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No. 3.

Dec. 10, 1852.

No. 169, Dec. 3, 1852.†

No. 191. Sept. 15, 1842, to Sir Geo. Gipps.

No. 3.

COPY of a DESPATCH from Lieut.-Governor LATROBE to the Right Hon

(No. 55.)



Ir becomes my duty to bring under the consideration of Her Majesty's Government a recent resolution of the Legislative Council of this colony, embodied in an address to the Lieutenant-Governor, to the effect that "in the "opinion of the Council the exigencies of the colony are so great that the unappropriated moiety of the land fund is necessary for the general wants of "the colony."

Melbourne, March 12, 1853.
(Received July 6, 1853.)
(Answered, No. 134, December 20, 1853, page 70.)

4. I had recently occasion, in acknowledging the receipt of your Despatch of the 31st July last, and offering certain explanations called for by the correspondence it enclosed between your office and the Lords of the Treasury, to advert briefly to this very subject, and to remark that it appeared to me that the time had arrived when, whatever may have been the case formerly, the manner in which and extent to which the "unappropriated moiety" of the territorial revenue of the colony may be employed, either with or without the concurrence of the Legislature, ought now to be determined; and that I would impress upon Her Majesty's Government the absolute necessity of giving the local authorities the fullest discretion and the most ample powers in dealing with it.

5. I am persuaded that the performance of this duty ought no longer to be delayed, and therefore, without awaiting reply to various communications which I have had the honour of addressing to you or your predecessor within the last eighteen months, bearing more or less directly upon this subject, I take this opportunity of attempting to bring the whole subject, and another of even more importance connected with it, more fully under notice, with a view to the immediate consideration and adjustment of the various questions involved.

6. In tracing the course of past transactions, and the series of instructions to the Governor of these colonies which have relation to the subject, I am at once struck with the ignorance which has latterly prevailed in this colony with respect to the general question. I would go no further back than the passing of the

5 & 6 Vict. cap. 36. Act 5 & 6 Vict. cap. 36., the 19th section of which enacts that, subject to the

primary charges of survey and management and of expenses of sale of the
waste lands, "the gross proceeds of the sales of the waste lands of the Crown
“in each colony in the Australian group shall be appropriated and applied to the


public service of that colony in such manner as Her Majesty or the Lords "Commissioners of the Treasury may direct; provided always, that a moiety of "such proceeds shall be and is hereby appropriated to defraying the expenses of emigration to the colony wherein the revenue accrued."

2. I will not here occupy your time with a statement of all the circumstances which may have led to this expression of opinion on the part of the Council, previous to entering upon the consideration of the estimates of future public expenditure submitted to it with my Financial Minute of November 3, 1852, already transmitted to you in my Despatch of November 4, 1852,* No. 159, further than to observe, that it occurred after the Council had thrown out a Bill for the levying of an export duty on gold, the presumed proceeds from which were necessarily included in my prospective estimate of ways and means. It consequently appeared that unless the deficiency caused by the rejection of this measure could be made good from some other source, a curtailment to a very considerable extent in the proposed expenditure would be necessary.

3. In my reply, herewith enclosed, I intimated that at the same time that I should hold myself justified in making up from the unappropriated moiety of the territorial revenue any deficiency in the ordinary sources of revenue which might be held requisite to meet the necessary expenditure of the coming year, it was not in my power, should that be the object of the Council, to make an unconditional surrender of that "unappropriated moiety," without the express sanction of Her Majesty's Government. I promised, however, to bring the expression of opinion of the Council under your notice without unnecessary delay.


* Page 46 of Papers relative to "Gold Discoveries" presented to Parliament August 10, 1853
† Page 56.

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7. In forwarding that Act, Lord Stanley remarked, that by section 18. the local Legislature was empowered to make separate provision for the primary charge of survey, &c. His Lordship also pointed out that it was by no means intended that the other moiety might not also be devoted to emigration expenses, "should "the circumstances of the colony be such as to render a further outlay on emigra❝tion desirable, and the means from other sources be inadequate to meet the "current expenditure."

8. Lord Stanley adds, "There are, however, certain items of expenditure "legitimately falling upon the land revenue which I think it desirable that the "Crown should retain in its own hands.

9." The first of these is the application of such sums, and in such manner as you may deem expedient, for the benefit of the aborigines.

10. "The next is intimately connected with, though perhaps not strictly "included in, the terms of reservation in the 18th section, being an expenditure on "roads, bridges, &c., for the purpose of opening and making moreeasily available "lands which it may be in your contemplation to bring into the market.

11. "The discretionary power thus given to you to incur expenditure in "opening roads applies of course to main lines of communication only, and the "funds thus placed at your disposal are on no account to be diverted to purposes of partial, local, or individual interest.


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12. The two objects to which I have thus referred you will consider as "those to which you will apply the proceeds of so much of the land sales as are not specifically appropriated to emigration.

13. "Of all your expenditure of these proceeds you will lay before the Legislature periodical and detailed accounts, and you will pay over to the general account of the colony any sums which may remain, after making, in your judgment, adequate provision for these objects, to be appropriated by the Legislature in aid of ordinary and current services.

14." At the same time it must be distinctly understood that this appropria"tion is to be made subject to the right which Her Majesty reserves to herself "of making any other disposition which circumstances may hereafter appear to "require of the moiety which is not specifically appropriated to the object of 66 emigration."





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15. Accompanying the Despatch from which the foregoing are extracts, was Treasury Chama communication from the Lords of the Treasury to Mr. Under Secretary James bers, 30th August Stephen, referring to the same clause 19. of the Act for regulating the sale of 1842. waste land belonging to the Crown in the Australian colonies, and acquainting Lord Stanley, that, subject to the appropriation out of the proceeds of sales of waste lands for defraying charges incurred in any of the colonies for the survey, management, and sale of the lands, or otherwise carrying the Act into effect, and for defraying expenses of the conveyance of emigrants from the United Kingdom, which are provided for in the Act, their Lordships were pleased, so far as regards the proceeds of sales of waste lands of the Crown in the colony of New South Wales, to authorize the appropriation by the Governor of the colony of a portion not exceeding 157. out of every 100%. of the said proceeds, after payment of the first class of the above-mentioned charges, in expenditure for the benefit, civilization, and protection of the Aborigines, and the application of the remainder of those proceeds, or so much thereof as the Governor of the colony may deem proper, for the construction of roads, bridges, or other means of communication for the purpose of opening and making more easily available lands which it may be desirable to offer for sale; and their Lordships were likewise pleased to authorize the transfer to the general revenue of each colony of any residue of those portions of the proceeds applicable to either of the lastmentioned purposes which may not be expended thereon.

16. Thus the Lords of the Treasury to Lord Stanley, and Lord Stanley to Sir George Gipps, concur in one construction of the powers conveyed by the Act, and in the same principle of application of the funds in question under the authority conveyed. The Act 9 & 10 Vict. cap. 104. provides in section 2. that "the proceeds of rents shall be treated and applied in similar manner as the "branch of revenue previously appropriated."

17. Such were the interpretations given to the Imperial Act, and the provision made for the expenditure of the unappropriated moiety of the territorial revenue in 1842. In the event of the moiety of that fund specially set apart by the Act for the furtherance of emigration being held sufficient for that purpose,


full authority was undoubtedly conceded to the Governor of the colony, after providing for certain specified objects, to deal with the remaining portion in such manner and to such extent as might appear judicious to his Executive Council, without any reference to the opinion of the Legislature. This done, he was at liberty to place the balance, whatever sum it might amount to, to the general ways and means, and thus bring it under the direct control of that body. And, had Sir George Gipps been in a position to act readily in accordance with these instructions, many questions which have been since raised in the community would long ago have been set at rest. But it is notorious that he was not.

18. Provision was made here for an appropriation, by which the colony of New South Wales was not in a position to profit, and had at the time indeed very little prospect of benefiting within any definite period. It must be recollected that the obligations of the colony of New South Wales on account of the previous bounty emigration, 1839-40-41, were held to be so great as completely to forestal all resources derivable from the land fund for many years following. In fact there was no such fund to deal with in the manner provided for; otherwise such distinct instructions could never have been so completely lost sight of, as they would apparently seem to have been.

19. The improving revenue and prospects of the colony in the course of 1847, 1848, and 1849, and the gradual liquidation of the debt of New South Wales, on account of previous emigration, joined to the urgent necessities of the colony in respect to the formation of the internal lines of communication, and, further, the declared recommendation of the Privy Council on the proposed new constitution for the Australian colonies, drew the attention of both the Executive Government and the colonists, towards the close of this period, to the question of the expenditure of some portion of the land fund, by one agency or other, upon works of internal improvement, and in Port Phillip, more, especially where the territorial revenue had throughout been so large, and was presumed in fact to have supplied more than a fair share of the expenditure on emigration to the colonies generally, gave rise to many applications and claims from various sections of the community for its being so applied. But the time, to all appearance, had not arrived when, in the opinion of the Government of New South Wales, any general measure of application, in consonance with previous instructions, could be adopted, and nothing was conceded.

20. Next came the passing of the present Constitutional Act, 13 & 14 Vict. cap. 59. and it will be allowed that no alteration was made in the existing law by that Act, as far as regarded the Crown lands, and the distribution and appropriation of the land fund as determined in 1842.


21. Earl Grey, in his Despatch of August 30, 1850, to Sir Charles Fitzroy, writes, "With regard to the land revenue, I am aware that much jealousy has "existed of its being appropriated as it hitherto has been by the authority of the "Crown, and it is therefore necessary that I should explain, that though the "Act of Parliament which I now transmit to you makes no alteration in the existing law on the subject, Her Majesty's Government have no desire to "exercise any control over the appropriation of that revenue, beyond that which " is necessary to insure its being expended on the objects to which it is legiti"mately applicable, and in a manner consistent with justice towards those from "whom it is raised." After alluding to a Despatch to Sir William Denison, his Lordship proceeds, "After providing for this charge, (the aboriginies), and "those incurred on account of surveys, and the cost of collection, such

proportion of the revenue derived from the sale or leasing of the Crown lands

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as is not required for emigration ought as far as possible to be applied to local improvements in the districts in which it arises, and I propose communicating "with the Lords Commissioners of the Treasury on the steps which should be "adopted in order to carry these views into effect."

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22. In his Lordship's Despatch to Sir W. Denison, above alluded to, and to which Sir C. Fitzroy was referred, Earl Grey points to the propriety of Government retaining in its own hands such portion of the unappropriated moiety of the territorial revenue as might be judiciously expended upon works of internal improvement, and suggests that, without any reference to the will of the legislature, it should be applied to such purposes, in conformity to the recommendation of the Privy Council, under the superintendence of local bodies, wherever constituted, representing the inhabitants of the variou districts, in fact through municipalities or district councils.

23. It is evident that Earl Grey, however, was not prepared to favour a claim on the part of local bodies to the application of the whole moiety of the land fund, such as it would appear that the Privy Council advised; but that it was still contemplated that the Executive Government might employ it in effecting, by ordinary agency, such main and general works as the circumstances of the colony might demand; e.g. "the formation of the great lines of communication, and the improvement of the principal harbours.

24. I do not find in any of the Despatches addressed to the Goverment of these colonies at this date, any allusion, direct or indirect, to the instructions of Lord Stanley and the Lords of the Treasury, conveyed as above detailed to Sir George Gipps in 1842. There is not a word said respecting the mode of disposing of the balance, supposing that the fund in question were larger in any one year than might be required or expended in the manner or through the agency above pointed out; and nothing in confirmation or in recal of the previous distinct orders for the unreserved payment of such balance into the general ways and means. No definite instructions, such as Earl Grey proposed to issue after consultation with the Lords of the Treasury, appear to have been since transmitted; and the question may then be asked, what, looking simply to the past instructions now adverted to, might the powers of the Governors of either New South Wales or Victoria, with respect to this "unappropriated moiety," provided it be not required for emigration purposes, be now defined to be?

25. They would appear to be these: that, under the authority conceded to the Government of New South Wales before the colonies were separated, he may hold himself justified, without seeking further authority from home, with the advice of his Executive Council, and without reference to the Legislature, to undertake and carry out in the ordinary manner works of internal improvement and of general and primary importance to the colony: and he may, also, without any such reference, afford assistance to municipal or local bodies in effecting local improvements. Further, it might be concluded that it is in his power, and strictly in accordance with the explicit instructions given, to add the balance, large or small, to the general revenue, for application, with the concurrence of the Legislative Council, either to such further works of internal improvement or even to the payment of ordinary and current expenses.

26. I next turn to transactions bearing on the subject subsequent to the separation of the colonies. And first, to the Despatch with which you honoured me in June last. By this, the application, with the advice of my Executive No. 25, June 2, Council, of the unappropriated moiety of the land fund to the purposes rendered 1852.** urgent by the present crisis, as far as could be done without inconvenince to the other departments of the public service, is explicitly authorized.

27. In giving me this instruction, no reference would appear to have been made to those issued in 1842, as I have shown, to Sir George Gipps, or to the power then undoubtedly conveyed; and that these had become in some measure lost sight of at home as well as in the colony would appear yet more clearly from the correspondence which took place about the same time with the Lords of the Treasury respecting my proposed application of 10,000/. from the unappropriated moiety of the land fund, on condition that an equal if not a larger sum were devoted to the Legislative Council to similar objects to those to which that sum was to be applied. As I have shown above, acting in strict accordance with the explicit instructions given by their Lordships in 1842, the LieutenantGovernor might have been held justified in adding to the "ways and means,' at the disposal of the Legislative Council, any balance, however large, which he might not consider necessary or propose to devote to contain specific public purposes, to be employed unconditionally by the Council in any manner which the general service of the colony might require. But from the correspondence it is judged that their Lordships would be but little prepared to admit the propriety of such a course, when some exception was taken to my proposed application in aid of internal improvements in general terms of so moderate a sum on such safe conditions, on the ground that the specific works ought to be sented home, and leave for such appropriation obtained in advance.


28. I would now recapitulate what may have been the measures, if any, taken by me with respect to the application of this unappropriated moiety or any proportion of it to the public wants, in order that it may be judged in how far these measures have or have not been in accordance with the general principles laid down in the instructions from home.

* Page 97 of Papers relative to Australian Gold Discoveries, June 14, 1852.




29. In 1851 a sum of 10,000l. was, as you are aware, offered by me to the Legislative Council in aid of a vote for works of internal improvement on certain conditions. I have already referred to this point, and it need only now be stated that I have receive your approval of such application.

Despatch from
Latrobe, July 1,
1852, No. 74.

Page 206 of Pa

pers relative to
Gold Discoveries
in Australia, 28th
February 1853.
*Page 324 ib.

30. Two several sums of 10,000l. and 6,000l., drawn from the same fund, were devoted in 1852, with the consent and advice of my Executive Council in aid of works of primary importance to the inhabitants of Melbourne and Geelong, and placed to this end unreservedly in the hands of their respective corporations. Though I have not yet received any special notice or approval of this measure, it is evident that the instructions with which I am favoured in your more recent Despatch of October 2d, 1852, No. 62,* as well as those originally issued, will justify that course.

31. While I may undoubtedly possess the power under previous Despatches, with the consent of the Executive Council, of meeting the public exigencies, by No. 46, Page 26. appropriations from this unappropriated moiety to any extent in this manner, it

5th March 1853,

will be seen from other of my Despatches, that up to the close of 1852, no other extraordinary appropriations beyond the three just pointed out have been made; but all other charges have been duly brought under the notice of the Legislative Council, and, with its concurrence, met by appropriations from the ordinary revenue and the gold revenue placed at its disposal by Her Majesty's Government conjointly

32. J next turn to charges which, with the advice of my Executive Council, and under the full authority which, independent of any held to be derivable from older instructions, there can be no question has now been placed in my hands, I have now admitted or propose to admit upon the "unappropriated moiety" in the present or in future years.

33. The first charge under this head will be seen to be the sum of 300,000l. which I have added to the ways and means, and placed unreservedly at the disposal of the legislature. Seeing that the balance of the "unappropriated moiety of the territorial revenue," as shown in the statement enclosed in my Despatch of the 5th instant, No. 46, would appear to have amounted on the 31st December 1852 to 388,000l., both these recent instructions, and still more clearly those conveyed in Lord Stanley's Despatch above cited, would justify this measure. Even had there been more doubt in my mind as to the extent of the authority possessed by me, the measure would have been held to be a judicious one, whether regard be had to the exigencies of the times, or the present state of public feeling in the colony upon the subject of the Crown revenue, both within and without the legislature. In fact, it had the effect of at once placing the Executive Government and the legislature upon a footing of cordial co-operation, and what was so urgently requisite at this particular juncture, of obviating all objections to the character or main details of the financial scheme submitted to it. The whole of the vastly increased expenditure, incurred in carrying on departments intended to be provided for by the schedules annexed to the Constitutional Act was voted without opposition or question, and difficulties were overcome which must otherwise have beset every financial arrange


34. The address of the Legislative Council to the Lieutenant-Governor, to which I more particularly adverted in the opening paragraphs of this Despatch, and the promise involved in my reply to make up any deficiency which might arise in providing for the ordinary and extended expenditure which the Council might concur in considering requisite under the extraordinary circumstances in which the colony is placed, only requires the general remark, that it would be justified by the authorities conveyed to me. I may, however, observe, while referring to the revised estimates of expenditure, and explanations, enclosed in my Despatch No. 54,† of March 12, 1853, that, viewing the still increasing resources of the colony, independent of the Crown revenue, it is not probable that any charges of magnitude will be the result.

35. The next proposed charge which may come under notice is that arising from the guarantee of five per cent. upon 1,200,000l. paid-up capital of two important railway companies, both incorporated during the last session. Full information with respect to these schemes is now in course of preparation, and will shortly be transmitted for the consideration and final approval of Her Majesty's Government. I would here merely remark, that by the conditions proposed to be entered into this guarantee will be fully protected, and that the

+ Page 68 of Papers relative to Australian Gold Discoveries, February 1854.

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