has been discovered that it is desirable to give
increased representation to the goldfields; and it is no secret that hon. members have
declared themselves in favour of voting for this question, not because they are convinced,
not because they have reserved their opinions as declared in this House and reported in
Hansard, but because they think it is desirable to give some kind of balancing weight to
the increased representation of the fields…Hon. members smile, but we know that if this
motion is carried in this House it will not be carried on the conviction of hon. members.50
A number of speakers who followed Illingworth also deprecated the measure as a
‘very clever dodge’ on the part of the Forrest Government; and their suspicions
were confirmed by one member at least, Frederick Monger, the member for York,
who stoutly declared:
I hope the result will be that, instead of Western Australia being ruled by a majority of
people on the goldfields, we will be able, with the support of the ladies to whom we give
votes, to have at all events an equal representation.51
Not unexpectedly, the argument that Western Australian women were given the
vote on a platter because it suited a conservative Government’s darker
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purposes—and further, that the granting of the female franchise was ‘a case of
supply before demand’—has become enshrined in much Australian
historiography.52 Such an assessment, however, is not the entire picture and
devalues the role of Westralian suffragists who, as Kirsten Lees has pointed out,
‘fought as consistently and as cleverly as their contemporaries in other colonies’ in
pursuit of the franchise—a view endorsed by a number of feminist historians.53
Indeed, as Lees has outlined, Western Australian suffragists under the new WCTU
‘Suffrage Superintendent’, Christine Clark, had racheted up their campaigning
since their 1897 parliamentary defeat; and by the beginning of 1899 the WCTU’s
‘News and Notes’ column in the West Australian was ‘almost entirely devoted to
the suffrage question’ and pro-suffrage letters were being routinely despatched to
the press—where they were often complemented by pro-suffrage editorials.54 Most
decisively, however, on 27 April 1899, less than three months before James raised
his final motion in support of votes for women, Western Australian suffragists
formed the ‘Woman’s Franchise League of Western Australia’.55 At a public
meeting a fortnight later, the League’s newly drafted constitution, with its object of
obtaining ‘the franchise for women, on the same conditions as those which apply to
men’ (i.e. not merely enfranchising a property-owing subset of women, as
proposed by some of the earlier female franchise motions), was formally adopted;
and office holders, including a swag of liberal male MPs, were sworn in.56 Soon
after, a number of metropolitan and rural branches of the League were formed
which, in turn, ‘launched an aggressive campaign of public meetings’.57
In fact, the widespread support in the general population—including the
goldfields—and the press which the suffragists now marshalled, was cited by
Forrest as his justification for changing his views—and vote—on the issue:
If it be found that the great mass of our fellow colonists are desirous of the change, then it
behoves any one who has pretension to be a public man, to carefully consider the
question.58
—An explanation regarded as entirely plausible by feminist historian, Gail Reekie:
It seems more likely that the continual agitation of the women’s organisations became too
sharp a thorn in Forrest’s side, and that he finally agreed to support the motion merely as a
peace-keeping gesture in order to be able to devote his energies more fully to the
federation question and to rallying support for his leadership. Broom in hand, Forrest
briskly swept the woman question out of Parliament House, leaving its chambers free for
the ‘real’ business of government’.59
Accordingly, the achievement of the female franchise, although indisputably fasttracked for reasons of political expediency, should also be celebrated as a win for
Westralian feminists—including the large-hearted liberal MPs, such as James,
Vosper and Leake, who supported the motion even though they feared it would
prop up the conservative Forrest Government which they opposed.
James’ motion was passed seventeen votes to six on 12 July and transmitted to the
Legislative Council for its ‘concurrence’—crucial given that any subsequent Bill to
actually enact female suffrage needed to pass both Houses.60 And to underline to
the Council the need to support this measure, on 21 July a public meeting in the
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Perth Town Hall—attended by Sir John Forrest and chaired by his brother
Alexander Forrest, no less—was held in support of the principle, while on 26 July
James tabled a petition in the Legislative Assembly calling for ‘the early
introduction of legislation for extending the Parliamentary franchise to women’.61
Finally, on 8 August the female franchise motion came before the Legislative
Council. This, of course, was the first time the Legislative Council had debated the
topic of female suffrage since 1893, so it was not surprising that most of the
members wanted to put on record their views—which, constituted as a committee
of the whole, they did over two sittings. Their arguments for and against the
motion, however, were a predictable revisiting of those which had been raised and
raised again in the Lower House, and on 17 August by a slim margin of eight to six
the motion was passed.
Five days later, the Constitution Acts Amendment Bill, which would give effect to
the female suffrage motion (and the promised redistribution of seats, as well as a
suite of other reforms including triennial parliaments and the halving of the
residency period required in the colony before electoral enrolment could be
claimed) was introduced into the Assembly by Premier Forrest and read a first
time.
As an aside, one amendment which was not incorporated into the omnibus
Constitution Acts Amendment Bill was payment of members—notwithstanding the
motion proposed by Henry Gregory in the Assembly a month earlier that:
in the opinion of this House, it is desirable that its previous decision in favour of the
principle of payment of members should be given effect to by legislation, prior to the
dissolution of the present Parliament.62
Indeed, even though the 1897 payment of members resolution had received strong
support, a large number of members still held that it would be poor form to vote for
such a payment without first ratifying the principle with electors. Accordingly,
when Premier Forrest moved an amendment to Gregory’s motion that payment of
members should be the subject of the colony’s first referendum—‘a popular
machine that is altogether foreign to the British constitution, and foreign to our
constitution as a colony’, as he couldn’t help adding—to take place in tandem with
the next general election, it was welcomed by Gregory who promptly withdrew his
original motion, allowing Forrest’s proposal to become the substantive motion—
which was passed without dissent.63
The second reading of the Constitution Acts Amendment Bill was moved on
29 August by Premier Forrest, who briefly outlined that although the Bill was a
consolidating measure (it would repeal the three previous Constitution Act
Amendment Acts and allied statutes such as the Officials in Parliament Act 1891),
it would not repeal, as originally intended, the Constitution Act 1889 ‘because that
would remove from the statute book the landmarks of the original constitution’.64
(It has also been suggested by Justice Wilsmore in 1981, and by legal academics
subsequently, that Forrest’s ‘bifurcation’ of the Western Australian Constitution
may also have been ‘a deliberate political strategy intended to circumvent manner
and form provisions [i.e. the requirement for absolute majorities of the whole
number of MPs at second and third readings] located within section 73’ of the
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original Constitution.65) Almost equally briefly, Forrest then touched on the
introduction of triennial parliaments and the changes to the franchise qualifications
whereby eligible would-be electors, after residing in the colony for six months,
could apply for immediate electoral registration and be automatically entitled to
vote six months after such registration.66 A clearly put-out Forrest then devoted the
rest of his speech to the Bill’s redistribution clauses which he admitted had given
him ‘an immense amount of trouble and a lot of anxiety’.67
In his summary of the Bill’s redistribution provisions Forrest outlined that four
existing Lower House electorates in the far north—three pastoral and one mining—
would either be merged with other constituencies or obliterated to accommodate
four additional seats on the eastern goldfields (earning an interjection from his
brother, Alexander, whose constituency of West Kimberley was scheduled to be
amalgamated with the East Kimberley electorate, that ‘You have “wiped out” the
North’) and that four new seats would also be given to the metropolitan area,
boosting the total membership of the Assembly from forty-four seats to fortyeight.68 (Forrest did not propose rectifying the gross malapportionment in the
Legislative Council in the Bill.69) In winding up his speech Forrest stressed that
population alone had not been the motivating principle behind the redistribution (it
would take another century before that principle would be recognised in Western
Australia) and considering that three of the members who would see their seats
abolished were supporters, ‘any alterations I have made have been altogether
against both my personal and my public interests’.70 Presciently, Forrest stated that
the Bill would please few.
The second reading debate resumed a week later with the main driver of the
redistribution, Illingworth, vehemently objecting to the Bill being ‘an increased
representation Bill as well as a Redistribution Bill’.71 As he had done several times
previously, Illingworth then presented a meticulous statistical analysis of the
number of electors per constituency and argued that while the goldfields and ‘city
and ports’ electorates were ‘fairly well balanced’, with each interest currently
holding eleven seats for approximately the same number of electors (17,711
goldfields electors; 16,569 coastal and ports electors) and scheduled to hold
fourteen each after the redistribution, the northern pastoral and southern
agricultural constituencies were and would continue to remain vastly overrepresented after the redistribution.72 The northern electorates post-redistribution
would hold six seats for 1,280 electors and the agricultural areas fourteen seats for
7,615 electors.73
Not only was Illingworth disgusted with the so-called redistribution, he also argued
that mining representation would be further diluted by the continuance of plural
voting and the proposed introduction of female suffrage—and he flagged that he
would introduce amendments to abolish the former and prevent the latter. His
closing words were a grudging acceptance of the Bill, larded with a threat:
Of course half a loaf is better than no bread, and I shall certainly vote for the Bill, because
it is much better than anything we have…but I think the Government must see that if this
Bill be passed, there will be a cry for another Bill almost directly afterwards.74
Illingworth’s threat was immediately matched by the next speaker, Alexander
Forrest, who revived the bogey of northern separation if the north’s representation
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was pared back in favour of blow-ins on mining fields. Vosper, who followed,
promptly resumed the grievances of the goldfields members at the Bill’s
perpetuating, and introducing new, ‘grievous anomalies’ of representation.75 And
so it went on with each member strenuously arguing the pros and cons of the
redistribution as it affected himself and his constituents and foreshadowing
amendments during committee of the whole—particularly, that the electoral
anomalies of the Upper House should also be resolved while the Bill was on the
table. Obviously, however, the bulk of the members shared Illingworth’s belief that
‘half a loaf is better than no bread’, as the Bill passed its second reading with the
required absolute majority ‘on the voices, without dissent’.76
As expected, the committee stage, which commenced two days later, spanned a
number of sittings with clause after clause of the Bill being contested. The first
substantive challenge was to the ‘Interpretation’ clause where Illingworth
attempted to have the definition of ‘Person’ as an ‘individual of either sex’ (which
would ensure that women would hold the franchise on exactly the same terms as
men) replaced with ‘adult male’ to block the introduction of female suffrage.77
Forrest was in no mood for this question to be reopened, however, and the
amendment went to an immediate vote where it was negatived by eighteen to two.
Forrest, however, did not have his way with the next amendment, proposed by
goldfields member Moran, which was to increase the number of seats in the
Legislative Council from twenty-four to thirty, thereby enabling two three-member
Upper House provinces to be created—one going to the goldfields and the other to
the metropolitan area. The motion was argued extensively and approved by a
majority of one, notwithstanding Forrest’s protests that it was unnecessary and
would increase the number of MLCs who would soon be drawing a salary at
taxpayers’ expense. Not surprisingly, Forrest did not seem to have the same
scruples about funding additional MLAs when he voted with the large majority
who supported Sir James Lee Steere’s copycat amendment to increase the number
of Legislative Assembly seats to fifty (rather than the originally proposed increase
to forty-eight) to enable the creation of a south-west mining electorate and the
reinstatement of the East Kimberley electorate. Forrest also voted with the majority
in defeating amendments to lower the property qualification for Upper House
householders to £10 and to abolish plural voting in both Houses.78
The schedule of new electorate boundaries was, in line with the usual practice,
referred to a select committee (stacked with Government supporters, as the
Opposition later bitterly objected) which made a few minor changes and also
ratified, as an interesting aside, the creation of the colony’s first electorate (‘SouthWest Mining’) to be made up of three distinct and non-contiguous areas (Collie
with its coalfields, Donnybrook with its goldfield, and the Greenbushes tinfields)—
an innovation for which Premier Forrest reassured the members there was
‘precedent in the old country’.79 The Bill’s transit through the Assembly was nearly
over—and for a Constitution Bill it had been comparatively painless.
Unfortunately, at the Bill’s third reading the Premier indicated that a few minor,
but necessary, changes to electorate boundaries were required and the Bill would
therefore be recommitted to consider these changes and any final amendments of
which notice was given. George Leake, the Leader of the Opposition, promptly put
on the Notice Paper an amendment to abolish plural voting for the Legislative
Assembly.80 (Given the Legislative Council’s raison d’etre was to ensure
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‘protection for the rights of property’, Leake’s amendment did not propose
abolishing property votes for the Council.81)
Interestingly, the previous amendments to abolish plural voting, introduced by
Illingworth during the committee stage, had not generated a great deal of debate
and both had been convincingly defeated. Leake, however, argued that as these
amendments had been ‘sprung on the House, when few members were present, and
without the proper notice or consideration which an amendment of such
importance required’, he was entitled to have another shot at abolishing the
‘pernicious practice’ in the Legislative Assembly—a practice which, he suggested,
probably enabled Alexander Forrest to register to vote in all forty-forty Lower
House electorates.82
The Premier, who took the line that it was not ‘unreasonable’ for property owners
to vote in every electorate in which they held property (an unsurprising stance
since such additional votes were likely to flow in the direction of his Government)
was at his vintage time-is-not-yet-ripe best in opposing the motion—and came out
with his stock response that the Government would like to see demand for this
‘fetish of one-man-one-vote’ intensify before jettisoning a system which ‘had been
in existence so long in most of the Australian provinces, and which at present
obtained in Queensland and Tasmania and in the mother country’.83 Forrest then
heard a succession of members put on record their desire for the change, and who
pointed to the equally compelling examples of the United States and (impending)
Australian Commonwealth constitutions as ones which had enshrined the principle
of one man one vote. But to no avail. Government supporters, at a caucus meeting
earlier that day, had received their instructions—or so Leake asserted, even
correctly naming those members who would be absent from the division because
they could not bring themselves to support plural voting—and the motion was
voted down twenty to fifteen.84 Within minutes Forrest’s boundary amendments
were passed.
On 10 October the Bill was again set down for a third reading and a rattled Premier
Forrest, needing an absolute majority of twenty-three members to pass the Bill and
currently surveying a Chamber without his full cohort of supporters, pledged that if
the Opposition forced the Bill to a division and voted against it—and rumours had
been circulating to that effect—the Bill would be re-introduced at a later date. (And
meanwhile, according to the Opposition, a police officer had been despatched by
the Government Whip to round up absent Government supporters and deliver them
to the Parliament.85) Leake, as Opposition Leader, promptly rose and confirmed
that he was entirely opposed to the Bill while it retained plural voting, and that he
desired the Bill’s recommittal. Leake was followed by a number of other prominent
opposition members who similarly voiced their repudiation of ‘A Bill to
consolidate the Forrest Ministry, and to perpetuate their misdeeds’, with Vosper
slamming it as an ‘unfair, undemocratic, unjust’ Bill dedicated to preserving pocket
boroughs for a ‘few cattle kings’, and James dismissing it as a ‘miserable farce’.86
The protest debate was one of the most impassioned the House had seen, but,
ironically, in recording their protests, the Opposition also provided enough time for
Forrest’s missing supporters to be ‘hunted up’.87 The motion for the third reading
was passed with the required statutory majority and with, as Hansard blandly
recorded, ‘no dissent being heard’.88
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Of course the Bill then needed to run the gauntlet of the Legislative Council and
after being introduced and commended to the House by the Colonial Secretary,
George Randell, at its second reading on 24 October, it was immediately
denounced by northerner Donald McKay as a measure ‘pandering and truckling to
a cackle, on whose altar the interest of the North is to be sacrificed’, before a
‘postponed to this day six months’ amendment was slapped on the Notice Paper by
goldfields representative Alexander Matheson who, conversely, regarded the Bill’s
preservation of scantily populated northern and wheatbelt electorates as a ‘ghastly
mockery’.89 Not unexpectedly, the debate was swiftly adjourned. The second
reading debate then continued over two more sittings, in which the bulk of the
speakers expressed their dislike for the Bill, cavilled over the proposed increases
and boundaries, and indicated that they would either be voting to reject the Bill
outright or, at the very least, raising amendments at the committee stage—
particularly the scrapping of the female suffrage.
Finally, on 14 November, after Matheson’s rejection amendment failed, the Bill
progressed to the committee stage where Samuel Haynes immediately moved that
‘either’ sex be replaced by ‘the male’ sex in the Interpretation clause to block
female franchise.90 However, considering that the House had only recently passed a
resolution in favour of the principle, the opponents of female franchise were on
shaky ground, and the Colonial Secretary (who also happened to be a vicepresident of the Woman’s Franchise League) sought to reassure any waverers that
votes for women ‘would be to the interests of conservatism, which the Legislative
Council were always supposed to support’.91 Soon after, the amendment was voted
down by ten to seven. The next amendment—to block any increase in the size of
the Council—passed on the voices after spirited discussion; while subsequent
amendments proposed by Matheson to halve the freehold property qualification for
Council electors and to strike out plural voting for Assembly elections were
negatived without a word of support. Similarly, an attempt to reduce the size of the
Legislative Assembly also failed, with members having earlier expressed the view
that it was not appropriate to upset decisions made by the Assembly about the
Assembly. These amendments out of the way, discussion then bogged down, as it
always did when electoral boundaries were on the table, as to how the Legislative
Council provinces should be re-jigged, given the House had voted to strike out the
two new provinces featured in the Bill.
The Bill was recommitted on 29 November and Hackett immediately moved to
increase the number of Upper House seats to the thirty originally proposed by the
Bill. The fruitless stoush regarding the boundaries the week before had obviously
also convinced other members that on ‘calm reflection’ the increase was necessary
and the amendment was passed twelve to six.92 Very much living up to its role as a
House of Review, the Bill was thrashed out over three more sittings until finally on
12 December an exasperated Colonial Secretary—reminding the members that ‘a
lot of time had been lost’—successfully moved a suspension of Standing Orders to
get the Bill pushed through that night.93 Facing the third reading, Frederic
Whitcombe made one final plea for the members to throw out the Bill and defeat
female suffrage—but his was the lone dissenting voice when moments later the Bill
was passed on the voices. Over the next two days the Assembly tweaked one of the
small tranche of amendments made by the Council and rubberstamped the rest and
the Council, in turn, ratified the amendment to its amendment. On 14 December the
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Bill had finished its passage through the legislature. The rejoicings of the women
of Western Australia can only be imagined, even if it would not be until 1901 that
they would first exercise their votes in a State general election. But before anyone
of either gender exercised a vote in that election, the Parliament had to pass the
colony’s new Electoral Bill…
‘if you give a dog a bad name…’
The Electoral Bill 1899 ‘to consolidate and amend the law relating to
Parliamentary Elections’ was introduced by Premier Forrest and read for the first
time on 15 August 1899.94 In moving the second reading a week later, Forrest
outlined that originally he had simply intended to amend the existing Electoral Act
1895 which, he reminded the members, ‘practically’ mirrored electoral law as it
existed in Queensland.95 Forrest continued, however, that given the colony’s
electoral law had proved a ‘fruitful source of complaint’ and the 1895 Electoral Act
had been subject to ‘wholesale’ condemnation by some critics, he had subsequently
reassessed the Government’s position:
…I remembered that if you give a dog a bad name it generally sticks to him; and I thought
that even if the existing law were improved, brought up to date, and made to suit the
colony’s requirements, there would be found in the country plenty of persons who had
been accustomed to abuse the Act, and would continue to do so; and I therefore
abandoned the idea of amending the existing law, and determined to bring in an altogether
new Bill, based upon an Act which finds so much favour with many, and is very
acceptable I believe to the people to whom it applies, namely, the Act [The Electoral
Code 1896] of South Australia.96
So what were the provisions of the Bill ‘adapted from and chiefly based upon the
existing law’ of the ‘great democratic colony of South Australia’?97 In fact, the
majority of clauses in the Bill re-enacted bread-and-butter provisions which already
existed in the 1895 Electoral Act and, as Forrest pointed out, in the Electoral Acts
of the sister colonies. Similarly, many clauses in the Bill simply modified existing
electoral provisions—such as extending the hours of polling by a worker-friendly
two hours so that they would run in future from 9 a.m. to 7 p.m (instead of 10 a.m.
to 6 p.m) or simplifying the section on offences and penalties and readjusting
(generally upwards) a number of the penalties. But there were, nonetheless, a
number of ‘altogether new’ measures which are worth surveying.
First up, reflecting the change in the Constitution Acts Amendment Bill, which had
halved to six months the residency period required in the colony before electoral
registration could be applied for, eligible would-be electors could henceforth
submit an enrolment claim either in person or by post after spending six months in
Western Australia.98 These claims would immediately be registered on the relevant
electoral roll by the electoral registrar, who would thereafter run the appropriate
checks, and such claimants would automatically be entitled to vote six months
later.99 Given this radically different system of electoral registration, the quarterly
revision courts in electoral districts would be replaced by an annual revision court
to be held in May at which only claims that had been objected to by the returning
officer, electoral registrar or other parties would be considered, i.e. the revision
courts would ‘have nothing to do with putting people on the roll, as at present’.100
And further assisting newcomers to get onto the electoral roll, registration claim
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forms henceforth could be witnessed by ‘anyone’, rather than the previous
designated list of often hard-to-track-down JPs, wardens and so forth.101 To assist
electors—and particularly itinerant ones—to stay on the roll, electors under the Bill
would also be able to transfer onto a different electoral roll after only a one-month
residence in their new electorate, excluding the period from the issue of a writ to
polling day in that district or province (as opposed to only a ten-days-precedingpolling-day embargo in the South Australian Act) and those seeking registration for
the first time could similarly transfer to another district roll after one month’s
residence during their six-month waiting period.102
While expedited registration and one-month transfers were the crux of the Electoral
Bill, it also introduced a number of other substantive changes. The controversial
numbering of ballot papers (with the resultant capacity to trace votes) was to be
scrapped except in the case of absent votes; candidates would no longer be able to
nominate themselves but were to be nominated by two electors from the district or
province—although nominees would be obliged to signify their assent in writing to
the returning officer; and blind electors could finally receive assistance in casting
their ballot.103 And of course in the ‘Interpretation’ clause at the beginning of the
Bill, the definition of ‘Elector’ now chimed with the changes effected by the
Constitution Acts Amendment Bill and included ‘Any person of either sex whose
name is on the electoral roll’.104
As its title indicated, the Bill was a consolidating one, and it accordingly repealed
the Election Petitions Act 1875 and incorporated all provisions relating to disputed
returns within the proposed new Electoral Act where, quite obviously, they
belonged. In addition, some changes to the election petition process were made in
line with the South Australian statute, including once again channelling election
petitions to the Supreme Court via the Parliament and dropping the mandatory
security for costs from £500 to £50.
The Bill was certainly a considerable democratic advance on the existing Act,
although Forrest had been up to his usual cherry-picking antics and omitted a
number of progressive features from the South Australian Act—in which there was
no waiting time for district transfers, no nomination deposit for candidates (and a
stringent cap on candidates’ election expenditure), no prohibition on residencyonly electors exercising absent votes, no weekday elections (all were held on
Saturday) and no plural voting. On the positive side, however, Forrest did not
follow South Australian provisions which restricted electors to voting at a
stipulated polling place within their electorate; nor did he copy the South
Australian provision whereby every presiding officer counted the ballots cast at his
polling booth, because in some scantily populated areas in Western Australia ‘the
secrecy of the ballot would be impaired’.105 Perhaps most impressively Forrest did
not imitate South Australia in allowing four MPs, in tandem with a single Supreme
Court judge, to constitute the Court of Disputed Returns, tartly commenting that:
‘It seems to me the more members of Parliament keep out of the settlement of
disputed returns, the better for all concerned’.106
The Bill was warmly hailed by the members, particularly those from goldfields
constituencies who had long bemoaned the hurdles in the way of peripatetic miners
getting onto electoral rolls or transferring to new ones in the wake of a ‘rush’.
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Accordingly, when the Bill was considered in committee of the whole, large
swathes were affirmed en bloc and very few changes were proposed. The principal
unsuccessful amendment was that plural voting be abolished—which failed, not
only because Forrest wholeheartedly endorsed additional votes for property
owners, but because, as he pointed out, plural voting was enshrined in the
Constitution Act and could not be abolished through an Electoral Act. The
principal successful amendments were to retain the existing mode of marking
ballot papers by striking out the names of those who were not being voted for,
rather than adopting the South Australian system of putting a cross in the box
opposite the name of the preferred candidate (which, of course, had been Western
Australia’s mode of voting up until 1889) and to make two Supreme Court justices
rather than a single one comprise the new ‘Court of Disputed Returns’ with a new
clause providing for the ‘complained of’ member to be ‘deemed…duly elected or
returned’ if the two justices differed.107
After the addition of a few minor, tidy-up amendments during the recommittal
stage, the Bill was read a third time on 10 October and forwarded to the Legislative
Council where it was lauded as a ‘very liberal measure’.108 The Council disposed
of the Bill in one short committee of the whole sitting at which only a couple of
slight verbal amendments were passed—which were subsequently ratified by the
Assembly on 14 December. Two days later the Parliament, after its ‘arduous and
protracted session’ (mainly due to extensive debate on the draft Commonwealth
Bill and the refusal of the Legislative Council to permit Westralian electors—
unlike those in the rest of the continent—to vote on the Bill at a referendum) was
prorogued, and the Bill, along with the Constitution Acts Amendment Act, was
despatched for the signification of her Majesty’s pleasure.109
Toppling ‘the appanage, the domain, the natural heritage of the rich…’
The following session of Parliament, which opened on 17 May 1900, was not the
by now more-or-less customary mid-year session, but a ‘Special Session’ called for
the express purpose of railroading through the legislature an Australasian
Federation Enabling Act to provide Western Australian electors with a last ditch
‘opportunity…of deciding by their vote whether Western Australia should enter the
Federal Union as an original State’—and the mechanism to provide for the
‘enactment’ of the Commonwealth Constitution, if accepted.110 Given the extreme
urgency of this measure—the Constitution Bill, now approved by all the sister
colonies, had been introduced into the House of Commons only four days earlier
and, therefore, the Australian federation was on track to come into being, with or
without Western Australia, on 1 January 1901—His Excellency the Administrator,
Sir Alexander Onslow, in a suitably terse Address, outlined that other business was
to be held over for the ‘ordinary’ session to be held a few weeks later.111
Notwithstanding this stated embargo, the debates on the federation referendum
were frequently punctuated by questions and motions—including urgency
motions—relating to failings in the colony’s electoral system and electoral
administration. These queries and motions ranged from illegal voting at the most
recent Legislative Council elections; the lack of convenient access to electoral rolls
(many of which were only available in manuscript at a single, remote location); the
destruction of completed enrolment claim forms by unscrupulous election agents;
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ill-worded Government advertisements (mis)informing potential electors as to
where they could obtain enrolment forms; difficulties in registering enrolment
forms due to drafting ambiguities in the brand-new Electoral Act; severe
understaffing of electoral registrars’ offices; unhelpful and overly punctilious
electoral officials ‘seizing every little mistake that might be in the [enrolment]
paper to disqualify the applicant’; and, finally, the near impossibility of even
locating the ‘dingy little room’ where the Perth Electoral Registrar was located ‘in
the most out-of-the-way corner in Perth, almost…there being no accommodation
for the public, and no accommodation for the work’—issues all underscoring the
desperate need for the establishment of an appropriately funded and staffed standalone electoral department to handle the colony’s now rapidly expanding electoral
rolls.112 In a similar fashion, a pointed question requesting the tabling of all
appointments to, and promotions within, ‘Government service’ since the
inauguration of responsible government of ‘relatives or connections by marriage of
the members of the Executive Council’ and reference to a follow-up motion
requesting the establishment of a civil service board, highlighted that public service
reform in general was also on the agenda.113
The ‘special’ session closed on 14 June, the day after royal assent had been granted
to the Australasian Federation Enabling Act (Western Australia) 1900 (63 Vict.,
No. 55). As s. 3 of the Enabling Act made provision for the federation referendum
to take place just over six weeks later—on 31 July, which was duly gazetted as a
public holiday to commemorate the event and ensure a good turnout of electors—
there clearly wasn’t time to lose in organising the poll. Quite sensibly, UnderSecretary Octavius Burt, the former resident magistrate and returning officer of
Toodyay and York and ‘Officer in charge of Electoral matters generally’, was
commissioned by His Excellency the Administrator under s. 4 (1) of the Act as the
‘returning officer for taking the poll under the provisions of this Act’ and, with the
assistance of the colony’s existing phalanx of returning officers appointed under
the Electoral Act 1899, Burt conducted the poll as instructed by s. 5 of the
Enabling Act—basically, in accordance with the colony’s existing electoral law:
Except as by this Act otherwise prescribed, the laws in force for the time being relating to
the conduct of elections for the Assembly, the proceedings before and at and subsequent
to such elections, electoral offences, and all incidental matters shall, so far as the same are
applicable, apply, mutatis mutandis, to the poll to be taken under the provisions of this
Act.114
The referendum, which came down conclusively in favour of federation (69%
‘Yes’; 31% ‘No’), also featured a number of election ‘firsts’ for Western Australia:
the first time the colonists voted in a plebiscite; the first time all the colonists voted
on the same day; the first time the colonists voted as a single electorate; and the
first time Westralian women voted at a colony-wide, as opposed to a municipal,
poll.115
Possibly, the fact that the federation referendum succeeded, or simply because MPs
realised that Western Australia now had even more reason to align her Constitution
with that of the soon-to-be sister ‘States’, one of the first issues raised in the
Legislative Assembly in the ensuing session of Parliament related to Premier
Forrest’s 1899 pledge that a referendum on payment of members would be held in
tandem with the next general election—which was due in the following year.116
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Forrest confirmed that this was still the Government’s intention, and reiterated his
view that legislation was not necessary to provide for the referendum. Henry
Gregory, the mover of the successful resolution in favour of payment of MPs in
1897, however, was dissatisfied with Forrest’s answer, as he couldn’t see how a
referendum could take place without legislation. (The Australasian Federation
Enabling Act, for example, had mandated how the poll was to be conducted and
specifically provided that polling expenses were to be defrayed from consolidated
revenue.) Gregory was also troubled that if payment of members wasn’t legislated
for in the current session, then the new crop of MPs returned in the following year
would be similarly squeamish about voting themselves payment and so it would go
on.
Accordingly, on 19 September Gregory sought to force Forrest’s hand by
moving—
That, in the opinion of this House, it is desirable that legislation should be introduced
immediately to provide for the payment of members of future Parliaments.117
The motion was seconded by the new Leader of the Opposition, Frederick
Illingworth, who argued that a Bill was preferable to a referendum on the issue
because a plebiscite left too many questions unasked and unanswered—including
the key one of exactly how much was to be paid—and also because he believed
parliamentarians ought to take responsibility for such decisions and not ‘hide’
behind referenda.118 And, given that the colonists at the recent federation
referendum had approved a Bill which included payment for Federal MPs,
Illingworth reasoned that ‘payment of members has been practically sanctioned by
the people’ anyhow.119 Forrest was unpersuaded and argued forcibly that it would
be improper for the members—most of whom, he stressed, hoped to be re-elected
and were, therefore, hardly disinterested in the matter—to introduce payment for
future MPs without the prior sanction of the electorate: ‘I say, let the people decide
the question. It is the people’s question, if ever there was one in this world—
whether they should or should not pay the members of Parliament’.120 Indeed,
Forrest felt so strongly on the subject he put on record that:
if this proposal be passed, I shall not agree to it, and I shall denounce as well as I can the
action of hon. members in trying to vote money for themselves, for it comes to nothing
but that. Deep in the recesses of the minds of hon. members who will vote for this, is an
idea that they are the men who will receive that payment.121
The next speaker, Charles Moran, took a different line entirely, unabashedly calling
for a Bill to bring in payment, starting from the beginning of the following year, for
the current set of members:
Passing legislation for a future Parliament—what rot! Why should we pass legislation for
a future Parliament? Payment of members means the payment of members of Parliament;
and we can only look as far as our Parliament. We believe in the principle, and suppose
we carry out that principle, then we should do it in a straightforward manner and pay
ourselves, because we know perfectly well we want to be paid. I have always said so, and
there is no mock-modesty about it. The labourer is worthy of his hire: draw up a scale and
pass the Bill. Let us do what we want in this Parliament, and let any future Parliament
look after itself.122
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On this note the debate adjourned in the Assembly. Five days later, however, the
Legislative Council got into the act with recently elected and pledged member
Wesley Maley moving a copycat motion:
That, in the opinion of this House, it is desirable that members of Parliament should be
paid for their services, and that the necessary legislation should be brought forward this
session.123
In speaking to his motion—which he hoped would fortify the Legislative
Assembly’s attempts to secure the measure—Maley pitched for a Bill, rather than a
referendum, on the issue, as this would enable men without ‘means’ to contest the
next elections secure in the thought that they would have an income if elected.124
Ironically, the Council, by design the more conservative Chamber, was possibly
more committed to payment of members than the Assembly—a fact explained by
its large intake of recently elected members who were pledged to their constituents
to support the principle. (Fourteen of the thirty members of the Council—including
the six additional members granted under the Constitution Acts Amendment Act
1899—were elected in 1900, whereas almost all the Legislative Assembly
members hailed from the 1897 election when the issue had not been as
foregrounded as of late.) Also noteworthy, was the uniform rejection of a
referendum by the councillors who spoke to Maley’s motion, with speaker after
speaker arguing a referendum was either unnecessary, given the widespread public
support for payment of MPs, or, because, in the words of Richard Haynes, having
recourse to plebiscites was a ‘new and vicious policy…[in] the administration of
affairs’.125 After a fairly short debate, and without any dissenting speeches, the
motion was put and passed. (And soon after denounced as ‘irregular and
unconstitutional’ by the Premier, because it recommended an appropriation of
public funds—the special preserve of the Lower House.126)
Notwithstanding the overwhelming dismissal by both Houses of a referendum on
the issue, two days after the Council vote Premier Forrest introduced and oversaw
the first reading of a frantically cobbled together Payment of Members Bill to
provide for such a referendum.127 (As a number of members had outlined earlier,
there had been no mention of a referendum in the Administrator’s speech at the
opening of the session, and only five days earlier Forrest had confirmed in the
Assembly that he had not discussed with his ‘colleagues’ the bringing in of a
Referendum Bill.128) If Forrest thought that his Referendum Bill would resolve the
issue, however, he was radically misreading the mood of the members. Indeed,
when debate on Gregory’s motion for immediate legislation for payment of
members resumed a fortnight later in the Assembly, the first speaker moved that
the motion be rephrased so that payment would be secured for ‘Parliament’ in lieu
of the original ‘future Parliaments’.129 This amendment was then supported,
amongst others, by the Premier’s brother, the hitherto stridently anti-payment
Alexander Forrest, who also affirmed that a referendum was pointless because,
‘from one end of the country to the other it is the express wish of the electors that
payment should take place at as early a date as possible’.130 Delivering the coup de
grace, however, was the Leader of the Opposition, Illingworth, who, in yet another
adjourned debate on the issue a week later, spelt out that a referendum in
conjunction with the next general election was not only ‘superfluous’, but also
beset by the ‘insurmountable difficulty’ of voters in uncontested seats being denied
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the opportunity of voting in the plebiscite (and eighteen electorates out of fortyfour had been uncontested in the 1897 general election).131 Finally, a vote was
taken on the amendment and it passed on the voices; the amended motion in favour
of payment for members then passed nineteen to five. Forrest instantly rose to
inform the members that he would ‘at once prepare a Bill’.132
Six days later the order for the second reading of Forrest’s abortive Referendum
Bill was formally discharged, and on 6 November a Message from the
Administrator was read in the Assembly recommending an appropriation for the
purpose of the Payment of Members Bill—which was forthwith introduced by
Forrest and read a first time. The second reading came on the following day, and
although the Bill was, as Forrest put it, ‘very short’, containing only four brief
clauses, it was also, as Forrest conceded, a ‘compromise’ Bill representing the
‘majority’, but far from unanimous, view of Government supporters.133 As Forrest
admitted straight up, he was still opposed to the principle, ‘in the abstract’.134
Debate was predictably intense. The first contentious issue related to the
‘honorarium’ (Forrest’s euphemism) which the Bill proposed to offer members.135
Under cl. 2 of the Bill, the Legislative Assembly members were to receive £200 per
annum (to be paid in equal monthly instalments) and those from the Council only
half this amount. (Incidentally, Ministers, already in receipt of an ‘official salary’
out of consolidated revenue, were excluded from the payment by cl. 4.) In
justifying the differing amount for the two Chambers, Forrest sniffed that it would
be more in keeping with the legislative councillors’ status as ‘the guardians of
vested interests’ if they spurned payment altogether, but that if they must have
payment it should be less than the Assembly members because:
I think everyone will say at once that the duties of a member of the Legislative Council
are not so arduous and not so constant as those of members of this House. Hon. members
of another place do not sit nearly so long as a rule—I think about half the time occupied
by members here; and all the financial affairs and all the troublesome matters connected
with the government of the colony are debated here…Moreover, the expenses in
connection with electioneering and the obtaining of seats are, as a rule, much greater and
the work of electioneering much more troublesome to members of this House than to
those of another place. We have to appeal to the large masses of the people; whereas they
are elected by a limited section, and have a tenure of office twice as long as ours. They
have not the sword of Damocles hanging over their heads every day of their lives, in the
shape of a dissolution.136
Further, Forrest cited Australasian precedent in support of the disparity: three sister
colonies (New South Wales, Queensland and Victoria) provided no payment to
Upper House members while New Zealand gave the Lower House almost double
the Upper House payment. Only South Australia and Tasmania gave the same
amount to both Chambers. In justifying the fairly modest amount to be paid to
either House, Forrest also cited precedent—although, as usual, very selectively.
New South Wales, Queensland and Victoria paid their Lower House members
£300 per year, but Tasmania only paid £100—therefore, Forrest pointed out, the
proposed £200 for Western Australia’s Legislative Assembly members represented
‘the mean’ and was the same as paid by ‘our nearest neighbour, South
Australia’.137 The final contentious aspect of the Bill was that cl. 2 directed that
payment was to apply from ‘the first day of the present session of Parliament’—i.e.
payment was to be retrospective. Somewhat anomalously, notwithstanding
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Forrest’s continuing opposition to paying MPs ‘in the abstract’, he was not
opposed to the retrospectivity of any such payments, reasoning that: ‘if this
honorarium is to be paid, I say by all means let those now members of this
Chamber, many of whom have grown almost grey in the service of this colony,
enjoy any little advantage which may accrue’.138
The ensuing debate was fascinating. Few were pleased with the ‘compromise’ Bill
as framed, but most were reluctant to see it scuppered. Some members were
disappointed with the low ‘honorarium’, contending that as the ‘average miner’
earnt more than £200 a year, the Bill would not serve its purpose of opening the
Parliament to working class candidates; others were displeased with the even lower
payment for the Upper House fearing that this amount would not only bar working
class candidates from contesting Upper House seats but could also lead to the Bill
being rejected by the Upper House.139 Other members, however, disapproved of
any payment to the Legislative Council—a view beautifully captured by Frederick
Moorehead’s rhetorical question: ‘What is the necessity for a second Chamber if
you make it democratic?’140 And a number of members, although glad enough to
support the principle of payment of members, still held that it was a breach of
decorum to make the payment retrospective. After a couple of hours’ debate the
Bill was read a second time, and in the ensuing committee stage, which
immediately followed, an attempt by Walter James to amend cl. 2 to make
payments kick in from the ‘next’, rather than ‘present’, Parliament was voted down
on the voices.141 The Bill was read a third time and transmitted to the Council.
Where of course, the members were incensed at the ‘insult’ (almost everyone’s
expression) to the Council in the Bill’s proposing a lesser payment to MLCs, and
sent back a ‘suggestion’ (the Bill was technically a type of money Bill and
therefore couldn’t be amended by the councillors) that the Upper House payment
be raised to match that of the Assembly.142 The Legislative Council’s other
‘suggestion’ was that the payments not be retrospective, but come into effect from
the ‘next’ session of Parliament.143 The Bill, along with a Message enjoining the
requested amendments, was returned to the Assembly.
The Assembly dealt with the ‘suggestions’ on the following day and interestingly
both Forrest and Illingworth were in rare accord in disapproving of the Council’s
request for amendments to ‘what might be termed a money Bill exclusively’.144
While Forrest was prepared, however, to accede to the Council’s request that its
members’ honorarium be increased to £200, he was adamantly opposed to
amending the starting date for the payment, harrumphing that it was a bit rich for
the Council to insist that Assembly members not receive the payment until after the
next general election, when all members of the Council would receive theirs before
facing re-election. The members of the Assembly concurred with Forrest’s view,
with the result that when the votes were taken only the ‘suggestion’ regarding
equalising payment was agreed to.
The Message from the Assembly outlining the Lower House’s decision was
received by the Council later on the same day, and in committee of the whole
Colonial Secretary Randell moved that the councillors not insist on their rejected
amendment—especially given ‘another place’ had ‘met very readily, thoroughly,
and handsomely’ the ‘levelling-up’ payment proposal.145 All the members who
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spoke in the debate after Randell deplored the retrospectivity clause, but as the
prevailing view was that the Bill would not be accepted by the Assembly without
this clause and that by insisting on the amendment the Council could be blamed for
‘wrecking’ the Bill, the councillors by a margin of seventeen to four allowed
Randell’s motion to pass ‘on compulsion’ and ‘under protest’.146 The Bill was duly
read a third time and as the Payment of Members Act 1900 (64 Vict., No. 32)
received the royal assent on 5 December—the final sitting day for the year.
As was usual with prorogation day, a job lot of other Bills also received the royal
assent. A few are worth mentioning briefly as they touch on aspects of Western
Australian parliamentary election law. The first was the three-section Constitution
Act Amendment Act 1900 (64 Vict., No. 5) which enacted that:
No Member of either House of the Parliament of the Commonwealth of Australia shall, at
the same time, be qualified for nomination or election as a Member of either House of the
Parliament of Western Australia.147
And, correspondingly—although less restrictively—that:
When any Member of either House of the Parliament of Western Australia is elected a
Member of either House of the Parliament of the Commonwealth of Australia, he shall
vacate his seat in the Parliament of Western Australia on taking his seat in the Parliament
of the Commonwealth.148
The second was the Federal House of Representatives Western Australian
Electorates Act 1900 (64 Vict., No. 6) which was a just-in-the-nick-of-time piece
of legislation to provide the electoral divisions for the first election of Western
Australia’s members to the House of Representatives in the Commonwealth
Parliament—at an election that would be held less than four months later on
29 March 1901. (The election of the colony’s six senators was provided for by s. 7
of the Commonwealth Constitution which mandated that they were to be voted for
‘as one electorate’.)
The Federal House of Representatives Act, as Premier Forrest outlined at its
second reading speech, was ‘very short indeed’ because ‘the machinery for the
election is the same as that which we have in force for our own Parliament, and,
until the Commonwealth Parliament otherwise provides, that will be the law’.149
The Commonwealth Parliament once elected and constituted did, of course,
provide otherwise with the passing of the Commonwealth Electoral Act 1902—but
until that took place, s. 31 of the Commonwealth Constitution enacted, as Forrest
pointed out, that:
subject to this Constitution, the laws in force in each State for the time being relating to
elections for the more numerous House of the Parliament of the State shall, as nearly as
practicable, apply to elections in the State of members of the House of Representatives.
The one Commonwealth exception was that plural voting was not to be permitted
and s. 5 of the Western Australian Act duly stipulated that ‘no elector shall vote
more than once at the election of representatives’—a principle that would soon be
introduced into local parliamentary elections.
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The crux of the Federal House of Representatives Act was its schedule listing the
five federal electoral divisions. (Notwithstanding House of Representative seats
being allocated according to population, all ‘Original’ States were guaranteed a
minimum of five members in the House of Representatives under s. 24 of the
Commonwealth Constitution, which was fortunate for Western Australia with its
population of only 180,000.) In moving the second reading of the Bill, Forrest
revealed that dividing the colony into five seats had proven a ‘very troublesome
and difficult matter’—no surprises there—but correctly prophesised that ‘after the
matter has gone through the fire of criticism in the House, there will not be very
much alteration made in the division’.150
Indeed, Forrest’s justification of the divisions sounded entirely reasonable: the
boundaries had been drawn ‘as nearly as possible on a population basis’, using the
latest voting figures from the federation referendum as a guide, to reflect the
metropolitan, goldfields and agricultural/pastoral interests of the colony.151 As
Illingworth, later observed, however, the result of trying to shoe-horn roughly the
same number of people into only five electorates was that a couple of seats were
‘geographically clumsy’ and, on first impression, ‘utterly ridiculous and absurd’—
although he went on to concede that it would have been impossible to do a better
job of the divisions without incurring an ‘inequality of representation’ and he was
therefore prepared to the give the Bill his ‘hearty support’.152
For reference, the five new federal seats were: ‘Perth’ (incorporating the seven
Legislative Assembly seats of Perth, East Perth, North Perth, West Perth,
Claremont, Subiaco and Guildford); ‘Fremantle’ (which included Fremantle, East
Fremantle, North Fremantle, South Fremantle, Cockburn Sound, South Perth,
Murray and Swan); ‘Kalgoorlie’ (which included Kalgoorlie, Boulder, Dundas,
Hannans and Kanowna); ‘Coolgardie’ (which bundled up nine Legislative
Assembly seats ranging from Coolgardie to the two Kimberley seats approximately
2,000 kilometres away in the ‘extreme north’); and the final seat of ‘Occident’
(which was basically a ragbag of the rest of the colony combining twenty
agricultural and pastoral Legislative Assembly seats from Albany in the south to
Roebourne in the north with Northam, York, Geraldton and the Gascoyne, among
others, in the middle).153
While Illingworth may have been prepared to support Forrest’s electoral divisions
he was not prepared to support Forrest’s choice of name, ‘Occident’, for the
omnibus seat, and his objection was seconded by Vosper who snorted that:
…“Occident” has nothing but a majestic vagueness to recommend it. You might as well
call the electorate “The Universe,” or “The Blooming Firmament.” It seems to me absurd
to apply so vague and indefinite a name to the district.154
Given this response, it was fortunate that Forrest had not persevered with some of
the other names he had contemplated (rather uncharacteristically, it should be
noted, for such a prosaic man) for the divisions: ‘the Provincia Auria, the Provincia
Aurifera, the Provincia Ruralia, and the Provincia Cygna’.155 After a comparatively
short debate the Bill was read a second time and sent off, as was customary with
Bills dealing with electoral divisions, to a select committee for further
consideration.
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As it turned out, the only amendments suggested by the select committee were to
rename ‘Occident’ the ‘Swan’ division and to take Claremont out of the Perth
division and reassign it to Fremantle and to remove Swan from the Fremantle
division and place it in the Swan division.156 The Bill was read a third time on
26 September and despatched to the Council, which passed the Bill with one
amendment: to strike out cl. 8 which provided for ‘Remuneration of offices and
expenses’.157 Colonial Secretary Randell, in moving that this clause be deleted,
argued that as the Commonwealth Constitution provided for the expenses of
federal elections the clause was redundant. When the amended Bill returned to the
Assembly on 11 October, Premier Forrest endorsed Randell’s view, and the
Assembly forthwith agreed to the amendment.
With the procedures for the running of the first Commonwealth poll now in place
and the first ‘State’ general election also only months away, 1901 was shaping up
as a big election year as well as a profoundly significant year constitutionally with
the inauguration of federation. It was also going to be a big year with respect to
civil service reform.
Public Service Shakeout
The final relevant Act to be assented to on 5 December was the Public Service Act
1900 (64 Vict., no. 21)—the colony’s first statute to regulate the service—which
Michael Hollier in his review of Western Australia’s public service from
foundation to 1905 concedes enacted almost none of the bureaucratic reforms
clamoured for at the time, such as the appointment of an independent Public
Service Commissioner and open competitive entry exams.158 Hollier continues,
however, that the 1900 Act ‘at least formalised previous practice and laid a specific
foundation for future review and reform’.159 In fact, the clamoured for civil service
reforms would be delivered a mere four years later in the Public Service Act
1904—reforms which would pull the Westralian service ‘into line’ with the ‘more
progressive countries of the world’—as the first Public Service Commissioner,
Martin Jull, proudly expressed it in 1906 in his first annual report.160 While 1906 is
beyond the scope of this work it is, however, important to note the state of play of
the Westralian public service in 1901—particularly electoral administration—and
also to refer to the massive reform of the British civil service which had been
undertaken only a generation earlier and which formed the template for much of
the reform put into place in the British colonies.
As outlined in chapter one, when Stirling and his ‘civil establishment’ arrived in
Western Australia in 1829, reform of the home civil service, although commenced,
still had a long way to go. In fact, the English civil service, and criticism of it,
remained fundamentally unchanged up to the mid-century—even though it had
become quite apparent to the British Government by this time that Whitehall was
not keeping pace with the needs of the world’s pre-eminent industrial and Imperial
power.161 Significantly, the parallel but independent civil service of the East India
Company had been completely overhauled and professionalised by the mid-1850s;
and after this occurred, the writing was on the wall for the home civil service.162 In
1848 a five-year series of investigations into civil service offices and expenditure
by various parliamentary committees and select committees commenced; and in
1853 two civil service mandarins—Sir Stafford Northcote and Sir Charles
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Trevelyan—were commissioned by William Gladstone, the then Chancellor of the
Exchequer, to prepare a Report on the Organisation of the Permanent Civil Service
(a project Gladstone was reported to have called, ‘my contribution to the picnic of
Parliamentary Reform’).163
The Northcote-Trevelyan report provided an 1853 snapshot of the civil service
which confirmed, in admittedly less florid language, the range of abuses decried by
Cobbett, Mill, Dickens et al. in the 1830s. And, not unexpectedly, the defect
principally singled out in the report was the ‘evils of patronage’ which Northcote
and Trevelyan damned for recruiting third-rate officers into the service:
Admission into the Civil Service is indeed eagerly sought after, but it is for the
unambitious, and the indolent or incapable, that it is chiefly desired. Those whose abilities
do not warrant an expectation that they will succeed in the open professions, where they
must encounter the competition of their contemporaries, and those whom indolence of
temperament or physical infirmities unfit for active exertions, are placed in the Civil
Service, where they may obtain an honourable livelihood with little labour, and with no
risk…
…
It may be noticed in particular that the comparative lightness of the work, and the
certainty of provision in case of retirement owing to bodily incapacity, furnish strong
inducements to the parents and friends of sickly youths to endeavour to obtain for them
employment in the service of the Government…164
The Northcote-Trevelyan report also censured the ‘mechanical’ and ‘routine’
character of most civil servants’ work—work which did not make the ‘best
account’ of officers’ talents and which seldom trained them to carry out top-flight
administrative posts—which, as a result, were often given to appointees from
outside the service.165 The report also condemned the fact that promotion—which
was ‘merely departmental promotion’ and not service-wide promotion—depended
on seniority rather than merit.166
On the positive side the Northcote-Trevelyan report acknowledged the crucial role
played by bureaucrats in a governmental system where the ‘great and increasing
accumulation of public business’ and the rapid turnover of ministers meant that
the Government of the country could not be carried on without the aid of an efficient body
of permanent officers, occupying a position duly subordinate to that of the Ministers who
are directly responsible to the Crown and to Parliament, yet possessing sufficient
independence, character, ability, and experience to be able to advise, assist, and, to some
extent, influence, those who are from time to time set over them.167
As anodyne as this passage may appear, it was almost heterodox for its time in that
it recognised that bureaucrats might be involved in framing policy and therefore
‘influence’ a Minister. Indeed, it was because they were conscious that the civil
service was so pivotal to the running of Government, that Northcote and Trevelyan
pleaded for its renovation. The report’s principal recommendation was the
abolition of patronage—and recruitment by means of professionally conducted
open competitive examinations instead of the farcical in-house examinations
practised by some departments.168 The report further recommended that such
examinations be overseen by a specially appointed Board of Examiners—to
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include independent public figures such as privy councillors.169 The report also
endorsed streaming staff, according to their abilities, into ‘intellectual’ (policy) or
‘mechanical’ (administrative) pursuits; recommended that promotion be based on
merit rather than seniority; and advocated the free transfer of officers across
departments.170
The British Government, in response to the Northcote-Trevelyan report,
established a Civil Service Commission in 1855—the same year that concerned
British citizens formed the Administrative Reform Association to ‘put an end to
those influences which at present burden every department of Government with
incapable officers’.171 The role of the Commission was to oversee admissions into
the civil service through a process of medical clearances, character references,
qualifying examinations and uniform periods of probation; and from 1859, without
certification by the commissioners, most newly appointed civil service officers
were ineligible for a retirement pension.172 The lynchpin of this system—the
qualifying examinations—however, were not open, uniform or competitive when
they were initially set up. The exams were also frequently evaded by department
heads who were concerned that open competition might lead to ‘clever young men
from the lower ranks of society’ securing places and lowering the ‘tone’ of the
service or because they were simply disgruntled that their right to patronage was
being forfeited.173 A routine tactic employed by Treasury is outlined by Emmeline
Cohen:
When Sir William Hayter was Financial Secretary to the Treasury he kept a reserve of
two very dull boys to run in competition with the friend whom he wished to appoint. Thus
he kept up the fiction of competition, whilst making what amounted to absolute
nominations.174
A select committee in 1860 condemned the qualifying exams as ‘shams’ and ‘a
fertile source of abuse’—about the same time that an exasperated John Stuart Mill
renamed the bureaucracy the ‘pedantocracy’, and condemned its ‘obstructive spirit
of trained mediocrity’—
directed…to the same unflinchingly-pursued ends from age to age; the remarkable skill
with which those ends are generally pursued; the frightful internal corruption, and the
permanent organized hostility to improvements from without…175
Curiously, however, only three years later Walter Bagehot would write in The
English Constitution: ‘At this moment, in England, there is a sort of leaning
towards bureaucracy—at least, among writers and talkers. There is a seizure of
partiality to it’.176 Bagehot accounted for this newly acquired and almost
unfathomable ‘seizure’ in terms of the public’s admiration for the ‘triumph’ which
was the Prussian bureaucracy.177 That the British Government had also come to
acknowledge the worth of a properly instituted civil service is suggested by its
finally, by an 1870 Order in Council and set of regulations, introducing genuine
open competitive examinations, streamed for junior and senior appointments, for
most civil service positions—thereby instituting the recruitment of civil service
officers on the criterion of merit—not political or personal patronage.178
Interestingly, civil service reform, particularly of the ‘spoils of office’ system, was
also being instituted in America around this time with Congress authorising the
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establishment and funding of a (as it turned out, short-lived) Civil Service
Commission in 1871. Regrettably, it took the assassination in 1881 of President
James A. Garfield by an unsuccessful office-seeker before the Civil Service Act
1883 (more commonly known as the Pendelton Act) re-instituted the Civil Service
Commission with a mandate to see that civil service positions in offices employing
‘as many as fifty’ staff were filled according to principles of merit—not
patronage—and only after candidates had sat ‘open, competitive examinations’ and
served a ‘period of probation’.179 Reforms which, it should be added, were not
always welcomed by those who had profited by the manipulation of patronage
under the old regime, as the following tirade from New York Senator George
Washington Plunkitt reveals:
This civil service law is the biggest fraud of the age. It is the curse of the nation. There
can’t be no real patriotism while it lasts. How are you goin’ to interest our young men in
their country if you have no offices to give them when they work for their party?180
Given that these radical civil service reforms were comparatively recent; that
Western Australia’s public service prior to the gold rushes was minuscule (less
than 750 officers in 1891); and that many public service departments, offices or
agencies were established quite late in the colony’s history (administration of
elections being a good example, with the first officially run elections not taking
place until 1870), it is not entirely surprising that it took until 1900 for a public
service statute to be passed in the colony—at which time the number of public
servants listed in the Blue Book had risen to a respectable 5,900.181 However, as
Hollier outlines in his research, from Western Australia’s foundation in 1829 the
local public service had been subjected to an almost endless stream of reviews,
boards and committees of inquiry, Royal Commissions, re-classifications and reorganisations—although, he adds, the recommendations of these inquiries were
seldom implemented and of the reform which did take place, much was of a
‘piecemeal or transitory’ nature.182
With the accession of responsible government in 1890, when all patronage and the
power of dismissal devolved onto the Government of the day, public service
reform became a leading topic in political discourse—concern undoubtedly
sharpened by tales of the blatant and often scandalous patronage exercised by
ministers in the eastern colonies following the advent of self-government.183 Peter
Loveday outlines in partial extenuation of the sister colonies’ abuse of patronage,
that in the absence of parties and party discipline at the time, ‘patronage was of the
utmost importance to a ministry in its struggle to win and hold a majority’ in the
legislature—an assessment endorsed by J. B. Hirst: ‘Regular supporters were
rewarded with jobs and troublesome opponents were removed with jobs…All
appointments to the public service were made to serve political ends’.184
That many Westralians feared that in their underpopulated colony—with few plum
public service jobs on offer anyway—unfettered patronage by Ministers would
make the civil service even more of a closed shop for the (largely intermarried)
gentry, was confirmed by the Public Service Commissioner, Martin Jull, in 1906:
The Commissioner is told that many of the brighter boys in our State schools have not in
the past been permitted to enter the Service, as many parents have been under the
impression that, however clever their lads may be, without influence advancement was
impossible.185
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Certainly, at the 1890 general election which immediately preceded the
inauguration of responsible government in Western Australia, candidates were
vigorously catechised regarding their views on civil service reform, as the
following question from a political meeting in the East Perth electorate indicates:
I simply ask the candidate through the Chairman, whether you [candidate Henry
Saunders] will be in favour of a Civil Service commission with a view to bringing forth an
Act to seek and get out the six families. (Loud laughter).186
Candidate Saunders confirmed he was in favour of the appointment of a
Commission to, as he diplomatically phrased it, ‘inquire into the working of the
civil service’, and at the hustings a number of other high-profile candidates,
including Marinus Canning, William Marmion, Adam Jameson, Richard Haynes
and David Symon, placed on the public record their support for public service
reform.
Calls for public service reform continued to feature in the press and Westralian
election campaigns, and in 1894 the Forrest Government capitulated to pressure
from members of the Legislative Assembly and the general public and appointed a
Royal Commission (notoriously aborted two years later before it had completed its
findings) to inquire into the service. With respect to the Commission’s
investigation of the Colonial Secretary’s Office, which had been responsible for the
conduct of elections since 1870, it is heartening to hear that no scandals attached to
the Office—although as Alexander Forrest drily observed in the Legislative
Assembly:
Whoever heard of the Colonial Secretary’s department being in disrepute? They only
employ a small number of officers, at a small salary.187
Nonetheless, as has been discussed earlier in this chapter, the administration of
electoral registration and conduct of elections in the colony had not escap