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The Pamphlet Collection of Sir Robert Stout: Volume 30

Chapter IV. The Occupation Licenses, and the Duffy Land Act

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Chapter IV. The Occupation Licenses, and the Duffy Land Act.

The Nicholson Administration having carried their Land Bill, Parliament was, on 18th September, prorogued till 20th November, when the necessity of providing for the exigencies of the public service compelled them again to meet the Assembly. Their career was doomed to be cut short. The Administration had, at no stage of its existence, been a strong one. Its history was one unceasing struggle. Its poverty of definite principle left it with few warm friends, and many vigorous foes. The Land Reformers were offended with the Chief Secretary and the Attorney General, on account of the pusillaninity and want of earnestness of one and the unmitigated treachery of the other. At that time the Convention Party held the balance of power in the House. Having no faith in Mr. Nicholson and his colleagues they determined to join the straight opposition, led by Mr. O'Shanassy, in order to expel the Ministry from office. Accordingly an amendment was moved to the address in reply to the Governor's speech. Mr. J. H. Brooke, member for East Geelong, and a prominent Land Reformer, was entrusted with the amendment. The grounds of attack were that the Ministry had not declared their policy on the question of the occupation of Crown lands for pastoral purposes; that they had unsatisfactorily administered the Land Act; that no intimation had been given respecting the necessary re-adjustment of the financial system of the colony, and generally that the Government did not possess the confidence of the country. Mr. O'Shanassy seconded the motion, which was carried by a majority of 13.

The Ministry resigned, and Sir Henry Barkly then invited Mr O'Shanassy, as head of the previous administration, and Mr. Elden, as leading seceder from the Ministerial ranks, to form a Government. These gentlemen declined to undertake the task. Mr. Brooke was then entrusted with the important duty. Knowing that he merely occupied the position of nominal leader of the majority, he convened a caucus of the opposition, at which the members of the incoming Ministry were nominated and elected by ballot. page 51 Mr. Brooke then met the gentlemen so elected, and arranged the distribution of port-folios. He was not allowed to grasp the coveted prize of the Chief Secretaryship. Mr. J. S. Johnson, of St. Kilda, was offered it, but had not the courage to accept it. Mr. Richard Heales became Chief Secretary, and the other offices were distributed thus:—Mr. Brooke, Minister of Lands; Mr. Ireland, Attorney-General; Mr. Verdon, Treasurer; Mr. Johnson, Commissioner of Public Works; Mr. R. S. Anderson, Commissioner of Land and Customs; Mr. Thomas Loader, Commissioner of Railways; Mr. J. B. Humphray, Minister of Mines. Thus came into existence the celebrated Heales' Ministry—a Ministry intended by the squatting party to be a kind of ad interim arrangement to prepare the way for a true-blue Conservative Government. Instead of occupying that despicable position it became one of the most popular Ministries that ever ruled Victoria. It laid the foundation of Liberal Land Legislation, and left an honorable and enduring reputation.

The name of Mr. Richard Heales is still a house-hold word in Victoria. It is still respected by thousands who in years past were guided by his example and encouraged by his manly exhortations. He was a temperance advocate, a social reformer, and a man of the people. He arrived in the colony in 1842, a coach-maker by trade. The story of his adventures and privations; his gradual progress from 6s. per day, the wages of a day labourer, to the post of Chief Secretary of "the People's Ministry" is one of the most extraordinary in the annals of Australian biography. He entered the Assembly as member for East Bourke in 1857, when Mr. O'Shanassy first appealed to the Constituencies on behalf of his ministers. On that occasion he defeated Dr. Greeves, Commissioner of Customs of Mr. O'Shanassy's Government. In September 1859, Mr. Heales was returned for East Bourke Borough and on the 26th November, 1860, he became Chief Secretary of Victoria. During his Parliamentary career he had always sided with the cause of the masses, and took great interest in the Land question. Not having been in office prior to his advent to the Chief Secretaryship, he was not familiar with political red-tapeism; yet in his official life as leader of the House and head of the Cabinet he displayed an amount of tact and plodding ability that delighted his friends, and disappointed his foes. Having marked out and adopted a Liberal policy, he proceoded to give effect to it; nor was he unsuccessful; although harrassed on all sides by implacable and powerful enemies.

The new Ministry was not long installed in office before the defects of the Nicholson Land Act, and its utter inability to meet the requirements of the country with regard to the settlement of the people on the soil, became glaringly apparent to them. It was page 52 found that the eliminations effected by the squatters and largo landed proprietors in the Upper House, assisted by a powerful minority in the Assembly, had left the measure a shameful abortion. Fine Agricultural lands were thrown open for selection in order that persons who desired to become farmers and raisers of produce might have every opportunity of doing so if they could according to law; but most of the land so offered passed to the squatters. Land unfit for cultivation remained uncalled for a. The so-called system of "limited auction" proved a disastrous blunder. The squatters competed for almost every valuable allotments put into the market, and drove out the small cultivators. A return prepared by an officer of the lands department showed how the land went into large estates.

At a place called Muntham, County Dundas—13,388 acres were proclaimed, and it was supposed that the pastoral tenant, Mr. Henty, had obtained 11,146 acres. At North Wilgul, County Grenville, about 11,000 acres were proclaimed, the whole of which was supposed to have become the property of Messrs. Rowe, McVean and Faris, pastoral tenants. At South Wilgul, Grenville, about 6,500 acres were proclaimed, the whole, excepting about 300 acres, supposed to have fallen into the hands of the pastoral tenants, Messrs. Elder and M'Vean. At Warracborunah, Grenville, about 14,000 acres were proclaimed, the whole supposed to have fallen into the hands of the pastoral tenant, Mr. Timms. At Gala, Hampden, 38,000 acres were proclaimed, of which about 25,000 acres were supposed to have become the property of the pastoral tenants, Messrs. Anderson, Wilson and Mack. At Mannibadar, Grenville, 16,000 acres were proclaimed, nearly the whole of which had, it is supposed, become the property of the pastoral tenants, Messrs. Baird, Rowe, Mack and Clark. At Turkeeth, Grenville, 19,000 acres were proclaimed, nearly the whole of which was apparently taken up on behalf of the pastoral tenants, Messrs. Armytage, Beale, Calvert and Dennis Brothers. At North Poliah, Grenville, 11,700 acres were proclaimed; 6,000 acres were supposed to have fallen into the hands of the pastoral tenants, Messrs. Mack, Rowe and M'Vean. At Cressy and Yarima, Grenville, about 24,000 acres were proclaimed, of which 13,500 had been taken up—the greater portion by and on behalf of the pastoral tenants, Messrs. Bell, Elder and Russell. At Ondit, Grenville, about 16,500 acres were proclaimed, of which about 13,000 acres appeared to have fallen into the hands of the pastortal tenants, Messr. Bell and Calvert. A poor man could not buy a farm in any part of the Agricultural districts without having to run the gauntlet of competition at auction against, perhaps, the richest man in the place, whose interest in a neighbouring run gave him a strong inducement to bid

a Statement of Mr. Brooke, Minister of Lands. Hansard, vol. 8, p. 75.

page 53 high in order to keep off introducing selectors. The cost of country land was frequently as high as £5, £6 and £7 per acre; the average cost being £1 19s. 4d. per acre. In this way there was little difference between the mode of alienating country lands, and that of alienating special lands. Free selection at an uniform price had no existance in law or in fact. A difficulty equally as serious as that which stopped agricutural settlement also arose on and in the vicinity of gold-fields. Thousands of miners and other persons being unable to buy freeholds at auction built and settled upon crown land without having a scrap of title, they planted vineyards and orchards, cultivated little plots of ground, and thereon established their hearths and homes. Their occupation was utterly illegal and in defiance of the executive authority. But what could be done? Were these unfortunate people to be turned out of their houses and gardens into the wilderness simply because an unrighteous legislature had neglected, or refused to provide for their simple wants?
It was under these circumstances—seeing that the intention of the Land Act to settle the people on the soil, at the uniform price of £1 per acre had been defeated, and that a large class of the population were compelled to occupy Crown Lands in defiance of the law, owing to the default of the law—that Mr. Heales and his Minister of Lands, Mr. Brooks, guided by the advice of the Attorney-General, Mr. Ireland, adopted the expedient now famous in the history of Victorian Land Legislation, known as the "occupation licenses." By section 68 of the Nicholson Land Act, the Board of Land and Works was authorised to grant licenses for terms not exceeding seven years, to persons to occupy Crown Lands for the sites of inns, stores, bridges, or ferries, &c., "or for such other purposes as may appear to the said board to be for the public advantage or convenience." On carefully considering this section, Ministers arrived at the conclusion that its general power might be made use of for promoting bona fide selection. The whole question was one of legal interpretation. What was the meaning of the words "or for such other purposes as may appear to the said board to be for the public advantage or convenience?" Would those words include a license to a miner to occupy a residence area? Would they enable the Minister to grant a license to a farmer to cultivate? "I think that the true interpretation of the section," said the Attorney-General a, "will appear if it is observed that the common point of agreement among the different classes enumerated is that they each imply an enterprise which is undertaken primarily indeed for the private benefit, but which tends to produce some public advantage or convenience." In his opinion the clause was applicable to any species of industry which was pri-

a Mr. Ireland's opinion. Hansard, vol. 8, p. 73.

page 54 marily for the benefit of the individual, but ultimately for the benefit of the community at large.

On the strength of this section, with its convenient interpretation, the Ministry resolved to issue licenses legalizing the goldfield holdings referred to, as well as to enable persons to select small farms. On the 23rd May, 1861, a proclamation was published in the Gazette to the following effect:—

"Fees for the occupation of Crown Lands for other than Pastoral Purposes.—In accordance with the provisions of the Act, 24 Victoria, No. 117, the Board of Laud and Works has directed the fees hereinafter mentioned to be charged for the occupation of crown lands for other than pastoral purposes, subject to the conditions hereinafter prescribed." Then followed the schedule of purposes with rent, including among others:—"For residence and cultivating on the Gold-fields—£10 per annum payable quarterly, in advance, authorising the holder to occupy and cultivate two acres of land in such position as may be approved by the Board of Land and Works, and to erect a residence on such land, together with an additional fee computed at the rate of 5s. per acre per annum for every additional acre enclosed by the holder of the license subject to the conditions, that the total number of acres so occupied shall not exceed 20 acres. Conditions.—The Government may, at any time, survey and alienate by way of auction or otherwise, any of the lots so occupied, subject to the conditions of a valuation for improvements. The Crown reserves the right to survey and dedicate to public use such roads as may be deemed essential for public convenience, through any of the allotments so held without payment for any improvements that may be found on such roads when so set out. The Government shall have full powers to withhold the issue of, or revoke any, of the licenses aforesaid when deemed expedient to do so."

This announcement did not attract much attention in the Assembly when it was first made. Little importance was perhaps attached to it by the opposition, as a formidable and determined effort was on the point of being made to drive the Ministry from the treasury benches. On Friday, 13th June, Mr. Hedley, member for Gipps Land, was put forward to move a long threatened vote of want of confidence. It was supported by Mr. O'Shanassy, Mr. Duffy and other leading members who had helped to place Mr. Heales in office. Mr. Higinbotham, then a new member, disapproved of the trick by which it was proposed to effect a change of Ministry, though he was by no means an ardent supporter of theirs. Mr. Heales manfully defended his Government, but the traitors and apostates in his camp were too many for him. The motion was carried by a majority of 18, at a sitting which commenced at half past four on Friday afternoon and lasted till 13 minutes past one o'clock p.m. on Saturday.

page 55

On the following Tuesday the House was startled by an announcement that Ministers had obtained a dissolution, which would take place as soon as the Appropriation Bill was passed. The majority who had voted against the Government adopted an address to Sir Henry Barkly protesting against the proposed dissolution, and asking that Parliament should be called together as early as possible after the general elections. Not content with this, they inserted, on the motion of Mr. Nicholson, an unprecedented clause in the Appropriation Act, providing that no money appropriated by the Act, should be available for payment after 31st August, unless Parliament was then sitting. These outrageous proceedings elicited a dignified rebuke from the representative of the Crown, and excited strong expressions of indignation throughout the country.

Mr. Heales appealed to the country mainly on the land question; his policy was free selection before survey, uniform price, and periodic payments. The issue of occupation licenses was the main administrative act for which he claimed approval. The regulations of 23rd May were amended and improved by others proclaimed on 28th August. It was announced that residence and cultivation licenses would be issued to occupy country lands not situated within seven and a-half miles from existing gold-workings and not proclaimed for selection. The limit of area for which a license could issue was not less than 40 acres and not more than 160 acres. The licenses were not to be transferable without permission of the Board of Land and Works. No person under the age of 21 years could obtain a license. The licenses were to be from year to year for a period not exceeding seven years. Licensed land could be alienated by auction at any time, subject to a valuation for buildings, fencing, and improvements, but the government undertook not to sell such land during the currency of the license, unless, on the applications of or with the consent of the licensee. If a number of appplications were received simultaneously for the same piece of land, the name of the successful applicant was to be determined by lot. The fees for residence and cultivation licenses of country lands were fixed at the rate of 2s. 6d. per acre per annum, payable in advance. Licenses were to be forfeited (1), if the land described in the license was taken in collusion with any person other than the person named in the license. (2). If more than one allotment were occupied, or more than one license obtained by the same person. (3). If land for which a license was granted were sub-let. (4). Non-residence upon the land or neglecting to make improvements thereon, within a reasonable period after issue of the license to occupy same, precluded renewal of any residence or cultivation license. Licenses could be issued to occupy land before as well as after survey. The system of land settlement promulgated by these page 56 regulations was a startling revolution compared with the obstructive policy that had so long predominated in the colony. Now it could be said, with truth, that the lands had at last been unlocked; the poor and struggling classes were no longer shut out from enjoyment of the inheritance bequeathed to them by the British Parliament.

The result of the appeal to the constituencies was an overwhelming verdict in favor of the Ministry and their land policy. The large majority of members returned were pledged to support the occupation licenses, and the Government which introduced them. Ministers met parliament triumphantly. The speech placed in the hands of the Governor stated that the demand for occupation and cultivation licenses was so great as amply to vindicate the necessity and expediency of their issue. Such was the general satisfaction evinced by miners and others desirous of providing homes for themselves and their families, but who had been hitherto practically denied the opportunity of substantial settlement, that it was deemed desirable to extend the advantages of the system to persons who wished to engage in agricultural pursuits, under regulations framed to prevent speculation, and undue competition, and to promote the occupation of the lands by those who actually cultivated and resided on them. "I trust," said his Excellency, "that this,—the most liberal land system in the Australian colonies,—will not only be duly appreciated and extensively resorted to by our own population, and that the exodus of those unsettled portions of the people who, having no fixed attachment to the country, are led away by every rumour of a newly-discovered gold-field, will be checked, but that it will be a powerful inducement to intending emigrants to make this favoured land their home, who might otherwise have directed their course elsewhere. It is not too much to hope that the prosperity of the country, retarded by the want of facilities for settling on the soil, will rapidly advance under the operation of the new system."

The new system, however, was destined to undergo many assaults. No sooner had the Assembly met for business (12th September), then Mr. Duffy moved a vote of censure against the Government for undertaking to issue the occupation licenses announced in the Gazette of 28th August. In this movement, Mr. Duffy was supported by Mr. O'Shanassy, Mr. Haines, and the land monopolist party, with which Mr. Duffy, at this time, began to identify himself and his political fortunes. Hitherto he had co-operated or pretended to co-operate with the Convention party, and, in fact, acted as one of their leaders in the House. By degrees, however, he parted company with the land reformers and threw himself into the arms of the squatters. He was now selected to attack the occupation licenses. The grounds of attack were:—1. That page 57 the regulations should have been approved by the Governor-in-Council, whereas they had been promulgated on the sole authority of the Board of Land and Works. 2. That the Land Act in no way authorised or contemplated the exercise by a Minister of such tremendous power as that assumed by the regulations. 3. That the words of the 68th section "for the public advantage or convenience," did not mean general purposes, but purposes of the same kind and character as those comprehended by the preceding words of the section—such as "inns, stores, bridges, or ferries." 4. That if those words would authorise the; granting of licenses for cultivation and residence they would also legalise the granting of pastoral licenses. 5. That the Government had been guilty of a gross contempt of Parliament in attempting to effect such a serious change in our land system on the eve of its assembling without seeking its sanction. The Government defended their action on legal and political grounds. The country, they said, had approved of their policy, and as regards the legal aspect of the question they had acted on the opinion of their Attorney-General. In the meantime however, Mr. Ireland had resigned the Attorney-Generalship, and had been succeeded by Mr. B. C. Aspinall, The late Attorney-General defended the legality of the licenses, but considered that the Government ought to have consulted Parliament before adopting them. Mr. Aspinall very ably vindicated the policy of the Government. Mr. Heales described the licenses as "the fulcrum for settling the people on the lands," and he solemnly warned the House not to surrender the advantage which it had gained over the other chamber. Mr. Graham Berry, just returned as a colleague of Mr. Charles Jardine Don in the representation of Collingwood, distinguished himself in this debate. He deeply regretted the secession of Mr. Duffy from the ranks of the land reformers. Attributing his hostile action to the desire for office, Mr. Berry reminded the member for Villiers and Heytesbury that he ought to have been contented to have clone as Mr. Wilson Gray, the member for Rodney, had cheerfully done—content to light in the ranks, allowing men to occupy the Treasury Benches who had no stronger claims than himself, but who had been placed there by the force of circumstances. "The hon. member," said Mr. Berry, "knew well the power of the immense monopoly against which they were struggling, and, therefore, it would have been more to his honour if he had joined hon. members on his (Mr. Berry's) side of the House" a. "Through the great power and influence of this party," continued the member for Collingwood, "the House was legislating, not as it would, but as it could after every other resource had been exhausted, after the country had been brought to its present state; after the popular party had been brought weaker

a Hansard vol. 8, p. 145.

page 58 and weaker every day, while the party against which they were fighting was increasing in strength and in magnitude every day." "Victoria had now an unworkable constitution. The constitution had given them an Upper House, which would do nothing itself, and would prevent the Assembly from doing anything—an Upper House, composed of men determined to hold the land at all hazards against the people of this country." The division took place at 20 minutes to 5 o'clock on the morning of Saturday, 20th September. The resolution and several amendments to it were negatived by large majorities in favour of the ministers.

The enemies of the ministry, open and secret, perceived that the occupation licenses were too popular with the country to be trifled with, but they were determined to oust, by fair means or foul, the men whose administration of the public lands would be so fatal to the aggregation and maintenance of large estates. The financial scheme of the Government had scarcely been placed before the House by Mr. Verdon, when another raid on the Treasury benches was commenced. On the order of the day for going into committee of Ways and Means, Mr. O'Shanassy moved.—"That this House having maturely considered the estimate of income for 1862 submitted by the Government, is of opinion that it is unreliable and unsatisfactory. It is further of opinion that the inconsistent policy upon which such estimate is founded, gives no assurance of raising the country from its present depressed condition, and this House, therefore, declines to enter upon its consideration." Mr. Nicholson seconded the motion. The Victorian Association formed for the purpose of buying the votes of members in the interest of the squatters were victorious. Messrs. O'Shanassy and Nicholson found a pliant majority at their command. The Ministry were defeated by needy schemers, notorious renegades, apostates and traitors, who, for place, pay, power and patronage, sold themselves and their constituents, and brought into contempt the representative institutions of the country. "Never," said the Chief Secretary on the eve of defeat, "never in the history of responsible government had liberal and political principles received such a blow as by the change of the hon. members who were elected to support the Ministerial programme, but who had distorted the professions of the Government, and lived on the hope that some little thing would turn up to enable them to solve their consciences, and show their supporters that they had a plausibility to justify their change; in that respect the country had been deceived, and those hon. members had inflicted a great blow upon responsible government. It was for the Government to take the verdict of the House, and leave the country to decide." The resolution was carried by 40 votes to 34, and next day 12th November, Mr. Heales resigned office,

page 59

Mr. O'Shanassy then formed his third and last Cabinet, the offices being distributed as follows:—Mr. O'Shanassy, Chief Secretary; Mr. Haines, Treasurer; Mr. Duffy, Commissioner of Lands; Mr. Ireland, Attorney-General; Mr. J. D. Wood, Minister of Justice; Mr. Johnson, Commissioner of Works; Mr. Anderson, Commissioner of Customs; Mr. Nicholson seat in the Cabinet without office.

Meanwhile the question of the legality or otherwise of the occupation licenses, was decided by the Supreme Court in the case of Fenton v Skinner, (5th December). The Court held that the words in the 68th section of the Land Act, "such other purposes as may appear to the said Board to be for the public advantage or convenience," meant purposes ejusdem generis (of the same kind) with those enumerated in the same section, and that a license for "residence and cultivation "was not ejusdem generis, and was therefore void. The entire fabric of the land system constructed by the Heales Government thus tumbled in ruins, by the defeat of the Ministry and the decision of the Supreme Court. Not only did Mr. O'Shanassy and his collegues suspend the operations of the regulations, but, actions for trespass were commenced by pastoral tenants in all directions against unfortunate holders of licenses who resided on and cultivated parts of runs. The new Government, however, did what they could to discourage these actions, and resolved to protect the occupation licenses by special conditions, to be inserted in the pastoral licenses of the following year.

Several useful purposes at any rate were served by the occupation licenses. They alarmed the Upper House; they induced the squatting party to negotiate for a new land bill on a more liberal basis; they supplied the precedent and model of future land bills; they recognised the principle of leasing Crown Lands in small allotments, subject to an annual rent; they suggested the stringent conditions under which agricultural settlement should be enforced, and they placed many hundreds of families upon the soil a.

On the 28th January, 1862, Mr. Duffy introduced a land bill, having for its avowed objects the amendment of the defects of the Nicholson Act, and the adjustment of the terms of pastoral occupation. The bill dealt with the entire territory—pastoral as well as agricultural lands. At this time about 4,500,000 acres of the public estate had been sold; about 1,500,000 acres were reserved for commonage; about 500,000 acres were occupied and worked as gold-fields, making altogether nearly 7,000,000 acres occupied in a useful and productive manner by the great masses of the population. There were 35,000,000 acres occupied for pastoral pur-

a 1718 Licenses were taken out, comprising about 172,000 acres of land.

page 60 poses, yielding an annual revenue of £250,000, whilst 13,000,000 acres were unoccupied, and produced no revenue whatever. Of the 35,000,000 acres of pastoral country 10,000,000 acres were considered to be of pre-eminent value for agricultural purposes. By the Duffy Land Bill it was proposed to reserve these 10,000,000 acres for proclamation in agricultural areas, and not less than 4,000,000 acres were to be surveyed and open for selection, within three months of the passing of the Bill. The agricultural areas were to be surveyed in allotments of not more than 640 acres, and not less than 40 acres each. Persons wishing to select an allotment were required to "make a written application" to the nearest land office. The next principal feature of the scheme was that of the system of sale by auction was abolished, and if more than one application for the same lot were received by the land officers on the same day, during office hours, the officer determined by lot which of the applicants was entitled to priority. A selector could pay the purchase money, £1 per acre, for the whole allotment, or could pay the purchase money of half and lease the balance for eight years at a rent of 2s. 6d. per acre, payable in advance. The rent went towards the purchase money of the leased land. At any time during the term of the lease the purchaser of the first moiety, his heirs or assigns, was entitled to a grant of the leased moiety as real estate, on payment of the difference between the amount of rent actually paid, and the entire sum of £1 per acre. "The occupation license," said Mr. Duffy, made the licensee liable for a rent of 2s. 6d. per acre while he was in possession, but that rent was not reckoned as part of his purchase money for the land. Now, the Government proposed that every 2s. 6d. paid in the shape of rent should be regarded as an eighth of the price of the land" a. The conditions attached to selection were:—1. No infant or married woman living with her husband could select. 2. No person could select more than one allotment of 640 acres within a period of twelve months. 3. Every selector was bound (a) to cultivate one acre of every ten selected within a year after selection, or (b) erect a habitable dwelling thereon, or (c) enclose such allotment with a substantial fence. 4. If any land within an agricultural area remained unselected after the expiration of one year from its proclamation it could be sold by public auction. 5. The Bill required an intending applicant to make a declaration on oath, that he applied on his own behalf and not as agent or trustee for any other person, a false declaration rendering him liable to prosecution for perjury. Provision was made for protecting the rights of holders of occupation licenses. Those who had received licenses for agricultural land were allowed to remain in occupation for 8 years at 2s. 6d. per acre, or they could at once come under the

a Hansard, vol, 8 p. 348.

page 61 operation of the Bill. Every applicant for a license who received a certificate of having applied prior to 18th November was placed in the same position as the holder of a license. The second part of the Bill provided for the sale of special lands by auction at an upset price, to be fixed by the Governor-in-Council, not less than £1 per acre. The third division of the Bill established a system of letting public lands by lease or license for several useful purposes and enterprises, such as the growth of olives, vines, mulberries, hops, &c. The fourth part made provisions for commons and placing them in the control of local managers. The fifth part dealt with pastoral occupation of the country.

The precarious and doubtful nature of the pastoral tenancy has been already described. Owing to difficulties explained, Mr. Latrobe refused to issue 14 years leases to the squatters under the Order in Council of March 1847. On 10th June, 1850, another Order in Council was promulgated by the Queen in Council authorising the Governor to grant leases of waste land for periods not exceeding one year for pastoral and other purposes and further authorising the governor to sell to a leaseholder any part of the land comprised in the lease. The squatters therefore held their runs under this annual licensing system up to the date of the bill now under discussion, for, although the Imperial Statute 9 and 10 Victoria, cap. 104, under which the Orders in Council were framed, was repealed by the Imperial Statute 18 and 19 Victoria, cap. 56 (the Victorian Constitution Statute), the fourth section of the last named Act expressly preserved the Orders in Council until repealed by the Victorian Legislature and those Orders were left unrepealed by the Nicholson Land Act. There was a general impression abroad that the squatting system would terminate in 1861 or 1862. This feeling which was very strong among the members of the Convention party may be thus accounted for. The leases contemplated by the Order in Council of 7th March, 1847, were not issued, but, notwithstanding that the squatters continued in occupation as annual tenants. Had they held the 14 years leases which they claimed, those leases would have terminated by effluxion of time in 1861. On 28th July, 1852, however, the Legislative Council in Victoria passed a resolution by which it was determined that the leases should issue, as of 7th April, 1848, so that if this was to be regarded as a pledge given by Parliament the leases should not have been treated as expiring before 7th April, 1862 a.

This was the position of the pastoral question, when it was approached by the Duffy Land Bill. There were then 981 runs, upon which assessment was paid, embracing 35,000,000 acres, yielding a rental of about £250,000. Of these runs, 285 were returned as carrying less than 4000 sheep; 400 carried less than

a Mr. Ireland's opinion. Hansard, vol. 7, p. 67.

page 62 5000 sheep: and 250 carried more than 5000 and less than 10,000 sheep. The amount of stock, including horses, cattle and sheep, depastured on the licensed Crown Lands of the Colony at this period, showed an equivalent in sheep of 7,827,889, but there were strong reasons for believing that this amount was far below the grazing capabilities of the licensed land. The bill proposed to grant licenses to occupy for pastoral purposes to persons in licensed occupation of runs for that purpose at the time of the passing of the Act. These yearly licenses were to be issued every year, for 10 years—terminating in December, 1871. The rent to be paid was at the rate of 1s. 6d. per sheep, or 2s. for every head of cattle which a run was capable of carrying. No license issued for a run was to prevent any part of it from being sold, leased, or proclaimed a common, or occupied under miners right, or license for other than pastoral purposes. Crown land not occupied under lease or license could be submitted to auction in pastoral runs of such extent as the Governor in Council saw fit.

Among other general provisions of the bill was one repealing the Orders in Council, and providing for the compensation of squatters for improvements on parts of their runs, which might be reserved or leased. A portion of the revenue derived from land was appropriated for the purpose of assisted immigration.

The main objections to this scheme were raised by Messrs. Heales, Brooke, Wilson Gray, and Berry. It was contended that the bill was framed essentially in the interest of the squatters and wealthy classes, and that a few liberal clauses were thrown in as a sop to the farmers. Whilst the people expected that the squatting tenure was to terminate in 1862, and that thereafter the whole of the Crown Lands of the Colony would be thrown open for free pasturage, the Bill proposed to give to the squatters what was virtually a perpetuity of title. If the system was to be continued the runs should have been sub-divided and the rent determined by public competition and not by arbitration as the measure contemplated. Farmers were to buy small allotments whilst squatters were to rent large sections, whereas, the two pursuits, agriculture and pasture, should have been united; at any rate, one class of men should not be allowed such a great advantage over another. Another objection was that if agricultural lands were not selected within one year after proclamation, they might be put up for sale by auction. According to this arrangement land was only available for free selection during one year; the result would be to enable squatters to buy up whole territories. As to the provision that one person could not select more than 640 acres in a year, that was absolutely futile, as there was nothing to prevent the owner of one allotment from mortgaging it to another, as was done under the Nicholson Act. The action of Mr. Duffy was severely criticised; he was page 63 reminded of having denounced the Haines Bill as a swindle, because it proposed to give the squatters annual leases for seven years; he was reminded that he had, on the same occasion, declared that the squatters had no rights under the Orders in Council, yet, he now asked the House to give 10 years licenses to the squatters with the right of compensation for improvements. Mr. Heales declared that this bill gave the squatters advantages which the Haines Bill never proposed, whilst Mr. Gray asserted that Mr. Duffy's Bill was inferior to the Nicholson Act.

The second reading was carried by 38 to 26 votes. In committee, several amendments were made, owing to the persistency and energy of the opposition. The clause providing for the sale by auction of land unselected within one year after its proclamation as part of an agricultural area was amended so as to allow proclaimed land to remain open for selection for three years. The term of squatters' licenses was reduced from 10 to 9 years—terminating on 31st December, 1870. On the motion of Mr. M. J. Cummins (member for South Grant), a new clause was carried, giving persons who were the owners of freehold, purchased, the right to select an allotment of Crown Lands equal in size to their freehold lot, and not exceeding 320 acres, lease it on the same terms and conditions as selectors under the new Act. Before so selecting these freeholders were required to produce a certificate from the Crown solicitor showing their qualifications. Mr. Gray endeavoured to carry an amendment limiting the maximum area of an allotment to 320 acres instead of 640 acres, but it did not meet with strong support. Mr. Gray proposed a clause to the effect that no Crown grant should issue to any person selecting lands until twelve months had elapsed after the date of such selection, and until such twelve months had elapsed, it should not be lawful for such selector to sell, convey, lease, mortgage, charge, encumber, or to agree then or at any future time to sell, lease, mortgage, charge, encumber the same, or any part thereof, and every attempt or agreement so to dispose of or affect the same, should be illegal and void. The clause was negatived, but the time came when the want of such a clause became deplorably manifest.

The bill was passed through the Assembly, and strange to relate, received the assent of the Council without amendment, and became law on 18th June, 1862. This circumstance of itself was extremely suspicious. It can only be accounted for by the supposition that the nine years licenses were baits too tempting to the squatting majority of the Upper House, and that they had full confidence that the Act, as it had passed the Assembly, could be worked in the interest of their friends. With the passage of this measure two great political organisations became defunct. The Convention party was dissolved, Mr. Wilson Gray leaving Victoria to seek his fortunes in New page 64 Zealand. The Victorian Association, more popularly known as the bribing confederacy of the White Hart, adjourned sine die. Their work was done and well done, the £30,000 spent in debauching constituencies and bribing politicians was, for the purposes of the Association, well invested; the gold of the squatters exercised a more potent influence than the agitation of the Convention or the thunders of the liberal press.

It is now necessary to sec how the Land Act operated, and it will, on examination, be seen that some of its most fatal blemishes completely escaped the vigilance of the Liberal party in the Assembly. In accordance with the requirements of the Act 4,000,000 acres were thrown open for selection in agricultural areas. Then began a land racket unparalleled in the; history of Australia. The land offices were rushed by crowds of dummies who selected the best land 011 behalf of the pastoral tenants. on most of the principal stations gangs of dummies were organized and sent to the neighbouring land offices to out-number the bona fide selectors, and swamp them in the drawing of lots. At one office (Camperdown) the dummies mustered in such strong force on the day proclaimed for the reception of applications that the few bona fide applicants present were absolutely prevented from lodging their forms during office hours. The Act was not in force many months before it was completely and ignominously riddled, and its brilliant framer and adroit administrator became the subject of universal execration. Before Parliament was again called together over 1,000,000 acres of the best available agricultural land were mopped up by squatters. The weak points of the Act may be shortly summarised. There was nothing in it to render personal application for land necessary. Consequently a squatter could send his agents and emissaries all over the country, and put in applications, so as to be able to compete with bona fide selectors in the drawing of lots. Indeed the bona fide cultivator, who made personal application, was placed in a worse position than under the limited auction system, whilst the squatter was better off, having the chance of getting land at £1 per acre. The squatter could put in 50 or 60 applications for one allotment (through his dummies), and by that means the straightforward, honest applicant had very little chance of succeeding. It subsequently transpired that Mr. Duffy had acted 011 the opinion of the Attorney-General in deciding that there was nothing in the Act to compel the personal attendance of applicants. This was one of what Mr. Higinbotham described as "numberless loop-holes through which unprincipled persons might find the means of evading the provisions of the Act." A still more alarming defect was soon discovered. It was found that by a most extraordinary oversight a word had beer, allowed to creep into the Act which allowed dummies to transfer their land without difficulty or delay under the sanction of law. page 65 The fatal word was in a clause which stated that "on payment of the last sums due on account of the rent so reserved, or at any time during the term of payment of the difference between the amount of rent actually paid and the entire sum of £1 per acre, the purchaser of the first moiety, his heirs or assigns shall be entitled to a grant of the remaining or leased moiety as real estate." The word "assigns" in that clause enabled a dummy to take up land in his own name and afterwards assign the lease to his principal, who could, on paying the balance of the purchase money, get a Crown grant. In this way unrestricted and unqualified power of assigning leases was given. Nor was this the worse aspect of the power of assignment. The Nicholson Act provided that a lease should become void if a lessee or his assigns did not, within a year of its commencement, effect on the purchased sub-division of the allotment improvements of the value of .£1 for every acre of such purchased sub-division. Under the Duffy Act the "selector" only, and not the "assign," was bound to carry out the improvement conditions. There was no obligation imposed upon the assigns of a purchaser to make any improvement at all. The lamentable result was this—that where a purchaser became fraudulently possessed of land, his legal liability to improve it ceased the moment that he sold it, or transferred it to the person for whom he was acting. A fraudulent selector could assign his land immediately he took it up; his assignee was not liable or compellable to carry out improvements; the very act of assignment destroyed the operation of those conditions of occupancy. It was the selector only—the bona fide cultivator who took up land and remained in possession of it without assigning—who was subject to those conditions. In respect of improvement conditions also the Duffy Act was inferior to the Nicholson Act, bad as that was. By the Nicholson Act a selector was bound to reside on his rented or purchased land, otherwise the lease was liable to forfeiture. The necessity of personal residence was omitted from the Duffy Act, which merely provided in an alternative form that a selector should either cultivate one acre in ten during the first year after selection or erect a habitable dwelling on the allotment, or enclose it with a substantial fence. Here, again, the provisions of the Act were eminently favorable to the land monopolist. Residence was not compulsory. A slab hut, or a bush fence, was a sufficient legal compliance with the requirements of the remaining alternatives, but even one of these could not be enforced as against an assign.

In its penal clauses the Act broke down also. An applicant had to sign a declaration that he applied for an allotment on his own behalf only, and not as agent or trustee for any other person whatever. A false declaration exposed him to prosecution for perjury Two persons, named Taylor and Curtis, were prosecuted and convicted of conspiracy to procure persons to become selectors of allot- page 66 ments for persons other than themselves; of procuring false statements in a declaration made by the selectors under the Act; and of procuring false declarations. The Supreme Court, however, quashed the conviction on the following grounds:—That the Land Act, 1862, did not fox-bid all purchases of land by trustees, but on the contrary, by particularly forbidding in section 20 only such purchases on behalf of infants and married women not judicially separated from their husbands impliedly permitted such purchases on behalf of all others; the schedule to the Act, so far as it added a declaration that the applicant applied "not as agent or trustee for any other person whatever," was repugnant to the Act itself, and in derogation of common law rights; that the schedule was of inferior degree to the Act, and should yield to it, and was of no avail to make selection by an applicant as an agent or trustee unlawful; that a false statement respecting an act which the statute did not prohibit ought not by implication to be deemed a mis-demeanor under the statute, and that as the conspiracy charged was based on an act supposed to be unlawful but not unlawful, the charge could not be sustained a.

The Duffy Land Act thus became an absolute wreck of Legislation. The numerous swindles that were perpetrated under it will never be forgotten or forgiven. Those swindles are still called to remembrance with sorrow and indignation by politicians who know with what wholesale fraud and audacious perjury the people of the colony and unborn generations were deliberately robbed of nearly 1,000,000 acres of land, constituting the garden of Victoria. Friends and foes of the O'Shanassy Ministry admitted that the Land Act was a disastrous failure, if not a political crime. The Argus declared that the settlement of the country was not advanced one step by the sales effected; that the stability of the public revenue was seriously impaired and that emigrants when they arrived hereafter would only come to find the best of the land already alienated. The Ballarat Star expressed its opinion that the lands of the colony were being locked up more effectually been ever. "The speculators," said that journal (12th September, 1862), "have high o'er leaped all bounds; they have burst through Duffy's securities, and have by their agents obtained possession of a very large portion of the agricultural lands thrown open for selection. The £22,000 taken at the land sale here on Wednesday were in a very small portion paid by intending cultivators. The 1600 acres that were alienated in one day at the Land Office have not been purchased by those who mean to use them for themselves, but in the larger number of cases by the agents of squatters who have found ready tools to use for their work." On the 13th of the same month the Star said—"The great land swindle goes on prosperously.

a Wyatt and Webb's reports, p. 23, Law.

page 67 Dummies are a positive drug in the market, and the squatters and their agents carry everything before them." The Bendigo Advertiser (15th September, 1862,) declared—"The Land Act is a mockery, a delusion, and a snare. The wrong men have got the greater part of the first land thrown open, and if the system of gazetting agricultural areas continue after the same prodigal fashion he will be a fortunate farmer who draws an allotment in the future." The Grenville Advocate (13th September) said—"The new Land Act is a miserable failure. It does not facilitate the acquisition of land by bona fide cultivators, and it does facilitate its acquisition by squatters and speculators." The Ballarat Tribute, of the same date, asserted—"Fraud is a success, the Land Bill is a delusion, and the country is robbed." "Is Mr. Duffy a rogue? is he a fool? or is he a compound of both?" asked the Geelong Advertiser (17th September). The Ararat Advertiser (16th September) wrote—"Never did the speculator or squatter find himself so well adjudicated for as in the present instance, and never was any measure so completely overridden and laughed at by cute Attorneys or exulting sheep farmers as the last effort of Charles Gavan Duffy. The working of the people's measure has inaugurated a perfect millenium for the squatters." The Leader (20th September) affirmed that—"By his (Mr. Duffy's) stupidity, or rascality, or a compound of both, he has brought on the colony a dire calamity." The public lands, added that journal, were in process of rapid confiscation through the utter collapse of all Mr. Duffy's securites. All the limitations and conditions proposed by Mr. Gray and his friends were contemptously rejected by Mr. Duffy, whose purchased majority enabled him to overturn all opposition. The Land Act was the master piece of his folly, the partition of the public lands was the compact, the paid hirelings of the Victorian Association voted as he bade them. The Age was equally as severe in its condemnation of the Act and its administrators. Mr. Higinbothan afterwards expressed his opinion that the Act was one of the greatest and most mischievous blunders ever committed by the Legislature of any country.