The Pamphlet Collection of Sir Robert Stout: Personal Volume
Appendix No. 1. — Correspondence respecting the Powers of the Two Houses of the Legislature of Queensland. — Governor Sir A. Musgrave, G.C.M.G., to Colonel the Right Hon. F. A. Stanley, M.P. (Received, 12th January, 1886.)
Appendix No. 1.
Correspondence respecting the Powers of the Two Houses of the Legislature of Queensland.
Governor Sir A. Musgrave, G.C.M.G., to Colonel the Right Hon. F. A. Stanley, M.P. (Received, 12th January, 1886.)
26th November, 1885.
I have the honour to forward to you an Address to Her Majesty the Queen, voted by the Legislative Council and Legislative Assembly on the 17th instant, concerning questions which have arisen between those two bodies with respect to their relative rights and powers, and which has been presented to me by the President of the Council and Speaker of the Assembly for transmission to you.
2. I also enclose a copy of a letter to me from the Colonial Secretary and leader of the Government upon the subject of this Address, with copies of the documents therein forwarded.
3. I agree entirely in the views expressed by Mr. Griffith, and believe that it would be difficult to over-estimate the value which would attach to a declaration of the opinion of the Lords of the Judicial Committee of the Privy Council upon the questions involved. Even if there does exist some difficulty in bringing these questions before them as a Court, except by proceedings in the nature of an appeal, I cherish the hope that there may be found some mode of eliciting their judgment, as the legal advisers of Her Majesty in Council, on points of great importance in colonial constitutional law.
4. Almost all collisions and complications of any importance, in the administration of this group of colonies at least, have arisen from conflicting views of the rights and privileges of the two Legislative Houses. It will tend greatly to the avoidance of future mischief, not only in this colony but in others, if it should be found possible to provide an umpire in a body whose decision will be respected as entirely free from local or official bias, and to establish a precedent for reference of doubtful or disputed points to such an arbitrator in a friendly manner. Opinions given by the Attorney-and page 23 Solicitor-General as Law Officers of the Crown for the time being do not carry the judicial authority necessary for the purpose in view.
5. But, in respect of readiness to abide by the decision of a competent umpire, the two Houses of Legislature of this colony have furnished an example well worthy of imitation.
A. Musgrave.The Right Hon. the Secretary of State for the Colonies.
Schedule of Documents forwarded with Original Address from the Council and Assembly.
12 copies of Address.
12 copies of "The Constitution Act, 1867"(Queensland).
12 copies of Standing Orders of the Council.
12 copies of Standing Orders of the Assembly.
12 copies of the Members' Expenses Bill, 1884.
12 copies of the Members' Expenses Bill, 1885.
12 copies of Estimates of Expenditure, 1885-86, Executive and Legislative Departments.
12 copies of Appropriation Bill, 1885-86, No. 2.
12 copies of Extracts from Proceedings, Legislative Council, relating to Appropriation Bill.
12 copies of Extracts from Proceedings, Legislative Assembly, on same subject.
12 copies of Parliamentary Debates (local Hansard) on same subject in Legislative Council.
12 copies of Parliamentary Debates (local Hansard) on same subject in Legislative Assembly.
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.page 24
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.page 26
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,
17th November, 1885.
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:—
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.page 31
Mr. Griffith then moved, That the Legislative Council's amendments be considered in Committee to-morrow.
Question put, and passed.
26th November, 1885.
With reference to the Joint Address to Her Majesty lately agreed to by the Legislative Council and Legislative Assembly of this colony, submitting a case on which they desire to obtain the opinion of Her Majesty's Privy Council, I have the honour to offer the following observations for your Excellency's consideration.
2. Your Excellency will doubtless have observed that the questions submitted (and in particular the second question) are rather questions as to the constitutional rights and powers of the two Houses of the Legislature than technical questions as to the construction of the statute law. So far, at least, as the Legislative Assembly are concerned, I think I am right in saying that the literal interpretation of the words of the Constitution Act is regarded as a matter of small importance as compared with the larger question, Whether, on a true construction of the written and unwritten Constitution of the colony, the two Houses of the Legislature should be regarded as holding and discharging, relatively to one another, positions and functions analogous to those of the House of Lords and House of Commons.
For the assistance of Her Majesty's Government, and in compliance with a promise mode by myself to the Joint Committee by which the Joint Address was framed, I enclose copies of the official reports of the debates in both Houses on the question which gave rise to the Address, which will indicate the line of argument adopted by both Houses respectively.
4. I am not aware of any instance in which a similar case has been submitted for the opinion of the Privy Council. The only analogous case that I have been able to discover is that of the case submitted in 1872 by both Houses of the Legislature page 32 of New Zealand for the opinion of the Imperial Crown Law Officers. Some reluctance, however, existed in this colony to submit the matter, as one purely of law, for the opinion of the Law Officers. I am sure that very great satisfaction will be felt by both Houses of the Legislature if Her Majesty should think fit in this instance to refer the matter to the Privy Council, as prayed by the Joint Address. And I conceive also that such a reference would not involve any departure in principle from ancient theory and practice as to the functions of the Council, although those functions may not in recent times have been exercised under circumstances precisely analogous. But, even if the proposed reference is considered to be not supported by ancient theory or precedent, I venture to suggest that the establishment of such a precedent would not be disadvantageous.
5. In the event of the reference being made, I do not, of course, know whether it would be made to the Judicial Committee of the Council or in Borne other form, or whether, in either case, it would be thought advisable that the case should be argued by counsel. As to the desirableness or otherwise of its being so argued I have no suggestion to offer; but, if it is proposed, it would be a great convenience if information were given either to your Excellency, by telegraph, or to the Agent-General for Queensland in London, in order that the necessary arrangements may be made without delay for supporting the views of either House, if it should be thought desirable that they or either of them should be represented.
S. W. Griffith.His Excellency Sir Anthony Musgrave, G.C.M.G., &c.
The Colonial Office to the Council Office.
3rd February, 1886.
I have the honour to transmit to you a copy of a despatch from the Governor of Queensland, enclosing a petition from the Legislative Council and Legislative Assembly of the colony concerning questions which have arisen between those two page 33 bodies with regard to their relative rights and powers, together with certain documents which are specified in a schedule to the despatch, and which are in the nature of exhibits to the petition.
I shall feel obliged if you will be so good as to submit these papers to the Queen, with a recommendation that Her Majesty may be graciously pleased to refer this matter to the hearing and consideration of the Judicial Committee of the Privy Council, in pursuance of the power reserved to Her Majesty by the Act 3 and 4 Will. 4, c. 41, s. 4.
I should also be glad to be favoured with your opinion whether it is desirable that the case should be argued by counsel on behalf of the two Houses of the colonial Legislature, and whether each House should be represented separately.
Fred. Stanley.The Lord President of the Council.
The Council Office to the Colonial Office.
3rd April, 1886.
I am directed by the Lord President of the Council to acquaint you, for the information of Earl Granville, that the Lords of the Judicial Committee have proceeded, in obedience to Her Majesty's order of reference of the 8th March, to consider the petition addressed to Her Majesty in Council by the Legislative Council and the Legislative Assembly of Queensland, which was transmitted to this office with a letter from the Bight Hon. Sir Frederick Stanley on the 3rd February last past.
|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 ail Bills, including money Bills;page 34|
|2.||Whether the claims of the Legislative Assembly, as set forth in their message of the 12th November, are well founded—agreed humbly to report to Her Majesty that the first of these questions should be answered in the negative, and the second question in the affirmative.|
The report of the Judicial Committee has been approved by Her Majesty in Council to-day. Copies of the Order in Council approving the same will shortly be forwarded to you for transmission to Queensland.
Henry Reeve,Registrar, P.C.
Sir Robert Herbert, K.C.B.,&c.