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The Pamphlet Collection of Sir Robert Stout: Personal Volume

Enclosure 1

Enclosure 1.

Most Gracious Sovereign,—

We, your Majesty's loyal and dutiful subjects, the members of the Legislative Council and Legislative Assembly of Queensland in Parliament assembled, humbly approach your Majesty with a renewed assurance of our affection and loyalty towards your Majesty's person and Government.

Questions have arisen between the Legislative Council and Legislative Assembly with respect to the relative rights and powers of the two Houses, which questions we are desirous of submitting for the opinion of your Majesty's Most Honourable Privy Council.

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We have caused a case to be prepared setting forth the questions which have so arisen, and which we desire to be so submitted, in the words following:—

1. The Constitution Act of Queensland, 31 Vict., No. 38, contains the following provisions:—

Section 1. There shall be within the said Colony of Queensland a Legislative Council and a Legislative As sembly.

Section 2. Within the said Colony of Queensland Her Majesty shall have power, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, welfare, and good government of the colony in all cases whatsoever. Provided that all Bills for appropriating any part of the public revenue, for imposing any new rate, tax, or impost (subject always to the limitations hereinafter provided), shall originate in the Legislative Assembly of the said colony.

Section 18. It shall not be lawful for the Legislative Assembly to originate or pass any vote, resolution, or Bill for the appropriation of any part of the said Consolidated Revenue Fund, or of any other tax or impost, to any purpose which shall not first have been recommended by a message of the Governor to the said Legislative Assembly during the session in which such vote, resolution, or Bill shall be passed.

2. Sections 1 and 2 are re-enactments of sections 1 and 2 of the Order in Council of the 6th June, 1859, providing for the constitution of the Colony of Queensland.

Section 18 is a re-enactment of section 54 of the Act of New South Wales, 17 Vict., No. 41, contained in the First Schedule to the Imperial Act, 18 and 19 Vict., c.54.

3. The members of the Legislative Council are nominated by the Governor for life, subject to certain contingencies. The members of the Legislative Assembly are elected by the several constituencies into which the colony is divided.

4. During the sessions of 1884 and 1885 "A Bill to provide for the Payment of the Expenses incurred by Members of the Legislative Assembly in attending Parliament,"was passed by the Legislative Assembly, and on each occasion rejected by the Legislative Council. No limit was proposed to the duration of this Bill.

5. In the estimates of expenditure for the year 1885-86, which were laid before the Legislative Assembly in the session of 1885, after the rejection of this Bill for the second time by the Legislative Council, there was included, under the heading of page 25 "The Legislative Assembly's Establishment,"an item of £7,000 for "expenses of members,"to be payable for the year 1885-86, under conditions precisely similar to those defined by the Bill which had been so rejected by the Legislative Council.

6. The estimates are not formally presented to the Legislative Council, but are accessible to members.

7. The Annual Appropriation Bill having been sent by the Legislative Assembly to the Legislative Council for their concurrence, containing an item of £10,585 for "the Legislative Assembly's establishment "—which sura, in fact, included the item of £7,000 for "expenses of members "—the Legislative Council, on the 11th November, 1885, amended the Bill by reducing the sum proposed to be appropriated for "the Legislative Assembly's establishment"from £10,585 to £3,585, and making the necessary consequential amendments in the words and figures denoting the total amount of appropriation, and returned the Bill so amended to the Legislative Assembly. There was nothing on the face of the Bill to indicate the special purpose for which any part of the sum of £10,585 was to be appropriated, except that it was for "the Legislative Assembly's establishment."

8. On the 12th of November the Legislative Assembly returned the Bill to the Legislative Council, with the following message:—

The Legislative Assembly, having had under their consideration the amendments of the Legislative Council in the Appropriation Bill, No. 2,—

Disagree to the said amendments, for the following reasons, to which they invite the most careful consideration of the Legislative Council:—

It has been generally admitted that, in British colonies in which there are two branches of the Legislature, the legislative functions of the Upper House correspond with those of the House of Lords, while the Lower House exercises the rights and powers of the House of Commons. This analogy is recognized in the Standing Orders of both Houses of the Parliament of Queensland, and in the form of preamble adopted in Bills of Supply, and has hitherto been invariably acted upon.

For centuries the House of Lords has not attempted to exercise its power of amending a Bill for appropriating the public revenue, it being accepted as an axiom of constitutional government that the right of taxation and of controlling the expenditure of public money rests entirely with the Representative House, or, as it is sometimes expressed, that there can be no taxation without representation.

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The attention of the Legislative Council is invited to the opinion given in 1872 by the Attorney-General and Solicitor-General of England (Sir J. D. Coleridge and Sir G. Jessel), when the question of the right of the Legislative Council of New Zealand to amend a money Bill was formally submitted to them by the Legislature of that colony. The Constitution Act of New Zealand (15 and 16 Vict., c. 72) provides that money Bills must be recommended by the Governor to the House of Representatives, but does not formally deny to the Legislative Council (which is nominated by the Crown) the right to amend such Bills. The Law Officers were nevertheless of opinion that the Council were not, constitutionally, justified in amending a money Bill, and they stated that this conclusion did not depend upon and was not affected by the circumstance that, by an Act of Parliament, the two Houses of the Legislature had conferred upon themselves the privileges of the House of Commons so far as they were consistent with the Constitution Act of the colony.

The Legislative Assembly believe that no instance can be found in the history of constitutional government in which a nominated Council have attempted to amend an Appropriation Bill. Questions have often arisen whether a particular Bill which it was proposed to amend properly fell within the category of money Bills. But the very fact of such a question having arisen shows that the principle for which the Legislative Assembly are now contending has been taken as admitted.

The Legislative Assembly maintain, and have alway maintained, that (in the words of the resolution of the House of Commons of 3rd July, 1G78) all aids and supplies to Her Majesty in Parliament are the sole gift of this House, and that it is their undoubted and solo right to direct, limit, and appoint, in Bills of aid and supply, the ends, purposes, considerations, conditions, limitations, and qualifications of such grants, which ought not to be changed or altered by the Legislative Council.

For these reasons it is manifestly impossible for the Legislative Assembly to agree to the amendments of the Legislative Council in this Bill. The ordinary course to adopt, under these circumstances, would be to lay the Bill aside. The Legislative Assembly have, however, refrained from taking this extreme course at present, in the belief that the Legislative Council, not having exercised their undoubted power to reject the Bill altogether, do not desire to cause the serious injury to the public service and to the welfare of the colony which would inevitably result from a refusal to sanction the necessary expenditure for carrying on the government of the colony, and in the confident hope that, under the circumstances, the Legislative Council will not insist on their amendments.

9. On the same day the Legislative Council again returned the Bill to the Legislative Assembly, with the following message:—

The Legislative Council, having had under consideration the message of the Legislative Assembly of this day's date, relative to the amendments made by the Legislative Council page 27 in the Appropriation Bill of 1885-86, No. 2, beg now to intimate that they insist on their amendments in the said Bill—

Because the Council neither arrogate to themselves the position of being a reflex of the House of Lords, nor recognize the Legislative Assembly as holding the same relative position to the House of Commons:

The Joint Standing Orders only apply to matters of form connected with the internal management of the two Houses, and do not affect constitutional questions:

Because it does not appear that occasion has arisen to require that the House of Lords should exercise its powers of amending a Bill for appropriating the public revenue, and therefore the present case is not analogous: the right is admitted, though it may not have been exercised:

Because the case of the Legislature of New Zealand is dissimilar to that now under consideration, inasmuch as the Constitution Act of New Zealand differs materially from that of Queensland, and the question submitted did not arise under the Constitution Act, but on the interpretation of a Parliamentary Privileges Act. If no instance can be found in the history of constitutional government in which a nominated Council has attempted to amend an Appropriation Bill, it is because no similar case has ever arisen:

Because in the amendment of all Bills the Constitution Act of 1867 confers on the Legislative Council powers coordinate with those of the Legislative Assembly; and the annexing of any clause to a Bill of supply the matter of which is foreign to and different from the matter of said Bill of supply is unparliamentary, and tends to the destruction of constitutional government; and the item which includes the payment of members' expenses is of the nature of a "tack."

For the foregoing reasons, the Council insist on their amendments, leaving the matter in the hands of the Legislative Assembly.

10. On the 13th of November the Legislative Assembly, by message, proposed the appointment of a Joint Select Committee of both Houses "to consider the present condition of public business, in consequence of no supplies having been granted to Her Majesty for the service of the current financial year."Such Committee was appointed on the same day, and on the 17th of November brought up their report, recommending, amongst other things,—

That, for the purpose of obtaining an opinion as to the relative rights and powers of both Houses with respect to money Bills, a case be prepared, and that a joint Address of both Houses be presented to Her Majesty, praying Her Majesty to be graciously pleased to refer such case for the opinion of Her Majesty's Most Honourable Privy Council.

11. The following Acts and documents are to be deemed to form part of this case:—
(1.)The Imperial Act, 18 and 19 Vict.; c. 54.page 28
(2.)The Order in Council of 6th June, 1859.
(3.)The Constitution Act of 1867 (Queensland).
(4.)The Standing Orders of both Houses.
(5.)A copy of the Members' Expenses Bill of 1884.
(6.)A copy of the Members Expenses Bill of 1885.
(7.)The estimates of expenditure for 1885-86, Executive and Legislative Departments.
(8.)The Appropriation Bill of 1885-86, No. 2.
(9.)Extracts from the Journals of the Legislative Council relating to the Appropriation Bill.
(10.)Extracts from the Votes and Proceedings of the Legislative Assembly relating to the same matter.
The questions submitted for consideration are—
(1.)Whether the Constitution Act of 1867 confers on the Legislative Council powers co ordinate with those of the Legislative Assembly in the amendment of all Bills, including money Bills.
(2.)Whether the claims of the Legislative Assembly, as set forth in their message of the 12th November, are well founded.

We humbly pray that your Majesty will be graciously pleased to refer the said case for the opinion and report of your Majesty's Most Honourable Privy Council.

A. H. Palmer,

President of the Legislative Council.

William H. Groom,

Speaker of the Legislative Assembly. Legislative Chambers,

The following speech was delivered by the Speaker of the House of Assembly on receipt of a message from the Legislative Council regarding the Bill:—

Mr. Speaker said,—I think it my duty, as guardian of the rights and privileges of the House, to call its attention to the message which I have just read. It is the first time in the history of Responsible Government in Queensland that an attempt has been made on the part of the Upper Chamber to amend an Appropriation Bill. In the session of 1884, on the 11th December, I considered it my duty to call attention to amendments which had been made by the Upper Chamber in the page 29 Crown Lands Alienation Bill, and which distinctly infringed upon the privileges of tins House. And in the session, on the 22nd September, I called attention to amendments made by the Upper Chamber in the Local Government Act of 1878 Amendment Bill. On that occasion I again felt it to be my duty to call the attention of the House to amendments by which I thought the privileges of this Chamber were decidedly invaded and infringed upon. But the amendment in the Appropriation Bill is of a much graver character, and, in calling the attention of this House to the amendment which has been made, it will be my duty at once to disclaim anything in the nature of a political contention. My desire is simply to call the attention of the House to the grave constitutional question which is involved in the amendment of the Appropriation Bill. If it is admitted that the Upper Chamber possesses co-ordinate powers with the representative branch of the Legislature, then Responsible Government in Queensland is entirely at an end; because the claim to amend a money Bill, if admitted, must undoubtedly extend to the amendment of taxation Bills; and thus the public policy of the country could be entirely thwarted and set aside by a Chamber which is responsible to no one. The voice of the public outside would be entirely set on one side, and the opinions and will of the majority in this House would also be entirely set on one side. This is therefore, as I said before, a matter of very great importance indeed, and one which I think this House should take proper time to consider before it arrives at a decision. I should not like, on the present occasion, to trouble the House with any long extracts from the different constitutional writers who have written upon this question; but there is one extract from "Hatsell's Precedents"which I consider it my duty to read, because it is one upon which the House of Commons has acted from the time it was delivered up to the present moment; and I may say, further, that the House of Lords has, from that time to this, acquiesced in it. It is probably one of the most ancient claims set up by the House of Commons, and will probably, on that account, be the more entitled to our consideration and respect. The occasion when this opinion was given was on the 9th May, 1689, when the Lords amended the page 30 Poll Bill by adding a clause for appointing Commissioners to rate themselves. To this the Commons disagreed, and on the loth May the Commons appointed a Committee to draw up reasons and report them to the House; and this was one of the reasons:—

All money, aids, and taxes to be raised or charged upon the subjects in Parliament are the gift and grant of the Commons in Parliament; and are, and always have been, and ought to be, by the Constitution and ancient course and laws of Parliament, and by the ancient and undoubted rights of the Commons of England, the sole and entire gift, grant, and present of the Commons in Parliament; and to be laid, rated, raised, collected, paid, levied, and returned for the public service and use of the Government as the Commons shall direct, limit, appoint, and modify the same. And the Lords are not to alter such gift, grant, limitation, appointment, or modification of the Commons in any part or circumstance, or otherwise to interpose in such Bills than to pass or reject the same for the whole, without any alteration or amendment though in case of the subjects.

From the time that was delivered in 1689 up to the present time, and including the ninety-one instances collected by Hatswell, where the Lords interfered with supply Bills, and where the Commons insisted upon their rights, and where the Lords have almost invariably acquiesced in them, except in some minor details, the reasons I have read to the House have been invariably acted upon. It is therefore for the House to take into its most serious consideration the important matter which is brought before them by the Legislative Council's message. I discharge my duty in calling the attention of the House to the gravity of the question. It is one of extraordinary importance, because, as I said before, it is the first time in the history of parliamentary government in this colony that the Upper Chamber has attempted to amend the Appropriation Bill; and their claim to possess co-ordinate powers with the representative Chamber is of such a character that I believe, if it is acceded to, the whole of the policy of the Government, as expressed by the people, can be revolutionized and entirely set on one side by the other Chamber. I think I have discharged my duty now by calling the attention of the House to this matter. It is for the House itself to decide upon what course it will take in view of the extreme gravity of the present circumstance.

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Mr. Griffith then moved, That the Legislative Council's amendments be considered in Committee to-morrow.

Debate ensued.

Question put, and passed.