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The Pamphlet Collection of Sir Robert Stout: Volume 80a

No. 2. — Governor Sir Hercules Robinson to the Secretary of State for the Colonies

No. 2.

Governor Sir Hercules Robinson to the Secretary of State for the Colonies.

My Lord,

Government House, Sydney,

In my despatch. No. 34, of the 10th instant, I transmitted a minute of the Cabinet on the constitution of the Legislative Council, and promised to communicate in a subsequent despatch my own views on the question which was thus submitted for your Lordship's consideration.

2. I have since perused the correspondence which has passed on this subject, from the date of the establishment of the existing Constitution to the present time; and it will perhaps be convenient that I should give here a brief narrative of the facts which are presented by the papers to which I have been enabled to refer.

3. When the Constitution Act (No. 41 of 1853) was under discussion, it was decided, after lengthened deliberation, that the Legislative Council should be a nominated and not an elected Chamber. The Act prescribed also, amongst other provisions, that the minimum number of the Upper House should be 21; that the quorum should be one-third of the whole number; and that the Members first appointed should retain their seats for five years from the date of the first summonses, but that all future Members, after the expiration of that term, should be appointed for life.

4. In May 1856 the first Legislative Council was established under this Act. The number of Members then appointed was 32, but before the close of that year (three changes of Ministry having taken place in the interval) the number had been increased to 45. The maximum number of Members at any one time, during the first five years, appears to have been 48. This was exclusive of the exceptional appointments made within the last few days of the five years, when the Council was, to use a familiar term, "swamped" by the nomination of 21 new Members, to carry the Land Bills. These Members, however, never took their seats, for, on presenting themselves to be sworn in, the President, with the majority of the old Members, retired, and the House ceased to exist, by the expiration of the period specified for its duration before the next regular day of meeting.

5. Shortly afterwards—that is, in July, 1861—The Legislative Council was reconstructed by the appointment of Members for life, as prescribed by the Constitution Act. The necessity for recognising some usual limit in the number of Members—to be observed except under very special and exceptional circumstances—was then very generally admitted, as it had become apparent, from the experience of the previous five years, that unless some such limitation were adopted and adhered to, it would be impossible to maintain the character and efficiency of the Council as an independent branch of the Legislature. The consultations which took place at the time, and the understanding which was eventually arrived at on this subject, were some years later thus described by Sir John Young, in his despatch, No. 14, of the 16th February, 1865 :—

"At the time of the reconstruction of the Legislative Council in 1861 these difficulties were much and anxiously considered, and an effort was made to suggest what might be, subject to exceptional cases, a convenient limitation to the number of the Upper House * * * I consulted the leaders of the Liberal party on the one hand, that is, the Ministers then in office; and also, with their cognisance, I availed myself of the advice of gentlemen of social standing and of leading political position in other sections. In fact, I called into counsel, under the auspices of Mr. Wentworth, the framer of the Constitution Act, several gentlemen of various political page 95 opinions who were at the time prominent in Parliament or in possession of much general influence. It was understood that Mr. Went worth was to be the President of the new Legislative Council, and I appointed him to the office as soon as it was formed. After many interviews and much deliberation, it was the general opinion of those gentlemen that 27 Members might with advantage be considered a convenient usual limit of the Council, and with this view I concurred. Mr. Cooper and his colleagues recommended that seats should in the first instance be offered to 27 gentlemen accordingly. Several declined on various grounds, and eventually 23 only were gazetted. That number was not subsequently augmented beyond 26 during that administration, which lasted nearly two and a-half years afterwards. Of course it was never contemplated that the Constitution Act could be set aside, or that any succeeding Ministry could be bound by the opinion of their predecessors, although by common consent the convenience of some usual limit might be recognised; neither was it ever contemplated that the Governor could relieve himself of responsibility, by giving beforehand his assent to any unvarying course of action; but I thought that what was then done might with advantage be referred to thereafter by myself and others, not as an absolute guide, but as giving the assistance of the opinion of able and impartial men, who were all equally anxious for the permanent stability of the Constitution."

6. Mr. Cowper's Ministry was succeeded in office by that of Mr. Martin, which lasted from October, 1863, to February, 1865, and during that period Sir John Young yielded so far to the wishes of the Ministry as to increase the Council to 32, so as to give 27 Members present in the Colony and "available for service,"—four Members being at that time absent from the Colony, and one about to leave for England. But when Mr. Martin, in January, 1865, shortly before the break-up of his Administration, urged a further increase of the effective Members from 27 to 29, Sir John Young refused, and the refusal led to the resignation of Mr. Forster, the Colonial Secretary, as explained in the despatch from which I have already quoted. Mr. Card well, in his despatch, No. 37, of the 26th May, 1865, considered the reasons given by Sir John Young for refusing to appoint two additional Members to the Legislative Council, on the recommendation of his responsible advisers, sound and convincing.

7. In September, 1868, Mr. Martin, being again in office, prevailed on Lord Belmore to

Lord Belmore—No. 100,29 Sept.'68.

increase the Legislative Council from 27 to 30 Members on the ground of the difficulty experienced in securing a quorum for the transaction of business; and on this increase

Lord Granville—No. 2, 18 Dec. 1868.

being reported home, Lord Granville expressed his regret at the step, as he feared it would be used as a precedent for further additions.
8. In October, 1868, Mr. Martin went out of office, and was succeeded by Mr.

Lord Belmore—No. 109, 14 July, 1809.

Robertson, who in the following July submitted a memorandum in reference to Lord Granville's despatch of the 15th December, 1868, in which he deprecated as unconstitutional the imposition of any limitation in the number of the Legislative Council, and

Lord Granville—No. 77, 2 Oct. 1869.

declined, on behalf of his Cabinet, to recognise any such understanding. In acknowledging this memorandum, Lord Granville observed :

"When writing that despatch, 1 was tully aware that the number oi the Upper House in New South Wales was unlimited. I am also fully aware that on certain critical occasions it may become not only expedient, but indispensable, to bring the two Houses into harmony by creating or threatening to create a number of Legislative Councillors sufficient for that purpose. But it is not the less clear that the whole value and character of the Upper Chamber will be destroyed if every successive Ministry is at liberty, without any sufficient occasion, to obtain a majority in the Council by the creation of Councillors. To prevent this, some constitutional understanding, having in the public eye the form of a valuable though not absolutely inflexible precedent, and limiting the circumstances under which such creations can properly take place, is desirable. Such an understanding did, in fact, exist between Sir John "Young and his successive Ministers; and the object of my despatch of the 18th of December was to enforce on you the inconvenience of any course which was calculated, without necessity, to impair the authority of that understanding, and to the expediency of making it clear, in the interest of the Colonial Constitution, that any necessary violation of its letter was not really a violation of its spirit; that is to say, that it was resorted to not to strengthen a party, but in reality for the convenience of legislation."

9. In December, 1869, Mr. Robertson recommended to Lord Belmore appointments to the Legislative Council which would have involved a further increase in the number of that Chamber from 30 to 33 Members. He urged in support of his proposal, that he still declined to recognise the validity of any such understanding as that agreed to between Sir John Young and former ministries, and that so small a number of the Council had been appointed by Governments of which he had been a Member that additional appointments were then necessary to enable him to carry on the Government. Lord Belmore declined to act on the advice tendered, and the appointments were not made. Mr. Robertson soon after resigned office, on grounds unconnected with this refusal, and the course adopted by Lord Belmore in this matter was approved by the Secretary of State.

page 96

10. Since then the number of the Legislative Council has not been allowed to exceed thirty, except occasionally when, as at present, an extra Member has been appointed to give the Minister of the day a Representative of his own selection in the Upper House.

11. Thus it will be seen that, although several attempts have been made to break through the understanding come to in 1861, such attempts have always been successfully resisted, except in the one instance, which I have detailed, in the year 1868, when the maximum was increased from 27 to 30. And, indeed, notwithstanding this increase, I think it may be fairly contended that the spirit of the understanding of 1861 has been adhered to up to the present time; for, as I have shown, Sir John Young himself interpreted that understanding as meaning 27 members "present in the Colony, and available for service"; and if from the number of 31, now on the roll, there be deducted one Member absent in Englan, two Members who are by age and infirmity rendered incapable of attending to their duties, and one who has been obliged, in consequence of altered circumstances, to remove to a great distance (350 miles) from Sydney, there will remain only 27 members available for service, many of whom even are prevented from attending regularly by a variety of causes.

12. I now come to the Minute of the Cabinet upon the present composition of the Legislative Council, which has been submitted for your Lordship's consideration. In that paper Mr. Parkes alludes, in the first place, to the large number of appointments to the Council which have been made by Sir James Martin, several of the gentlemen so selected being, he considers, unknown to public life, and without ascertainable political opinions. He calls attention next to the irregular attendance of a considerable portion of the Council, from a variety of causes, and he proceeds to animadvert upon the course adopted by the Council on the Border Customs Bill, which was defeated by what he characterises as a party vote. He adds that he and his colleagues are of opinion that "the action of the Legislative Council on this occasion, viewed in connection with the unsatisfactory character of certain appointments in past years, and the facility with which, in their belief, outside and mere personal influences could be exercised upon the Council's deliberations, afforded signal evidence of the failure of the nominee principle." And he intimates that the Cabinet had, in consequence, decided to introduce, in the next Session of Parliament, a Bill to reconstruct the Council on an elective basis. This, of course, is a perfectly legitimate issue to be laid before the country. It is obvious that so long as the appointments to life seats in the Upper Chamber are made by the minister of the day, no guarantee can be afforded that the selections will always be made with regard solely to the fitness of the person chosen, and his ability and willingness to devote himself with assiduity to the business of legislation. Other considerations of a personal or party character will often present themselves which, practically, it will be very difficult to resist; and it remains, therefore, for the Legislature and the public to weigh carefully the evils which are inseparable from the nominee system, in comparison with those which attach to a Chamber constructed on an elective basis, and to adopt the form which may, on the whole, be held to present the fewest disadvantages.

13. The object of Mr. Parkes's minute, however, as he explains, is not to discuss the merits of the policy which he is prepared to pursue, but to bring under your Lordship's notice the considerations which, in his opinion, ought to determine appointments to the Legislative Council as at present constituted; for he thinks it most probable that the legislation of the colony will still have to be carried on for several years with the continued existence of the nominee principle in the Council. He is of opinion that if any limit in the number is to be observed, 36 would be a better maximum than 30, but he objects strongly to the recognition of any understanding on such a subject, as he considers that all appointments should be determined by the merits of each case.

14. The grounds urged for a maximum of 36 are that such a number "would be safer for the public interest, and more likely to secure a true representation of those elements of political experience, mature judgment, and the distinction and authority arising from public service, which ought to prevail in the Legislative Council, and would afford better guarantees against small personal organisations and clique influences." But I must confess I am unable to see why these results should follow a mere increase in the numerical strength of the Council from 30 or 31 to 36 The evils complained of by Mr. Parkes in the present composition of the Legislative Council are not traceable, as far as I can see, to any limitation in the number. If Members were selected solely with regard to fitness and to their ability and disposition to attend regularly, 27 or 30 would be found amply sufficient to meet all the requirements of an Upper Chamber, whilst if their selection be influenced by other considerations, a mere increase in the number will not affect any permanent improvement. This view is, I think, supported by the experience of the past. For the first five years after the establishment of the Council the average number of Members was 44, and the quorum for this number would be 15. I find that the largest division during each of the seven Sessions which were held in those five years was as follows :—26, 29, 37, 26, 31, 27, and 29. The smallest division in each Session was—14, 11, 13, 14, 9, 11, and 11—nearly all below a quorum, and therefore inoperative. During the same period the House was unable to proceed to business from the absence of page 97 a quorum a quorum on 14 occasions, and was counted out 15 times during the progress of business. These facts would seem to indicate that the attendance was relatively not much better than it has been of late with a smaller number; and it must be remembered that after five years' experience of a House which, as I have stated, averaged 44 Members, the leading men of all political parties were agreed that the Council was too large, and ought to be reduced.

15. At the same time, I do not pretend to say that the present number is precisely the best that can be fixed, and I am not aware of any special reason why the limit should be 30 instead of 36. I believe that Mr. Parkes is so impressed with the necessity of exercising great care in making appointments for life to the Upper House, that if he had to nominate five or six new Members, he would, I feel assured, make selections which would prove an acquisition to the Chamber; but the difficulty I see is that if any addition were now made without special cause, it would furnish a second precedent for further additions, which it would then be extremely difficult to resist.

16. As regards the constitutional objections urged by Mr. Parkes to the recognition of any understanding as to a limit in the ordinary number of the Council, I need only point out that similar objections were advanced by Mr. Forster and Mr. Robertson; and as their representations have already been, in my opinion, conclusively answered in Sir J. Young's and Lord Granville's Despatches, to which I have referred, I need not go over the same ground again. I will merely observe in reference to Mr. Parkes's allusion to Mr. Wentworth's opinion as to the advantage of expansiveness in a nominated Council, that a perusal of the debates on the Constitution Bill will show that when advocating the superiority of the nominee principle (as compared with an elective Upper House) on the ground of its greater flexibility and expansiveness, Mr. Wentworth had in view not the constant exercise of an unlimited power of making appointments to meet the ordinary exigencies of party Government, but the power which the nominee system would, as a last resort, place in the hands of the responsible Minister of the day to bring the two Houses of the Legislature into harmony with each other, by the creation of new Members, if it should ever be found indispensable to the public safety to adopt such an extreme measure, after every other means of reconciling conflicting opinions had failed- And Mr. Wentworth, after five years' experience of the Council without any recognised limit, concurred, on the reconstruction of that body in 1861, in the advisability of fixing an ordinary maximum, which should not be exceeded except under very special and exceptional circumstances.

17. There is only one other point in the Minute upon which I feel it necessary to offer any further remark. I refer to the passage which alleges "that, the working of the principle upon which the Council is based has invoked the interference of Her Majesty's Secretary of State in a manner not expressly sanctioned by law, and which, with expressions of deep respect, your Excellency's advisers cannot but consider incompatible with the rights of self-government secured to the Colony by the Constitution." I can find nothing in the past correspondence to support such a charge. When Sir John Young "swamped" the Legislative Council in 1861 and reported the circumstance home, the Secretary of State merely expressed his regret at the course adopted by the Governor, which did not appear to him to be justified by the urgency of the occasion. When Sir John Young refused to enlarge the Council, in 1860, and Mr. Forster in consequence resigned, and appealed to the Secretary of State, Mr. Cardwell simply replied that he thought the reasons given for the refusal were sound and convincing. When Lord Belmore enlarged the Council, in 1868, from 27 to 30, and reported the appointments home, the Secretary of State only remarked that any increase was likely to be used as a precedent for further additions, and was therefore to be regretted. And when Lord Belmore declined, in 1869, to increase the Council from 30 to 33, and reported to the Secretary of State the grounds for his refusal, Lord Granville merely approved of the language which Lord Belmore had held to Mr. Robertson on the occasion. Thus it will be seen that in every instance when questions have arisen as to the appointment of additional members of Council, the Governor has acted on his own responsibility without previous reference to the Secretary of State, and that when the course adopted has been reported home, the Secretary of State has simply expressed his opinion as to the propriety or otherwise of the Governor's proceedings,—an opinion which on one of the occasions referred to was specially invited by the Minister who conceived himself aggrieved by the Governor's decision. The understanding between the leading politicians in 1861, as to a limitation in the ordinary number of the Council, was not come to in consequence of any suggestion from home, nor was it even reported to the Secretary of State for several years. I can only imagine, therefore, that the passage in the Minute to which I have called attention has been written under some misapprehension as to the facts of the case.

I have, &c. (signed) Hercules Robinson. The Right Hon. the Earl of Kimberley, &c. &c. &c.