REPORT OF COMMITTEE

FOR TRADE AND PLANTATIONS OF PRIVY COUNCIL1 ON

PROPOSED AUSTRALIAN CONSTITUTION.

DATED MAY 1, 1849.

[The text is as given in Lord Grey's The Colonial Policy of Lord John Russell's Administration, 1853, vol. i, Appendix I, pp. 422-56. It will also be found in Parl. Papers, 1849, vol. xxxv.]

After remarking upon the contrast between the practice observed in the nineteenth century and the practice observed in earlier times respecting the establishment of systems of Civil Government in the Colonies, and pointing out the more liberal character of the former system, the Report proceeds:

"But in sanctioning that departure from the general type or model of the earlier colonial Constitutions, it has been the practice of Parliament to recognize the ancient principle, and to record the purpose of resuming the former constitutional practice so soon as the causes should have ceased to operate, which in each particular case had forbidden the immediate observance of it. Nor has the pledge thus repeatedly given been forgotten. It has been redeemed in New South Wales, except so far as relates to the combination which has taken place there of the Council and Assembly into one Legislative House or Chamber. It has been redeemed with regard to New Zealand, although peculiar circumstances have required a temporary postponement of the operation in that Colony of the Act passed by Parliament for establishing in it a Representative Legislature.2

We are of opinion that the time has not yet arrived for conferring the franchise on the Colonists of Western Australia, because they are unable to fulfil the condition on which alone, it appears to us, such a grant ought to be made; the

The Committee consisted of Mr. Labouchere, the President of the Board of Trade, Lord Campbell, Sir James Stephen, who had recently resigned the office of Permanent Under-Secretary at the Colonial Office, and Sir Edward Ryan, a retired Indian judge.

2 On this see chap. ix of G. C. Henderson's Life of Sir George Grey, 1907.

condition, that is, of sustaining the expense of their own Civil Government, by means of the local revenue, which would be placed under the direction and control of their representatives. Whenever the Settlers in Western Australia shall be willing and able to perform this condition, they ought, we apprehend, to be admitted to the full enjoyment of the corresponding franchises, but not till then.1

The Colonies of South Australia and Van Diemen's Land, being on the other hand at once willing and able to provide by local resources for the public expenditure of each, or at least for so much of that expenditure as is incurred with a view to colonial and local objects, the time has in our judgement arrived when Parliament may properly be recommended to institute in each of these Colonies a legislature, in which the representatives of the people at large shall enjoy and exercise their constitutional authority.

In submitting to Your Majesty this advice, we are only repeating an opinion so familiar and so generally adopted by all persons conversant with the Government of the British Colonies, that it would seem superfluous to support it by argument or explanation. The introduction of this constitutional principle into every dependency of the British Crown is a general rule sanctioned by a common and clear assent. The exception to that rule arises only when it can be shown that the observance of it will induce evils still more considerable than those which it would obviate and correct. We are aware of no reason for apprehending that such a preponderance of evil would follow on the introduction of such a change in South Australia and Van Diemen's Land. The contrary anticipation appears to be entertained by all those who possess the best means and the greatest powers of foreseeing the probable results of such a measure. We therefore recommend that, during the present session of Parliament, a Bill shall be introduced for securing to the

It was not till 1870 that the Legislative Council of Western Australia consisted, with regard to two-thirds of it, of elected members.

representatives of the people of South Australia and Van Diemen's Land respectively, their due share in the legislation of each of those Colonies.

We apprehend however that it would be found highly inconvenient to consider the question as it regards those two settlements, without at the same time adverting to the effects with which such a change in them must be followed in the whole range of the Australian Colonies.

New Holland is at present divided between the three Governments of New South Wales, South Australia, and Western Australia. The most cursory inspection of the maps and charts of those regions will sufficiently show, that as they shall become more populous and more extensively settled, it will be necessary to divide them into a greater number of distinct Colonies. But, confining our immediate attention to the case of New South Wales, we observe that the cities of Sydney and of Melbourne, lying at a great distance from each other, form the respective capitals of districts of great extent, separated from each other by diversities of climate and by some corresponding differences in their natural resources, and in the agricultural and commercial pursuits followed in each of them. The inhabitants of the southern districts have long and earnestly solicited that Melbourne should be made the seat and centre of a Colonial Government separated from that of Sydney; and so decided has this wish become of late, that on the recent general election of members of the Legislature of New South Wales collectively, the inhabitants of the southern district have virtually and in effect refused to make any such choice.1 The reluctance which was at first so naturally entertained at Sydney to the proposed innovation, appears to have gradually but effectually yielded to the progress of knowledge and reasoning on the subject. The Governor and the Executive Council, the existing Legislature, and, as we believe, the great body of the Colonists, now favour the

1 They elected Lord Grey as their representative.

contemplated division of their extensive territory into a northern and a southern Colony.

Nor is it surprising that such should have been the ultimate conclusion of such a debate. The inhabitants of countries recently and imperfectly settled are exposed to few greater social evils than that of the remoteness of the seat of Government from large bodies of the settlers. The effect is virtually to disfranchise a large proportion, if not a majority of the Colonists, by excluding them from any share in the management of public affairs, and in the inspection and control of the conduct of their rulers. In such circumstances the inconveniences of the centralisation of all the powers of Government are experienced in their utmost force. The population of the districts most distant from the metropolis are compelled to entrust the representation of their persons and the care of their local interests to settled residents at that metropolis, who possess but a very slight knowledge of their constituents and a faint sympathy with their peculiar pursuits and wants.

We propose therefore that Parliament should be recommended to authorise the division of the existing Colony of New South Wales into a northern and a southern Province. Sydney would be the capital of the northern division, which would retain the present name of New South Wales. Melbourne would be the capital of the southern division, on which we would humbly advise that Your Majesty should be graciously pleased to confer the name of Victoria.

The line of demarcation between New South Wales and Victoria would coincide with the existing boundary between the two districts into which for certain purposes the Colony is already divided. It would commence at Cape How, pursue a straight line to the nearest source of the river Murray, and follow the course of that river as far as the boundary which now divides New South Wales from South Australia.

In each of the two proposed provinces of New South Wales and Victoria we apprehend that provision ought now

to be made by Parliament for creating a Legislature, in which the representatives of the people should exercise their Constitutional authority and influence. We do not advise that resort should be had for these purposes to the ancient and unaided prerogatives of Your Majesty's Crown, because it is not competent to Your Majesty, in the exercise of that prerogative, to supersede the Constitutions 1 which Parliament has already established in the Australian Colonies. Parliamentary intervention is therefore indispensable.

1

If we were approaching the present question under circumstances which left to us the unfettered exercise of our own judgement as to the nature of the Legislature to be established in New South Wales, Victoria, South Australia, and Van Diemen's Land, we should advise that Parliament should be moved to recur to the ancient constitutional usage by establishing in each a Governor, a Council, and an Assembly. For we think it desirable that the political institutions of the British Colonies should thus be brought into the nearest possible analogy to the Constitution of the United Kingdom. We also think it wise to adhere as closely as possible to our ancient maxims of government on this subject, and to the precedents in which those maxims have been embodied. The experience of centuries has ascertained the value and the practical efficiency of that system of Colonial polity to which those maxims and precedents afford their sanction.2 In the absence of some very clear and urgent reason for breaking up the ancient uniformity of design in the Government of the Colonial dependencies of the Crown, it would seem unwise to depart from that uniformity. And further, the whole body of constitutional

1 The rules with regard to settled Colonies and Colonies obtained by cession or conquest were different, but in any case nothing but an Act of Parliament can alter an Act of Parliament, and once a legislature is established in a Colony, the position of the Crown is the same as its position in the United Kingdom. (See Jenkyns' British Rule and Jurisdiction beyond the Sea, p. 7.)

2 It would be interesting to know on what data the committee drew this optimist conclusion as to the constitutional past of the British Colonies.