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Legal History |
DAVID CLARK[*]
Constitutional law has been described as an amalgam of history, statutory interpretation and political philosophy.[1] This complex system is characteristic of modern constitutional systems, especially those of the common law type.[2] In practice the emphasis in constitutional writing is on formal legal doctrine, especially the decisions of the highest courts. While of paramount importance in legal education and to the practicing profession, the emphasis on doctrine is only one part of a much larger and more complex account of the history and the working of the constitutional structure. One neglected aspect of Australian constitutional writing has been constitutional practice for, apart from discussion of the dismissal of the Prime Minister by the Governor-General in November 1975,[3] and some distinguished writing on parliamentary privilege,[4] many aspects of constitutional practice lie in a state of neglect. Despite the failure of academics to study this part of the subject the courts have taken judicial notice on many occasions of constitutional practice and of the informal aspects of constitutionalism generally.[5] Thus parliamentary practice was taken into consideration in a recent case on the lawfulness of government expenditure on an advertising campaign to promote changes to industrial relations laws.[6] In another case the court took into account constitutional practice in deciding parole matters.[7] Some practices although not in legal form are regarded as sufficiently formal as to be labeled as conventions, such as that the Governor or the Governor-General normally acts on the advice of their Ministers,[8] that a bill passed by the Parliament be presented to the Governor for the assent[9] or the granting of indemnities to Ministers.[10] The most important area of practice remains the practical working of the doctrine of responsible government, which is not mentioned in terms in any constitutional act, but which forms part of the deep background of Australian constitutional law and practice.[11]
Perhaps the most obvious area for investigation is parliamentary practice since Australia has a parliamentary system. Much of this practice is only slightly noticed by constitution acts and cases, yet it remains crucial to an understanding of the operation of the constitutional system.[12] This paper will consider the often referred to but seldom studied compact[13] of 1857, an agreement between the two houses of the South Australian Parliament as to how they would handle money bill disputes in a situation where the Constitution Act did not provide a solution to the problem. The compact was actually four resolutions – three by the Legislative Council and one by the House of Assembly that formed a modus vivendi and was adhered to for fifty seven years until its replacement in 1913 by an amendment to the Constitution Act. During that time the Compact held the peace and allowed South Australia to avoid the debilitating conflicts that later afflicted Victoria, especially during 1877-1878.
There are, in short, two good reasons to study the history of the compact: it is above all a study of how a constitutional accommodation was struck to deal with a problem that the formal constitutional document had not anticipated, and allowed the houses to proceed with money bills in a situation in which British guidance was either not forthcoming, or was of no help. Second, the compact found its way into formal constitutional documents in the States and the Commonwealth, and was adopted as the practice in the first Parliament of Western Australia after the inauguration of responsible Government in 1891.
The compact of 1857 has not escaped notice in the secondary literature, but to date there has been no thorough study of the compact, especially its context, let alone its subsequent history in South Australia. The references to the compact have either been cursory[14] or they have confined themselves to stating the content of the compact[15] and, even then, only three of the four relevant resolutions are usually reproduced.[16] It is in this latter form that the lawyers have paid attention to the compact. First set out in Quick and Garran[17] in 1901 this version of the compact has been most often relied upon by subsequent legal writers.[18] Other accounts of the compact have sometimes been rather inaccurate,[19] while the better works were often by participants in the original debates of 1857 who have provided a partial view of a complex subject.[20] The best accounts are by the relatively detached Clerks of Parliament and by one academic. Edwin Gordon Blackmore the former Clerk of the South Australian Legislative Council provided a detailed account of the compact and its subsequent history up until 1889,[21] as did a former Clerk of the Tasmanian Legislative Council in 1890.[22] Both these works, along with Todd’s[23] famous account, have the virtue of being based on most of the primary parliamentary sources of the subject, though none of them really places the conflict of 1857 in context, nor do they delve into the intellectual sources of the arguments displayed in the houses during the debate.
The arrival of responsible government in the 1850s changed the structure of parliamentary institutions in Australia from unicameral Legislative Councils to bicameral institutions. Initially Australian drafters of the Constitution Acts resisted bicameralism, but were prevailed upon by the British who insisted on an upper house since they were fearful of the effects of an unrestrained popularly elected single chamber. What was required the British argued was an upper house, preferably appointed by the Governor, of men of property, that would check the ‘democratic’ tendencies of the lower house.[24] The colonial draftsmen accepted the requirement of a upper house, but there was some debate as to whether it should be an appointed or an elected house. Initially the legislative council actually supported an hereditary upper house,[25] though this idea was soon dropped in favor of an elected house. The old legislative council started life as a wholly appointed body, but by 1851 an elected component was added[26] and thus by the time of the debate on the constitution of the new upper house South Australians were already familiar with a partially elected Council.[27] In 1852 a Report from the Legislative Council on the new constitution made it clear that the Council was in favor of an elective upper house,[28] a sentiment repeated in November 1853 when George Strickland Kingston[29] moved that the second chamber be elected, observing that a nominee chamber appointed by the Crown for life is ‘not in accordance with the views and feelings of the colonists of South Australia’.[30] The resulting Parliament Act of that year provided, in section 5, for an elected upper house, but that Act was disallowed in London because it imposed restrictions on the British ability to disallow South Australian legislation.[31] In contrast Tasmania insisted on an elected upper house,[32] a proposition that the Governor supported[33] and the British accepted. Matters developed differently in South Australia where the first attempt at a home grown constitution failed because the British refused to accept it. The main sticking point was that the Act purported to limit the royal prerogative of disallowance[34] which was a power the British insisted on retaining[35].
The British had, of course, by law the ability to refuse to assent to local acts through the power of disallowance[36] and made it clear that the Queen would not be advised to assent to the Parliament Act of 1853.[37] The prerogative power of disallowance had been asserted in the seventeenth century in relation to the American colonies[38] and was given statutory expression for Australia in 1842[39] and again in the Australian Colonies Government Act 1850 (UK).[40] In its stead the British sent to South Australia the recently accepted Constitution Act of Tasmania, which included an elected upper house,[41] and suggested that the South Australians consider this example[42]. The Governor of South Australia, Sir Richard Graves McDonnell, resisted this proposal, initially responding in August 1855 that perhaps a larger single chamber would be more suitable for South Australian conditions.[43] Had this proposal been accepted then no conflicts would have arisen, but unicameralism was rejected by the ‘country’, as public opinion was then referred to as well as by the Council.[44]
As the constitution bill wound its way through the Council the drafters of the new constitution bill expected that all money bills would be originated by the Government in the lower house.[45] Other than this principle nothing was said about money bill questions such as whether the upper house might amend money bills or not. During the debate an important amendment was made to clause 1 of the Constitution Bill, the clause setting out the legislative powers of the two houses. In its original form the clause clearly intended equality between the houses for it read:
There shall be, in the place of the Legislative Council, now subsisting a Legislative Council and a House of Assembly, which shall be called ‘The Parliament of South Australia’, and shall be severally constituted in the manner hereinafter prescribed, and such Legislative Council and House of Assembly shall have and exercise all of the previous functions of the existing Legislative Council.[46]
George Strickland Kingston moved an amendment to this clause to add ‘Provided that all Bills for appropriating any part of the revenue of the said province, or for imposing any new rate, tax, or impost, shall originate in the House of Assembly.’[47] This language was copied from the disallowed Parliament Act of 1853 and the intention, as Kingston explained, was to reject the principle that money votes might originate in either house; rather the proviso was designed to ‘ensure that all such bills should be introduced in the Lower House’.[48]
There was no discussion at the time of the possibility of deadlocks between the houses and it seems to have been assumed that if conflicts were to arise between the houses over money bills British practice would prevail. There was provision in the new Constitution Act for its amendment in section 34, but this was subject to what is now called a manner and form requirement.[49] That requirement was a special procedure that there be an absolute majority of both houses for the passing of the second and third readings of the amending bill that altered the Constitution of either House, and, in any case, such amending legislation was to be reserved for the royal assent in London. The practical effect of this procedure ensured that each house could veto an amendment to the Constitution Act by rejecting a bill to that effect passed by the other house.
In the event the Tasmanian suggestion was taken up and the resulting Constitution Act No 2 of 1855-6[50] provided in section 7 for an elected upper house. Most importantly for our purposes section 1 of the Act provided for the legislative powers of the two houses. The existing legislative powers of the Legislative Council were to be exercised by both houses subject to the following important proviso: ‘Provided that all Bills for appropriating any part of the Revenue of the said Province, or for imposing, altering, or repealing any rate, tax, duty, or impost, shall originate in the House of Assembly.’
Despite the local joy at the arrival of responsible government, parliamentarians had no illusions that the new system would take time to work out. In 1859 the Speaker of the House of Assembly, George Strickland Kingston, explained in an address to the Governor that Responsible Government was a ‘novel enterprise’ and that during the first session of the Parliament under the new system various difficulties and changes were only to be expected.[51] The most important intellectual source for the resolution of unresolved constitutional questions was to be found in British Parliamentary practice. The standing orders of each house made it clear that the practice of the House of Commons was to be the fall back position in the absence of any specific local order on the matter ‘as far as they can be applied’.[52] There were also rulings by the presiding officers that
Whenever any question of Parliamentary practice is under discussion I have always felt that its solution is best attained by a careful reference to and consideration of the practice of the House of Commons in analogous cases.[53]
The great work of reference to which all referred when seeking to ascertain British Parliamentary practice was, of course, Thomas Erskine May’s great book on parliamentary practice,[54] a work regularly consulted in its successive editions in all nineteenth and twentieth century Australian Parliaments and which was regarded as a ‘ high authority’ on parliamentary practice.[55]
The most important sources of information on the compact and its history lie in the journals of each house of the Parliament- called the Minutes of the Legislative Council and the Votes and Proceedings of the House of Assembly. These two sources provide the authoritative texts of resolutions, presiding officer’s rulings and other formal matters.[56] Of course the local parliamentary debates are also essential in any intra-parliamentary study, but these must be approached with caution. For although South Australia had a Hansard or official report of debates from the beginning of responsible government, in fact during the conflict between the houses in 1857, the Hansard was only an epitome or summary, while in 1863 and 1864 no Hansard was published at all.[57] To fill in the gaps the historian has to have resort to the newspaper reporting of parliamentary proceedings though these reports were sometimes criticized in Parliament as inaccurate.[58] In fact while the call for a full and accurate report of the debates emerged in May 1857,[59] nothing was done about a Hansard until the beginning of 1858,[60] and a tender was only awarded for a full Hansard in January of that year.[61] The importance of the debates that led to the compact was such that at one point the House of Assembly specially commissioned a full report of its debates on the matter that was later published as a parliamentary paper.[62]
The first session of the new Parliament opened on Wednesday 22 April 1857[63] and, apart from the essential formal proceedings such as the election of a speaker and the settling of the standing orders, one of the first matters dealt with by the House of Assembly was the first reading of ‘A Bill intituled an Act to repeal Tonnage Duties on shipping, and to authorize the leasing of the wharf frontage at Port Adelaide known as the North Parade.’[64] The original act, known as the Port Adelaide Improvement Loan Act[65] No 20 of 1854, had been passed to authorize the raising of a loan by way of government issued bonds to the value of 100,000 pounds (section 1) to pay for the deepening of the outer bar at the port. To offset the cost of the loan section 7 imposed a tonnage levy at the rate of 6 pence per ton on all registered cargo landed at the port. The loan was to be administered by a trust (section 10) which was to publish each year a statement of their audited accounts (section 9) in the South Australian Government Gazette. The levy in fact raised very little money[66] and there was a great need for more revenue to service the 100,000 pound loan. The repeal bill was intended to replace the tonnage levy with a different mode of finance by leasing wharfage space.[67] In short the bill sought to do two things. Clause 1 sought to repeal the 1854 Act and clause 2 provided for the lease of 2,000 feet of wharf frontage in an area known as North-Parade. The bill passed through the Assembly without incident and was sent up to the Council where it received a first reading on 12 May 1857.[68]
This was in fact the first bill of any kind sent to the Council by the Assembly. The period after the opening of the session in the Council on 22 April had been a source of frustration for the Council since no bills were initiated in the Council and none were sent up from the Assembly. The Council only met three days a week[69] and for weeks the Council had so little to do that its meetings only lasted 20-25 minutes.[70] This was a formal age and one in which public men stood on ceremony in ways that strike a twenty first century reader as odd, if not petty. On one occasion a member of the Legislative Council attended the debates in the Assembly sitting in the strangers’ gallery where he was noticed by a member of the Assembly who took exception to his presence and asked that he be removed.[71] To say that members of both Houses were willing to stand on their rights and to protect their dignity[72] would not be an exaggeration and this ready ability to detect slights, real or imagined, was a source of conflict in the nineteenth century. This outlook also came to the fore later in the session when members of the House of Assembly complained about their lack of dignified treatment when summoned to the chamber of the Legislative Council by the Governor, an event that took place twice a year; at the beginning of the session to hear the Governor’s speech opening the session, and at the end of the session when the Governor gave his assent to the bills that had been passed during the session. In their correspondence on this matter in January 1858 the House stressed that ‘there is no clause in the Constitution Act which either directly or indirectly confers superior rank or dignity on one House over the other ...’.[73] Typically for the time the President of the Legislative Council rejected the complaints of the Assembly on the basis of a lack of formality, that is, the lack of a resolution in the House of Assembly on the subject. In June 1857[74] one member of the Council, Mr Younghusband, complained about the lack of a legislative agenda in their house and made the argument, roundly rejected by his colleagues, that the lower house was attempting to legislate by resolution and thereby by-pass the Council altogether. He also asserted that this policy was calculated to ‘cause a collision between the two Houses of Parliament’. The majority felt that there was no plot on the part of the Assembly to cause a collision between the Houses and most thought that as a matter of course bills had to pass through the Council before they could become law. In the event although the motion was withdrawn, a sense of not being taken seriously remained.
Initially opponents of the bill in the Council tried to prevent the second reading from taking place but the President of the House Mr Fisher cast a deciding vote to split the equally divided house and thus the second reading went ahead.[75] By the time the Council resolved itself into a Committee of the Whole to consider each clause of the bill in detail, amendments to the bill were adopted including the rejection of clause 1.[76] This clause embodied one of the two central principles of the bill, that is, the repeal of the tonnage duties imposed by the 1854 Act.[77] By 9 June the Council passed the bill with amendments, including the rejection of the all important clause 1,[78] and sent the bill back to the Assembly.[79]
There were two main objections raised in the Council to the bill sent up by the Assembly. The first objection was financial, members of the Council simply did not believe that the new proposal to lease wharf frontage would realize the sums that the government predicted that it would. The second objection was more fundamental because it entailed a constitutional point. That objection was that it was contrary to practice and to a resolution of the Council to combine in a single bill two unrelated spending proposals. The standing orders of the Council since 1851 had provided in Order no 78
That no clause shall be inserted in any Bill, which shall be foreign to what the title of the Bill imports; and that such matters as have no proper relation to each other, shall not be intermixed in one and the same Bill.[80]
It was also a basic principle of colonial government. The instructions to successive governors provided that the Governor was to ensure in the passing of all laws, ‘that each different matter be provided for by a different law, without intermixing in the one and the same Act such things as have no proper relation to each other ...’.[81] As one member of the Council explained it was important to take a stand on the first bill to be sent to them in case the intermixing of different subjects in the same bill became a precedent for subsequent bills.[82] The Government’s representative in the Council sought to head off these developments by arguing that as a money bill the Council could not make sweeping alterations in the bill because this would in effect amount to a new bill initiated in the Council, contrary to the Constitution Act.[83] The majority in the Council rejected this argument and, though conciliatory voices were heard suggesting that attempts be made to avoid collisions between the two houses,[84] the amendments were passed and sent down to the lower house. Significantly the amended bill sent back to the Assembly had a modified title being ‘An Act to authorize the leasing of the Wharf Frontage at Port Adelaide, known as the North-Parade.’[85] indicating the Council’s emphatic rejection of the repeal of tonnage duties.
In the end the list of amendments made by the Council was formidable[86] and immediately attracted the vociferous opposition of the lower house. The following day the head of the executive in Parliament, the Chief Secretary.[87] Boyle Travis Finniss,[88] rose in the Assembly to object to the Council’s amendments as they touched upon the essential principle of the bill, and moved that the Council be requested ‘to reconsider the Bill, inasmuch as it is a breach of privilege for the Legislative Council to modify any money bill passed by this House’.[89]
The reaction of the Council was fierce and the conflict between the houses was joined in earnest with the President[90] of the Council issuing a lengthy document on the powers and privileges of the Council over legislation, especially money bills. The precise point in issue was whether the Council could amend a money bill. It was quickly accepted on both sides that the Constitution Act was the starting point for the argument, but both houses soon realized that section 1 of the Constitution Act was insufficient since it lacked language dealing directly and explicitly with the power of the Council to amend money bills. The President’s opinion started with the text of section 1 of the Constitution Act noting that the only limitation on the legislative powers of the upper house in respect to money bills was that such bills could not originate in that house. This meant, as he put it, that the powers of the two houses were ‘co-extensive and co-equal’.[91] In support of the argument the President referred to the Constitution Acts of New South Wales,[92] which contained a similar provision to that of South Australia, and, in contrast, the Constitution Act of Victoria which did expressly exclude the power of amendment of money bills for the Legislative Council in that colony.[93] In addition resort was also had to parliamentary practice in Tasmania where it was noted that the houses there had conferred on the matter and that the lower house had accepted the amendments made by the Council.[94] The argument was buttressed by learned references to upper houses elsewhere including the Senate of the United States when the opinion noted that Article 1 section 7 of the United States Constitution permitted the Senate to ‘propose or concur with amendments, as with other bills’. The legislative history of section 1 was also referred to by noting that the Parliament Bill of 1853 and Constitution Bill of 1855 contained clauses that only limited the Council in respect of the origination of money bills.[95] The main thrust of the argument then was that the matter turned on the strict terms of the Constitution Act itself and not on extraneous matters.
The other major point in the opinion was that there was no analogy between the houses of the South Australian parliament and those of the British parliament. This argument was designed to head off the lower house contention that the Council was analogous to the House of Lords, which it was said, could accept or reject money bills, but not amend them. The practice of the Lords in not amending money bills did not rest on law, but custom and, as Fisher pointed out, the House of Lords had never formally conceded that they could not amend money bills.[96] The President argued that South Australia had a written constitution while the United Kingdom did not, moreover the upper house on South Australia by the Constitution Act enjoyed the privileges of the House of Commons, not those of the House of Lords, and, of course, both Houses were elected in South Australia, while this was not the case for the imperial upper house.[97] Following debate on this opinion the Council passed a resolution to send the Tonnage Duties Repeal Bill as amended by the Council back to the Assembly asking that the lower house concur in the amendments made by the Council and, as the resolution put it, ‘this Council regrets that the House of Assembly had not adopted the more Parliamentary course of requesting a conference between the two Houses on the point in question.[98]
The matter then degenerated into a farce over the precise procedure by which messages were transmitted from one house to the other. The Council message to the Assembly was rejected on the ground that following imperial practice messages could only be sent while both Houses were sitting, and since the message was delivered during a period when the Assembly was not sitting it could not be received.[99] In retaliation the House message to this effect was itself rejected by the Council[100] using the argument that the message was sent at a time when the Council was not itself sitting. This spat did not derail the attempts of the Council to secure Assembly compliance with its amendments to the Tonnage Duties Repeal Bill, which were re-sent to the Assembly and received by them on 21 July.[101]
The following day the Assembly rejected the Council amendments making the argument that the power in section 1 of the Constitution Act to originate all money bills
necessarily includes the sole right to direct, limit, and appoint in such Bills the ends, purposes, considerations, conditions, limitations, and qualifications of the tax or appropriation by such Bill imposed, altered, repealed, or directed, free from all change or alteration on the part of any other House.[102]
The Assembly also rejected the insinuation of the Council that it had acted irregularly in not asking for a conference as in the opinion of the Assembly the issue had not reached the point where a conference was required. The Assembly did not agree to a conference between the Houses nor did it reject this; it simply ignored the issue, even though one member asked that the matter be resolved by a free conference between the two houses.[103] Free conferences were accepted as the only existing way to resolve disputes between the Houses and certainly were, as later evidence shows, part of the practice available to the houses of the South Australian Parliament.[104] The function of a free conference was for the managers, as the delegates from each house were called, to induce the other house to withdraw their objections to amendments to the bill in issue.[105] The Council then asked for a formal statement of the reasons why the Assembly rejected their amendments.
Meanwhile a vigorous debate on the relations between the two houses raged in the daily press. It was there in late July that the first indication of the solution to the crisis emerged. The idea that the Council might make suggestions for amendments, rather than insist on making amendments to money bills, seems to have been first mooted in a letter by a writer named ‘An Old Colonialist’ on 30 July. He defended the right of the Council ‘to suggest such alterations as they deem necessary ...’ and then further stated that ‘In the event of the suggested alterations being adopted by the Lower House, the bill will pass as a matter of course; if not they may reasonably expect it to be rejected.’[106]
To put even more pressure on the Assembly the Council unsuccessfully called for external intervention in the dispute. On August 4th the Council passed a resolution requesting a legal opinion on the powers of the houses by the South Australian law officers. The Attorney-General and the Crown Solicitor were also asked to consider three other matters: the definition of a money bill, which of such bills require to be originated in the House of Assembly, and whether the Tonnage Duties Repeal Bill was a money bill or not.[107] But this manoeuvre failed as it was the opinion of the Executive Council and the Law Officers that neither they nor the Governor could intervene in an intra-Parliamentary dispute.[108] This refusal to intervene protected the Governor from being dragged into the dispute and thus avoided risking the disapproval that would inevitably flow by taking sides; but it also meant that neither House could look for external aid to resolve the dispute. In early September the Governor, Sir Richard MacDonnell, who was experienced as both a lawyer and governor,[109] reiterated his stance and informed London in a dispatch that ‘I do not think it advisable, especially in a matter of privilege still pending, that I should offer any individual opinion of my own on the merits of a question which, unfortunately, is not without difficulty’.[110]
The view in London was relaxed with the Colonial Office recommending that the matter be noted only given the prospects of an early resolution to the dispute.[111] There was some discussion of different constitutional arrangements elsewhere such as the Cape Colony. But the Cape constitution had been written in London in the form of an Order-in-Council and did include power in the upper house to amend money bills.[112] That case was distinguished from that of South Australia where the Constitution Act was locally written. The view in London was that since South Australia had written the constitution the province had either to abide by its terms or amend it. New Zealand was also referred to for a question arose there under the New Zealand Constitution Act of 1852. In 1855 the Governor of New Zealand was advised to follow British precedent in a money bill matter. Governor Grey of New Zealand had pointed out that the 1852 Act provided for all money bills to originate in the House of Representatives, but nothing was said in the Act as to whether the Legislative Council might amend money bills. The assumption in London was that British practice would suffice.[113] But the New Zealand Legislative Council was at that time wholly nominated, as were upper Houses in the eastern Australian colonies, and this troubled the British who privately recognized that the South Australian case might be different. The Houses then were forced to deal with the matter out of their own resources.[114]
On 4 August the Council passed thirteen resolutions representing their full position on the dispute. The major points were that the Council could amend money bills and that the power to originate such bills in the Assembly did not prevent amendment at all, contrary to the Assembly position. In amongst the statement of its right to amend money bills the Council also stated that its position need not impede the conduct of public business and repeated, in the thirteenth resolution, its view that differences between the Houses should be resolved by a conference.[115]
At this point the matter was temporarily set aside when the Ministry led by Boyle Finniss resigned on 21 August to be replaced by a Ministry led by John Baker, who was a member of the Legislative Council. This short lived Government itself resigned on September 1st to be replaced by the third government of the year. After the collapse of the short lived Torrens Ministry on 30 September stability was restored when Richard Davies Hanson, the Attorney-General, became the head of the executive in Parlaiment.[116]
Meanwhile on 25 August the Council again debated the privilege matter and agreed to another set of five resolutions, while at the same time repeating its call for a conference with the House of Assembly. The tone of the resolutions of 25 August was decidedly conciliatory with equal emphasis on both the constitutional rights of the houses and the need to further public business. The five resolutions themselves started with a request to hold a conference (resolution no 1),[117] while the second resolution suggested that the conference be held to discuss the Council’s resolutions of 6 August. But it was the next three resolutions that were ultimately to prove decisive, though of course there was no understanding at the time that this might prove to be so. As they form three quarters of the compact it will be best to set out these resolutions in full.
III That this Council further declares its opinion, that all Bills, the object of which shall be to raise money whether by way of loan or otherwise, or to warrant the expenditure of any portion of the same, shall be held to be Money Bills.
IV That it shall be competent for this Council to suggest any alterations in any such Bill (except that portion of the Appropriation Bill that provides for the ordinary annual expenses of the Government), and in case of such suggestions not being agreed to by the House of Assembly, such Bills may be returned by the House of Assembly to this Council for reconsideration, in which case the Bill shall either be assented to or rejected by this Council, as originally passed by the House of Assembly.
V That this Council, whilst claiming the full right to deal with the monetary affairs of the Province, does not consider it desirable to enforce its right to deal with the details of the ordinary annual expenses of the Government, this Council shall, if any clause therein appear objectionable, demand a conference with the House of Assembly, to state the objections of this Council, and receive information.[118]
When business resumed in the House of Assembly in early September the House agreed to a conference,[119] which agreement was readily accepted by the Council.[120] Despite agreeing to a conference to be held on September 22nd, the actual conference was postponed until 29 September.[121] In the meantime both Houses prepared for the conference by separately deciding upon reasons for their respective positions. In their reasons the Council conceded that the Assembly did of course have the exclusive right to originate money bills and noted that the Assembly took the view that the Council could accept or reject such bills but not amend them.[122] The Council next asserted that British parliamentary privilege did not have the force of law in South Australia and that there was no analogy between the British and South Australian legislatures. It followed from this that the starting point had to be the text of the Constitution Act, which did refer to the power of the Assembly to originate a bill, but the term originate did not preclude the Council from dealing with money bills. After disposing of arguments based on the relations between the two houses of the British Parliament, the Council suggested that the Assembly adopt the 3rd, 4th and 5th resolutions of the Council passed by the Council on 25 August.[123] The conference was eventually held on 29 September when managers from each House met. What happened at the conference is not known, since free conference proceedings were traditionally held in camera with no record being taken of the debate between the managers, other than a formal record of their conclusions. Once a new Ministry was in place there were signs of a conciliatory attitude on both sides. In another promising sign the related dispute about how to transmit messages to each house was resolved when the Assembly agreed to change its standing orders on the matter and agreed to adopt a practice suggested by the Council.[124]
Meanwhile a Select Committee of the Assembly to draw up reasons on privilege reported on 4 November. The report[125] disagreed with the Council that no analogy could be drawn between the British and the South Australian houses of parliament, but did agree with the Council that the first section of the Constitution Act, apart from the proviso, conferred co-equal powers on the Council. Nevertheless given that the Constitution Act did not solve the problem, the solution, said the committee, must rely on some aspects of British practice. The Committee stressed that the House of Commons had always denied the right of the Lords to modify or alter money bills; it followed therefore that as the House of Assembly had the power to originate all money bills, ‘the right to exclude the Legislative Council from modifying or altering these bills is by direct and necessary implication also conferred’.[126] After this rather uncompromising beginning the report continued by asserting the right of the Assembly to have the sole right to direct, limit and appoint the ends of purposes of all money bills, but, in order to facilitate the conduct of public business, the House should not assert this right but rather agreed to resolutions 3, 4 and 5 of 25 August of the Council.[127] It will be seen from this that both Houses while adhering formally to their maximum positions actually agreed to give up those positions: the Assembly agreed to give up its right to appoint all the details of money bills and the position that the Council could not alter such details; while the Council agreed to give up its right to amend money bills in favor of the suggestion system.[128]
The House adopted the report by a vote of 24 to 2 on 17 November, but with the important amendment that the fifth reason refer to the arrangement ‘for the present’.[129] In the result the fifth reason of the Assembly, as amended, became the fourth resolution to constitute the compact. The amended text of that resolution reads[130]
5. That, in order to facilitate the conduct of public business, this House of Assembly, while asserting its sole right to direct. limit, and appoint in all Money Bills the ends, purposes, considerations, conditions, limitations, and qualifications of the tax or appropriation by such Bill imposed, altered, repealed, or directed, free from all change or alteration on the part of any other House, will, nevertheless, for the present, adopt the third, fourth, and fifth resolutions, as agreed to by the Legislative Council on 25 August 1857, and forwarded to this House by Message on that day.[131]
During the debates on the terms of the compact and on the Tonnage Duties Repeal Bill a number of arguments were deployed and sources relied upon by each house. These set the terms for subsequent arguments over the respective powers and privileges of each house and they also throw light on the sources each house relied upon to make its case. Of course the houses were not unanimous since the Government, which dominated the House of Assembly, had a few supporters in the Legislative Council. The focus in this section of the paper will be on the arguments that prevailed in each house.
The Council stressed from the outset that there was no analogy between itself and the House of Lords in Britain.[132] Members were adamant that this was the case and pointed to a number of differences between the two upper houses. In the first place the Council was wholly elected while the House of Lords was hereditary – a remnant, as one member put it, of the feudal system of bygone ages.[133] This meant that the Council was democratically based, albeit on a restricted property franchise. This was important because the British theory of the superiority of the House of Commons in money matters was based on the proposition that the Lords represented no one but themselves, while the commons represented the people, that is the tax paying community.[134] In short the non-representational nature of the Lords disabled it from being able to assert itself in money matters. Second, the Houses in South Australia were constituted by a written constitutional instrument and this gave them, with one exception, co-equal powers over legislation. The reason the Council sought to distinguish itself from the Lords was to blunt the argument mounted in the Assembly that the upper house had simply to accept lower house decisions about money bills in the same way that the Lords was supposed to so act in Britain.
In order to mount such an argument members of the Council sought support in constitutional systems with a written constitution, notably in the United States. References were made in debate to the United States Constitution and the position assigned by that constitution to the Senate,[135] as well as to the California Constitution of 1849[136] and the colonial constitution of Maryland. The citation of article 1 section 7 of the United States Constitution was particularly interesting because it reads ‘All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other bills.’ On one reading it may be argued that the Senate may not make amendments but may ‘propose’ them. The similarities to the later Council resolution asserting a right to suggest amendments is intriguing though there is no direct evidence that the suggestion idea came from Article 1 section 7. It is worth noting that the President of the Council also thought that the Senate of the United States was ‘synonymous with the Legislative Council, of this colony, though elected in a different manner’.[137] According to one member when the Constitution Act was being drafted frequent reference was made at the time to the United States Constitution by the Attorney-General and Mr Baker expressed the hope that ‘the precedent of that Constitution in that respect would not be lost on that learned gentleman now’.[138]
Citations of other American material included a reference to a Law Officer’s opinion in 1755 on the position of the houses of the Maryland Assembly. The British Attorney-General Charles Pratt wrote that the Proprietary of the Colony, Lord Baltimore, should stay out of an intra-assembly money bill dispute; that there was no analogy between the British houses and the houses in Maryland, or other American colonies, because the colonial houses were regulated by their charters and usages and not by the English lex parlimenti.[139]
In adopting this strategy, which involved rejecting the analogy with British, the allegedly more conservative upper house actually took the more intellectually adventurous position that the lower house, by turning to examples of upper house powers from outside the empire.
The Assembly, and its supporters in the Council, took the predicable line that the South Australian houses were mirror images of the British Houses and relied heavily on the statements of Imperial Parliamentary money bill practice embodied in Erskine May and in other writings by British writers on money bill matters.[140] In particular the Assembly sought solace in the famous resolution passed by the House of Commons of 3 July 1678 in which the Commons said
that all aids and supplies, and aids to His Majesty in Parliament, are the sole gift of the Commons, and all Bills for the granting of such aids and supplies ought to begin in the Commons; and that it is the undoubted and sole right of the Commons to direct, limit, and appoint in such Bills the ends, purposes, considerations, conditions, limitations, and qualifications of such grants, which ought not to be changed or altered by the House of Lords.[141]
Thus for the Assembly the term originate, which appeared in section 1 of the Constitution Act, included total control over a money bill. This argument was supported by reference to the same term in the United States constitution and the constitutions of several American states, including California, to embrace the same meaning as the 1678 resolution.[142]
One member of the Assembly, who supported the Council’s position, pointed out the inconvenient fact that while the Commons asserted its primacy in money bills in the resolution of 1678, in practice the Lords had made changes to money bills and that the Commons had in recent times acquiesced in this practice. Mr Babbage explained that in 1846 a committee of the House of Commons had accepted that railway bills, which were money bills, might originate in the upper house.[143] This point underscored a central problem for the Assembly, for they had to assert that the question was resolved in Britain in favor of the House of Commons, when in fact the matter was actually unresolved there.
The arguments of the Assembly were based firmly on British practice and in this they cleaved more closely to the British position than did the upper house. Thus the more democratic house was actually closer to the mother country than its allegedly unrepresentative upper house rival. The Assembly accepted that the powers of the Council over money bills did extend to the right to reject a money bill in toto, ‘but it was contrary to constitutional principles for them to amend a money Bill ...’.[144] One member suggested that when the Constitution was being drawn up it was intended that the Legislative Council ‘should be as much as possible in the position of the House of Lords’.[145] Other speakers supporting the Assembly’s position relied upon works on colonial constitutions that did assert the analogy between the Council and the Lords. Arthur Mills, Colonial Constitutions[146] was cited to this effect where he said that a colonial upper house ‘can originate and reject Bills, or propose amendments, except in cases of money Bills’. A critic of this citation pointed out that Mills was discussing appointed upper houses and that his comments had no application to the Legislative Council in South Australia which was elected.[147]
Speakers in the Assembly were less enamored of the analogy between the Council and the United States Senate making the point that the Americans had not embraced the British idea of responsible government,[148] and that in any case the United States was a republic[149] though how this made a difference was never explained. The point was also made that state constitutions, such as that of California, followed the idea that the term originate denied to the upper house a power to amend a money bill.[150] This was in fact a somewhat distorted view of the American position. Many states had a power to amend money bills and this was known in 1787 as Madison recorded in his Notes on the Debates on the Federal Convention.[151]
Despite the reliance on these British arguments there were members of the Assembly who recognized that the principal problem on both sides of the argument was that the constitution act simply had made no provision for the settlement of deadlocks and this defect meant that there was no mechanism within the constitution for ‘arranging any misunderstanding which may unhappily arise between the two houses’.[152]
One of the curious aspects of the conflict was that although the dispute was resolved the Bill that sparked the dispute not passed passed during the 1857-58 session, having been laid on the table of the House of Assembly on 24 July pending the further pleasure of the House;[153] in effect allowed to lapse since it was not proceeded with. It was only in 1860[154] that the Port Adelaide Improvement Loan Act 1854 was repealed and on that occasion the repeal was accepted by both houses. The immediate aftermath of the resolution of the conflict led in December 1857 to consideration of the most important money bill of all. By tradition the Appropriation Bill was introduced at the end of the session, receiving its first reading by the Assembly on 8 December 1857.[155] On this occasion the Legislative Council made minor amendments to the bill and sent these back to the Assembly with the message that the ‘Council desires the concurrence of the House of Assembly’.[156] The Assembly agreed to these amendments as they were deemed by the Assembly to be ‘of a verbal and formal nature, and in furtherance of the intentions of the House of Assembly’.[157] This rather formal exchange shows that the compact agreement by the Council not to amend money bills was not to be taken literally. By tradition minor amendments of a formal nature that did not touch on the essential principles of a money bill could be made by the House of Lords and the Assembly acquiesced in this practice on the part of the Legislative Council.[158]
At the end of the parliamentary session of 1857-58 the South Australian Parliament adopted the British practice, actually discontinued there in 1854, of conducting a public ceremony in which the Governor assented to the bills passed during the session.[159] The practice inaugurated in 1858 involved the Governor coming in person to the Legislative Council chamber where he was joined by a delegation from the House of Assembly led by the Speaker. The Speaker would present in the name and on behalf of the House of Assembly the money bills passed during the session for the Governor’s assent.[160] The titles of non-money bills passed were then read out by the Clerk of the Council to which the Governor would give his assent.[161] The practice by which the Speaker would personally present the money bill was intended to underline the point that the grant of money moved from the lower house.[162] The practice worked smoothly until 1872 when the Governor refused to accept the bill presented by the Speaker on the grounds that he already had a copy.[163] There was an extensive review of the previous practice and the House of Assembly urged the Governor to revert to the established way of doing things.[164] The Speaker a year later presented a protest that included a statement of English parliamentary practice on which the South Australian assent procedure was modelled documenting examples of the English procedure dating back to 1557.[165] The formal practice of presenting all bills to the Governor for his assent ended in 1909[166] and was replaced by the following year by a notice of the bill assented to by the Governor in the Government Gazette.[167]
In the same month as the Appropriation Bill was introduced the first of several attempts were made to replace the compact with an amendment to the constitution act. Boyle Travis Finniss introduced a bill that, amongst other things, would put the matter into a legal and constitutional shape rather than rely on a ‘compromise’. The other members of the Assembly agreed that the matter needed to be regularized, but that the time was not yet right correctly suspecting that the upper house would oppose any amendment to the local Constitution Act that in any way decreased their powers over money bills.
The other provision in the Constitution Act relevant to the conflict of 1857 was section 35 which allowed the Parliament to legislate for privileges, immunities and powers, ‘Provided that no such privileges, immunities, or powers shall exceed those now held, enjoyed, and exercised by the Commons House of Parliament, or the members thereof’. This was potentially an importance provision because money bill disputes between the houses were articulated as disputes about the respective privileges of the two houses. The former Legislative Council had claimed many of the privileges of the British Parliament including the privilege of freedom of speech, but admitted in an 1853 report that it had great difficulty in defining the privileges and powers of the Council.[168] The uncertainty over the privileges of the colonial parliaments remained until February 1858 when the Judicial Committee of the Privy Council handed down an important decision on the matter. The Privy Council held, in an appeal from Tasmania , then Van Diemen’s Land, in Fenton v Hampton,[169] that the lex parliamenti, the law of parliament that had evolved in England, was not part of the English law inherited by British colonies.[170] This left open the difficult question of just what parliamentary privileges applied in the colonies. The Judicial Committee held that the Tasmanian Parliament did not have to power to arrest persons for contempt, unlike the British Houses of Parliament, but did have such inherent powers sufficient to maintain order within the Houses themselves. The problem for colonial parliaments was then to determine what privileges they should have and steps were taken in South Australia to pass legislation defining the privileges of parliament.[171] The resulting act dealt almost exclusively with the relations between the Houses and persons outside the House; there was no provision in the legislation for relations between the houses.[172]
The result of these aborted manoeuvres was that the compact remained the only mechanism for resolving conflicts between the houses over money bills. Even then the terms of the resolution by the Assembly made it clear that it was an arrangement ‘for now’ and was by no means guaranteed to survive. In 1868[173] and 1874[174] when further disputes arose concerning money bills several members asked if the compact was still in existence and operative. George Strickland Kingston who had negotiated the compact on behalf of the Assembly indicated in 1878 that the agreement was unfortunate and that he sincerely hoped that the resolution passed by the Assembly in November 1857 would be rescinded.[175] This was a suggestion that did not take hold in the Assembly even though Kingston suggested that the resolution should be dispensed with, but that would require a further resolution of the Assembly to repudiate the compact, a measure other members were unwilling to adopt.
In the early 1860s the compact had not even acquired the name of a compact, a term that only came into use in 1863,[176] although thereafter it remained in vogue until 1913. Thus for much of its history the Compact was known as a compromise,[177] an agreement,[178] and even as a contract.[179]
Generally speaking the compact held sway during the next five decades and attempts to alter it or replace it were rejected, even in the lower house. Thus in 1863 draft resolutions that would have only allowed the Council to amend or suggest changes to a money bill with the permission of the Assembly were rejected 16 votes to 7.[180]
For the most part the houses acted on the basis of the compact and section 1 of the Constitution Act and invoked its terms if breaches were discovered. These breaches included initiating a money bill in the Council, which was contrary to section 1, and in such a case the bill was not entertained by the Assembly,[181] and holding that an amendment made to a money bill was a breach of section 1.[182]
If the Council did forward suggested amendments to the Assembly the House had two choices. It could either agree with the suggestions, which it did from time to time, or it could disagree and send the bill back to the Council with its reasons.[183] In that case the only option under the existing arrangements, and something the compact itself made no provision for, was to hold a free conference. In that case mangers, ie usually three delegates, were sent from each house. Sometimes these conferences resolved the dispute, but on other occasions they did not. The only options in that case were for the Assembly to withdraw the bill, forward it again to the Council and risk the formal rejection of the bill by the Council, or to draft a new bill more acceptable to the upper house.
One example of a major dispute arose in 1874 over the Loan Bill of that year. The Council made amendments to the bill that the Assembly disagreed with. The President of the Council noted that up until 1874 the Assembly had accepted that the Council might forward amendments and that the suggestion terminology of the compact was not always required.[184] One feature of the dispute was the production of a long minute by the Speaker of the Assembly, George Kingston, in answer to an opinion by the President of the Legislative Council, in which Kingston made it quite clear that the compact of 1857 was in force, and he reproved members of the Council for throwing doubt on the matter.[185] In their reasons for disagreeing with the Assembly, the Council had questioned the status of the compact by saying that
... without expressing any opinion whether the agreement between the two Houses of Parliament, based upon the resolutions of November 1857, is still subsisting and binding on the present Parliament or otherwise ...’.[186]
In debate some members of the Council suggested that the compact only bound the first Parliament of 1857 and that it had no binding force, either morally or legally on the present house.[187] Charles Mann, the Attorney-General, told the House of Assembly that this was true in the light of the doctrine that no Parliament could bind another but, nevertheless, the resolutions were valid and as they remained unrepealed, and as there was no record of a repeal, they remained valid and operative.[188]
But the real interest of the document lies in the extensive review of money bill issues since 1857. The Speaker warned the Assembly that pressure from the Council to make amendments might either see the House of Assembly give way, and thus lose control over a money bill, or oblige the production of a fresh bill more to the Council’s liking.[189] In the case of the Loan Bill no suggestions were made, but the Council forwarded amendments not of a purely verbal or formal nature. In the event the Assembly withdrew the Loan Bill and introduced a second bill rather than risk outright rejection by the Council. The Council also disagreed with parts of the Loan Bill No 2 but this time the President recommended to the Council that they forward suggestions for amendment rather than amendments to the Assembly.[190] In the event the Council agreed to the bill without objections on the basis that it was a matter of urgent public business that the bill be passed, and thus the conflict came to an end.[191]
One immediate result on the conflict in 1874 was to revive the strict terms of the compact for thereafter the Legislative Council generally restricted itself to making suggestions for amendments to money bills.[192] The result of this adherence to the terms of the compact by both houses ensured that the compact acquired ‘the growing force of continuous usage and custom’.[193] Thus in a ruling by the Deputy Speaker of the House of Assembly in 1887 it was said:
I take it that this compact thus made, ratified and continued, cannot now be set aside by any ruling from the chair, but that on the contrary, the chair is bound to rule in accordance with the terms of the compact, unless this House should declare by its own resolution that it will no longer be bound thereby. In other words, it is not for the chair but for the House itself to determine when the compact shall cease to be binding.[194]
Despite these occasional expressions of discontent with the compact it was recognized that the compact was ‘a convenient safety-valve, and allowed a little more free-play than would exist in the absence of such resolution’.[195]
It did not follow from this that the Assembly would accept the suggestions, though they often did so,[196] and when they did not, as in 1878, for example, they might submit to the Council a new bill minus the objectionable clauses.[197] In some cases the Council gave way in the face of the Assembly’s rejection of its suggestions[198] and usually each house when agreeing with the amendments of the other house would rescind their own original resolutions that had been disagreed with;[199] in other cases the Assembly made amendments to the Council’s suggested amendments and the Council agreed to these.[200]
One feature of the compact that gave rise to disputes was whether the resolution defining a money bill as ‘a Bill, the object to which is to raise money, whether by loan or otherwise’[201] meant that while the Council could not amend a bill to increase expenditure, it could reduce expenditure. The Council thought that it had such a power,[202] but as so often in South Australia the conflict was quickly diffused when the Assembly decided that the bill was not a money bill within the terms of the compact and that therefore the Council could amend it.[203] Even when the houses accepted the views of the other house they were often at pains to stress that their concessions, usually designed to ensure the progress of public business, were to be in no way seen as a precedent.[204]
One refinement that arose in the 1890s was whether a money clause in a bill largely devoted to other matters came within the terms of the compact. The view of the Council was that a single money clause in a bill did not make that bill as a whole a money bill, otherwise , since this was common, almost no bills could be initiated in the Legislative Council.[205] The argument was that the compact was confined to bills that had as their object the raising of money and that this did not apply to bills where the objects were otherwise, but in which the raising of money, such as by imposing licensing fees, was incidental to the object of the bill. The Council in 1903 sought to embody this principle in a standing order in which such clauses added by the Council would appear in the text of the bill as erased type, but it seems that as late as August 1913 this arrangement, which was supposed to be agreed to by the Assembly, was not actually in force.[206]
The compact began to breakdown as a result of a series of conflicts from 1907 onwards that eventually led to the refusal of the Legislative Council to pass the Appropriation Act. The first signs of trouble occurred in 1907 when the Council suggested to the Assembly that the public works vote in the Appropriation Bill of that year be reduced by 52,000 pounds.[207] The argument of the Council was that specific public works items should be the subject of separate legislation and should not be introduced for the first time as a part of the Appropriation Bill,[208] which, by tradition, the Council did not seek to amend.[209] During the debate on the matter in the Council the President stated that the compact had been superceded in this case by standing order no 345 that permitted the council to make suggested amendments to the Appropriation Bill.[210] That order stated that[211]
If the Assembly does not agree to make the suggested amendments or agrees to make some and not others or agrees to them with amendment, and returns the Bill to the Legislative Council with a message to that effect, together with reasons for the action of the House, the Council shall insist or not insist on its suggested amendments or agree or not agree to the Assembly’s amendment. But should the Council so insist or not agree it shall either request a conference or lay the Bill aside.
The Assembly refused to accept these suggestions and a conference between the two houses was held in which the Council agreed to give way on one of the suggestions, but not on one of its suggested amendments.[212] The conference procedure had been amended by agreement between the houses in 1903 with joint standing order on the matter.[213] In the end the Council changed its mind and gave way on its suggested amendment[214] and it was agreed that early in the new session of the Parliament the question of policy raised, whether new public works should be included in the appropriation bill or not would be addressed. Members congratulated themselves in getting out of the problem since the Council decided not to lay the bill aside, ie veto the bill.[215]
Despite the promise to deal with the policy issue, nothing happened in 1908, and in December of that year the Council again raised objections to the introduction of new public works items in the Appropriation Bill.[216] While the resulting conference between the two houses induced the Council to withdraw its objections to the Bill, the Council did also say that it was desirable that a joint committee of both houses should be set up to consider the matter.[217] One proposal was to solve the problem by framing a clear set of standing orders that would deal directly with the policy issue, but again this proposal came to nothing.[218]
In the meantime the Government sought to pass amendments to the Constitution Act to resolve deadlocks, but this proved fruitless when in 1909 the measure was lost in the Assembly and in 1910 the bill was lost in the Council.[219] In July 1911 the Assembly debated the second reading of the Legislative Council Veto Bill that had the intention of implementing in South Australia the recently enacted Parliament Act 1911 (UK). The effect of the bill would strip the Council of its power to veto money bills.[220] Once passed the House of Assembly the real hurdle lay in the Legislative Council, which decided to defeat the bill by refusing the bill a second reading.[221] With its full powers intact the Council again suggested amendments to the Appropriation Bill the following December. While the Assembly agreed to some of these suggestions the sticking point was the insistence of the Council that the public works vote be reduced by 10, 000 pounds originally allocated to pay for a state run brickworks.[222] The Assembly disagreed with the suggested amendments on the grounds that to agree would give the Council a veto over specific items in the budget. A conference was then agreed to but this failed to resolve the matter and the Assembly returned the bill to the Council asking for its further consideration.[223] The Council decided after further consideration of the bill to lay the bill aside.[224]
At this point a full blown constitutional crisis developed for the Council had in effect denied the Government supply and in a vain attempt to fight its way out of the crisis the Verran Government appealed to the Imperial Government asking for their intervention. The appeal asked that the Imperial Parliament to enact the Council Veto bill along the lines of the Parliament Act 1911 (UK). The effect of this would have been to strip the Council of all powers over money bills.[225] The same day as the Memorandum was read into the Assembly Hansard a motion was moved successfully by Sir John Downer in the Council making it clear that the Council did not support the appeal to the British Government and, in the words of the resolution, that the views expressed in the cablegram sent 23 December 1911 were ‘incomplete, disingenuous and misleading’.[226] This was an important intervention by the Council since the established British policy had been to refuse to intervene in disputes within self governing colonies unless the appeal to the imperial government was agreed to by both houses and, even then, the appeal had to accept in advance that the houses would abide by a British decision.[227] This policy was first enunciated in the case of a money bill dispute in New Zealand in 1872[228] and again in an appeal by the houses of the Queensland Parliament in 1886.[229] In both cases the required conditions were met. In contrast an appeal by the lower house of the Tasmanian Parliament in 1899 did not meet these conditions and London refused to intervene in the dispute between the houses.[230]
The British authorities quickly replied that they would not intervene in the affairs of the self governing colony ‘until every constitutional remedy has been exhausted’.[231] The immediate problem was that there were insufficient supplies to pay for the public service with Ministers issuing dire warnings that public servants would not be able to afford Christmas dinner. The Council offered to pass a supply bill to deal with the problem,[232] and in so doing met one of the key requirements for the calling of an election.[233] Faced with little choice the Government resigned, Parliament was prorogued on 5 January 1912[234] and dissolved on 16 January[235] as a precursor to an election. The result of the election held on 10 February saw the government defeated when the Verran government lost seven seats in the House of Assembly and the opposition party returned to power.[236] The new government lost no time in informing London of the results of the election and pointed out that the new Parliament passed the previously rejected Appropriation Bill minus the elements to which the upper house had objected. The result the new administration said was that no action was now required on the matter.[237] Superficially the crisis was over, but all recognized that a long term and effective solution was needed. Consequently in August 1912 the Assembly debated the Constitution Amendment (Appropriation) Bill 1912, which was intended to regularize the matter once and for all.[238] But the bill did not proceed beyond the Assembly and lapsed in October.[239]
The successful replacement of the compact was accomplished in 1913 with the passage of the Constitution Amendment Act 1913. The clear intention at the time,[240] and this was also recognized later,[241] was to embody the principles of the compact in a legal form. This met with little difficulty since the fifty seven year history of the compact had made it, on one view, part of the constitution.[242] The introduction of the bill sent up from the Assembly was initially held up by a member who sought to argue that the bill was ultra vires the Imperial Act of 1850. Mr Vaughan argued that the 1850 Act only contemplated a bicameral legislature and that the practical effect of the bill would be to create a unicameral legislature.[243] The President of the Council rejected this argument pointing out in his ruling that the Parliament was competent to amend the constitution, and that the Imperial Act of 1850 contemplated both a unicameral and a bicameral legislature.[244]
In the result the new act repealed the proviso to the section 1 of the Constitution Act 1856, redefined a money bill and a money clause in a bill, stressed that a money bill and a money clause shall only originate in the House of Assembly (section 23), and for the first time stated that the Legislative Council ‘may not amend any money clause’ (section 24(1)). This was regarded by some members as a clear taking away of a power that many in the Council thought that they possessed,[245] but was accepted in exchange for concessions by the Assembly elsewhere in the new amendments. The suggestion mechanism was retained (section 24(2)) and thereby put into the constitution the fourth resolution of 25 August 1857. The problems caused by inserting new policy proposals not previously approved into the annual appropriation act were overcome by section 25, which prohibited this practice, thus conceding to the Council its central objections to several of the Appropriation Bills since 1907. However, section 27 left open the possibility that these new arrangements might be overlooked by a subsequent Parliament because the non-observance or infringement of these provisions would not affect the validity of any Act assented to by the Governor.[246]
It is widely acknowledged that the compact played a major role in the drafting of section 53 of the Commonwealth Constitution.[247] Less clear was how this came about with most accounts satisfied merely to assert the connection rather than to go through the historical evidence. When the delegates to the first constitutional convention met in Sydney in March 1891 they began by debating a series of resolutions proposed by Sir Henry Parkes of New South Wales. The first addendum to the resolutions provided for a bicameral legislature, including a Senate. The addendum provided that the House of Representatives was ‘to possess sole power or originating and amending all bills appropriating revenue or imposing taxation’.[248] Sir Henry explained that in drafting this proposal he thought that the experience of other countries was not to be trusted and that the Australians would have to make explicit provision for the matter themselves.[249] The convention did not come to the meeting without prior help. Two delegates produced draft constitutions to assist the delegates in their work. Andrew Inglis Clark of Tasmania provided in his draft that money bills were to originate in the House of Representatives and that such bills ‘may be amended or rejected by the Senate: Provided that no amendment shall be made to any such Bill by the Senate which would have the effect of increasing any proposed expenditure, or tax or impost’.[250] This suggested provision then allowed the Senate to amend money bills such as to reduce the monies spent, but not so as to increase expenditure. This proposal went against the terms and practice of each of the existing colonial constitution acts and was not accepted by the drafters in 1891.
The more influential draft was that of Charles Cameron Kingston of South Australia. The Attorney-General of South Australia, was the son of Sir George Kingston, who had drafted the money bill proviso to the Constitution Act 1856 (SA), and who had been the Speaker of the House of Assembly during the conflict of 1857. It is not too much to conjecture that Charles probably grew up with and imbibed parliamentary practice in his formative years given that his father was the Speaker from 1856 to 1860 and again from 1865 until 1880.[251] In any case the Kingston draft provided that while money bills were to originate in the National Assembly, as Kingston called the lower house, ‘the Senate shall not alter any such Bill, but may make suggestions for the amendment thereof; and in the event of such suggestions or some modification thereof not being accepted by the National Assembly the Senate shall either pass or reject such Bill’.[252] The money bill provision of the Kingston bill was directly referred to by Thomas Playford of South Australia during the debate on the Parke’s resolutions.[253] It seems clear that the language of the draft with the use of the word suggestions drew directly on the resolutions of the 1857 compact. Playford later explained in 1903 that he was the first to suggest to Parkes a way out of a conflict between those in 1891 who wanted to deny to the Senate the power to amend money bills, and those who wished to give the Senate such a power. Playford said ‘I suggested to Sir Henry Parkes that a way out of the difficulty and a compromise might be found by following the example of South Australia, when, in the parliament of that State, a conflict occurred between the two Houses on a question of the right of one House to amend Money Bills. A compact entered into between the two Houses of that parliament by which, in dealing with Money Bills, the Legislative Council had the right of making suggestions in the form of requests’.[254]
By the time the convention came to debate the first official draft. produced by a drafting committee led by Sir Samuel Griffith of Queensland, and which included Kingston amongst its members, the proposed language of clause 55, as section 53 was then numbered in the draft, allowed that the Senate may affirm or reject a money bill, but could not amend it.[255] Subclause 5 of clause 55 permitted the Senate to return at any stage a money bill to the House of Representatives with a message requesting the omission or amendment of any items or provisions.[256] This language was not of course identical to the suggestion provision of the compact, but it is clear from the convention debates that it derived from the compact as many speakers at the convention made plain. Thus Mr MacMillan referred to the language as the equivalent to the Senate sending suggestions to the lower house and said ‘It has been heard of in South Australia.’[257] A South Australian delegate, Thomas Playford confirmed this saying that ‘it has worked for years’.[258] Other delegates also referred to the South Australian system in favourable terms.[259] The principal drafter of the constitution, Sir Samuel Griffith said of the South Australian suggestion system,
The suggested method of compromise, as it may perhaps, be called, has been working in South Australia for many years, and, I am told, with great success. I, for my part, feel very confident in recommending it... .[260]
Despite these words of praise some members of the South Australian delegation questioned whether the compact had worked as well as many had claimed.[261]
Strong support for the South Australian system of suggestions by the upper house emerged from the Western Australian delegation who explained to the Convention that when the Western Australian Parliament began the period of responsible government in January 1891 the Parliament carefully studied the South Australian procedure and adopted it in both houses.[262] References to the compact again surfaced during the second convention sessions at Adelaide in 1897 and at Sydney in the same year. These references were in the context of an attempt to change the compromise of 1891 by giving the Senate the power to amend money bills. This attempt to expand the powers of the Senate over money bills was defeated in Sydney and in the course of the debate Edmund Barton reiterated his words in Adelaide by saying, amongst other things,
If the second chamber makes suggestions such as are enabled to be made in this colony (South Australia) under the Compact of 1857, which not a matter of law but a matter of agreement; if the second chamber makes suggestions under an agreement of that sort, and if the suggestions are not adopted, that house must face the responsibility of deciding whether it will veto the bill or not.[263]
At the Adelaide convention support for the suggestion system again came from the leader of the Western Australian delegation Sir John Forest who pointed out to delegates that the Western Australian parliament had taken the compromise of 1891 as embodied in the draft constitution of that year so seriously that the parliament in Perth amended the local Constitution Act to enact the same idea.[264] The leader of the Adelaide Convention Edmund Barton of New South Wales went out of his way to support the proposal in the 1891 draft by citing the works written about the compact of 1857, written by the then Clerk of the South Australian Legislative Council and Clerk of the Adelaide Convention, Edwin Blackmore. While noting that the compact had no legal or statutory status, Barton stressed that South Australian delegates had informed him that while there had been occasional differences within South Australia over the working of the compact, ‘the average result has been an improvement in the relations of the two Houses, and a considerable improvement in many cases of the legislation sent from one House to the other’.[265] Delegates from other colonies with a less fortunate history of money bill disputes, such as Victoria, were aware that the proposal drew upon the South Australian case with Alfred Deakin of Victoria noting that it was a power ‘only possessed by South Australia’.[266]
The issue arose for the last time in Melbourne in 1898 when an amendment to omit paragraph four of clause 55, which would have eliminated the suggestion process, was defeated. In the course of the debate on the amendment Sir John Forest of Western Australia reminded delegates of the existence of the South Australian compact which embodied the power of suggestion, and told delegates that the difference between suggestions, as he called the Senate’s power to request changes, and amendments by the Senate were in practice very great. In the case of a suggestion by the Senate the ultimate responsibility for changing the bill lay with the lower house, but if the Senate had a power to amend the upper house would have a power to actually alter the text of the bill.[267]
In the result the Convention of 1891 issued a full draft that made provision in clause 55(5) for the Senate to request amendments to money bills sent up by the lower house. It seems that this provision provided the inspiration for the amendment to the West Australian Constitution Amendment Act 1899 which adopted language very similar to clause 55.[268] At the Adelaide session of the second constitutional convention in 1897 it was agreed that Sir Richard Baker the President of the South Australian Legislative Council would prepare a paper for the convention on the Money Bill procedure in South Australia. This paper was published as a paper of the Convention during the Melbourne session in February 1898.[269]
Clause 55 paragraph four of the 1891 draft Commonwealth Constitution remained remarkably stable during the subsequent drafts of the Constitution Bill and emerged in the Commonwealth of Australia Constitution Act 1901 (UK) as section 53 paragraph four in the following terms:
The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any such omissions or amendments, with or without modifications.’
The compact of 1857 with its procedure whereby the upper house may not amend, but could suggest amendments to money bills, has now had a lasting impact on Australian constitutional law. Not only has the idea found its way into the Commonwealth constitution, where it remains to this day, the idea also had an impact on the later state constitutions. During the first three decades of the twentieth century most state constitutions were amended to adopt the section 53 procedure of the upper house requesting amendments as one means of handling money bill disputes. Thus in Victoria in 1903, for example, the Constitution Act was amended to allow the Council to return bills that it could not alter to the Assembly ‘suggesting by message the omission or amendment of any items or provisions therein’.[270] As the marginal note to this provision makes clear the draftsman relied upon section 53 for this sub-section. Similar provisions appeared in amendments to constitution acts in South Australia in 1913,[271] New Zealand in 1914,[272] Western Australia in 1921,[273] and Tasmania in 1926.[274] In the case of New South Wales in 1933 the language of suggestion[275] appears in the Constitution Act, but in a section that provided for joint sittings in the event of a deadlock between the two houses.
The advantage of a compromise is that it allows a parliament to operate in a situation for which the constitution made no provision, and is in a fashion a sort of informal amendment to the Constitution itself. This allows the houses not to surrender their formal positions, while actually doing so. Thus before 1913 the Assembly refused to accept that the Council could amend money bills and through the 1913 amendment secured this position in law. The Council for its part refused to accept that it had no right to amend, but agreed to not exercise this power because otherwise public business would be impeded. The suggestion mechanism, backed with the power to refuse a money bill altogether, allowed the Council to effectively amend money bills without actually doing so.
The disadvantage of a constitutional practice such as the compact of 1857 is that depends upon mutual restraint and will only survive as long as both houses accept it. Once the practice breaks down the parliament must then move to a formal change in the constitution or suffer the consequences. While the South Australian Constitution Act had had a deadlock provision since 1881 it proved to be unworkable. Once the compact broke down in 1912 there was little choice but to agree to the 1913 amendments to the Constitution Act. During its fifty seven year life the compact was a testament to the parliamentary virtues of moderation, creativity and compromise, and to the overwhelming recognition in both houses that public business had to be forwarded for the sake of the province and its people.
[*] BA(Hons), LLB (Otago), D Phil (Oxon), Professor of Law, Flinders University, Adelaide.
[1] R G Menzies, Afternoon Light (1967) 320 cited in Shaw v MIMA [2003] HCA 72; (2003) 218 CLR 28, 37[12] (Gleeson CJ, Gummow J, Hayne J) and in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 514[108] (Callinan J). See also Sir John Downer’s remarks in Official Report of the National Australasian Convention Debates, Sydney, 2 March to 9 April 1891 (Sydney: Government Printer, 1891) 712(3 April 1891) [hereinafter as 1891 CD ] ‘The law of the constitution, as was well said by Bourinot in his essay on Canadian federation, consists, not merely of the letter of the law, but also of what he calls the conventions of the law-understandings superadded to the law which in strictness he says are not the law at all; but which still have the force and authority of the law, because they are the basis on which the law is made’.
[2] See the remarks of Edmund Burke in the eighteenth century who noted that while despotisms were simple and crude in character, free constitutions as he called them, were necessarily complicated: ‘Speech on the Middlesex Election’ 15 April 1769 in Paul Langford (ed), The Writings and Speeches of Edmund Burke (1981) vol II, 229. See also ‘Reflections of the Revolution in France’ 1790 where he comments on the defects of simple governments in Ibid (1989) vol VIII, 112.
[3] See George Winterton, ‘1975: The Dismissal of the Whitlam Government’ in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (2003) 229-261.
[4] Enid Campbell, Parliamentary Privilege (1966); Parliamentary Privilege (2003); John Waugh, ‘Contempt of Parliament in Victoria’ [2005] AdelLawRw 2; (2005) 26 Adelaide Law Review 29-54. See also the two manuals on Federal Parliamentary practice: Ian C Harris (ed), House of Representatives Practice (4th ed, 2001) and Harry Evens (ed), Odgers’ Australian Senate Practice (11th ed, 2004) and the Supplement to this work to 31 August 2006.
[5] Laffer v Minister for Justice (WA) [1924] HCA 39; (1924) 35 CLR 325, 338 (Issacs ACJ); The Commonwealth v Kreglinger & Fernau Ltd [1926] HCA 8; (1926) 37 CLR 393, 412 (Isaacs J). For a useful monograph on the whole subject see Rodney Brazier, Constitutional Practice (3rd ed, 1999).
[6] Combet v The Commonwealth (2005) 80 ALJR 247, 285-286 [155]-[161] (Kirby J). See also The Commonwealth v Colonial Ammunition Co Ltd [1924] HCA 5; (1924) 34 CLR 198, 223 (Isaacs and Rich JJ).
[7] South Australia v O’Shea (1987) 163 CLR 378, 387 (Mason CJ).
[8] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 364 (Mason J); Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 494 (Gleeson CJ, Gummow and Hayne JJ).
[9] Marquet v Attorney-General (WA) [2002] WASCA 277; (2002) 26 WAR 201, 272[302] (Wheeler J).
[10] Xenophon v South Australia [2000] SASC 327; (2000) 78 SASR 251, 260[38] (Bleby J).
[11] As noted in The King v Boston [1923] HCA 59; (1923) 33 CLR 386, 399 (Isaacs and Rich JJ). Responsible Government was of course a key idea during the constitutional conventions of the 1890s. See, for example, 1891 CD 162 (9 March 1891) where Mr Kingston of South Australia said: ‘... it is essential to the establishment of a federal constitution that we should have a system of responsible government ...’ The doctrine has been referred to in passing in some statutes. See Crown Suits Act 1947 (WA) s 8(4).
[12] As Dixon J pointed out in Resch v Federal Commissioner of Taxation [1942] HCA 2; (1942) 66 CLR 198, 223 ‘The practice of the British legislature and of Dominion and colonial legislatures may serve as a guide in determining whether a provision of a given kind is regarded as falling within a particular subject matter’.
[13] Compacts were discussed before and after the events of 1857. See Minute on the Existence of a Compact, 1835 in New South Wales, Votes and Proceedings of the Legislative Council 1844, 423 referring to an alleged agreement between the Council and the executive over the appropriation of revenue; and Commonwealth Parliamentary Debates, House of Representatives, 13 May 1965, 1484-1485 referred to as a compact in The Third Paragraph of Section 53 of the Constitution, November 1995, Commonwealth Parliamentary Paper [hereinafter as Cth PP ] No 307 of 1995, 157 para 13.2.
[14] W Frederick Merriman, The Aldine History of South Australia (1890) vol 1, 150; Edwin Hodder, The History of South Australia (1893) vol 1, 308-310; James Woods, The Province of South Australia (1894) 147; G W Rusden, History of Australia (2nd ed, 1897) vol III, 322-323; John Blacket, History of South Australia (2nd ed, 1911) 285-286; F L Parker, ‘Some Aspects of Self-Government’ in Centenary History of South Australia (1936) 103; W G McMinn, A Constitutional History of Australia (1979) 74; P A Howell, ‘Constitutional and Political Development, 1857-1890’ in Dean Jaensch (ed), The Flinders History of South Australia (1986) 164; Frederick Madden and David Fieldhouse (eds), Settler Self-Government 1840-1900 (1990) 392 fn 2.
[15] See for example Gordon D Combe, Responsible Government in South Australia (1957) 90-91; Commonwealth Parliament, Senate, Report on Appropriation Bills and the Ordinary Annual Services of the Government, Cth PP No 55 of 1967, 16. See also the passing summary in Annual Report of the Auditor-General for the year ending 30 June 1951 in Cth PP no 95 of 1951-52-53, 1501 para 4. J E Richardson, ‘The Legislative Power of the Senate in Respect of Money Bills’ (1976) 50 ALJ 273, 282 fn 52 takes the text of the compact from Combe.
[16] Thus Combe ibid 90-91; Report from the Committee of Government Senators on Appropriation Bills, 19 May 1967, Cth PP No 55 of 1967, 16 para 53, and Mark Leeming, ‘Something That Will Appeal To The People at The Hustings: Paragraph 3 of Section 53 of the Constitution’ (1995) 6 Public Law Review 145, 145-146 Appendix: The South Australian Compact, list the three resolutions of the Legislative Council only and almost completely ignore the important text of the House of Assembly resolution that accepted the Council’s resolutions.
[17] John Quick and Robert Garran, Annotated Constitution of the Commonwealth of Australia (1901) (1976) 672.
[18] Such as: Bradley Selway, The Constitution of South Australia (1997) 54 fn 67. See also the citation of Quick and Garran by the leading monograph by an historian on the Australian constitution: J A La Nauze, The Making of the Australian Constitution (1972) 53 and 338 fn 38.
[19] Thus McHugh J in the recent case of Combet v The Commonwealth (2005) 80 ALJR 247, 261 [47] relied upon Sir W Harrison Moore, The Constitution of the Commonwealth of Australia (1910) (1997) 142-143 for an account of the compact, as did Kirby J in the same case at 300 [242]. Harrison Moore claims wrongly that the Constitution Act made no special provision for money bills save as to their recommendation to the Assembly by the Governor. This overlooks the proviso to section 1 of the Constitution Act to be discussed below.
[20] Thus Boyle Travis Finniss, Constitutional History of South Australia (1886) 449, 493-563 was a participant in the original debate as the head of the Ministry in the lower house at the time, and he was also the mover of a bill in late 1857 to curtail the legislative powers of the Council over money bills. The Finniss account seems to have been the main basis for the brief account by Mark Leeming, ‘Something That Will Appeal To The People at The Hustings: Paragraph 3 of Section 53 of the Constitution’ (1995) 6 Public Law Review 145, 145-146 Appendix: The South Australian Compact. See also Anne Twoomey, The Constitution of New South Wales (2004) 565 fn 137.
[21] E G Blackmore, Manual of the Practice, Procedure and Usage of the Legislative Council of the Province of South Australia (1889) 163-187. Note also the second edition of this work edited by Frederick Halcomb (1915) 244-272 that deals with the history of the compact until 1913. Blackmore has been described as the ‘prince of authorities on parliamentary procedure’: see SAPD, LC, 24 April 1957, 6.
[22] Edwin Craddock Nowell, A History of the Relations Between the Two Houses of Parliament in Tasmania and South Australia (1890) Part II.
[23] Alpheus Todd, Parliamentary Government in the British Colonies (2nd ed, 1894) 711-717. See also the important work by Richard Chaffey Baker, ‘South Australia: Powers and Practice of The Two Houses of Parliament In Reference to Money Bills’ in Proceedings of the Australasian Federal Convention 1898, Victoria PP No 18 of 1898, 249-258 and the same author’s ‘Notes on the Constitution of South Australia’ in J J Pascoe, History of Adelaide and Vicinity (1901) appendix H, xiii-xiv.
[24] See the Despatch from the Secretary of State, 15 December 1852 in Despatches on New Constitution & Land Fund in SAPP No 10 of 1853.
[25] See Resolution of the Legislative Council, 14 November 1849 as Enclosure No 1 to Despatch from Sir Henry Young to Earl Grey, 16 November 1849 in Papers Relative to The Proposed Alteration of The Constitution of the Australian Colonies, 12 British Parliamentary Papers (Australia) [hereinafter as BPP] 14.
[26] Election Act No 1 of 1851(SA) s 1 which provided that 16 out of the 24 members were to be elected. The other eight members were officials appointed by the Governor.
[27] For the legislation governing elections to the Council prior to responsible government in 1856 see Act No 1 of 1851; Act No 32 of 1853 and Act No 11 of 1854.
[28] Amendment of The Constitution, 12 November 1852 in SAPP 1852, 1 clause 5. Note that prior to 1853 South Australian Parliamentary Papers were not numbered.
[29] George Strickland Kingston (1807-1880) who was born in Ireland and educated as a civil engineer, was elected to the Legislative Council in 1851, became the Speaker of the House of Assembly in 1857 where he remained in that position until 1860 and again was the Speaker between 1865 and 1880. He was also responsible for the design of many of Adelaide’s leading buildings. For biographical details see Donald Langmead, Accidental Architect: The Life and Times of George Strickland Kingston (1994).
[30] Votes and Proceedings of the Legislative Council, [hereinafter as V and P] No 52, 4 November 1853, 173 item 4. The motion was lost 11 votes to 5. Note that before responsible Government the official journal of the Legislative Council was known as the Votes and Proceedings; after 1857 it became the Minutes, while the Votes and Proceedings term thereafter applied to the House of Assembly only.
[31] For the text of Act No 3 of 1853 see Correspondence and Papers on Australia 1854 in 18 BPP 132 as enclosure No 2 to a Despatch from Sir H E F Young to the Duke of Newcastle, 10 November 1853. See also the summary in the Address by Governor Young to the Opening of Council, 21 July 1853, SAPP No 1 of 1853, 3.
[32] New Constitution: Report From The Select Committee Appointed to Prepare A Draft of a Bill for a New Constitution, Van Diemen’s Land PP No 63 of 1854, 6.
[33] See New Constitution Message No 31 in Van Diemen’s Land PP No 73 of 1854.
[34] For this prerogative see Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown (1820) 34; Charles Clark, A Summary of Colonial Law (1834) 46; Colonial Regulations, Ch II reg 12 in Arthur Mills, Colonial Constitutions (1856) 373.
[35] See the important speech by Dr Campbell in SAPD, LC, 19 September 1893, cols 1549-1555.
[36] See 5 and 6 Vict c 76 s 32. The principle was expressly included in the disallowed Parliament Act No 3 of 1853 (SA) s 32. The power was used from time to time during the nineteenth century. See the summary of instances listed in SAPD, HA, 3 October 1893, cols 1839-1840. The power of disallowance survived in state law until removed by the Australia Act 1986 (Cth) s 8, though by then it had long fallen into disuse.
[37] Despatch by J Russell, 3 May 1855 in South Australian Government Gazette, 11 August 1855, 610.
[38] For accounts of this power see Charles M Andrews, ‘The Royal Disallowance’ (1914) XXIV Proceedings of the American Antiquarian Society, New Series, 342-362; Leonard W Labaree, Royal Government in America: A Study of the British Colonial System before 1783 (1930) 224-226.
[39] See An Act for the Government of New South Wales and Van Diemen’s Land 1842 (UK) 5 and 6 Vict c 76, s 32. This act initially only applied to these two Australian colonies and not to South Australia. New South Wales laws did not automatically extend to South Australia (White v McLean [1890] SALawRp 27; (1890) 24 SALR 97, 100; Winterbottom v Vardon & Sons Ltd [1921] SAStRp 40; [1921] SASR 364, 368) but the 1842 Act was extended to South Australia by the Australian Colonies Government Act 1850 13 and 14 Vict c 59 s 25 (UK). See following footnote.
[40] 13 and 14 Vict c 59 s 25 extending the Act of 1842 to South Australia and other Australian colonies. See also SAPD, LC, 3 October 1893, 1839.
[41] For details see Despatch from Governor Denison to the Duke of Newcastle, 14 February 1854 in Further Papers Relative to the Alterations in the Constitutions of the Australian Colonies in 20 BPP 1-5. The Constitution Act No 17 of 1854 (VDL) is 13-17. The elective principle for the upper house was provided for in section 2 of the Act. There is an excellent summary of the main features of all of the Australian colonial constitutions in existence by the 1860s in Constitutions of the Australian Colonies 22 December 1865 in SAPP No 98 of 1865.
[42] See New Constitution Message No 31 in Van Diemen’s Land PP No 73 of 1854.
[43] Despatch from McDonnell to Lord John Russell, 22 August 1855 in Correspondence and Papers on Affairs in Australia, 21 BPP 52-56. See also South Australian Gazette 17 August 1855, 633 and South Australian Register 20 August 1855. For general accounts of MacDonnell’s role in these matters see Anna Munyard, ‘Governor MacDonnell and the Transition to Responsible Government in South Australia’ (1978) 5 Journal of the Historical Society of South Australia 41-65 and John M Ward, ‘The Responsible Government Question in Victoria, South Australia and Tasmania, 1851-1856’ (1978) 63(4) Journal of the Royal Australian Historical Society 221, 231-239.
[44] V and P of the Legislative Council, No 10, 20 November 1855, 45 item 4 point III; and No 11, 21 November 1855, 50 item 12 point III.
[45] See the statement of principles that guided the content of the new constitution bill in V and P of the Legislative Council, No 10, 20 November 1855, 45 item 4 point 1; and No 11, 21 November 1855, 50 item 12 point 1.
[46] V and P of the Legislative Council, No 14, 27 November 1855, 61 item 5; South Australian Register, 28 November 1858.
[47] Ibid.
[48] South Australian Register, 28 November 1855 reporting the debate in the Legislative Council the previous day. The amendment passed by the barest majority 11 votes to 10. The full text of the final draft of the Constitution bill was published in The South Australian Register, 24 December 1855.
[49] That is a special procedure other than that followed in the passing of ordinary legislation. In the nineteenth century this normally entailed a special majority to pass the legislation in question.
[50] Published in the South Australian Government Gazette, 25 October 1856, 965-969.
[51] Minutes of the Legislative Council, No 32, 1 September 1859, 91.
[52] Standing Order 1 of the House of Assembly reads ‘In all cases not hereinafter provided for, resort shall be had to the rules, forms and practice of the Commons House of the Imperial Parliament, which shall be followed as far as they can be applied’. Text in Report of the Select Committee of House of Assembly on Standing Orders, 9 June 1857, in SAPP No 61 of 1857-58. Initially the House of Assembly adopted the Standing orders of the old Legislative Council: V and P of the House of Assembly, No 1, 22 April 1857, 25 item 20. Standing Order 12 of the Legislative Council reads: ‘In all cases not hereinafter provided for, resort shall be had to the rules, forms, and usages of the Imperial Parliament, which shall be followed so far as the same are applicable to the proceedings of the Legislative Council’ in Draft Standing Orders of the Legislative Council, 14 November 1861, in SAPP No 201 of 1861.
[53] SAPD, HA, 11 October 1877, col 1245. For another important statement of the importance of British procedure see: SAPD, LC, 19 June 1860, col 236.
[54] Formally titled: A Treatise Upon the Law, Privileges Proceedings and Usage of Parliament. The first edition was published in 1844, when May was only 29 years of age, and reprinted in a facsimile edition by the Irish University Press in 1971. Members of parliament in 1857 had access to this book in the parliamentary library. See the catalogue of the library in Legislative Council Library, 27 November 1855 SAPP No 57 of 1855, 3. In fact the edition referred to in the debates as the latest was the third edition of 1855 the earliest edition in the library at that time.
[55] See SAPD, HA, 23 July 1857, col 374; Minutes of the Legislative Council, No 37, 19 November 1901, 134 item 7.
[56] Most of the resolutions on the compact of 1857 were also published in Mode of Procedure In Respect to Money Bills as SAPP No 92 of 1877. Note, however, that key rulings by the presiding officers on the subject, issued in 1857, are not included in this document. Nevertheless, the chronological setting out of the text of the relevant resolutions provides an excellent source of much of the key material. The resolutions that made up the compact were also from time to time fully cited and set down in Hansard. or the Journals of the Houses. See, for example, SAPD, LC, 25 June 1874, col 679; V and P of the House of Assembly, No 50, 10 November 1887, 300-301 item 10; SAPD, HA, 10 November 1887, col 1412; SAPD, LC, 2 December 1912, 529; SAPD, HA, 24 October 1912, 766-767, 768.
[57] The South Australian State Library does however have a bound volume of the newspaper reports of the parliamentary debates for these years.
[58] SAPD, HA, 8 January 1858, col 746, 5 September 1860 col 772. See also the hilarious reference to this problem in SAPD, HA, 21 June 1860 col 253 where the Hansard reporter notes that the accuracy of the passage was interrupted by a combination of a rowdy visitors gallery and poor acoustics. Even when a contract was let to report the debates the contract provided that the contract could be determined by a resolution of the House of Assembly if the reports were ‘incorrect, defective or otherwise not according to the fair construction of this Contract ...’ in Hansard Contract Correspondence, 20 May 1862, SAPP No 41 of 1862. See also Hansard: Correspondence with the Australian Colonies, 27 November 1877 in Tasmania PP No 57 of 1877, 5 referring to the South Australian Contract of 1875. See also the summary of the South Australian Hansard contract in New Zealand, Journal of the Legislative Council, 10 November 1871, 194.
[59] Minutes of the Proceedings of the Legislative Council, No 8, 14 May 1857, 22 item 5.
[60] V and P of the House of Assembly No 103, 6 January 1858, 333 item 10; No 105, 8 January 1858, 340 item 7.
[61] Tender for Printing Debates, 20 January 1858 in SAPP No 238 of 1857-1858.
[62] See Report of Debate in the House of Assembly on Question of Privilege in SAPP No 101 of 1857-58. The report only covers the debate in the Assembly on 22 July 1857. See the resolution in V and P of the House of Assembly, No 31, 28 July 1857, 115 item 5.
[63] See the Proclamation by the Governor Sir Richard Graves MacDonnell announcing this in South Australian Government Gazette, 2 April 1857, 282.
[64] V and P of the House of Assembly, No 1, 22 April 1857, 24 item 17. Thereafter the bill was simply known as the Tonnage Duties Repeal Bill. See Vand P of the House of Assembly, No 4, 30 April 1857, 33 item 8.
[65] For this title see V and P of the Legislative Council, No 69, 14 December 1854, 205 items 3 and 5. The formal title of the Act was ‘An Act to authorize the raising a sum of one hundred thousand pounds for the deepening and improvement of the Harbor of Port Adelaide, and for other purposes therein named’.
[66] Thus the money raised by the trust in harbor dues in 1855 only amounted to 840 pounds (South Australian Government Gazette, 9 October 1856, 888); in 1856 only 1,952 pounds (South Australian Government Gazette, 18 June 1857, 488) and in 1857 a further 1,890 pounds (South Australian Government Gazette, 2 December 1858, 897). As the Treasurer pointed out in his second reading speech on the repeal bill the amount collected was ‘insignificant, in no year amounting to 2,000, while it would have required 10,000 to yield 10 per cent on the 100,000 borrowed for harbour improvements’: SAPD, HA, 30 April 1857, col 53.
[67] See the second reading speech in the Assembly in SAPD, 30 April 1857, cols 53-54. For the second reading speech in the Council see ibid, 19 May 1857, col 117.
[68] Minutes of the Legislative Council, No 7, 12 May 1857, 19 item 6.
[69] That is, Tuesday, Wednesday and Thursday. A proposal to omit the Tuesday meetings was defeated: Minutes of the Legislative Council, No 2, 28 April 1857, 7 item 7.
[70] See, for example, Minutes of the Legislative Council, No 4, 5 May 1857, 13 item 4; No 6, 7 May 1857, 17 item 5.
[71] For the incident see SAPD, HA, 19 May 1857, col 122. The member was Major O’Halloran who gave his account in SAPD, LC, 19 May 1857, col 114.
[72] There was a fuss in 1856 in New South Wales over just which members of that Parliament might use the title Honorable: see Titles of Members of Parliament, 21 August 1860, SAPP Nos 134 and 136 of 1860.
[73] Letter by Speaker Kingston to the President of the Legislative Council, January 1858 in Accommodation For Members of the House of Assembly, 20 January 1858, SAPP No 237 of 1857-58.
[74] See SAPD, LC, 10 June 1857,cols 242-248; Minutes of the Legislative Council, No 15, 10 June 1857, 35 item 4.
[75] Minutes of the Legislative Council, No 9, 19 May 1857, 23 item 6.
[76] Minutes of the Legislative Council, No 13, 2 June 1857, 31-32 item 5.
[77] See SAPD, LC, 19 May 1857, col 117 where the representative of the Government in the Council, the Commissioner of Works, Charles Bonney, said: ‘Its objects were twofold-first, to repeal the tax on shipping imposed in 1854; and, secondly, to substitute certain wharfage rents.’
[78] SAPD, LC, 2 June 1857, col 186.
[79] Minutes of the Legislative Council, No 14, 9 June 1857, 34 item 10.
[80] Standing Orders of the Legislative Council of South Australia, SAPP of 1851.
[81] See Appointment of Sir R G MacDonnell, in SAPP No 78 of 1855, 7; Governor-in-Chief: New Commission and Instructions, 22 February 1858 in SAPP No 17 of 1858, 4 for Sir Richard Graves MacDonnell’s Instructions and Sir D Daly’s Commission and Instructions, 21 May 1862, SAPP No 42 of 1862, 3. There was doubt whether the instructions were legally binding on the Governor, but several Governors had been dismissed for disobeying the instructions. Remarkably one Governor of Barbados had been recalled (dismissed) for actually obeying the instructions in a money bill matter in the 1780s. For discussion see D B Swinfen, ‘The Legal Status of Royal Instructions to Colonial Governors’ [1968] Juridical Review 21-39.
[82] SAPD, LC, 2 June 1857, col 186 (Mr Baker).
[83] Ibid 9 June 1857 cols 226-227 (Commissioner of Public Works).
[84] See the failed amendment to a resolution moved by Mr George Fife Angas: Ibid , col 228.
[85] Minutes of the Proceedings of the Legislative Council, No 14, 9 June 1857, 34 item 10.
[86] V and P of the House of Assembly, No 23, 9 June 1857, 90 item 8 and also see the same list of amendments in Tonnage Duties Repeal Bill as SAPP No 62 of 1857.
[87] There was no title of Premier at the time because the term did not appear in the Constitution Act, while the title Chief Secretary did: SAPD, HA, 15 May 1860, col 46. Thus Schedule A of the Constitution Act 1856 (SA) refers to the Chief Secretary along with other Ministerial officers. The term Premier only began to be used formally in 1965. See G L F, ‘The Title and Office of Premier in South Australia’ (1987) 2(2) Facts and Events 26-27.
[88] Boyle Travis Finniss (1807-1893), the first head of the government in 1857, he took a leading part in writing the Constitution Act 1856, he sat in Parliament until 1865 and in 1886 published his account of many of the events of 1857 in The Constitutional History of South Australia (1886).
[89] V and P of the House of Assembly, No 24, 10 June 1857, 94 item 9. The resolution was forwarded to the Council as a message: Minutes of the Legislative Council, No 16, 11 June 1857, 37 item 2.
[90] James Hurtle Fisher (1789-1875) a lawyer, and former mayor of Adelaide (1840-1853) entered Parliament in 1853 and become the President of the Council in 1857 where he remained until 1865. See Dictionary of Australian Biography (1949) vol 1, 295-296 and George C Morphett, Sir James Hurtle Fisher (1955).
[91] Minutes of the Legislative Council, No 17, 16 June 1857, 40 item 6.
[92] Constitution Act 1855 (NSW) s 1 in the schedule to New South Wales Government Act 1855 (UK) 18 and 19 Vict c 54 .
[93] Minutes of the Legislative Council, No 17, 16 June 1857, 40 item 6 referring to the Victorian Act that provided ‘That all bills for appropriating any part of the revenue of Victoria, or for imposing any tax, rent, return, or impost shall originate in the Assembly, and may be rejected, but not altered, by the Council’. See Constitution Act 1855 (Vic) s LVI in the schedule to the Victoria Government Act 1855 (UK) 18 and 19 Vict c 55.
[94] This was true but highly misleading. The Houses of the Tasmanian Parliament did confer over a money bill matter in 1857, but they could not come to an agreement. See Tasmania, V and P of the House of Assembly, No 31, 13 February 1857, 117 item 2.
[95] Though not cited. See Parliament Act 1853 (SA) s 2.
[96] This was correct in 1857. In 1860 the Report from the Select Committee to search the Journals of Houses of Parliament to ascertain Practice of Each House with regard to Bills imposing or repealing Taxes, 29 June 1860, United Kingdom, House of Commons, Session 1860, Paper No 414 (Volume XXII page 1) showed that since 1628 the Lords had in fact amended money bills many times.
[97] Minutes of the Legislative Council, No 17, 16 June 1857, 41 item 6.
[98] Ibid. See also No 18, 17 June 1857, 43 item 3 where the resolution passed 13 votes to 1. A further resolution in No 20, 23 June 1857, 47 item 2 authorized the bill to be returned to the Assembly.
[99] V and P of the House of Assembly, No 27, 21 July 1857, 53 item 5. The House did not sit between 12 June and 21 July.
[100] Ibid 105 item 14.
[101] Ibid 105 item 15.
[102] V and P of the House of Assembly, No 28, 22 July 1857, 110 item 12.
[103] V and P of the House of Assembly, No 29, 23 July 1857, 111 item 4. Mr Babbage’s motion to amend a resolution and call for a free conference was rejected by a vote of 26 to 1: No 30, 24 July 1857, 114 item 3.
[104] See Report of Committee of Search Re Free Conferences, 11 December 1891, SAPP No 182 of 1891. Curiously the list of free conferences listed in this report dates the earliest of these in 1871, making no reference to any in 1857 itself.
[105] For a full account of the role of the managers at a conference see Minutes of the Legislative Council, No 31, 16 November 1921, 125 item 18 where the President of the Council sets out the procedure to be followed.
[106] South Australian Register, 30 July 1857. In the same issue of the Register another writer named Senex also proposed that the Council might suggest alterations to money bills. The suggestion mechanism was also taken up by the leader writer in the Register in early August: South Australian Register, 6 August 1857, 10 August 1857.
[107] Minutes of the Legislative Council, No 61, 4 August 1857, 62-63 item 8. The Governor was then moved in an address to seek such opinions: Minutes of the Legislative Council, No 27, 5 August 1857, 67 item 2.
[108] The Governor stated that he had been advised that it would be unconstitutional for him to ‘interpose in any question of privilege between the two branches of the legislature’ he also informed the Council that it would be a breach of Parliamentary privilege for the Law Officers to give an opinion on the question. See Message No 3, Minutes of the Legislative Council, No 29, 11 August 1857, 73 item 2.
[109] Sir Richard Graves MacDonnell (1814-1881) was a BA, MA and LLD of Trinity College, Dublin, a Barrister at Lincoln’s Inn, and former Chief Justice of Gambia before becoming successively the Governor of the colonies of Gambia, St Lucia and St Vincent. See Australian Dictionary of Biography 1851-1890 (1974) vol 5, 148-149.
[110] Despatch from MacDonnell to Labouchere, 11 September 1857, originally in CO 13/95/410-412, No 181 [also in Australian Joint Copying Project Reel No 796] published in Amendment of Money Bills, 11 August 1863, SAPP No 88 of 1863.
[111] See the minutes added after the text of the Despatch by MacDonnell in ibid. These minutes do not appear in the 1863 published version of the despatches.
[112] See clause 88 to the Schedule to the Order in Council, 11 March 1853 in J Foster et al (eds), Statutes of the Cape of Good Hope 1652-1886 (1887) vol 1, 326. A summary of the Cape constitution was published in the South Australian Register, 3 August 1853.
[113] For a summary of this New Zealand dispute see Powers of the Legislative Council and the House of Representatives, in New Zealand, Appendices of the House of Representatives, No A8 of 1887, 2-3.
[114] See the advice by Richard Davies Hanson in Re Address No 4 Legislative Council requesting opinion on the privilege question, 4 August 1857 in Opinion Book No 2, 127-128, South Australian State Records Office, GRG 1/21. Hanson points out that for the Governor or the law officers to intervene would be ‘in a high degree unconstitutional’. For the advice of the Executive Council, 10 August 1857 see Official Correspondence Between Governor MacDonnell and B T Finniss, Minute by Executive Council advising Governor on Privilege between the two houses of parliament, in South Australia State Records Office, GRG 24/21/92/20.
[115] For the text of these resolutions see Minutes of the Legislative Council, No 26, 4 August 1857, 61-62 item 6 and in Proposed Conference Respecting Money Bills, SAPP No 111 of 1857-58.
[116] For the details see Statistical Record of the Legislature, SAPP No 69 of 1878, 26.
[117] Minutes of the Legislative Council, No 31, 25 August 1857, 77 item 2.
[118] Ibid.
[119] V and P of the House of Assembly, No 46, 9 September 1857, 153 item 4.
[120] Minutes of the Legislative Council, No 36, 10 September 1857, 87 item 4.
[121] Minutes of the Legislative Council, No 38, 16 September 1857, 91 item 4; V and P of the House of Assembly, No 50, 16 September 1857, 166 item 9; Minutes of the Legislative Council, No 42, 29 September 1857, 103 item 4.
[122] Minutes of the Legislative Council, No 39, 22 September 1857, 93-94 item 4, para 1. This material was also published as Reasons Offered At Conference On Money Bills, 29 September 1857, SAPP No 145 of 1857-58. Two days later, (Minutes of the Legislative Council, No 41, 24 September 1857, 99-100) these reasons were slightly amended but the essential point in reason no 11 that the three resolutions of 25 August be the basis for an agreement remained.
[123] Minutes of the Legislative Council, No 39, 22 September 1857, 94 para 11.
[124] V an& P of the House of Assembly, No 63, October 15, 1857, 205 item 5.
[125] Reasons on Privilege, 4 November 1857, SAPP No 183 of 1857-58. The same reasons were sent by message to the legislative council and published in Minutes of the Legislative Council, No 55, 19 November 1857, 131 item 2.
[126] Ibid para 4.
[127] Ibid para 5.
[128] Or to use the elegant language of the Governor, Sir Richard Graves MacDonnell in a despatch, 1 December 1857 to Labouchere, enclosing all of the relevant documents, including the resolutions, ‘You will perceive from thence, that, whilst each House maintains theoretically the position it at first assumed, yet each withdraws, practically, somewhat of its former pretensions.’ CO 13/96 No 205 [also in Australian Joint Copying Project Reel No 796] and reprinted in Amendment of Money Bills, 11 August 1863 in SAPP No 88 of 1863, 2.
[129] V an P of the House of Assembly, No 81, 17 November 1857, 260-262 item 9.
[130] Ibid 260 para 5. Also reprinted in Minutes of the Legislative Council, No 55, 19 November 1857, 131 item 2.
[131] Thus the fifth reason of the Assembly adopted on November 17th became in later accounts of the compact the fourth resolution.
[132] For statements to this effect see: SAPD, LC, 9 June 1857, col 226 where the Council shouted down the Commissioner of Works who asserted that the Council was in the same place as the House of Lords; 16 June 1857 col 290, col 293; 17 June 1857 cols 315, 316. See also Reasons Offered at Conference On Money Bills, 25 August 1857, SAPP No 145 of 1857-58, para 3.
[133] SAPD, LC, 10 June 1857 col 243.
[134] Ibid.
[135] For a reference to the United States Constitution see SAPD, LC, 16 June 1857 col 289 where the President of the Council cites Article 1 section 7 of the US Constitution to support the view that the Senate there may propose amendments to Money bills.
[136] For the text see The Constitution of 1849 (California) Article IV section 16 which reads ‘Any bill may originate in either house of the legislature, and all bills passed by one house may be amended in the other’, in William F Swindler (ed), Sources and Documents of United States Constitutions (1973) vol 1, 450.
[137] Members of the Assembly disputed this analogy claming that the United States Senate had wider powers than the Council and was in fact indirectly elected by the people. SAPD, HA, 17 June 1857, col 299.
[138] SAPD, LC, 17 June 1857 col 304.
[139] Cited in SAPD, LC, 17 June 1857 cols 302-303. The original opinion of 1755 was published in George Chalmers, Opinions of Eminent Lawyers on various points of English Jurisprudence (1858) 264-267.
[140] Such as Dod’s Parliamentary Companion: SAPD, LC, 9 June 1857, col 229, 10 June 1857 col 250.
[141] As cited in SAPD, HA, 10 June 1857 col 250. Also repeated 22 June 1857 col 346 and 23 July 1857 col 375. The original resolution is in 9 Journal of the House of Commons 509 (3 July 1678). The citation of the resolution by the Chief Secretary draws the text of the 1678 resolution from Erskine May 3rd edition 1855, 426. It appears that the Parliament in Adelaide did not then have a copy of the Journals of the Lords or Commons themselves. It will be noted that the language of the 1678 resolution was incorporated into the Assembly resolution of 17 November 1857, that is, what ultimately became the fourth resolution of the compact.
[142] SAPD, HA, 22 June 1857, cols 343-344.
[143] SAPD, HA, 23 July 1857, col 373 citing George Bowyer, Commentaries on Constitutional Law (2nd ed, 1846).
[144] SAPD, HA, 10 June 1857 col 253 (concession by the Treasurer in the Assembly). For other statements in the Assembly that the Council might vote down or veto a money bill see SAPD, HA, 17 June 1857 col 310; 22 June 1857 col 343 (Chief Secretary); 23 July 1857 col 308; 24 July 1857 col 418 (Attorney-General); 24 July 1857 col 435.
[145] SAPD, HA, 10 June 1857 col 255.
[146] (1856) 29 ‘The Second Estate of our colonial Governments, intended by the theory of its constitution to fulfil the functions of the hereditary peerage of Great Britain, is the Legislative Council’. Cited in SAPD, LC, 16 June 1857 col 298.
[147] SAPD, LC, 17 June 1857 col 302.
[148] SAPD, HA, 23 July 1857 col 399.
[149] Ibid 24 July 1857 col 432.
[150] Ibid 22 July 1857 col 343. Again a bald assertion without the encumbrance of evidence.
[151] (1987) 448 (13 August 1787) citing Mr Dickenson. Most states required money bills to be originated in the lower house, but some states left the matter open. See Luther Cushing, Lex Parliamentaria Americana: Elements of Law and Practice of Legislative Assemblies (1856) 889-892.
[152] SAPD, HA, 22 July 1857 col 359.
[153] V and P of the House of Assembly, No 30, 24 July 1857, 113-114 item 3. Laying a bill on the table of the house was a way of setting a bill aside and not dealing with it further.
[154] Repealed by the Marine Board Act 1860 (SA) s 1.
[155] V and P of the House of Assembly, No 93, 8 December 1857, 299 item 6.
[156] Minutes of the Legislative Council, No 64, 17 December 1857, 153 item 2.
[157] V and P of the House of Assembly, No 99, 17 December 1857, 320 item 8; Minutes of the Legislative Council, No 65, 22 December 1857, 155 item 5.
[158] See also the amendments of a similar character made by the Council and agreed to by the Assembly to the Waste Lands Bill 1857: V and P of the House of Assembly, No 61, 13 October 1857, 199-200 item 7; Minutes of the Legislative Council, No 47, 20 October 1857, 113 item 3. Both houses published lists of the amendments that show their formal or verbal character. See Waste Lands Bill, 21 July 1857, SAPP No 76 of 1857-58 and Amendments in Waste Lands Bill, 22 October 1857, SAPP No 172 of 1857-58. The Waste Lands Bill 1857 was declared to be a money bill by a resolution of the Assembly, V and P No 61, 13 October 1857, 200 item 7 and repeated in a summary list of such bills published in 1872. See SAPD, HA, 20 September 1872, cols 1997-1998, 2002. For other examples of verbal amendments see V and P of the House of Assembly, No 32, 28 September 1869, 102 item 9; V and P of the House of Assembly, No 59, 7 November 1889, 243 item 16.
[159] While most bills were assented to the end of the session there were sporadic occasions when the Governor assented to bills passed earlier in the session by message. See, for example, Minutes of the Legislative Council, No 17, 19 July 1860, 37 item 3. Queen Victoria gave her assent to bills in person for the last time on 12 August 1854: See Thomas Erskine May, A Treatise Upon the Law, Privileges Proceedings and Usage of Parliament (21st ed, 1989) 629.
[160] For a description of the practice during the first session see Minutes of the Legislative Council, No 78, 27 January 1858, 186 item 5.
[161] There were in fact two such ceremonies held during the 1857-58 session. For the earlier instance see Minutes of the Legislative Council, No 55, 19 November 1857, 132 item 5 where Governor MacDonnell assented to six bills.
[162] While British practice was followed in many respects there were also departures. The preamble to the South Australian Appropriation Act did not follow the British practice of indicating that the grant of money came from the lower house, as it was thought that the situations of the two Parliaments were not analogous and in any event it was also thought that to adopt the British drafting practice would reopen antagonisms with the Legislative Council: SAPD, HA, 22 December 1858, col 933. Other Australian colonies and later some states did adopt such preambles and used them until the 1970s. Thus the West Australian parliament only discontinued the special preamble in the Appropriation (Consolidated Revenue Fund) Act 1970 (WA).
[163] V and P of the House of Assembly, No 87, 16 August 1872, 343 item 2.
[164] For the review of previous practice see V and P of the House of Assembly, No 88, 20 September 1872, 351-359 item 7 also as Statement of Mr Speaker As To The Presenting of Bills, SAPP No 176 of 1872. See also Presenting of Bills At The Bar of the Legislative Council, SAPP No 193 of 1872 and Report of the Attorney-General on Presentation of Bills, SAPP No 225 of 1872.
[165] Presentation of Money Bills, 25 July 1873, SAPP No 45 of 1873. An abbreviated version excluding the English precedents appeared in V and P of the House of Assembly, No 1, 25 July 1873, 6-7.
[166] V and P of the House of Assembly, No 57, 11 December 1909, 272 item 9.
[167] South Australian Government Gazette, 8 December 1910, 1177 also reproduced in V and P of the House of Assembly, No 71, 2 December 1910, 337.
[168] Privileges of the House, 8 November 1853 in SAPP No 84 of 1853.
[169] [1858] EngR 321; (1858) 11 Moo PC 347; 14 ER 727. Also reprinted in Fenton and Fraser v Hampton in SAPP No 40 of 1858 and Tasmania, V & P of the Legislative Council, No 2, 8 September 1858, 7-8.
[170] [1858] EngR 321; 11 Moo PC 347, 396-397; [1858] EngR 321; 14 ER 727, 745 following the important appeal from Newfoundland in Kielley v Carson [1842] EngR 593; (1842) 4 Moo PCC 63; 13 ER 225 that upheld In the Matter of the Imprisonment of Edward Kielley (1838) 2 Nfld R 72. The doctrine that the English lex parliamenti was not part of Australian law was also reiterated by the Privy Council in the appeal from Victoria in Dill v Murphy (1864) 1 Moo NS 487; [1864] EngR 216; 15 ER 784 from the decision of Dill v Murphy (1862) 1 W, W & a’B 342 (Vic FC).
[171] Report of the Committee of the House of Assembly, 9 September 1858 in SAPP No 52 of 1858.
[172] See Parliamentary Privilege Act No 9 of 1858(SA) repealed by the Parliamentary Privilege Act No 14 of 1872 s 3. The 1858 Act dealt with the powers of the houses to summons persons for contempt, their power to compel the giving of evidence and provided for punishment for contempt of the house. As was clear from the second reading speech on the 1858 privileges bill the intent of the legislation was to reverse the effect of the Privy Council decision in Fenton v Hampton by giving a contempt power to the Houses: SAPD, HA, 2 December 1858, col 742.
[173] SAPD, LC, 19 November 1868, cols 863-864, 866.
[174] See fn 184ff below.
[175] SAPD, HA, 29 November 1878, col 1888.
[176] South Australian Register, 16 September 1863 reporting the debates in the House of Assembly for 15 September 1863.
[177] SAPD, LC, 5 November 1873, col 954.
[178] President’s Opinion on Question of Privilege, 1 July 1874, SAPP No 123A of 1874.
[179] SAPD, LC, 7 July 1874, col 807.
[180] V and P of the House of Assembly, No 75, 15 September 1863, 247-248 item 16.
[181] V and P of the House of Assembly, No 79, 15 March 1866, 314 item 9; SAPD, HA, 15 March 1866, col 1358. Sometimes the Council itself refused to debate a money bill wrongly initiated in that house: Minutes of the Legislative Council, No 36, 28 October 1884, 256 item 11 where the President ruled that the Working Men’s Holding Bill 1884 be laid aside for this reason. In 1882 the Ocean Dock Bill was returned to the Council when it was discovered that by error clauses had been included appropriating revenue: Minutes of the Legislative Council, No 45, 2 November 1882, 156 item 10.
[182] V and P of the House of Assembly, No 79, 9 January 1867, 275 item 9; No 44, 12 November 1868, 140 item 5.
[183] See, for example, V and P of the House of Assembly, No 74, 15 November 1870, 328-329 item 11. In this case the Bill lapsed when returned to the Assembly.
[184] President’s Opinion On Question of Privilege, 1 July 1874, SAPP No 123A of 1874, 2; Minutes of the Legislative Council, 1 July 1874, No 13, item 28. Sir Henry Ayers in the Council argued (in SAPD, LC, 7 July 1874, col 811) that in the previous 17 years since 1857 ‘No instance whatever occurred of a suggestion for an amendment ...’.
[185] Speaker’s Minute Re Loan Bill, 1874, SAPP No 153 of 1874, 2; V and P of the House of Assembly, No 31, 16 July 1874, 164 item 10. In fact the President of the Council made it quite clear that he also thought that the compact was still in force: President’s Opinion On Question of Privilege, 1 July 1874, SAPP No 123A of 1874, 2 para 14; SAPD, LC, 1 July 1874, col 744.
[186] Minutes of the Legislative Council, No 15, 8 July 1874, 33 item 4.
[187] SAPD, LC, 7 July 1874, cols 807-810.
[188] SAPD, HA, 25 June 1874, col 686. At col 690 Mr Stevens suggested that the Council argument about the non-binding nature of the resolutions of 1857 was ‘absurd’.
[189] Vand P of the House of Assembly, No 31, 16 July 1874, 162.
[190] Minutes of the Legislative Council, No 24, 4 August 1874, 51-52 item 6.
[191] Ibid 52 item 8.
[192] See for example, the Message sent to the Assembly in 1878: SAPD, LC, 30 November 1878, col 1902 and the important summary of the practice in the Speaker’s Opinion in V and P of the House of Assembly, No 35, 25 August 1891, 153 item 20.
[193] SAPD, HA, 10 November 1887, col 1412 (Deputy-Speaker).
[194] V and P of the House of Assembly, No 59, 10 November 1887, 301 item 10.
[195] Sir George Kingston in SAPD, HA, 29 November 1878, col 1888.
[196] V and P of the House of Assembly, No 59, 10 November 1887 col 301 agreeing to suggestions on the Tariff Revision Bill 1887; V and P of the House of Assembly, No 84, 22 December 1893, 496 item 47 agreeing to amendments to the Appropriation Bill 1893.
[197] V and P of the House of Assembly, No 78, 29 November 1878, 336 item 14; SAPD, LC, 30 November 1878, cols 1902-1903.
[198] Minutes of the Legislative Council, No 54, 14 February 1884, 153 item 3; V and P of the House of Assembly, No 81, 14 February 1884, 301 item 14.
[199] Minutes of the Legislative Council, No 37, 26 September 1894, 133-134 item 8; SAPD, LC, 26 September 1894, cols 1522-1524; also in Legislative Council, Report of Standing Orders Committee, 14 November 1894, as SAPP No 132 of 1894, 3-4 and appendix A.
[200] Minutes of the Legislative Council, No 45, 24 October 1893, 171 item 5 (Public Salaries Bill).
[201] Minutes of the Legislative Council, No 31, 19 September 1893, 120 item 12
[202] Ibid 120-121where the President gave a ruling to this effect on the Public Salaries Bill 1893.
[203] V and P of the House of Assembly, No 46, 3 October 1893, 226 item 12; SAPD, HA, 3 October 3, cols 1882, 1884; 10 October 1893, cols 2016-2017. A motion disagreeing with this ruling was withdrawn: col 2029.
[204] Ibid col 2030.
[205] Minutes of the Legislative Council, No 66, 4 December 1894, item 4; SAPD, LC, 4 December 1894, cols 2643-2645.
[206] See President’s ruling in Minutes of the Legislative Council, No 11, 26 August 1913, 35 item 4; SAPD, LC, 26 August 1913, 120.
[207] Minutes of the Legislative Council, No 60, 19 December 1907, 205 item 18.
[208] Ibid 205-206.
[209] As the Treasurer pointed out in SAPD, HA, 20 December 1907, 1208 ‘For the Legislative Council to return the Appropriation Bill with suggested amendments was a somewhat uncommon practice because, as a rule, the Appropriation Bill was treated as a formal matter’. See also 1212 where the Council’s action was described by Mr Roberts as ‘unheard of’.
[210] SAPD, LC, 19 December 1907, 640. A point reiterated by the Chairman of the Committee of the Whole the next day: Minutes of the Legislative Council, No 61, 20 December 1907, 216 item 10, SAPD, LC, 20 December 1907, 662.
[211] Reproduced in SAPD, LC, 20 December 1907, 662.
[212] Minutes of the Legislative Council, No 62, 21 December 1907, 219 item 4; V and P of the House of Assembly, No 74, 21 December 1907, 309 item 3.
[213] See joint standing orders nos 338-338d in Joint Standing Orders and New Standing Orders, 21 October 1903, in SAPP No 25A of 1903, 5. See also SAPD, LC, 8 September 1903, 100-101.
[214] SAPD, HA, 21 December 1907, 1227; V & P of the House of Assembly, No 74, 21 December 1907, 329 item 3.
[215] SAPD, LC, 21 December 1907, 666-667.
[216] Minutes of the Legislative Council, No 49, 18 December 1908, 193 item 11; SAPD, LC, 18 December 1908, 611.
[217] Minutes of the Legislative Council, No 50, 19 December 1908, 197 item 13; SAPD, HA, 19 December 1908, 1162.
[218] Minutes of the Legislative Council, No 13, September 22, 1909, 51 item 8; SAPD, LC, 22 September 1909, 120. The motion was agreed to but nothing eventuated. One member of the House of Assembly also agreed to the joint committee idea as did the press: SAPD, HA, 20 October 1909, 580.
[219] See the details in General Index to Public and Private Bills Before the Houses of Parliament, 1905-1915 as SAPP No 24 of 1917, 6.
[220] SAPD, HA, 13 July 1911, 104ff. The text of the Parliament Act 1911 (UK) is cited verbatim by the Attorney-General at 108. For the general political background see Dean Jaensch, ‘Stability and Change, 1910-1938’ in Dean Jaensch (ed), The Flinders History of South Australia: Political History (1986) 226-229.
[221] Minutes of the Legislative Council, No 18, 12 September 1911, 56 item 13.
[222] Minutes of the Legislative Council, No 61, 20 December 1911, 237 item 5. The Council also wanted to delete another item devoted to the purchase of timber and firewood for re-sale.
[223] V and P of the House of Assembly, No 75, 22 December 1911, 358 item 7; Minutes of the Legislative Council, No 63, 22 December 1911, 246 item 9.
[224] Minutes of the Legislative Council, No 64, 23 December 1911, item 3. This was provided for in Joint Standing Order No 328. See Joint Standing Orders and New Standing Orders, 21 October 1903 in SAPP No 25A of 1903, 4.
[225] See Copy of Memorandum and Appeal to the Imperial Government, 3 January 1912, SAPP No 123 of 1911-12. The Memorandum was also incorporated into Hansard. See SAPD, HA, 3 January 1912, 874-882.
[226] Minutes of the Proceedings of the Legislative Council, No 66, 2 January 1912, 253 item 6.
[227] Despatch by J Chamberlain, Secretary of State for the Colonies to the Governor, Viscount Gormanston, 27 October 1899 in Powers of the Legislative Council In Regard to Money Bills: Case for the Opinion of the Privy Council, in Tasmania PP No 42 of 1899, 7.
[228] ‘Copy of Despatch from Governor Sir G F Bowen to the Earl of Kimberley, 30 March 1872 in Further Despatches from the Governor of New Zealand to the Secretary of State for the Colonies, in New Zealand, Appendices of the Journals of the House of Representatives, No A1 of 1872, 65-73. Also published in Constitutional Functions of a Legislative Council, Tasmania PP No 112 of 1881.
[229] See QPD, LC, 17 November 1885, 267-269. The opinion of the Privy Council was published as Rights and Powers of Legislative Council with Respect to Money Bills, Queensland, Journal of the Legislative Council 1885, vol 1, 129; Votes of Proceedings of the Legislative Assembly, 1885, vol 1, 406. This was a widely published document appearing in Powers of the Legislative Council and The House of Representatives, New Zealand, Appendices of the Journals of the House of Representatives No A8 of 1887, Appendix 1, 7-11; Rights and Powers of Legislative Council with Respect to Money Bills, New South Wales PP 1894, 803-809; Copy of Correspondence (Queensland, 1886) Respecting the Rights and Powers of the Legislative Council with Respect to Money Bills, in Western Australia PP No A6 of 1896.
[230] See the appeal by the Tasmanian Government as Powers of the Legislative Council In Regard to Money Bills: Case for the opinion of the Privy Council, in Tasmania PP No 42 of 1899.
[231] Copy of Memorandum and Appeal to the Imperial Government, 3 January 1912, SAPP No 123 of 1911-12 referring to a telegram sent 26 December 1911.
[232] Minutes of the Legislative Council, No 66, 3 January 1912, 253-254 item 8.
[233] It was established practice by Governors to require an assurance that supplies were sufficient to run the government during the election period. See, for example, Memoranda Relative to a Dissolution of Parliament, New Zealand, Appendices of the Journals of the House of Representatives, No A10 of 1872, 3; Dissolution of Parliament, Tasmania PP No 25 of 1877, 3; Correspondence with reference to the Question of Conditional Dissolution, New South Wales PP No 166 of 1878, 3.
[234] South Australian Government Gazette Extraordinary, No 2, 5 January 1912, 41.
[235] South Australian Government Gazette Extraordinary, No 4, 16 January 1912, 87.
[236] The election results are set out in Constitutional Relationship Between Houses of Parliament-Memo and Correspondence Re, in SAPP No 58 of 1912, 1.
[237] Ibid.
[238] V and P of the House of Assembly, No 17, 27 August 1912, 62 item 14.
[239] SAPD, HA, 24 October 1912, 766-772.
[240] SAPD, LC, 9 December 1913, 571. Note that a deadlock provision was inserted into the constitution by the Constitution Act Further Amendment Act No 236 of 1881 s 16 but this had never been invoked in either Money bill disputes or in any other matter.
[241] See Minutes of the Legislative Council, No 41, 14 December 1915, 194; SAPD, LC, 14 December 1915, 3076-3077 and the President’s ruling on the Loan Bill 1929 in Minutes of the Legislative Council, No 10, 28 June 1929, 33 item 4; SAPD, LC, 28 June 1929, 589.
[242] SAPD, HA, 25 September 1913, 475. cf the remark by Mr Jackson that the compact had been a dead letter for fifty years: 30 September 1913, 499.
[243] SAPD, HA, 28 October 1913, 314-318.
[244] Minutes of the Legislative Council, No 37, 13 November 1913, 129-130 item 8.
[245] SAPD, LC, 18 November 1913, 405.
[246] Part IV of the 1913 Act on money bills now finds its place in the current Constitution Act 1934 (SA) as sections 60-64.
[247] For assertions of the connection between the compact of 1857 and section 53 of the Commonwealth Constitution see, for example, Charles Broughton Boydell, Notes on the Practice and Procedure of the Senate in relation to Appropriation, Taxation, and Other Money Bills (1911) 9; Appendix E-Constitution Section 54: Ordinary Annual Services of the Government, Opinion No 5 of 1951 by K H Bailey, Solicitor-General, 27 September 1951 in Annual Report of the Auditor-General for the Year ended 30 June 1951 in Commonwealth Parliamentary Paper No 95 of 1951, 169; Ewart Smith, ‘Conventions Regulating The relationship Between The Two Houses of The Commonwealth Parliament’ in Proceedings of the Australian Constitutional Convention, Adelaide 1983, vol II, Standing Committee D Reports, Appendix F, 12[17]; Brian Galligan and James Warden, ‘The Design of the Senate’ in Gregory Craven (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (1986) 92.
[248] Official Report of the National Australasian Convention Debates, Sydney, 2 March to 9 April, 1891 (1891) 23 (4 March 1891) [Hereinafter as 1891 CD]. The resolutions arose out of the meeting of state politicians in 1890 in which it was agreed to hold a constitutional convention the following year. See Record of the Proceedings and Debates of the Australasian Federation Conference, 1890 in SAPP No 51 of 1891, 111.
[249] 1891 CD 26 (4 March 1891). He did not say which countries he had in mind but probably included Britain in the reference.
[250] Andrew Inglis Clark’s Draft Constitution, clause 52 reproduced in John M Williams (ed), The Australian Constitution: A Documentary History (2005) 105.
[251] Charles was born 22 October 1850 and would have been in his mid-twenties during the money bill disputes of the 1870s. See Margaret Glass, Charles Cameron Kingston (1997).
[252] Kingston’s Draft Constitution in Williams, above n 250, 125.
[253] 1891 CD 425( 17 March 1891).
[254] Commonwealth Parliamentary Debates, Senate, 8 July 1903, 1824.
[255] 1891 CD 706 (3 April 1891). See also 1891 CD 40 (4 March 1891) where Sir Samuel Griffith said: ‘With regard to the imposition of taxation, I would not allow the Senate to originate taxation, but I would allow them to veto-to refuse to accept taxation’.
[256] First Official Draft of the Constitution Bill, 1891 in Williams, above n 250, 146.
[257] 1891 CD 719 (3 April 1891).
[258] Ibid. Another South Australian delegate, Sir John Bray set out the compact in general terms and said that it worked fairly well: ibid 260 (11 March 1891).
[259] See Mr Thynne in ibid 729 (6 April 1891); Mr Forrest of Western Australia in ibid 735; another West Australian Mr Hackett ibid 741, Mr Bray of South Australia ibid 744.
[260] Ibid 526 (31 March 1891). After 1891 Griffith took no further part in the drafting process as he was appointed as Chief Justice of Queensland in March 1893, but he did continue his interest in the emerging constitution. In 1897 he expressed the opinion that in practice there might be little difference between a senate amending a money bill and the proposed suggestion system as he put it. See his Notes on the Draft Federal Constitution Framed by the Adelaide Convention of 1897, in Queensland PP No 27 of 1897, 4.
[261] 1891 CD 746 (6 April 1891).
[262] Ibid 741-742 (Mr Hackett). See the review of the practice of other colonial houses in the Memorandum of the President of the Legislative Council, Western Australia, Minutes of the Legislative Council, No 9, 13 February 1891, 24. For an early example of the use of the suggestion procedure in Western Australia see WAPD, HA, 19 February 1891, 317.
[263] Official Record of the Debates of the Australasian Federal Convention, second session, Sydney, 2 to 24 September 1897 (1897) 533 (14 September 1897).
[264] Official Report of the National Australiasian Convention Debates, Adelaide, 22 March to 5 May 1897 (1897) 247 (29 March 1897). The amendment to the Western Australian Constitution Act 1889 was made in September 1893. See the comment that this amendment was based ‘almost verbatim’ on the 1857 compact: WAPD, HA, 4 September 1893, 622. The amendment was moved in the Legislative Council: Western Australia, Minutes of the Legislative Council, No 19, 4 September 1893, 54 item 8 and accepted by the lower house. See Western Australia, Votes and Proceedings of the Legislative Assembly, No 46, 26 September 1893, 291, item 8.
[265] Ibid 384 (31 March 1897). The books on parliamentary procedure by Blackmore are cited by Barton, 383. These were: The Practice of the Legislative Council of South Australia and Practice of the House of Assembly. See also Barton’s further comment on the compact’s non-legal status at 557 (14 April 1897).
[266] Ibid 513 (13 April 1897).
[267] Official Record of the Debates of the Australasian Federal Convention, Third Session, Melbourne, 20 January to 17 March 1898, vol II (7 March 1898) 1999.
[268] See section 46 which reads: ‘In the case of a proposed Bill which, according to law, must have originated in the Legislative Assembly, the Legislative Council may at any stage return it to the Legislative Assembly with a message requesting the omission or amendment of any items or provisions therein; and the Legislative Assembly may, if it thinks fit, make such omissions or amendments, or any of them, with or without medications’. For the Parliamentary progress of this amendment to the Constitution Act 1889 (WA) see: Western Australia, V and P of the Legislative Assembly, No 46, 26 September 1893, 280 item 8; Minutes of the Legislative Council, No 19, 9 September 1893, 54 item 8.
[269] 1898 1 CD 657 (7 February 1898). For the paper see Richard Chaffey Baker, ‘South Australia: Powers and Practice of The Two Houses of Parliament In Reference to Money Bills’ in Proceedings of the Australasian Federal Convention 1898, Victoria PP No 18 of 1898, 249-258.
[270] Constitution Act 1903 No 1864 (Vic) s 30(2). The marginal note reads: Comp Commonwealth Constitution Act s 53.
[271] The Constitution Further Amendment Act 1913 (SA) s 24(2).
[272] Legislative Council Act 1914 (NZ) s 5 echoing the language of section 53 though there is no marginal note on the point. The relevant part of the section reads: ‘The Council may at any stage return to the House any proposed law which the Council may not amend, requesting by message, the omission or amendment of any items or provisions therein; and the House may, if it thinks fit, make any such omissions or amendment, with or without modifications’.
[273] Constitution Act Amendment Act 1921 (WA) s 2 substituting a new section 46(4) in the Constitution Act Amendment Act 1899 (WA). The marginal note refers to the section 53 of the Commonwealth Constitution. A point confirmed by Sir Howard D’Egville in his Constitutional Position of Members of Parliament and Powers of the Legislative Council, WAPP No A1 of 1924, 5.
[274] Constitution Act 1926 (Tas) s 10(1). Again no marginal note but it clear from the parliamentary record that the provision was based upon the compact. Thus the comment in 1948, referring to the 1926 Amendment, ‘The position in Tasmania from the point of view of Constitutional Power, is now the same as under the Constitution of the Commonwealth, from which the Tasmanian Act was largely copied’ in Tasmania, V and P of the Legislative Council, No 15, 15 July 1948, 79. See also Opinion of Attorney-General as to Power of Legislative Council to Amend Money Bills, 1 December 1924 in Copies of Cables Between the Administrator of the Government and the Secretary of State for the Colonies as Tasmanian PP No 41 of 1924, 4 where the compact is referred to as well as its replacement in 1913.
[275] Constitution Amendment (Legislative Council) Act 1933 (NSW) s 5(2) adding section 5A(1) to the Constitution Act 1902 (NSW).
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