sequent upon the gold discoveries, and he laid before the Council the papers relative to the proposed financial settlement with New South Wales.2

Two more formalities had to be disposed of before the legislature could get fairly to work. Disputed returns required decision, and the Council needed Standing Orders to regulate the details of its business.

There was only one case under the former head. On the 13th November the Lieutenant-Governor laid before the Council a petition which he had received from Geelong, complaining of the return of Mr. Robert Robinson for the constituency on the ground of bribery under the 47th section of the Electoral Act, "For supplying meat and drink to the voters at the said election and keeping open public houses thereat.” 3 On the following day the Speaker produced his warrant appointing the Committee of Elections and Qualifications, its members were duly sworn, and on the 20th November the petition was referred to them for decision. On the 11th December their report was brought up and received. After hearing the evidence, the Committee found that the charges had not been proved, but that the petition was not frivolous or vexatious. This finding is practically equivalent to a declaration that " All's fair in war," and is not creditable to the morals of the community at the period. The published evidence proves, either that the bribery was open and unquestioned, or that the witnesses were guilty of unblushing perjury.7

5

On the 12th December the Council adopted a set of Standing Orders, which were duly approved by the LieutenantGovernor.s

1 Apparently the Council did not comply with this request, but they passed a statute dealing with future cases (15 Vic. No. 15).

2 Cf. post, pp. 163, 164.

5 Ibid. sub date.

3 V. and P. 1851, p. 413.

4 Ibid. sub date.

6 Report, ibid. p. 553.

7 Evidence in V. and P. 1851, pp. 556-564.

8 Ibid. sub date. There is a copy, initialed by the Speaker, in the volume

of Votes and Proceedings at the Parliament Houses.

CHAPTER XVII

TWO FINANCIAL QUESTIONS

Two financial questions were disposed of in the early years of the new Constitution. One related to the exact footing upon which the financial separation between New South Wales and Victoria should be effected, and, though not of firstrate importance, it is worth a passing notice. The other, the transfer of the collection of the Customs duties from imperial to colonial hands, becomes very important in the light of subsequent events.

It will be remembered that on the opening of the first session of the new Legislative Council of Victoria, the Lieutenant-Governor had laid on the table the papers relating to the financial settlement with New South Wales.1 It will also be remembered that in the course of the agitation for separation, the old Legislative Council at Sydney had passed a resolution to the effect that the revenues from New South Wales proper and Port Phillip should be treated as distinct from the 1st January 1850.2 The Government of New South Wales was prepared to effect a settlement, upon the stricter basis of a division as from the actual date of Separation, based upon the average contributions of the preceding twelve months.3 Lieutenant-Governor La Trobe took a third view, and contended that the accounts should be treated as distinct from the 1st of January 1849, on the ground that Separation was practically conceded from that date.*

1 Ante, p. 162.

2

Ante, p. 134.

3 Cf. Minute of Executive Council of N. S. W., 11th March 1852 (copy in V. and P. 1853-4, ii. p. 454).

4 Letter of Mr. La Trobe, 3d May 1851, ibid. p. 456. There was no dispute as to the Land funds, which had practically been kept distinct from the resumption of immigration in 1848.

The practical issue between the parties was a sum of £21,165:17:4, and, as there seemed no likelihood of an agreement, the Governor-General decided to refer the question to the Home government for decision, at the same time pointing out that as the Constitution Statute made no express provision on the subject, it might possibly be necessary to obtain fresh legislation.1 The Secretary of State, being furnished with full accounts, on considering the matter, concurred with the view of the Government of New South Wales, that the legal date of separation was the only date of which official notice could be taken, but for further security referred the matter to the Lords of the Treasury. The latter fully agreed with the Minister, and further had no doubt that the settlement was warranted by inference from the Constitution Statute, without further legislation. Upon this basis, therefore, the settlement was effected, apparently without further remonstrance.

The matter of the Customs, though there was no dispute in connection with it, proved somewhat intricate, and its history well illustrates the complicated machinery of the Imperial executive.

By the English statute 9 & 10 Vic. c. 94, a long series of "Acts to regulate the Trade of the British Possessions Abroad," passed with the object of securing uniformity in the Customs laws in force throughout the colonial empire, were in effect repealed, permission being given to the colonies to alter and repeal the Customs duties established under those statutes, by colonial Act, assented to by Her Majesty and the Imperial Parliament. The "Acts to regulate the Trade of the British Possessions Abroad" had not in express terms included the Australian colonies, but, as we have seen, they had really been applied to New South Wales; and when it had been desired to give to the latter colony, and others of the Australian group, the power to impose their own Customs duties, this power had been expressly conferred by Imperial legislation." Moreover, in auditing the expenses of 3 and in making appoint

1 V. and P. 1853-4, ii. p. 454. 3 Ibid. p. 468.

8

2 Cf. ibid. pp. 458-465. 4 Ibid. p. 469.

Viz. the 6 Geo. IV. c. 114; 3 & 4 Will. IV. c. 59; 8 & 9 Vic. c. 93.

6 Ante, p. 30.

7 E.g. 59 Geo. III. c. 114; 3 Geo. IV. c. 96; 9 Geo. IV. c. 83, § 26. 8 Cf. 7 & 8 Vic. c. 82.

CHAP. XVII

TRANSFER OF THE CUSTOMS

165

ments to the Australian Customs staffs, the Imperial government had followed the practice observed in those colonies to which the "Acts to regulate the Trade of the British Possessions Abroad" did strictly apply.1

The statute of 1846 necessitated a change in this practice, and accordingly, by direction of the Treasury in 1847 and following years, the Imperial officers employed under the Board of Customs in Canada had been withdrawn, with the exception of a few who remained to secure the observance of the still subsisting Imperial laws relative to trade and navigation. This change the Home government now proposed to extend to the Customs establishments in the Australian colonies, and on the 8th August 1850 the Secretary of State for the Colonies (Earl Grey) issued a circular to the Governors of the colonies in question, in which he announced that the Home government did not propose to await the coming into force of the new constitutions to effect the contemplated change, but to complete it at once. The effect of the change would be that, with the few exceptions necessary to enforce the Imperial rules relative to trade and navigation, the Customs officials would, for the future, stand on the same footing as the other officials in the colonial service, i.e. would be appointed and dismissed provisionally by the Governor, subject to the approval of the Colonial Office, in manner provided by the Colonial Regulations.3

But in the course of a few months the Home government seems to have changed its mind with regard to the exact nature of the alterations proposed to be introduced, for on the 19th April 1851 we find Earl Grey writing to the colonial Governors to the effect that it is determined, instead of retaining Imperial officials to secure the enforcement of the Imperial Navigation Laws, to transfer the whole of the Customs establishments to the Colonial Governments, vesting in certain of the colonial officials the powers necessary to enforce the Imperial rules. In return for these powers, the officials in question are to furnish such returns and documents relating to 1 Treasury Minute of 25th June 1850 (V. and P. 1852-3, i. p. 701), and circular of Earl Grey (ibid. p. 702).

2 Cf. Treasury Minute of 25th June 1850 (ibid. p. 701).

3 Circular in ibid. p. 701. As to the Regulations in question, cf. official copy in Public Library, Melbourne.

trade as may be needed for the information of the Imperial government.1

Due notice of the application of this change to Victoria was sent by Earl Grey to Mr. La Trobe. In announcing the event, the Secretary of State for the Colonies especially cautions. the Lieutenant-Governor to continue so far as possible in their present positions the existing officials, although they will legally be subject to his power of removal. The LieutenantGovernor is also directed to consider and report upon the best means of examining and auditing the Customs accounts in the colony.2

The next step in the process was a letter sent from the Imperial Commissioners of Customs to the Collector of Customs at Melbourne, in which the latter is informed that "deputations" appointing him and certain others Controllers of Customs and Navigation Laws, together with Instructions for the performance of the new duties, have been forwarded by the Commissioners to the Lords of the Treasury for transmission to the (Lieutenant) Governor of Victoria. Upon receipt of the letter, the Collector is to place himself in communication with the (Lieutenant) Governor, with a view to the transfer, on a date to be fixed by His Excellency, of the establishment of Customs to the Colonial government. From the time of the transfer the Customs accounts will be rendered to the Colonial government.3

4

Upon receipt of this despatch the Collector of Customs at Melbourne wrote a formal letter to the Colonial Secretary, announcing the fact, and requesting the Lieutenant-Governor to name a date for the transfer. Thereupon the LieutenantGovernor laid all the papers before the Legislative Council,5 and suggested the 31st December 1852 as the date for completing the process. In this suggestion the Legislative Council immediately concurred, and passed an Act vesting the necessary powers of appointing Customs officials in the Lieutenant-Governor, and making general rules for the regulation of the department. But it would appear that the actual

1 V. and P. 1852-3, i. p. 704.

2 Ibid. p. 699. By the Constitution Statute (13 & 14 Vic. c. 59, § 15) the

Imperial government reserved the power to give directions on this point.

3 Ibid. p. 700.

6 Ibid. 26th August.

4 Ibid.

5 Ibid. 11th August.

7 16 Vic. No. 23.