CHAP. XXVI PRACTICE AS TO AMENDMENTS

247

the royal assent, and the necessity for absolute majorities in the second and third readings. It will be noticed that both necessities apply only to the cases contemplated by § 60 of the Constitution Act (which is still unrepealed), but the cases enumerated in § 61 appear not altogether distinguishable from them in certain instances. The Instructions of the Governor do not direct him to reserve constitutional bills, unless they specially affect the royal prerogative, but, of course, it is within his discretion to reserve any bill whatsoever. On the other hand, the conditions imposed by 60 are, by the Constitution Statute, impliedly made repealable by the Victorian legislature in the ordinary way.

Lower House.

If we look at the practice of the legislature we shall see that there has been, apparently, a good deal of doubt with respect to the applicability of the restrictions imposed by the 60th section of the Constitution Act. In the year 1857 was passed the statute1 which removed the necessity for the property qualification of members of the Assembly. The bill only passed on its second reading in the Assembly by 28 votes against 21.2 As the full number of members was then 60, it is clear that the bill was not deemed to fall within the provisions of § 60 as an alteration in the constitution of the In the following year, a bill was introduced to shorten the duration of the Assembly. No record of the divisions on its second and third readings in the Assembly survives, but, in the Council, the second and third readings passed by absolute majorities, the fact being noted at the request of the President. But the bill never became law, the royal assent being withheld by the Governor.5 In the same year, the Electoral Districts Amendment Bill was passed on its second reading by an absolute majority of the Assembly," but there is no record of the voting on its third reading, and the bill fell through. In the year 1864, the Pensions Bill, which affected the provisions of schedule D, passed its second

1 21 Vic. No. 12.

2 Cf. V. and P. (L. A.), 1856-7, Jan. 7.

3 Bare fact of passing noted in V. and P. (L. A.), 1857-8, Jan. 5 and 29, and cf. Hansard, sub dates.

4 V. and P. (L. C.), 1858, Feb. 9. 6 Ibid. April 14 (37-5).

5 V. and P. (L. A.), 1858, June 4.

7 Ibid. April 17 (and Hansard).

2

and third readings in the Assembly, and its second reading in the Council, by absolute majorities, though there is no record of the vote on the third reading in the Council,3 and the bill was reserved for the royal assent. In the same year, the Constitution Laws Consolidation Bill is said to have dropped on the second reading in the Assembly because an absolute majority was not obtained. During the progress of the Electoral Act 18655 no special records of absolute majorities were made, and the bill was not reserved for the royal assent, although it rearranged the constituencies for the Upper House, but the passing of the State Aid to Religion Abolition Bill in 1871 was carefully made subservient to the requirements of the statute, being passed by four absolute majorities, and reserved for the royal assent. Apparently no special precautions were taken with regard to the Electoral Act Amendment Bill of 1876,8 which passed through both houses in the ordinary way, and was not reserved for the royal assent, although it substantially altered both the number of members of and the constituencies for the Assembly. But the Reform Act of 1881,10 which practically did for the Council what the Electoral Act of 1876 had done for the Assembly, was passed with due observance of the formalities of the 60th section of the Constitution Act. And when, in consequence of a delay in the preparation of electoral rolls, a temporary provision, which incidentally lengthened the tenure of certain seats in the Council, was made by a subsequent statute 12 passed in the ordinary way, a third Act 13 was passed, conforming to the requirements of § 60,14 to validate the proceedings. On the other hand, the three electoral bills of the year 1888 passed into law 15 without the observance of special formalities, although one of them 16 1 V. and P. (L. A.), 1864, April 28. 2 V. and P. (L. C.), 1864, May 10. 3 Ibid. May 20.

V. and P. (L. A.), 1864, May 23, and summary of proceedings on bills (also Hansard). 5 29 Vic. No. 279. 6 34 Vic. No. 391. 7 V. and P., 1870, Sess. i. (L. A.) 15th and 21st June, (L. C.) 5th and 6th July. 8 40 Vic. No. 548.

9 V. and P., 1876, (L. A.) 5th Sept. and 17th Oct., (L. C.) 26th and 31st Oct. 10 45 Vic. No. 702.

11 V. and P., 1881, (L. A.) 3d March, (L. C.) 3d and 11th of May. 12 45 Vic. No. 720.

13 46 Vic. No. 745.

14 V. and P. (L. C.) 1882, 6th and 27th June, (L. A.) 13th July. 15 As the 52 Vic. Nos. 995, 1004, and 1008 respectively.

16 52 Vic. No. 1004, § 3.

CHAP. XXVI SPECIAL DUTIES OF PARLIAMENT

249

actually professed to repeal a section of the Constitution Act. It would appear, therefore, that the practice of Parliament with regard to the 60th section of the Constitution Act has not been altogether consistent.1

A few special restrictions and duties are also imposed upon the legislature. They may be enumerated thus—

1. Each House of Parliament must adopt from time to time Standing Rules and Orders for the conduct of its business, which, when approved by the Governor, become "binding and of force." But no rule affecting the communication between the Houses or the proceedings of both collectively is to have any force unless adopted by both (Const. Act, § 36). The Standing Orders at present in force for the Council were approved on the 15th December 1887, those for the Assembly at various times from 1857 to 1889, and those for the two Houses jointly in 1857 and subsequent years. 2. Each House must take into consideration all amendments in bills submitted by the Governor (Const. Act, § 36).

3. The legislature must not impose any customs duties upon goods imported for the royal forces, nor in defiance of treaty obligations (Const. Act, § 42).

We have now to deal with the two Houses of Parliament separately.

1 The Act of 1864 (27 Vic. No. 189), which abolished the allowance to the Governor for the payment of his staff and travelling expenses, was reserved for the royal assent, but I have not been able to trace its passage through Parliament.

CHAPTER XXVII

THE LEGISLATIVE COUNCIL

THE thirty members given to the Legislative Council by the Constitution Act1 were increased to forty-two in the year 1881, and to forty-eight in the year 1888.3 They are now distributed among fourteen provinces, of which six return four members each, and the remaining eight each send three.1 Each member elected upon a vacancy caused by effluxion of time holds his seat for six years. Members elected to fill extraordinary vacancies hold for the unexpired terms of their predecessors."

5

The Legislative Council can never be dissolved, but its members retire in rotation on the expiry of their tenures. Periodical elections are held in every province in each second year, at which the oldest member retires, and, in addition, in the provinces which send four members, a periodical election is held every sixth year, which does not, apparently, coincide with any of the biennial elections." All members are eligible for re-election.

To be qualified for membership of the Council a candidate must be a male of the age of thirty years, either a natural-born subject or naturalised and resident in Victoria for ten years, and must have been beneficially entitled to a freehold estate in Victoria of the clear annual value of £100 for one year previously to" his election." A declaration as to his property

1 § 2.

2 45 Vic. No. 702.

3 52 Vic. No. 995.

4 Constitution Act Amendment Act 1890, $$ 30 and 32.

5 § 32. The period of ten years fixed by the Constitution Act (§ 3) was altered by the Legislative Council Act 1881 (45 Vic. No. 702). 6 Constitution Act Amendment Act 1890, § 34.

7 § 33.

8 § 35.

CHAP. XXVII

FRANCHISES FOR THE COUNCIL

251

qualification must be made by the elected candidate before he takes his seat, and if he parts with the property without making other provision for his qualification he forfeits his seat.2

The following persons are entitled to vote for the election. of members of the Legislative Council in that electoral division on the rolls of which their names appear :

1. The owner of a freehold estate rated in a municipal district or districts in one province at the annual value of £10.

2. The owner of a leasehold estate created originally for five years, similarly rated at the annual value of £25.

3. The occupying tenant or licensee of land similarly rated at the annual value of £25.

4. The graduate of a British University, and the matriculated student of the University of Melbourne.

5. The barrister-at-law, solicitor, or conveyancer.

6. The legally qualified medical practitioner.

7. The duly appointed minister of any Church or religious denomination.

8. The certificated schoolmaster.

9. The officer or retired officer of Her Majesty's land or sea forces.3

Provided that these persons are—

1. Males of the age of twenty-one years.

If resident in Victoria.

2. Natural-born subjects, or persons who have been naturalised for three years, and resident in Victoria for the twelve months previous to the 1st of January or July in any year.4

Joint owners, lessees, and occupiers of qualifying land may claim as many rights in respect thereof as the value will cover. All voters except those who claim in respect of property must take out "elector's rights" in the electoral divisions in which they reside.

The Legislative Council has a constitutional officer, the President, who acts as chairman at all meetings of the full body, and is its recognised mouthpiece. He is elected by the Council, subject to the disallowance of the Governor, and holds office until he dies, resigns, or is removed by a vote of the Council. As we have seen, he now issues the writs for all elections to the Council.9 In the event of his absence or incapacity, the Council may appoint an Acting President to fill 2 § 39.

1 Constitution Act Amendment Act 1890, § 37.