There are not many democracies in the world today, though the number depends heavily on how the term is defined. One thing is quite certain: if the country is defined as a ‘democratic republic’, it will be neither democratic nor a republic.
One well-known, though rather ponderous, description of a democracy is that it is a form of government rooted in ‘the liberty of the individual, in equal rights for all citizens regardless of race, colour, creed or political belief, and in their inalienable right to participate by means of free and democratic political processes in framing the society in which they live.’ This definition comes from the Declaration of Commonwealth Principles, 1971, though less than half the Commonwealth nations would even approach that standard. A country such as Switzerland, which did not give the vote to women until 1971, was by this definition until then undemocratic, although other aspects of Switzerland’s political system were admirably democratic.
If one takes a crude and not too demanding criterion for democracy-that there should be regular opportunities for a reasonably representative cross-section of a nation to remove a government with which it is dissatisfied, and to install an alternative-even then it is difficult to find more than 40 democracies among the members of the United Nations.
The 40 or so democracies fall into three broad categories:
- those with a rigid separation of executive, legislative and judicial powers, as in the United States, where the president is in no way responsible to Congress, though the Congress can remove the president by impeachment for and conviction of ‘treason, bribery, or other high Crimes and Misdemeanors’. In 1868 President Andrew Johnson escaped conviction by one vote and President Nixon resigned in 1974 rather than face impeachment. In December 1998 President Clinton was impeached by the House of Representatives for ‘high crimes and misdemeanors’ but was acquitted by the Senate in February 1999;
- those which have responsible government, whereby the executive ministry depends on the support of the lower house of the legislature;
- those with hybrid systems-a combination of responsible government with a president who can, in certain circumstances, overrule the responsible government.
The Westminster system of responsible government, under which ministers must be members of the parliament, is seen by many people as the most developed and the most democratic. Not all countries with responsible government require ministers to be members of parliament. The Netherlands, Sweden and Luxembourg have responsible government, but their constitutions bar ministers from being members of parliament.
But is the Westminster system still the same, in concept and execution, as it was when it was so eloquently expounded more than a century ago by Walter Bagehot? For many, what he wrote is still holy writ, but it is high time we had a critical look at how the Westminster system of responsible government is faring, and where it is heading. It may be that today the reality is as far from the theory as it was when Bagehot pointed out the way the system was actually working in his day.
It may be that the former British colonies who inevitably inherited the British system of responsible government should look at other countries which have responsible government, without some of the details of the Westminster system. It seems very unlikely that Canada, Australia or New Zealand will move away from some system of responsible government. Even when the question of a change to a republic was being debated in Australia, there was no serious suggestion of a move towards the American presidential system.
In this work, it is intended to examine the development of responsible government since Bagehot’s day in the United Kingdom, Canada, Australia and New Zealand. All profess to practise the Westminster system of responsible government, but there are differences. The United Kingdom is the prototype; Canada and Australia are federations, with inevitable American influences; and New Zealand ceased to be a federation in 1876 and has been, since 1950, unicameral. The purpose is to compare the Australian Federal Parliament with the other nineteen national, provincial and state parliaments, to see what the Australian Parliament can learn from the others, and to identify problems which the Australian Parliament will have to solve for itself, if it has the will.
Let us look first at responsible government as Bagehot described it, though Bagehot in fact used the expression ‘responsible government’ rarely, usually referring to cabinet or parliamentary government. His seminal work, The English Constitution, was first published in nine parts in the Fortnightly Review between 1865 and 1867, and in the latter year appeared in book form. A second edition appeared in 1872, the last to be revised by Bagehot himself.
Bagehot constantly referred to the ‘New Constitution’, which he seemed to date from the passage of the First Reform Act in 1832, before which, as he said, a ‘large and preponderant majority of the House of Commons were, in one way or another nominated by noblemen and gentleman; and only a minority were elected by popular constituencies.’[1] The First Reform Act almost doubled the electorate, from 400 000 to over 700 000, but half the middle class and all the working class were still voteless. The Second Reform Act of 1867 increased the voters from one million to over two million, and ensured a fairer distribution of seats. All the middle class and most of the urban working class could now vote-in all, nearly a third of the adult male population; there were of course no female voters. Bagehot thought that the passage of the Second Reform Act might radically change cabinet government, but that (in 1872) it was too soon to see what the effects would be.
Yet responsible government was of course not new. Since the resignation of Walpole in 1742 it had been clear that the Crown could not continue to govern for any prolonged period without the support of ministers who had the confidence of a majority of the House of Commons, but Bagehot’s thesis was that the popular concept of the nature of the British system of government no longer matched the reality. In the popular concept, executive power was exercised by the Sovereign through ministers; the legislative power, exercised by the two houses of parliament, was separate. Bagehot dismissed this system, based on the settlement of 1688, as having being superseded; Britain had outgrown its institutions 30 years ago, he wrote, and was now cramped by them. What had evolved since the First Reform Act was something quite different. The executive power was not held by the Sovereign, but by a committee (the Cabinet) appointed by the House of Commons; this committee was removable by the Commons; its tenure depended on its conduct. Bagehot claimed that the House of Commons ‘is a real choosing body; it elects the people it likes. And it dismisses whom it likes too.’
Bagehot did not think that all the members of the Cabinet should necessarily be members of the House of Commons. He thought that peers were ‘a valuable reservoir of Cabinet Ministers’. Although there was no formal requirement in the UK for a minister to be a member of one of the houses of parliament, Bagehot thought it essential. ‘Statesmanship-political business-is a profession’, he wrote, ‘which a man must learn when young; and in England the House of Commons is the only school for acquiring the necessary skill, aptitude and knowledge.’
The key to the system described by Bagehot was responsibility. The Cabinet was responsible to the Commons, and the Commons responsible to the people. But the Commons was much more than an electoral chamber. It was of course a legislature, but in Bagehot’s view it had four other functions: an expressive function-it should express ‘in characteristic words the characteristic heart of the nation’; a training function-it was to educate the people by ensuring ‘that it [the nation] is forced to hear two sides’; an informing function-it should keep the executive in touch with informed opinion; and a scrutiny and review function, ‘watching and checking’ government ministers.
Bagehot thought that parties, loose though they might be, were essential for the orderly passage of legislation, the vital requirement of representative government. ‘If everyone does what he thinks right’, he wrote, ‘there will be 657 amendments to every motion, and none of them will be carried or the motion either.’ Bagehot nevertheless deplored parties made up of strong partisans, doing all that their orators had proposed. If that happened, responsible government would, he thought, become the worst of governments-a sectarian government. There was a danger that ‘we shall have less and less of a deliberative House of Commons-more and more a body producing a mere reflex of the popular cry.’ Just like the American Congress, he thought.
Bagehot’s concept of a political party is far removed from the modern reality. He thought, for instance, that in the Commons ‘the moderate people of every party must combine to support the government which, on the whole, suits every party best.’ He believed the power of a prime minister to secure a dissolution of parliament to be the key to maintaining some sort of party discipline.
The House of Lords was given only grudging approval. ‘With a perfect lower house it is certain that an upper house would be scarcely of any value ... beside the actual House a revising and leisured legislature is extremely useful, if not quite necessary.’ Bagehot claimed that the power of the House of Lords had declined greatly since the First Reform Act; it was a chamber with (in most cases) a power of delay and (in most cases) a power of revision over legislation, but with no other rights or powers. ‘Their veto is a sort of hypothetical veto’, he wrote. ‘They say: “We reject your bill for this once, or these twice, or even these thrice; but if you keep sending it up, at last we won’t reject it.” ’ He was far from impressed with the political wisdom of most of the peers, and was a strong advocate of the creation of life peers, as J.S. Mill had been before him (life peers were finally introduced by the Macmillan Government in 1958). ‘Not only does the House of Lords do its work imperfectly’, Bagehot wrote, ‘but often, at least, it does it timidly ... being only a section of the nation, it is afraid of the nation.’ He recorded the remark of a ‘severe though not unfriendly’ critic that ‘the cure for admiring the House of Lords was to go and look at it.’
Bagehot felt that the power of the monarchy had also changed. ‘The Old Constitution of England [presumably pre-1832] gave a sort of power to the Crown which our present Constitution does not give.’ Bagehot pointed out that there was no explicit statement as to what the Queen could do, but claimed that, under the New Constitution, the Crown had three rights-the right to be consulted, the right to encourage, the right to warn-and should want no others. ‘It is fiction of the past’, he wrote, ‘to ascribe to her legislative power.’
Bagehot thought the monarchy was necessary as something an uneducated public could revere, and ‘we must not let daylight in upon magic.’ Educated people, he thought, would not give reverence but with such people it would not be necessary. He was an advocate of constitutional monarchy because it ‘enables our real rulers to change without needless people knowing it. The masses of Englishmen are not fit for an elective government.’ Bagehot was not himself a great admirer of the monarchy. ‘It has been said’, he wrote, ‘not truly, but with a possible approximation to truth, that in 1802 every hereditary monarch was insane.’
The monarch, of course, retained some personal prerogatives. In 1871 Queen Victoria (acting on the advice of the government) used her prerogative to abolish the purchase of army commissions after the Lords had rejected the relevant bill, but such a use of the prerogative was very unusual. Bagehot focussed attention on four other situations where the use of the Crown’s reserve prerogative might arise:
- If a party had a clear majority in the Commons, and an acknowledged leader, that leader must be offered the prime ministership. But if no single party had a clear majority or the majority party had no accepted leader, the Crown had to have discretion.
- If the Cabinet requested an election, did the Crown have discretion to refuse? This was a matter that was to trouble responsible governments in both Canada and Australia. Bagehot was not quite definite, admitting there were vestiges of doubt. This Cabinet ‘power to dissolve’ was, to Bagehot, an essential feature of responsible government, and central to maintaining party discipline.
- The Crown had a personal prerogative in the creation of new peers to overcome resistance in the House of Lords. Although new peers could be created only on the advice of ministers, Bagehot thought that the Crown had the right to refuse that advice.
- Finally there was the question of the conduct of foreign affairs, including the making of treaties. This was (and remains) a Crown prerogative exercised by the government. Bagehot was, on balance, in favour of requiring parliamentary approval of treaties (as is required of the United States Senate where a two-thirds majority is needed). This step has not been taken in any of the countries we are considering.
It must be admitted that Bagehot was not, from the viewpoint of a century later, much of a democrat. He thought that sectional interests should have some representation in parliament. ‘There ought to be some special constituencies in parliament’, he wrote, ‘for each such special type of thought-some for the shipowner, some for the manufacturer, some for the landlord, some for the clergy’, but he added that there must be a vastly greater number of constituencies which simply represented ‘the common voice of educated men’. He was opposed to women voters, unless they were independent ratepayers and unmarried: ‘women-one half the human race at least-care fifty times more for a marriage than a ministry.’ He thought that the ‘mischievous and monstrous’ Second Reform Act went much too far, for ‘the working classes contribute almost nothing to our corporate public opinion, and therefore, the fact of their want of influence in parliament does not impair the coincidence of parliament with public opinion.’ Bagehot also argued strongly against secret voting in 1859, but by 1871 he had changed his mind.
Bagehot was far from alone in his opposition to the extension of the vote to the working classes. When the question of a Second Reform Act was first raised by Lord John Russell in the 1850s, Palmerston wrote that he could not ‘be a party to the extensive transfer of representation from one class to another ... We should by such an arrangement increase the number of Bribeable Electors [Palmerston had about a hundred voters in his constituency] and overpower Intelligence & Property by Ignorance and Poverty.’
Bagehot’s description of the working of the British Constitution as it was in about 1870 is at odds with contemporary reality in a few respects. For example, he seriously underestimated the power (and stupidity) of the House of Lords, as we shall see. One might also think he was excessively generous to Queen Victoria, who certainly went far beyond the three rights he assigned to the Sovereign: ‘interfering busybody’ might be thought to be a fair description of her performance in politics, particularly when she was acting under the influence, real or remembered, of the Prince Consort. Victoria’s predecessor, King William IV, frequently interfered with prime ministers and Cabinets, arbitrarily selected Lord Melbourne as leader of the Whig Party, and in 1834 imposed and maintained Peel as prime minister despite Peel being several times defeated on crucial votes in the Commons; and Queen Victoria kept Melbourne and the Whigs in office for two years, despite the loss of their majority. She later constantly schemed to keep Gladstone out of office, and claimed odd powers such as the right to approve or disapprove of the choice of a Foreign Secretary (this was aimed at Palmerston). Queen Victoria clearly did not understand the British Constitution as it had developed.
Nevertheless, Bagehot’s writings have been almost universally accepted as an accurate account of how things were politically in Britain in about 1870, though later writers such as Dicey and Jennings elaborated on his views. Before we trace what has happened to responsible government since Bagehot’s day, let us look briefly at the state of government in 1867 in our other three selected countries-Canada, Australia and New Zealand-where British concepts of responsible government were taking root.
On 29 March 1867 the British North America Bill finally passed the House of Commons. A Nova Scotian who was present in the gallery was critical of the utter indifference of most of the MPs and what he described as their lazy contempt for the bill. Yet a Canadian confederation was, on both sides of the Atlantic, felt to be urgent. There had been expensive railway and canal ventures, which had left the colonies in serious financial difficulties. Previously protected British markets were being lost and trade with America was threatened, since British sympathy for the Confederates during the Civil War had deeply offended the victorious Unionists. The scattered settlements in British North America were felt to be very vulnerable to Yankee revenge. At the time the settlements were Canada (later divided into Ontario and Quebec) and the four Maritime Provinces (New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland). A new colony called British Columbia had just been established on the west coast and there were scattered settlers in the vast area called Rupert’s Land, between the Great Lakes and the Rocky Mountains. The total population was about 3.5 million, of whom some 100 000 were native Indians and Eskimos.
The British North America Act of 1867 (almost always called the BNA Act) established a new dominion of Canada, created from the confederation[2] of Canada (to be divided into the provinces of Ontario and Quebec) and the provinces of New Brunswick and Nova Scotia. The chief architect of confederation, John A. Macdonald, wanted to adopt the name of Canadian Kingdom, but was overruled by the UK government, which preferred a more modest-and less potentially separatist-title. The Act provided that Newfoundland, Prince Edward Island and British Columbia could join the confederation ‘on Addresses from the Houses of Parliament of Canada, and from the houses of the respective [provincial] legislatures’. (British Columbia was to join in 1871 and Prince Edward Island in 1873; Newfoundland did not join until 1949.) For the vast regions of Rupert’s Land and the North-Western Territories, the arrangements for the creation of new provinces were effectively left to the Canadian Parliament.
The BNA Act was the work of delegates from the four provinces who were to be initially in the confederation, at a series of meetings between 1864 and 1866 in Charlottetown, Quebec and London. Seeking to learn from the problems that had caused the American Civil War, they aimed to produce a powerful central government. There were to be two parliamentary chambers, an elected House of Commons and an appointed Senate. There was no distinction made in the power of the two chambers, except for the requirement that ‘Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the [Canadian] House of Commons.’
Limited and specific powers were given to the provinces, and all remaining powers were assigned to the central government. Macdonald, not only the principal author of the BNA Act 1867 but also the first prime minister of the new dominion, said this made for a ‘strong central government-a great central legislature’. Not only did the central government have the umbrella clause empowering it to ‘make laws for the Peace, Order and Good Government of Canada’, it also had the power to appoint and remove the Lieutenant-Governor of each province, and could disallow any provincial law within a year of its passage. In 1868 Macdonald sent the provinces a list of provincial acts on which the dominion Minister of Justice would have to report: those which were illegal or unconstitutional, either wholly or in part; in cases of concurrent jurisdiction (agriculture and immigration) those which clashed with dominion legislation; and those which affected the interests of the dominion generally.
There was never any doubt that the new dominion would have responsible government, since all the provinces already had it; but, as had happened with the New Zealand Constitution, and was to happen with the Australian one, responsible government was nowhere defined. All the BNA Act said on the matter was that the executive government, and command of the naval and military forces, were vested in the Queen. This was taken to mean responsible government. There was not even a requirement (such as later appeared in the Australian Constitution) that ministers should be members of parliament. The Governor-General, acting on behalf of the British government, retained control of foreign affairs and international trade agreements.
The Canadian provinces had had a stormier passage to responsible government, and the transition had been accompanied by more violence, than in any of the other three countries we are considering. Quebec had been a French colony from 1608 until the end of the Seven Years War in 1763, when it was ceded to Britain by the Treaty of Paris. The population at this time was almost entirely French, but after the American Revolution there was loyalist immigration to the area which is now Ontario and to the Maritime Provinces, particularly Nova Scotia (the Maritime Provinces had been British since the Treaty of Utrecht in 1713). In 1791 Quebec was divided into two colonies-Upper and Lower Canada. Each colony had a Governor or Lieutenant-Governor, an appointed Legislative Council and an elected Assembly with a heavy property qualification for voters, though the franchise was in fact much wider than England’s even after the First Reform Act. There was even a provision for the creation of peers who would have an hereditary right to be members of the upper house. The executive was a council directly chosen by the Governor, and this council had all executive power, and was able to collect revenues such as customs without consulting either the Legislative Council or the Assembly. There was no regular relationship between the executive and the legislature such as had been developing in England for more than a century. This unstable and undemocratic system lasted for 50 years, but there was constant friction, culminating in unsuccessful rebellions in both Upper and Lower Canada in 1837.
In 1838 Lord Durham was sent to investigate conditions in Canada, and as the result of his report Upper and Lower Canada were united in a single colony called the Union of the Canadas, with the two parts renamed Canada East and Canada West. Unfortunately the same political structure was continued, though some assemblymen were now appointed to the executive and leading figures in the Assembly were consulted by the government. There was an additional point of friction created by the provision that Canada East and Canada West should have equal numbers in the Assembly, although from the 1850s the English-speaking Canadians in Canada West increasingly outnumbered the French in Canada East. Responsible government was conceded during the governorship of Lord Elgin (1847-54), but the East-West problem remained and was resolved only by confederation.
The four Maritime Provinces (Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland) developed quite separately from the Union of the Canadas, and had an altogether easier passage to responsible government. The Colonial Secretary, Lord Grey, had in November 1846 instructed the Governor of Nova Scotia to ‘entrust his government to those who have the confidence of a majority of the Assembly.’ As a result, in January 1848 Nova Scotia had the first responsible government outside the UK, as demonstrated when the executive council resigned after it lost a vote of confidence. In March there was a similar event in the Union of the Canadas. By 1860 all four Maritime Provinces had what might be called the standard pattern-a governor, an elected legislative assembly, and an appointed Legislative Council, with the executive being chosen by the Assembly. The tiny province of Prince Edward Island was to be an exception, for in 1862 it made its Legislative Council elective.
In the 1860s there was a move for a union of the provinces of Nova Scotia, New Brunswick, Prince Edward Island and possibly Newfoundland, but this was diverted by the new confederation proposal. The decisive influence was probably a change of attitude by the British Colonial Office late in 1864. The Colonial Office had previously supported the idea of a union of the Maritime Provinces, but the perceived American threat persuaded the Colonial Office to change its attitude, and great pressure was brought to bear on Nova Scotia and New Brunswick to join the confederation. ‘Her Majesty’s government can give no countenance to any proposals which would tend to delay the confederation of all the provinces.’ Some in the Maritime Provinces were not impressed. ‘Federal union was only sought as a means of separating the Canadas’ was the expressed opinion of the New Brunswick government; an election there early in 1865 resoundingly rejected the confederation proposal. The situation looked hopeless for confederation, but responsible government in New Brunswick was still fragile, and the Governor was able to override public opinion. He dissolved the provincial parliament, against the wishes of the prime minister, and in the ensuing election, against all expectations, the winners were the pro-confederalists. There were many factors in this surprise result: the strong support for confederation by both government and opposition in Britain; a timely raid into Canada from the United States by the Fenians, a secret Irish-American revolutionary group; and the loyalty of voters to British wishes, many of the voters being descendants of loyalist refugees from the American Revolution.
Things went much more easily in Nova Scotia. The scheme of confederation provided that the sanction of the British and local parliaments was necessary. Despite general opposition in Nova Scotia to the idea of confederation, a majority of the Assembly was induced to vote in favour of it. Nevertheless, at the first federal election, of the nineteen MPs Nova Scotia sent to the new national Parliament in Ottawa, eighteen were pledged to the repeal of confederation. But it was too late. The BNA Act made no provision for provincial secession.
There was a story that Queen Victoria had chosen the site for the national capital by stabbing at a map with a hatpin. The site selected was a remote lumber town called Bytown, to be renamed Ottawa. A very impressive parliamentary building was erected overlooking the Ottawa River. The new House of Commons comprised 181 members (82 from Ontario, 65 from Quebec, fifteen from New Brunswick and nineteen from Nova Scotia). The qualifications of electors were those in force at the time in the various provinces. The number of MPs from each province was based on population, thus removing the key source of friction in the Union of the Canadas. The political campaign in Canada West for ‘rep by pop’ had finally triumphed.
The Senate comprised 72 members who were appointed by the executive, based on four divisions, with 24 senators from each of Ontario and Quebec and 12 from each of New Brunswick and Nova Scotia. A senator had to be resident in the province he represented, had to be aged at least 30 and have a net worth of at least four thousand dollars. These qualifications were put in because, in the words of John Macdonald, the Senate was to be ‘the representative of property’. It is worth noting that, despite the American precedent, there had been no significant pressure for equal representation for the provinces in the Senate. The primary role of the Senate was thought to be to protect the provinces, and also to prevent ‘any hasty or ill-conceived legislation’. It was supposed to provide ‘representation and protection of several minorities: the people of the less populous provinces, the French, or English, speaking people of Quebec, and people with property’. The Senate was basically conceived as an anti-democratic, anti-republican body, but one which would avoid the main defect of the House of Lords, because membership would not be hereditary.
There was a rather clumsy mechanism for resolving deadlocks between the two houses. The British government could be asked to allow one or two additional senators from each of the four divisions to be appointed. In 1873 the Mackenzie Liberal Government asked the British government to agree to the appointment of additional senators to overcome a Conservative majority in the Senate. The British government refused, on the grounds that there was no real dispute. There were no formal requests after that, though there were tentative enquiries in 1900 and 1912. British involvement in this provision has now lapsed, but in 1990 the Canadian government used its power under the ‘patriated’ Constitution of 1982 to appoint eight additional senators to ensure passage of the controversial goods and services tax, an action which survived a challenge in the Supreme Court. This increased the Senate’s size to 112 senators, but retirements and deaths soon brought it back its normal 104 members.
On confederation, the Conservative Party was the dominant force, and in fact remained in power until 1896, except for a brief period (1874-78). In some ways this was curious because the old Tory and Conservative parties in the Canadas had been opponents of responsible government, which had been fought for by the Reform Party, with strength in Canada East and West. By the 1850s the Reform Party was disintegrating on religious and other policy issues, and the Conservatives had come to accept both responsible government and the desirability of federation. A new Conservative Party (initially called Liberal-Conservatives) was formed from the union of the French Canadian reformers and some other moderate reformers with the Tories and Conservatives. All that was left of the Reform Party was a small liberal group, called the Rouges, in Montreal, and a larger group, called the True Grits, in Western Ontario. These two groups later formed the basis for the Liberal Party in federated Canada.
In 1867 the Australian continent was divided into six separate British colonies, five of them with some form of responsible government. British occupation began with a convict settlement (at Sydney, in 1788), but population growth was slow until the discovery of gold in 1851, almost simultaneously in New South Wales and Victoria, followed by the rapid development of the wool industry. The population trebled, from 405 000 in 1850 to 1.4 million in 1867 (together with about 70 000 Aborigines, who then and for a century afterwards were not counted in censuses).
New South Wales was the first colony to be settled, and indeed in the early days covered the whole eastern half of the continent. By the 1840s it was moving towards representative government. In 1850 the British Parliament passed the Australian Colonies Government Act,[3] which separated Victoria from New South Wales and gave that colony a Legislative Council on the same basis as New South Wales-that is, two-thirds elected and one-third appointed by the Governor. The act permitted the existing legislatures in Van Diemen’s Land and South Australia to be modified on similar lines, and envisaged such a legislature for Western Australia. The act also gave the various legislative councils, when reformed, the power to alter their colonial constitutions, subject to royal assent. A strong hint was given that bicameral legislatures were desirable.
The British government was not prepared to grant the colonies control over land policy and revenue from the sale of land until they were economically self-supporting. This was dramatically achieved by the discovery of gold in 1851, and in 1855 the British government agreed, with minor amendments, to the Constitution proposed by the New South Wales Legislative Council. There was no dispute about the Assembly, which was elected on a fairly wide male franchise, soon changed to manhood suffrage. A group led by Wentworth attempted to establish an hereditary upper house-the bunyip aristocracy, it was sarcastically called-but had to be satisfied with a house the members of which were appointed for life on the advice of the Assembly. By 1867 the New South Wales system was working reasonably well.
Tasmania was the second colony to be settled, a penal colony being founded in Hobart in 1803. Even by 1867 Tasmania had a population of only 95 000; the Tasmanian Aborigines were almost extinct. After transportation to the rest of Australia was ended, Tasmania became the receptacle for convicts from Britain, India and the other colonies. This system was stopped in 1853, the colony (previously Van Diemen’s Land) was renamed Tasmania, and representative institutions were introduced, culminating in responsible government in 1854. The upper house was elected by voters with the requisite property or educational qualifications. There was a lesser property qualification for the lower house.
Settlements were established at Perth and Fremantle in 1829, but the surrounding land was poor, and migrants were scarce. In 1867 Western Australia was the only colony still receiving convicts, who had been asked for in 1850 to overcome the labour shortage. (Transportation was to stop in 1869, under pressure from the other colonies.) In 1867 Western Australia had no effective representative organisations, and was not to achieve responsible government until 1890.
Victoria was settled from Tasmania in 1834. It shared in the great gold and wool booms of the 1850s, and its development to responsible government moved with that of New South Wales, with one significant difference. From 1856, the Victorian Legislative Council was elected, rather than appointed, and had a separate electoral roll, with a heavy property or educational qualification. There was a much smaller property qualification for voters for the Legislative Assembly. Sixty thousand men could vote for the Legislative Assembly in 1856, but only ten thousand for the Legislative Council. Adult male franchise for the Assembly came in the following year. As one of the great issues for the colonial government was land development, the scope for conflict between the two houses was immense. In fact, in 1865 and again in 1867 the Legislative Council rejected the annual appropriation bill. The Council was probably technically in the right, for the Legislative Assembly had on each occasion incorporated in the appropriation bill a contentious provision that would not otherwise have been passed by the Council (‘tacking’ it was called). Great confusion and bitterness had resulted.
Bagehot was obviously thinking of Victoria when he wrote scathingly about responsible government in Australia, which he said did not work as well in the Australian colonies as in North America:
The lower classes there are mixed, convicts came first, and gold diggers followed ... there is a rich class which has little power, which is subject to a lower class, unfit to govern even itself, and still more unfit to govern those above it ... there is no such respect among the uneducated as would induce them to accept the judgement of the educated.
It was a happier picture in South Australia, founded in 1836 as one of the Wakefield colonial schemes (there were also five in New Zealand). Edward Gibbon Wakefield (1796-1862) produced a colonisation scheme designed to attract skilled migrants; land values were to be deliberately kept high, and the revenue used to entice further suitable migrants. He produced his scheme while in prison for the abduction of an heiress. The South Australian Colonization Act of 1834 had promised self-government when the population reached 50 000. In 1850, when the population was 63 000, a legislative chamber of eight crown nominees and sixteen elected representatives was created, as provided for in the Australian Colonies Government Act. Six years later South Australia achieved responsible government on the Victorian model, though with a smaller property qualification for the upper house.
South Australia was a leader in democratic developments. It had adult male suffrage, one man one vote, for the lower house from 1856. It was the first to have triennial parliaments. It created secret voting by ballot, thereafter usually called the Australian ballot. And, although it had little to do with democracy, it produced a simplified system of transfer of land titles (the Torrens title) which was copied in many countries.
The last Australian colony to be formed was Queensland. Though it had been settled in 1826, it had been separated from New South Wales only in 1859, when its population (not counting Aborigines) was about 20 000. The new colony of Queensland was immediately granted self-government and parliamentary institutions on the 1856 New South Wales model.
The idea of an Australian union of some kind surfaced periodically. The Secretary of State for the Colonies, Earl Grey, had back in 1847 recommended a single assembly to deal with matters of common Australian interest, but despite its support by a committee of the Privy Council, the proposal was stillborn. There is no doubt it was premature. Worse still, the colonists had not been consulted, and Australians were already starting to show that odd and rather unappealing combination of an almost fawning desire to have the approval of the ‘home’ country coupled with a fierce resentment of any apparent attempt by that country to dictate to them. Nevertheless the Colonial Office did not completely give up. In 1851, after the separation of Victoria from New South Wales, the Governor of New South Wales was given the additional title of Governor-General of Australia, but he had no power in that role, and the appointment made no difference.
Although there was resistance to the imposition by Britain of a system of inter-colonial co-operation, opinion in the colonies was beginning to stir. In 1852 the Presbyterian cleric, Dr Lang, clamoured for an American-style federation with two legislative chambers (coupled with independence from Britain, which rendered his advocacy ineffective in the climate of the times). A year later a committee of the New South Wales Legislative Council and a Victorian constitutional committee each talked vaguely of an Australian general assembly, but there is no evidence that they seriously faced the problem of how they could combine, in a single chamber, reasonable equality of representation of individual voters together with arrangements ensuring that the smaller colonies need not fear domination by the larger. The latter provision was essential if there were to be any chance of a federal scheme being accepted.
The idea of a federal assembly, apparently a single chamber and always with very limited powers, recurs over the years, as for instance in Wentworth’s Memorial of 1857 and a report of a New South Wales select committee of the same year. There were numerous colonial conferences from 1863 onwards but it was to be a quarter of a century before real progress towards federation was made.
In 1867 New Zealand was a very young colony indeed, and a small one too. Its population was about 250 000 Europeans and 50000 Maoris. The number of Europeans had been sharply boosted by the discovery of gold in the South Island in 1861, though the gold did not last very long. As recently as 1833 the number of Europeans was a mere 2000 or so, but such was the level of lawlessness, and violent friction with the Maoris, that the British government had reluctantly been forced to appoint a Resident. This could not last, and in 1839 Captain William Hobson was sent to annex the country to New South Wales by peaceful arrangement with the Maoris. In 1840 the Treaty of Waitangi was signed with the Maoris, which it was hoped would cover the orderly acquisition of land for the European settlers. The South Island, where there were few Maoris, was merely annexed by ‘right of discovery’, narrowly forestalling a French colonising expedition. There was no dispute at the time about the annexation, but there have been recent claims over land in the South Island based on the Treaty of Waitangi.
For the next twelve years the new colony was governed dictatorially by a succession of British governors (appointed, of course, by the British government), but the rising number of European settlers, who reached 32 000 by 1852, forced the passage of a New Zealand Constitution Act.[4] Although this was an Act of the UK Parliament, it was largely drafted by the Governor, George Grey, and provided for a federal system.
A unitary system was probably impracticable in the 1850s, for communications were very bad. As a result New Zealand was divided into six provinces, and neighbouring provinces sometimes heard no news of each other for months at a time. The first MPs from the South Island travelled to Auckland via Sydney. The Constitution provided for certain powers, such as coinage, customs, crown lands and justice, to be reserved for the central government, with the remaining powers given to the provinces. Yet laws of the central government overrode any repugnant provincial ordinances, and the central government had the power to establish new provinces and to change the powers of the provincial councils. In 1857 an amendment to the Constitution was passed by the UK Parliament giving power to the New Zealand Parliament to amend large sections of the Constitution, including the abolition of provinces.
The central government comprised a governor (appointed by the Crown), and a parliament comprising an elected House of Representatives initially of 37 members with five year terms, and an upper house, a Legislative Council of appointed members. The appointments to the Legislative Council were made by the Governor and were for life, and from 1862 there was no limit as to numbers. The two houses were officially called the General Assembly, but met separately.
There was a brief struggle before responsible government was achieved. Governor Grey left at the end of 1853 without having summoned the new parliament. Before the arrival of the new Governor, the Administrator was unwilling to agree to any new arrangements not in the constitution. Frustrated, the New Zealand House of Representatives sent an address to the Queen in September 1854, asking for immediate responsible government. The British government was sympathetic, and Gore Brown, the Administrator, was directed to introduce it. This he did, but he retained exclusive power over foreign affairs and trade and Maori land, though the New Zealand Parliament had the right to refuse to pass proposed laws and additional expenditure for the Maoris. The Parliament could not pass laws repugnant to British laws, and the UK Parliament could legislate for New Zealand and could override New Zealand laws. New Zealand had secret voting and adult male suffrage, with a small property qualification, which meant that voting could be plural if the voter possessed the necessary property in more than one electorate. The property qualification effectively excluded the Maoris because of their system of tribal land holding. This problem was tackled in 1867, after the 1860-65 Maori wars which began as disputes over land ownership. The solution was the establishment of four separate Maori seats, elected by Maori manhood suffrage, though the voting was not secret.
By 1867 the system was settling down, though the Maori wars,[5] which continued sporadically until 1869, caused considerable strain. There were seven prime ministers in the first ten years of responsible government. Federal relations also were not working very well. The six provincial councils, each of nine elected members presided over by an elected superintendent, were in constant dispute with the central government over finances and land development. In the early days of the new colony, the provincial councils bulked much larger in the eyes of the settlers than did the central government. After all, the provinces controlled immigration, education, public works and land policy. The financial agreement of 1856 was also helpful to the provinces, particularly in the South Island, where there were no Maori land claims, for the agreement provided that, after paying certain debts, and contributing to a fund for buying Maori land, the revenue from land sales went to the provinces. This left tariffs as the only substantial source of central government revenue. Moreover it was normal for provincial superintendents to be elected to the House of Representatives; in 1856 all six were MPs. If they were not elected to the lower house, they were usually appointed to the Legislative Council. Naturally their principal aim was the benefit of their provinces. There were groupings in the Parliament called Centralists and Provincialists but, although their methods might be different, their aim was the same: more benefits for their provinces. There were no political parties to offer an alternative object of loyalty. It was to be 30 years before most people thought of themselves as New Zealanders rather than citizens of their province.
Though all the colonies in Canada, Australia and New Zealand maintained a loyalty to the Crown, there was resentment, particularly in Australia, at alleged British interference in colonial affairs. The solution was the passage by the UK government in 1865 of the Colonial Laws Validity Act, which gave validity to laws unless they were repugnant to British statutes, and gave the colonial parliaments power to amend their constitutions, and, if they desired, to prescribe the manner and form of passage of such amendments.
That is where the parliaments of our four countries stood in 1867. In the years since there have been many developments, sometimes different ones in different countries, and it is time to turn to these.
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