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I have, in reply, to inform your Grace that at the opening of the present Session I placed Sir John Pakington's and your Grace's Despatches of the 15th December* and 18th January* last, before the Legislative Council, by whom, on On May 11, 1853. 20th May, they were referred to a select committee. The report of this committee was not brought up until the 28th July, when it was laid before the House with a draft of a bill "to confer a constitution on New South Wales and to grant a civil list to Her Majesty." This bill was read a second time on the 2d of September; when, after a long debate, it was agreed to postpone the further consideration of it until the 6th of next month, to which date the Council adjourned on the 11th October, in order to give time to the expression of public opinion relative to its provisions.
Unfortunately the committee had introduced certain clauses for giving effect to a scheme for creating an hereditary upper house, which was much disapproved of out of doors; and occasion was taken by the opponents of this proposition to get up public meetings in Sydney, in favour of an elective upper house instead of one to be appointed by the Crown, and a few meetings Ayes have been held in the country towns in favour of the elective principle; but these meetings have not been of an influential character, nor have any of them been numerously attended; and I am convinced that by far the larger portion of the influential and reflecting colonists are in favour of an upper house to be July 28, 1853. appointed by the Crown. by the Crown. I have therefore little doubt that the bill will pass, nearly in its present shape, (omitting the hereditary clauses,) by as large a majority of the Council as that which voted for its second reading.
I enclose a copy of the report of the Select Committee and of the bill prepared by it; and I should have done this sooner had I not been given to understand that it was intended to publish a report of the able and interesting debate which took place previous to the second reading of the bill in the form
of a pamphlet. There has been some delay, however, in printing this pamphlet; See Sydney Mornbut when it is published I will immediately forward it, and I think your Grace ing Herald. will on perusing it agree with me that in tone, language, and argument, it does August 23, 25, 31, credit to the present legislature of this rising colony. After all I have at September, 1, 2, & different times written on the subject, I need scarcely say that my own opinions, founded upon long experience in colonies, are in favour of an upper house to be appointed by the Crown.
I should not omit to mention that your Grace will perceive by the schedule appended to the Bill, respecting which I believe there is no difference of opinion either in the council or out of doors, that a liberal civil list is proposed, with ample provision for adequate pensions for the judges and for other public officers who may, under a new constitution, have to retire from office.
I shall take care to fulfil your Grace's wish with respect to all future appointments to office which under a responsible system of government, may be liable to change with a change of administration, and I will not fail to apprise candidates for them accordingly.
It is probable that the bill will pass, and that I shall be enabled to transmit it, with a full report upon it, for your Grace's consideration before Christmas.
His Grace the Duke of Newcastle,
Report from the Select Committee on the New Constitution.
The Select Committee of the Legislative Council, appointed on the 20th of May, 1853,
* Pages 44 and 48 of Papers relative to the "Constitution of the Australian Colonies," presented to Parliament by Her Majesty's command, 14th March 1853.
Encl. 1 in No
lation recommended by that Committee, but also for the most part in the provisions of the proposed Act of Parliament, and the Bill to be appended to it as a Schedule, by which unitedly this new Constitution is to be legalized and established.
The most important alterations that have been made in the measure recommended by the Committee of last Session, relate to the Constitution of the Legislative Council, and the Civil List to be granted to Her Majesty upon the surrender to the colony of the waste lands and royalties, which are at present vested in the Crown.
As regards the Constitution of the Legislative Council, your committee consider thatnot only by the terms of their declaration and remonstrance of the 5th December, 1851, but by the letter of agreement to those terms of Sir John Pakington, of the 15th December, 1852, the House is pledged to a Constitution "similar in its outline to that of Canada." The subsequent Despatch of his successor, the Duke of Newcastle, appears indeed to admit of some latitude of discretion on this most important subject. But your committee are of opinion, that the offer contained in their declaration and remonstrance necessarily included a nominated Legislative Council in the first instance, and from this offer, independently of the question whether they are strictly bound by it or not, they see no reason to depart. They desire to have a form of Government based on the analogies of the British Constitution. They have no wish to sow the seeds of a future democracy; and until they are satisfied that the nominated, or the future elective council, which they recommend, will not effect the object they have in view, of placing a safe revising, deliberative, and conservative element between the Lower House and Her Majesty's representative in this colony, they do not feel inclined to hazard the experiment of an Upper House based on a general elective franchise. They are the less disposed to make the experiment as such a franchise, if once created, will be difficult to be recalled.
Actuated by these views your Committee have introduced into the Bill "to confer a Constitution on the colony, and to grant a civil list to Her Majesty," two clauses, which to a certain extent, are framed in accordance with analogous clauses, to be found in the Imperial Act, 31 Geo. III. c. 31., "for making more effectual provision for the Government of the Province of Quebec." That Act authorizes the Crown, whenever it thinks proper to confer any hereditary title of honour, rank or dignity, to annex thereto an hereditary right of being summoned to the Legislative Council. Your committee are not prepared to recommend the introduction into this colony of a right by descent to a seat in the Upper House; but are of opinion that the creation of hereditary titles, leaving it to the option of the Crown to annex to the title of the first patentee a seat for life in such House, and conferring on the original patentees and their descendants inheritors of their titles a power to elect a certain number of their order to form in conjunction with the original patentees then living, the Upper House of Parliament, would be a great improvement upon any form of Legislative Council hitherto tried or recommended in any British colony. They conceive that an Upper House framed on this principle, whilst it would be free from the objections which have been urged against the House of Lords, on the ground of the hereditary right of legislation which they exercise, would lay the foundation of an aristocracy, which, from their fortune, birth, leisure, and the superior education these advantages would superinduce, would soon supply elements for the formation of an Upper House, modelled, as far as circumstances will admit, upon the analogies of the British Constitution. Such a house would be a close imitation of the elective portion of the House of Lords, which is supplied from the Irish and Scotch peerage; nor is it the least of the advantages which would arise from the creation of a titled order, that it would necessarily form one of the strongest inducements not only to respectable families to remain in this colony, but to the upper classes of the United Kingdom and other countries who are desirous to emigrate, to choose it for their future abode. In the Bill proposed for adoption, your committee, it will be seen, have recommended a very large extension of the elective franchise. They are of opinion that, in addition to the franchise established by the 13 & 14 Vict. c. 59, the right of voting for the election of members of the Assembly should be given to all persons having a salary of 1007. a year, and to all occupants of any room or lodging paying 40l. a year for their board and lodging, or 10l. a year for their lodging only. It is conceived that this enlargement of the franchise, in combination with the franchise now existing, will be a very close approximation to universal suffrage.
Your committee have also recommended that the number of members forming the Assembly should not exceed the number of the present Legislative Council; and that the eighteen additional elective members, who will be substituted for the nominees, should be distributed among the electoral districts constituted by the electoral Act of 1851, in strict accordance with the principle of distribution established by that Act; which, it will be recollected, was settled after the most careful consideration, and with a view to a fair and just representation of all colonial interests then subsisting. Your committee are of opinion that the working of this Act, and the result of the divisions on all the leading constitutional questions which have since arisen, have justified the most sanguine anticipations of its supporters.
Your committee, while on this subject, beg also to call the attention of your honourable House to the 17th clause of the Bill, which contains a power to alter the present electoral divisions, as well as the apportionment of representatives to be chosen by each, whenever
there shall be the concurrence of a majority of the Upper House, and of a majority of two-thirds of the Lower House of our future Parliament, in favour of any such alteration. It is conceived that this provision is ample to meet any possible requirements of this kind that may from time to time arise among the various constituencies of the colony.
It will be seen also, that the 40th clause of the Bill reserves a full constituent power to alter the proposed form of Constitution, whenever there shall be a majority of two thirds of both Houses of Parliament in favour of any such alteration; reserving to Her Majesty the right of assenting to or dissenting from any bill for this purpose that may be presented for the signification of Her Majesty's pleasure thereon.
The civil list which your committee propose to grant to Her Majesty is 24,7007. less than the civil list recommended by the committee of last session, and 10,2001. less than the Parliamentary grant for that purpose, contained in the first, second, and third parts of schedule A. appended to 13 and 14 Vict. c. 59. The cause of this great apparent reduction is to be found in the elastic and rapidly expanding character of the colony, which in fact, proves that any fixed provision for the various departments of Government must soon become inadequate, however liberal it may appear at present. Your committee have, it will be observed, in all cases made the same provision for the salaries of the Judges and other high officers of the Crown which is to be found in the before-mentioned schedule to the present Act of Parliament, and in some cases, where it was thought just and expedient, have recommended an increase of salary. Your committee trust that this fact and the explanation already given of the reasons which have led them to assign no permanent fund for the departmental expenses of the higher offices of the Crown, leaving them to be provided for in the same way as the expenses of all other departments are, viz., by annual vote-will be deemed satisfactory by Her Majesty's advisers. Your committee cannot, however, take leave of this subject without the expression of a hope that the liberal provision which your honourable House has just made for the public service will abundantly show" that as long as the representatives of the people are entirely free to grant or refuse according to their deliberate views of the exigencies of the public service, Her Majesty's "faithful Commons in this colony can never arrive at any other conclusion, than that it "is the soundest policy, as well as the truest economy, to maintain that service in the " utmost efficiency."
Among the grants enumerated in the civil list, is a fund for pensioning off those officers who now hold offices which may be considered as the responsible offices of the Government, and in which vacancies will probably occur as soon as responsible Government, properly so called, is introduced among us. Now as there can be no doubt the moment the consolidated revenue of the colony is placed at the disposal of a Legislative Assembly, consisting entirely of members elected by popular constituencies, that responsible Government will take effect, and that one of the first measures under such a new order of things may be to displace the actual incumbents of those responsible offices,— the question arises, what is the nature and amount of the compensation to which these displaced functionaries will be entitled, and whether they are to be entitled to such compensation only when so displaced, or at once and at their own option, the moment their tenure of office is changed, as it will be, from a tenure dependent on the pleasure of the Crown to a tenure practically dependent on the pleasure of the Legislative Assembly? It appears to your committee if the offices held by these functionaries are, as they contend, to be considered as abolished offices, and upon that ground entitling the holders of them to the full compensation which is usual in such cases in the mother country, that at all events the abolition of these offices is not to be deemed complete until the holders of them are actually displaced, and that even then the pensions to be assigned to them as an equivalent are to be continued only so long as they are not in receipt of any other salaries under the Crown. Whenever any of them accept a new appointment, the pension thus assigned to them by the colony should, in the opinion of your committee, merge, or be reduced pro tanto, according as such salary or emoluments are of greater or less amount. Acting on these principles, your committee have inserted in the civil list to be granted to Her Majesty, an adequate fund for pensioning off, at their present rates of salary, all the higher functionaries of the government who may be displaced by the new order of things likely to arise when responsible Government takes effect among us.
Another grant in the civil list to Her Majesty is a fund for pensioning the Judges of the supreme court. It is proposed, in analogy to the provisions made in England, Ireland, and Scotland, that in all cases of permanent disability or infirmity, or after fifteen years' service, a pension amounting to seven-tenths of the Judges' salary shall be demandable as of right. It is considered that no more effectual mode of ensuring the independence of the Judges, and rendering their offices objects of ambition to the bar, could be devised than a provision limiting their period of judicial service, and ensuring them a handsome competency for the remainder of their lives.
Your committee are of opinion that the power in several instances exercised by the Crown to create banking and other Corporations in this colony, is one utterly inconsistent with that full local control which the Colonial Government ought to possess and are glad to find that Her Majesty's ministers have expressed their intention to exercise this power no longer without the concurrence of the local authorities. Your committee are disposed to look upon this as a practical abandonment of an injurious prerogative, which cannot fail to give general satisfaction.
One of the more prominent legislative measures required by this colony, and the colonies of the Australian group generally, is the establishment at once of a General Assembly, to make laws in relation to the inter-colonial questions that have arisen, or may hereafter arise, among them. The questions which would claim the exercise of such a jurisdiction, appear to be as follows:
1st,-Inter-colonial tariffs, and coasting trade.
2nd,-Railways, roads, canals, &c., running through any two of the colonies.
6th,-Postage between the said colonies.
7th,-A general court of appeal from the Courts of such colonies.
8th,-A power to legislate on all other subjects which may be submitted to them by addresses from the Legislative Councils and Assemblies of the other colonies; and to appropriate to any of the above objects the necessary sums of money, to be raised by a per-centage on the revenues of all the colonies interested.
As it might excite jealousy, if a jurisdiction of this importance were to be incorporated in the Act of Parliament, which has unavoidably become a necessary part of the measures for conferring a Constitution on this colony, in consequence of the defective powers given by Parliament to the Legislative Council,-Your committee confine themselves to a suggestion that the establishment of such a body has become indispensable, and ought no longer to be delayed; and to the expression of a hope that the Minister for the colonies will at once see the expediency of introducing into Parliament, with as little delay as possible, a bill for this express object. W. C. WENTWORTH, Chairman.
Legislative Council Chamber, Sydney, July 28, 1853.
PROCEEDINGS OF THE SELECT COMMITTEE ON THE NEW CONSTITUTION.
Question put,-Are we bound, by the terms of the Remonstrance and Petition of 1851,
2. Should the Lower House, under the New Constitution, consist of the same number of Members as the present Legislative Council?
Upon this question the Committee came to no decision.
3. Does the City of Sydney require any additional representation?
Passed in the Affirmative.
4. Do the Sydney Hamlets require additional representation?
Passed in the Afirmative.
5. Does the County of Cumberland require additional representation?
6. Do the Counties of Northumberland and Hunter require additional representation ? Passed in the Affirmative.
7. Does the County of Durham require additional representation?
Passed in the Affirmative.
8. Does East Camden require additional representation?
Passed in the Affirmative.
9. Does West Camden require additional representation?
Passed in the Negative.
10. Does the County of Bathurst require additional representation?
Passed in the Negative.
11. Do the Counties of Roxburgh and Wellington require additional representation ? Committee divided.
The Attorney General,
The Colonial Secretary,
Passed in the Negative.
12. Does the County of Stanley require additional representation?
Passed in the Negative.
13. Do the Counties of Cook and Westmorland require additional representation?
Question put, That four additional Members be added to the Squatting Districts, viz:----
Motion made and Question put,-That one additional Member be added to East Camden,
Moved by Dr. Douglass,-That the City of Sydney return six Members, and that, for
Moved by the Colonial Secretary, That the City of Sydney have two additional Members