CHAPTER XXIV

INTRODUCTORY

WE have now to take a survey of the existing scheme of government in Victoria. And in so doing we shall abandon the historical method hitherto pursued, and adopt the analytical system, which considers phenomena as they are, without tracing the process of their developement. There are good reasons for the change, despite its apparent inconsistency. Not only would a continuance of the historical method involve us in an inquiry beyond the limits at our disposal, but it might necessitate the discussion of questions upon which public feeling is not yet sufficiently calm to allow of an impartial criticism. As a general rule, the abandonment of the historical method will not be found to be a practical inconvenience, for the main outlines of the existing scheme of government were settled by the changes of 1855, and recent developements have, in most cases, been in matters of detail. Nevertheless, where circumstances seem imperatively to demand the course, we may glance at the bare steps of progress between 1855 and 1890.

To bring the subject clearly before our minds, we require a plan which shall be simple, uniform, and comprehensive. We can then class each phenomenon under its proper head, and know where to find it.

In considering the functions of government, we draw a broad line between those which are universal and those which are merely local in their scope. The former always emanate from a single source, and this source we familiarly term the Central Government. The powers of the central government are limited only by the territory controlled by the community

of which it is the organ, sometimes they extend even beyond this limit. The powers of a local government are always limited in exercise to a special area, a division or sub-division of the territory of the community. This, then, will be our first division of the functions we are about to examine-into Central and Local.

1

But a further sub-division is necessary, and as such a subdivision is ready to hand, familiar to every one, we shall do well to adopt it if possible.

For a very long time it has been common to class the functions of government as legislative, executive, and judicial. It is admitted that the classification is not strictly logical, but it is eminently useful, and sufficiently logical for practical purposes. Where the government lays down general rules for the guidance of conduct, it is exercising its legislative functions. Where it is carrying those rules into effect, it is exercising its executive powers. And where it is punishing or remedying the breach of them, it is fulfilling judicial duties. It by no means follows that the exercise of these different classes of functions is always entrusted to different hands. But, nevertheless, the distinctions between the functions themselves usually exist, both in central and in local matters.

One other question remains. What is the order in which these classes of functions should be discussed? The answer depends entirely on practical convenience, which is usually determined by the relative importance of the various functions in the scheme of government. In the case of Victoria there can be little question that the central government is both older and more important than the local, while of the various functions of each it is as certain that the legislative are at the present time more important than the executive or the judiciary. The legislature can not only change the existing personnel of the executive and judicial staffs, but it can completely alter their constitution for the future. The executive can, in most cases, insist upon the dissolution of a part of the existing central legislature. But the legislature cannot be kept in

1 It must be carefully borne in mind that "central" powers and "supreme powers are not always synonymous. On the other hand, "local" powers are not always "subordinate."

INTROD.

PLAN OF THE SUBJECT

229

abeyance for more than a year, and upon its reconstruction the dismissed members may be all returned. The judiciary has no direct influence over the legislature.

It is clear therefore that we shall do well to take the legislature first, although, historically speaking, it is a late development.

And it will, almost as clearly, be wise to take the executive next; for in the Victorian constitution the executive and the legislature are intimately connected, both in the sphere of local and of central government. The executive is appointed by the legislature, is constantly accountable to it, and can be dismissed by it. The judiciary, though practically appointed and occasionally removable by the legislature, is in the exercise of its functions generally independent of the legislature. Thus our plan for the analysis of the subject will be as follows

Central

Government

Local

Legislature Executive Judiciary Legislature Executive Judiciary

A. CENTRAL GOVERNMENT

1. LEGISLATURE

CHAPTER XXV

THE GOVERNOR

THE Governor, or the Person for the Time being lawfully administering the Government of the Colony," is, notwithstanding the grant of Responsible Government, still the official head of the legislature of the colony. Colonial statutes now run in the names of the Crown and the colonial Parliament, instead of, as formerly, those of the Governor and the Parliament; but the assent of the Crown is in ordinary cases the assent of the Governor, and is always signified by the Governor.

It becomes, therefore, our examine the nature of his office. creation.

duty, in the first place, to And first, with regard to its

Formerly, as we have seen, each Governor was appointed by special Letters-Patent, which defined the scope of his powers and duties. But in the year 1879, prior to the appointment of the Marquis of Normanby, the office of "Governor and Commander-in-Chief in and over Our Colony of Victoria" was permanently constituted by Her Majesty by Letters-Patent of the 21st February in that year. It is to be observed that in

this document the boundaries of the colony of Victoria are defined in accordance with the terms of the Acts of 1842 and

1 Constitution Act, § 62.

2 Copy in Gov. Gazette, 1879, April 29. In the absence of special appointment the Governor of a British possession is also ex-officio Vice-Admiral thereof. (26 & 27 Vic. c. 24, § 3, and 30 & 31 Vic. c. 45, § 4.)

CHAP. XXV

THE LETTERS-PATENT

231

1850, no reference being made to the provision of the 18 & 19 Vic. c. 54.

By the terms of the Letters-Patent constituting the office, the powers and duties of the Governor are defined as follows:

(i). To make grants of Crown lands within the colony accord

ing to law.

(ii). To appoint in the Queen's name, and on her behalf, judges, commissioners, justices of the peace, and other necessary officers and ministers of the colony.

(iii). To promise pardon to offenders who give Crown evidence, and to grant pardon and remit fines to convicted offenders. (The pardon is not to be granted upon condition of absence except in the case of political offence unaccompanied by grave crime).

(iv). To exercise the Crown's power of removing or suspending Crown officials on due cause.1

(v). To exercise the Crown's power of summoning, proroguing, or dissolving any legislative body.

(vi). To appoint a deputy. (See post, p. 235.)

b. Duties:

(i). To have commission read, and to take, in the presence of the Chief-Justice or other judge of the Supreme Court and the members of the Executive Council, the following oaths

a. Of allegiance. (31 & 32 Vic. c. 72.)

B. Of office.

7. For the due administration of justice.

(ii). To keep and use the public seal of the colony.

(iii). To appoint an Executive Council.

(iv). To publish the Letters-Patent in such places as he shall see fit.

These powers and duties are further explained by permanent Instructions 2 passed under the sign-manual on the same day as the Letters-Patent. By this document these further powers and duties are conferred on the Governor :

a. Powers:

(i). To administer the oath of allegiance and other oaths prescribed by the law of the colony.

(ii). To summon the Executive Council (which is not to proceed to business until so summoned).

1 It was formerly doubted whether the Governor could remove a member of the Executive Council without special Instructions. But the power was expressly granted to Sir Henry Barkly by sign-manual of 10th March 1859 (Original in Treasury offices, Melbourne). 2 Copy in G. G., 1879, 29th April.