Mines to the Full Supreme Court, either by way of special case stated by the judge himself, or by way of substantial appeal from his decision.1 But unless the proceeding is an appeal from an order of the Court of Mines granting a rehearing before itself (which it is competent to make 2) the appellant must give security for the costs of the appeal. The Full Court may either affirm, reverse, or vary the decision appealed from, or may direct a rehearing before the Supreme Court, and in either case the result is transmitted to the clerk of the Court from which the appeal is brought, and is binding on it.5

CHAPTER XLIII

ON THE LEGAL RELATIONS BETWEEN THE CENTRAL AND LOCAL

GOVERNMENTS

HARDLY less important than a clear understanding of the distinction between central and local government, is a knowledge of the links which bind the two together. For the balance of power, which gives so much of its character to the tone of governmental functions as a whole, is decided almost as much by the nature of these relations as by the comparative strength of the two authorities.

In Victoria, it is not difficult to trace the nature of these links. In every important point the relation between the

central and local authorities is that of master and servant. Hence the overwhelming power of central machinery, and the overwhelming importance of the seat of central government. In the earlier chapters of this book, we have seen how it was that the scheme of government in Victoria naturally assumed this aspect. We have now to notice how it is practically exemplified at the present day.

There are three principal ways by which the central government acts upon a local authority; viz., by control of local legislation, by appointment of local officials, and by disposal of public funds.

1

In the first place we have noticed that a municipal by-law may be repealed, without reason assigned, by order of the Governor in Council, that is, by the executive authority of the central government. This power of the Governor in Council extends not only to cases in which the municipal legislature

1 Ante, p. 335.

has exceeded its powers in passing the by-law, but also to cases in which the central authority differs from the local in a matter within the legitimate scope of the latter's action.

But

in the former class of cases, where the municipal legislation is clearly illegal, the initiative may also be taken by a private person, without waiting for an actual case. And the central judicial authority, the Supreme Court, may declare the legislation in question to be illegal and null.

For

The example of the mining boards is still clearer. here no enactment of the local authority is even prima facie binding until it has been certified as legal by an officer of the central authority; and, even when fully in action, a mining by-law may be revoked by the Governor in Council, upon the application of an objector.

And of course it is perfectly lawful for the central authority, by the exercise of its own legislative power, not merely to alter and repeal all local legislation, but even to abolish or reform the local authority itself. Doubtless there was once a time, in England, when such a claim on the part of the central authority would have been met by a plea of ultra vires. But the time for that plea has long since passed, even in England. And it has never existed in Victoria. From the very beginning of Victorian history, local authorities have been the creatures of and controlled by the central legislature.

Secondly, the central government controls the local by the appointment of officials. It is true that municipal officials are, for the most part, appointed by the councils, or elected by the ratepayers, the principal exception to this rule being in the case of the auditors who are appointed by the Governor in Council to audit the municipal accounts. But even in the case of the locally appointed officials, the central authority reserves the power of deciding upon the legality of their appointments, and in some instances of pronouncing upon their professional capabilities.1

And, as we have just seen, the officials of the mining districts are almost wholly appointed and paid by the central government, and are, therefore, primarily accountable to the central authority for their actions. Their tenure being the ordinary official tenure, in the event of their acting in accord

1 Ante, p. 346.

CHAP. XLIII CONTROL OVER THE LOCAL AUTHORITIES 365

ance with the wish of the local in opposition to that of the central authority, they can be dismissed by the latter.

In the department of local judiciary, the influence of the central authority is even more abundantly clear. There are no municipal courts of justice, as there are in England. Every judge, every magistrate, who dispenses justice in the districts, is directly appointed by the central power, with the single exception of the chairmen of the municipalities; and when it is remembered that a single ordinary justice cannot act judicially without the consent of the parties, it will be understood that even the local administration of justice is in the hands of the central power. Nor is it unimportant to remember that the agents of justice, the police force, are entirely a central body.

But finally, it is perhaps in the matter of public monies that the central authority keeps the most effective control over the localities. The local authorities have always looked to the government at Melbourne for pecuniary assistance. From the days when it was attempted to force District Councils into existence by a promise of a share in the Crown Land Revenue, down to the wholesale endowment of municipalities in 1874, there has been a uniform system of subsidising which has at length grown into a habit. But no less marked than the fact itself has been the manner of its treatment. The municipalities have not been invested with the unalienated land within their limits, nor with the revenue from forests, rivers, or mines within their districts. It is true that they have been empowered to tax their constituents, and to borrow money on their property. But a municipality which relies entirely upon its ordinary revenue is still a rarity, and the endowment which it obtains from the central authority is given in the most paternal way, by cash subsidy dependent upon the happening of certain conditions, as may be seen by any one who chooses to read the annual Appropriation Acts.1 Doubtless there have been good reasons for this practice, but its influence upon the municipalities has been very marked, in a want of public spirit, an absence of sense of responsibility, a hungering after a division of the spoil, and a feeling of dependence upon the central authority. It is, however, as the prime cause of the last effect, that we have to notice it here.

1 The expenditure of the Railway Fund, of course, also acts in the same way.

CHAPTER XLIV

ATTEMPTS TOWARDS A FEDERAL UNION

WE have seen that when the colony of Victoria was first constituted, by separation from New South Wales, there was a definite attempt by the Colonial Office to establish a federal executive for Australia, in spite of the fact that the Imperial Parliament had deliberately refused to create a federal legislature. We have seen that this attempt came to nothing, although traces of it remained until the year 1861. We have seen also that no attempt was made by the Imperial or the Victorian legislature to revive the subject on the grant of Responsible Government to the Australian colonies in 1855.

But the matter was taken up with considerable energy by the colonies themselves shortly after the latter date, and a brief outline of the more important stages in the progress of the movement, which has to a certain extent become law, may here be given.

On the 16th January 1857, Mr. Gavan Duffy moved in the Legislative Assembly of Victoria for the appointment of a committee to consider and report upon the necessity for a federal union of the Australian colonies for legislative purposes.1 After eight months, the committee presented a report, which recommended that the colonies of New South Wales, South Australia, and Tasmania should be invited to send delegates to a conference which should settle all preliminary questions as to the line of action.3 On the very day that this report was presented, viz. the 9th September 1857, the Governor laid on the table of the Assembly a despatch from the Secretary of 1 V. and P. of Leg. Ass., 1856-57, sub date.

2 Ibid. vol. iii. p. 141.

3 Ibid. 9th September 1857.