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The Pamphlet Collection of Sir Robert Stout: Personal Volume

Legislative Council Committee

Legislative Council Committee.

—The Hon. Mr.Holmes, from the Select Committee appointed to inquire into the powers and privileges of this Council, with a view to a modification of its constitution, brought up a report, which was read as followeth:—

In the consideration of the subject remitted to your Committee to report on, they have deemed it expedient to state concisely the authorities on which the powers, privileges, and immunities of the Legislative Council are based; to review the constitution of similar Chambers in other British colonies; to narrate the action which has hitherto been taken by the Council in the direction of a limitation of its numbers; and then to suggest such a course as, in their opinion, would be best adapted to extend its influence and to sustain its independence.

With reference to the first of these stages of consideration, it may be observed that the Constitution Act, which passed the Imperial Legislature in 1852, empowered the Legislative Council and House of Representatives, among other things, to make such standing rules and orders as might be necessary for the orderly conduct of business (52); defined the power of the General Assembly to make laws for the peace, order, and good government of New Zealand (53); and enabled it at any time to alter any of the provisions of the Act itself (68). This Act was amended in 1857 by an Imperial Act, repealing certain clauses, and enabling the General Assembly to alter, suspend, or repeal all or any of the provisions of the said Act, except those which were specified (2); and was further amended by the Imperial Act of 1862, with respect to the power of creating new provinces, repealing a previous Act on the subject, and making further provisions instead thereof.

In 1856, in pursuance of the power vested in it by the Act of 1852, the Legislature of New Zealand passed "The Privileges Act, 1856,"whereby certain of the privileges, immunities, and powers of the General Assembly were defined and declared (1 to 10); such definition, however, was not to be page 47 construed, directly or indirectly, by implication or otherwise, to restrict in any manner whatever the privileges or immunities of the Legislature (12).

"The Parliamentary Privileges Act, 1865,"repealed the fifty-second section of the Constitution Act, which had empowered the Legislative Council and House of Representatives to make standing rules and orders for their guidance (5), and conferred upon the Council and the House respectively, the privileges, immunities, and powers enjoyed and exercised by the House of Commons on the 1st of January, 1865, whether such were held by custom, statute, or otherwise (4).

Your Committee now proceed to state briefly the constitution of the Upper Legislative Chambers of some of the principal colonies of Great Britain.

In New South Wales the constitution was established in 1853. The Legislative Council consists of not fewer than twenty-one members, appointed for life by the Governor and Executive Council, of whom not less than four-fifths consist of persons not holding office under the Crown. The Council now consists of twenty-seven members, the Legislative Assembly consisting of eighty members.

In Victoria the constitution was established by a local Act in 1854, confirmed by the Crown, and was subsequently amended. The Legislative Council consists of thirty members, elected for six provinces, one of the members of each electoral district retiring every two years: the qualification of members being the possession of a freehold property worth £5,000, or of the annual value of £500; and the qualification of the elector being the possession of freehold property worth £1,000, or of the annual value of £100. The Assembly consists of seventy-eight members.

In Tasmania the constitution was established by local Act in 1855. The Legislative Council consists of fifteen members, elected for twelve districts, each holding his seat for six years. The Council is competent for the transaction of business so long as seven members remain. The House of Assembly consists of thirty members.

In South Australia the constitution was remodelled in 1856. The Legislative Council consists of eighteen members elected by the inhabitants, one-third retiring by rotation every four years. page 48 The House of Representatives consists of thirty-six members.

In Queensland the constitution was established in 1859, and subsequently amended. The Legislative Council is without limit as to numbers, but consists of twenty members, nominated for life by the Governor; four-fifths of these consist of persons not holding office under the Crown. The numbers of the House of Assembly being thirty-two.

In the Dominion of Canada the constitution was established in 1867. The Senate consists of seventy-two members, apportioned in equal numbers to the three divisions constituting the Dominion. This number may be increased to seventy-eight. The members are summoned to the Senate by the Governor-General in the Queen's name, and hold their places in the Senate for life. Its House of Commons consists of 181 members.

Your Committee now proceed to narrate the changes which have taken place in the Legislative Council of New Zealand, and those further changes which have been desired.

By clause 33 of "The Constitution Act, 1852,"the Governor was authorized to summon to the Legislative Council, before the first meeting of the General Assembly, such persons, being not less than ten, as Her Majesty should think fit; and thereafter from time to time to summon such other person or persons for supplying any vacancy or vacancies or otherwise.

On the 9th of February, 1855, instructions were conveyed to His Excellency Colonel Thomas Gore Browne, C.B., authorizing him to summon to the Legislative Council such person or persons as he might think fit, in addition to the present members of the said Council, or for supplying any vacancies that may take place therein, by death or otherwise, but so that the whole number of the said Council should not at any time exceed fifteen. (See Votes and Proceedings of Legislative Council, 1854 to 1858.) 1858.)

On the 12th of August, 1861, instructions were given to His Excellency Sir George Grey, K.C.B., to the effect that the number of members of the Legislative Council should not exceed twenty.

On the 28th March, 1862, further instructions were given to His Excellency, revoking the previous page 49 instructions, and empowering him to summon such an additional number of persons to the Legislative Council as he might deem expedient. (Vide Appendix to the Journals of the House of Representatives, 1862, A. No. 1, pp. 4 and 7; also A. Nos. 4 and 5, pp. 3 and 4.)

On the 22nd August, 1862, the Council adopted a resolution requesting Her Majesty to place a limit on its numbers, of which the following is an extract:—

Your Majesty's Legislative Council, believing that its usefulness depends upon its freedom from party spirit, and viewing with apprehension the power vested by the above despatch in the Ministry of the day, who could, by suddenly introducing any number of members, seriously impair the independence of the Council, respectfully pray that your Majesty would be pleased to place a limit on its members.

We respectfully solicit that the number of members of the Legislative Council should not exceed three-fourths of that of the House of Representatives, and that no greater number of new members be appointed, in addition to those required to fill up vacancies by death, resignation, or other causes, in any one year than would amount to one-eighth of the entire number composing the Legislative Council.

On the 17th April, 1863, His Grace the Duke of Newcastle informed His Excellency Sir George Grey that Her Majesty did not see any sufficient ground for exercising her Royal prerogative with a view to limit the number of the Legislative Council, which number is not limited by the law of the colony.

In consequence of this decision, a Bill was introduced into the Legislative Council in October, 1865, for the purpose of limiting the number of its members, but which Bill did not pass the second reading.

On the 30th July, 1866, a Bill of a similar purport was again introduced, and passed through all its stages in the Legislative Council, but lapsed in the House of Representatives.

On the 20th August, 1867, a still growing desire being evinced for some restriction of the number of members, a Bill was brought into the Council to effect this object; but, on the Government promising to consider the subject during the recess, and bring in a Bill, or give sufficient notice to enable some private member so to do, it did not proceed further that session.

The next question which engaged the attention of your Committee had reference to the mode page 50 whereby the influence of the Council might be extended, and its independence secured. And here it may be remarked that the period at which Bills have been introduced into the Council has very materially interfered with that due deliberation which should be given to them. The greater portion of the early part of each session of Parliament is not infrequently devoted by the House of Representatives to debates on great questions of policy, either originating with the Government or with private members, so that it is only towards the middle or close of the session that Bills are forwarded to the Council, thereby leaving little time for their consideration, and consequently the Bills are either laid by for a time, to the detriment of the public service, or passed hurriedly through all their stages without that careful and minute scrutiny which attends Bills referred to a Select Committee, or reviewed in a Committee of the whole Council; and this evil still occurs, even though repeated protests have been entered against the hasty legislation involved. An examination of the statement (A) attached to this report will show to what a length this injurious procedure has extended. Your Committee can see no reason why many of the Bills submitted to Parliament should not, in the first instance, submitted to the Council. Any difficulties which might arise with reference to Bills affecting charges on the people might easily be removed by the course proposed in the twenty-first chapter of May's "Parliamentary Practice."

Your Committee would also remark that, in their opinion, it is desirable that the number of members holding any office of profit under the Crown during pleasure should be limited. In New South Wales and Queensland the number is restricted to onefifth of the number of members. This proportion, even though including Ministers of the Crown, may be too large; but it would, nevertheless, be undesirable that public officers who may have great departmental knowledge and experience should be absolutely excluded from a seat in the Council.

The attention of your Committee has been drawn more particularly to the expediency of limiting the number of the members of the Council. It appears to be a rule in the principal colonies of the Empire, either by law or by practice, to limit the proportion page 51 of the members of the Upper Chamber to about one-half of the number composing the Lower House, and this more especially appears to have been the case in the latest Constitution granted by the Crown, where the number of members of the Senate of the Dominion of Canada is not allowed to exceed seventy-eight; whereas the number of its House of Commons is 181. There are many and obvious reasons why this limitation should be enacted. Among others might be mentioned the fact that an undue extension has a tendency to impair the value attached to a seat in the Upper Chamber, and might expose the Chamber at any moment of popular or party strife to have its independence sacrifice through the sudden introduction of members, with a view to carry out some object. While the Upper Chambers of all constitutional Legislatures recognize their position as one removing them entirely from party considerations, and as designed to be a guard against hasty and immature legislation, they would doubtless feel it to be their duty to weigh with more than ordinary anxiety and care the explicit declarations of public opinion, when deliberately given by all classes of the community, upon any measure, after the period of excitement which might have given rise to it had passed away. When such a spirit pervades the Upper Chamber there need be no apprehension of a conflict between the two branches composing the Legislature. Moreover, the experience of the past, as exhibited in statement (B) hereto attached, makes it evident that in the course of one or two sessions at most the Ministry of the day could have at command a sufficient number of vacancies to fill up, which, aided by the discretion, judgment, and good sense of the members of the Council, would enable them to pass any measures which had at least more than once received the unquestionable approval of a marked majority of the House of Representatives, and would thus avert the injurious consequences likely to arise from a conflict of opinion. Nevertheless it is necessary, should a limit be fixed, that some precaution should he taken by means of which a new Government might, where the limit has been attained, have an opportunity of appointing one or more Ministers to represent them in the Council.

Your Committee are therefore of opinion— page 52
1.That a Bill for limiting the number of members of the Legislative Council should be introduced during the present session.
2.That the Council should press on the Govern ment what it has so repeatedly urged—namely, the expediency of causing important Bills to be submitted to the Council at an early period of the session; and, further, should express its strong repugnance to entertain any Bill when, by reason of the late period of its introduction, it would be impossible duly to consider its provisions.

Statement showing the Number of Bills intro duced into the Legislative Council, either origi nating therein, or sent from the House of Repre sentatives; with the Total of Each of the Four Weeks preceding the Day of Prorogation, and also of the Month.

Year.1864.1865.1866,1867.Number of days of the session..209710195" Bills introduced ..108789108——1804.1805.1860.1807.Bills introduced during the last week of the session—House of Representatives Legislative Council Bills introduced during the last week but one of the session—House of Representatives Legislative Council Bills introduced during the last week but two of the session-House of Representatives Legislative Council .. Bills introduced during the last week but three of the session-House of Representatives Legislative Council 10 4 5 21 2 6 6 119 2 14 2 5 1 4 211 1 11 2 13 1 15 9Total of Bills introduced during the last month of each session19864968Percentage upon the total of the whole number of Bills introduced during the session 40-0255-0558-3363

page 53

Statement showing the Number of Members at the Close of each Session, and also of those added or subtracted before the Close of the following Session, from the Year 1854 to 1868.

Before Close of following Session.No. of Members at Close of Sesstion Added.Subtracted.SessionI., ending 14th August, 186414NilNil.SessionII.."lGth Sept., 1864 ..14NilNil.SessionIII.,"15th Sept., 1855 ..14NilNil.SessionIV.,"16th August, 18661328Sessionv.,21st August, 18682092SessionVI.,"5th Nov., I8601912SessionVII.,"7th Sept., 18612054SessionVIII.,"15th Sept., 1862 ..2561SessionIX.,"14th Dec, 1863 ..2862Sessionx..13th Dec., 186428NilNil.SessionXI.,"80th October, 186535103SessionXII.,"8th October, 18663577SessionXIII., m10th October, 18673643SessionXIV., commencing 9th July,1868.... .. ..3468 N.B.—Average number of members at the close of the session 1865, 1866, 1887—35. Average number of members added to or subtracted from the Legislative Council dining the last three years respectively—Added, 6 noarly; subtracted, 6.

Ordered, That the said report do lie upon the table.