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The origins of responsible government
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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