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CHAP. XXVIII

THE CRISIS OF 1877

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the claim of the Assembly,' and the Government found it impossible to enforce its demands. Thereupon it made wholesale reductions in the civil service, and something like a crisis ensued. On the one hand, the Assembly claimed entire control over the financial policy of the country, and denied the right of the Council to interfere with it in any way. The supporters of the Council, on the other hand, denounced the action of the Government in placing the vote on the Appropriation Bill, as an attempt to prevent a fair discussion of the principle of the payment of members, and their attempt to collect the revenue on the vote of the Assembly as generally inconsistent with constitutional principles, and especially as a breach of the 25th section of the Audit Act, which directed the Commissioners of Audit, before countersigning any warrant for the payment of public monies, to "ascertain that the sums therein mentioned are then legally available for and applicable to the service or purpose mentioned in such instrument." Moreover, it was asserted that the institution of the Commissioners of Audit was adopted for the express purpose, amongst other things, of superseding the system of payment of monies on mere resolution which had previously prevailed.*

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The matter was ultimately compromised by the withdrawal of the objectionable item from the Appropriation Bill, and by the passing of the Payment of Members Bill in its original form. This result in itself left the question of principle undecided, but the opinion of the Imperial government, to which the matter was referred, taken in combination with the facts. of the case, seems to lay down the following rules as to the legal position of the much-disputed question.

1. The Legislative Council is entitled to reject any bill, whether containing money grants or not, which comes up from the Assembly. (Constitution Act, 1 and 56.)

2. The Assembly is not justified (certainly not morally, perhaps not legally) in inserting a question of principle into an ordinary administrative measure, by covering it with a money vote. (The

1 Stevenson v. The Queen, 2 W. W. and A'B. (L.), 143.

2 V. and P. of Leg. Assembly, 1878, ii. 957-960.

3 22 Vic. No. 86.

See respective statements of Council and Assembly in V. and P. of Council,

19th Feb. 1878, and V. and P. of Assembly, 13th Feb. 1878.

5 V. and P. of the Council, 28th March 1878. Cf. debate in Victorian Hansard, xxvii. pp. 2313-2332.

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Assembly practically confessed this rule by withdrawing the objectionable grant from the Appropriation Bill.)

3. Public officials are not warranted in collecting taxes on the mere vote of the Legislative Assembly, nor in making payments which have not been authorised by statute. (Opinion of the Secretary of State for the Colonies, explaining the practice of the House of Commons.1)

Another somewhat important point has lately arisen with regard to the scope of the 56th section of the Constitution Act. The difference of opinion may be best illustrated by stating that there are two views, one of which holds that the words "all bills for appropriating" (revenue) "and for imposing" (taxes) confine the operation of the section to bills having for their principal object the authorisation of payments or the granting of supply, while the other maintains that legislation which merely incidentally or consequentially authorises the collection of money or the payment of officials may be dealt with as ordinary legislation by the Council. It has been said to be the difference between "a bill for appropriating," and "a bill which appropriates."2 In spite of the apparently verbal character thus given to the contention, the distinction is an important one, for the adoption of the stricter view practically cuts the Council off from many useful functions. It must, however, be taken to have the weight of authority in its favour, having been upheld by a ruling of the President in the year 1885, and supported by the Committee of Standing Orders of the Legislative Council itself.4

1 Copy in V. and P. of the Leg. Assembly, 1878, iii. p. 667. Also Stevenson v. The Queen (ante). For other information relating to the question, see V. and P. of Leg. Assembly, 1877-8, i. pp. 569 and 711; ibid. iii. 631 and 653; and ibid. 1878, ii. 887-972. Also Vict. Hansard, vols. xxvi. and xxvii. sub titt. "Appropriation Bill," "Crisis," "Payment of Members," etc.

2 Hearn, Government of England (2d ed.), p. 619.

3 Vict. Hansard, xlix. p. 1332; V. and P. of Leg. Council, 6th October 1885. 4 Vict. Hansard, xlix. p. 1487; V. and P. of Leg. Council, 1885, pp. 139, 143.

CHAPTER XXIX

OTHER LEGISLATIVE ORGANS

It is a mistake commonly made to suppose that in England the sole organ of central legislation is the Parliament. Long before Parliament acquired its powers of legislation there existed an authority by which laws were made. This authority was

the Crown, and to this day the Crown possesses all those plenary powers of legislation which it once exercised, except so far as it has been expressly deprived of them. No doubt these deprivations have been very great, and they have caused much bitterness of feeling. On the other hand, since Crown and Parliament have ceased to quarrel, the latter has conferred upon or restored to the former many legislative powers, so that the legislative power of the Crown is now considerable. And it must be remembered that the Crown has never, in England, recognised the right of the Parliament to make laws in all cases whatsoever. So that in England the legislative power of the Crown is in some cases the survival of ancient prerogative right.

The wide powers conferred upon the Victorian Parliament by the highest authority in the empire precludes the possibility of such a claim being made by any other authority in Victoria. Such powers of legislation as other authorities exercise, they exercise as deputies of the Parliament, and, if they exceed the powers given to them, their legislation may be set aside. Thus, where the Board of Land and Works, avowedly acting under the powers conferred by the Land Act 1862,1 published Regulations which were in fact ultra vires, and then attempted to enforce them, they were, though acting in the name of the Crown,

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enjoined by the Supreme Court to act in defiance of their own Regulations.1 And where the Governor in Council framed. Regulations under the Mining Statute 1865, which the Supreme Court deemed to be in excess of the powers conferred by the statute, they were treated as null, and action taken on them was set aside.3 The chief instances of such subordinate legislative authorities are the Governor in Council, Public Departments, and the Supreme Court. Less frequently legislative powers are entrusted to unincorporated officials and the judges of inferior courts.1

When we come to deal with the executive branch of the central government, we shall see that the "Governor in Council" means the Governor acting with the advice of the Executive Council or Cabinet. In delegating powers of legislation to the Governor in Council, therefore, Parliament is, practically, delegating them to a committee of both Houses, though, as it is not essential that all members of the cabinet shall be members of Parliament, it may happen that the power is exercised by persons whom the community has not entrusted with legislative duties at all. The increasing tendency to entrust legislative powers to what is primarily an executive body, is one of the most curious features of modern parliamentary government, and indicates an appreciation of some of the drawbacks of a parliamentary system. Leaving this aspect of the question for future discussion, we may here point out one or two conspicuous examples of the practice, merely premising that the familiarity of the community with it previous to the introduction of Responsible Government may have reconciled it to the practice now that it has a totally different significance.

A very conspicuous example of the practice occurs in the 49th section of the Constitution Act, which provides that the pensions authorised by the Act for retiring judges of the

1 Kettle v. The Queen, 3 W. W. and A'B. (E.), p. 60. 2 29 Vic. No. 291.

3 Johnson v. Thomson, 6 W. and W. (M.), 18.

4 This is, of course, leaving local legislation out of account for the present. 5 Acts Interpretation Act 1890, § 5.

6 Occasionally powers of legislation are directly conferred upon the Governor by Imperial legislation, e.g. 24 & 25 Vic. c. 52, which empowers him to issue Regulations qualifying the terms of the "Passengers Act 1855 " (18 & 19 Vic. c. 119). Although the expression used is "Governor " simply, it is probable that the terms of his Commission and Instructions would require the Governor to act with the advice of the Cabinet.

CHAP. XXIX LEGISLATION BY GOVERNOR IN COUNCIL 261 Supreme Court shall be granted in accordance with Regulations to be framed by the Governor and Executive Council. Later sections of the same enactment make similar provisions with regard to the pensions to Responsible Officers and the grants to religious denominations,1 but the sections themselves have been since repealed.2

Still more important are the wide powers of legislation conferred on the Governor in Council by more recent enactments. To take only three instances. By the Aborigines Act 1890,3 he may make regulations prescribing the place of residence of any aboriginals, and the terms upon which they may be employed, and for apportioning their earnings amongst them. He may lay down the conditions upon which aboriginals shall be entitled to a share in the parliamentary grants voted for them, may order the supply to them of the necessaries of life, and may prescribe for the care, custody, and education of their children. By the Education Act 1890, he may regulate the uses of State School buildings, the terms and appointments of members of Committees of Advice, the conditions under which scholarships and exhibitions may be granted, the secular instruction to be given in the schools, the examination and classification of teachers, and the scale of fees to be paid by parents. By the Land Act 1890, he may make rules, regulations, and orders for the numerous purposes of the Act, and for prescribing the mode of applications under it, for providing surveys and adjustment of boundaries, and for supervising and controlling the local committees established to ensure the destruction of vermin. The 142d section of this last Act adds the important condition that regulations made under the section shall be signed by the Minister having charge of the Act, and shall be laid before both Houses of Parliament within fourteen sitting days from their publication. Upon their publication in the Government Gazette, these regulations become "valid in law as if the same were enacted in this Act, and shall be judicially noticed." In other words, they are true legislation. No element is wanting. Similar provisions are now becoming common in cases of delegated legislation such as those we have first considered.

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1 Constitution Act, §§ 51 and 53.
By 28 Vic. No. 235 and 34 Vic. No. 391.
5 § 142.

3 § 6.
6 § 205.

4 § 23.

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