History of the Parliament of New South Wales
| DEVELOPING DEMOCRACY The Growth of the Parliamentary System in New South Wales New South Wales' Parliamentary history is one of adoption and adaptation.The British inheritance, the foundation upon which we built our system, is clear for all to see, sometimes clouding the legislative innovation and electoral reform which occurred in New South Wales. Like all parliamentary histories, ours is peppered with constitutional disputes, larger-than-life characters and behind-the-scenes intrigues. What has evolved may not be perfect, but there is in place a system of checks and balances, fundamental to responsible government. A brief overview of the history of the growth of parliamentary democracy in New South Wales from 1788 to the 1990s follows. AUTOCRACY: THE GOVERNORS IN CONTROL, 1788-1823 The Convict Settlement The British colony of New South Wales, established in 1788, consisted until the 1850's, of all the East Coast settlements. The immediate reason for its establishment was as a penal colony and the emerging European and American concepts of democracy and liberalism at first had no place in such a society. Until 1824, the military governors were absolute rulers, the only power superior to them being the British Parliament at Westminster in England, nearly 20,000 kilometres and 8 months away by sea. The governors' rights were granted to them under an Act of the British Parliament of 1787, which gave them their commissions and instructions, but the distance and the infrequency of communication with the rest of the world meant that governors often exercised far wider powers than they had been given. In New South Wales the governors had the responsibility of putting into effect the statute and common law of England. At first, the newcomers consisted only of convicts, their military guards and the officials sent to administer the colony. In the first weeks after the arrival of the British, most of the legal problems which arose were of a criminal nature, and were dealt with summarily under military law; but an Act Constituting a Court of Criminal Judicature in New South Wales had been passed by the Imperial Parliament in 1787, and the First Charter of Justice for New South Wales was issued under Letters Patent of 2 April, 1787 to constitute a Court of Civil Jurisdiction. The arrival of the first free settlers – five single men and two families – in 1793 was the first sign of a need for change. The number of free settlers and merchants steadily grew, as did the number of native born people and convicts who had served their time and were now free citizens. And as the size and importance of the free citizenry grew in relation to that of the convicts and military, so, inevitably, would also grow a demand for democratic change. Even though political change had to wait, other elements of the future system of government were also beginning their evolution. On 11 February, 1797, the first court of law in colonial Australia met, with three naval officers and three marines sitting with Judge-Advocate Collins as members of the court. Originally, Governor Phillip, Lieutenant-Governor Ross and Judge-Advocate David Collins acted as Justices of the Peace. Phillip was later given the right to appoint additional Justices of the Peace. Like their English counterparts, these Justices of the Peace, or magistrates, undertook both judicial and administrative duties. While governors retained virtually absolute authority, a great deal of effective power in the colony lay with the military, in particular the officers of the New South Wales Corps raised especially for duty in the colony from 1790 on. The officers quickly gained significant land holdings and monopoly control over trade, especially of rum and alcohol imports. Tensions between them and Governor Bligh reached the point where the Corps arrested the Governor and took control of the colony in 1808 in what has been called "The Rum Rebellion". The Last Autocrat: Governor Macquarie, 1810-22 The Rum Rebellion was ended with the arrival of Lachlan Macquarie as new Governor in 1810 together with his own regiment, the 73rd. The New South Wales Corps and its monopoly were ended but even so, as the case of the murder of William Holness by two drunken officers of the 73rd showed the military influence continued. The extraordinarily lenient treatment of the murderers at the hands of the Judge Advocate Ellis Bent's Court led Macquarie to write that little justice towards the poor could be expected when the court was made up of brother officers of the accused. Linked to the tension with the officers was the major factional division in the colony, that between free settlers ("exclusives") and convicts who had completed their terms of imprisonment and were now settlers ("emancipists"). A Second Charter of Justice for New South Wales was issued in 1814. It defined - at some length - how the civil court system was to be structured. Three new Courts of Civil Judicature were to be established in New South Wales; the Governor's Court, the Lieutenant-Governor's Court and the Supreme Court. Jeffrey Hart Bent, the brother of the Judge Advocate, arrived in the colony as the first judge of the new Supreme Court. Courts need lawyers and Macquarie's efforts to allow emancipist attorneys to appear before the Supreme Court were blocked by Jeffrey Bent who, with his brother, had his allegiances with the military and exclusive settlers. Later in 1814, two solicitors, Garling and Moore, arrived in New South Wales. English law was to be followed as far as it was possible. Where new ordinances or laws were needed, they were to be consistent with English laws as far as the particular circumstances of the colony would allow. Many of the settlers were discontented with this, because they questioned whether some of the Governors' ordinances were, in fact, valid. Claims were made in New South Wales and in England that Governors were exceeding their authority by making ordinances that were in conflict with English laws. Macquarie's relationship with the new court was never harmonious. The brothers Bent, in their key legal positions, quickly became opponents of the Governor and personal antipathy affected decisions on both sides. Like most of the governors before him, Macquarie's noble ideals were undermined by harsh realities and constant opposition. In 1816 he enforced his new proclamation against trespassing on the Government Domain by having flogged three trespassers (all free settlers) who were found on the land. This incident was amongst several about which Bent and others complained to the British government as examples of Macquarie's authoritarian excesses. As a result, Macquarie was censured by Lord Bathurst, the Secretary of State for Colonies, and eventually a commissioner, J. T. Bigge, was sent to inquire into affairs in New South Wales. By 1822 Macquarie's public building and town planning programs had established a solid infrastructure for the colony. Exploration had reached deep into the inland and settlement and agriculture were following, north and south along the coastline and inland beyond Bathurst. Agriculture was, in fact, creating the conditions for the colony to become almost economically self-sufficient. The non-Aboriginal population of the colony (including Van Diemen's Land) was around 37,000 of whom at least 8,000 were free settlers or native born. But within this now significant non-convict population many were feeling that governors had too much authority which they could easily exercise it in an arbitrary fashion. Demands grew for a council which could represent the interests of the settlers. THE BALANCE SHIFTS, 1823-1850 The First Legislature Established, 1823 In 1823 the British Government agreed to the demands for change and passed an Act "for the better administration of Justice in New South Wales and Van Diemen's Land, and for the effectual Government thereof; ...". This was in line with a general policy of allowing controlled legislatures in the colonies. The Act, which is usually called the "The New South Wales Act", dealt with the court system and the judiciary. There was also provision for "His Majesty to constitute and appoint a Council, to consist of such Persons resident in the said Colony, not exceeding Seven and not less than Five, as His Majesty, His Heirs and Successors, shall be pleased to appoint; ...". The members of this first Council were the Lieutenant-Governor, the Chief Justice, the Colonial Secretary, the Principal Surgeon and the Surveyor-General. The five councillors were appointed to advise Governor Brisbane, but they had no real law-making power. (They did, on the other hand, have a great deal of power through the positions they held in the colony.) Only the governor could initiate a bill. The proposed laws were then discussed in private with the councillors, but the governor could override the Council completely if he thought the need of the colony required the law. With Governor Brisbane presiding, the Legislative Council held its first meeting at the then Government House on 25 August, 1824. The first Act, a Currency Act, was passed by the Council on 28 September, 1824. The Supreme Court of New South Wales It could be argued that the most important aspect of the 1823 changes was that the Chief Justice now had the right of review over legislation. No bill was to become law until the Chief Justice certified that it was "not repugnant to the Laws of England, but consistent with such Laws as far as the Circumstances of the said Colony will admit". A Third Charter of Justice for New South Wales was issued under Letters Patent of 13 October, 1823. The three courts established earlier were replaced by a new Supreme Court of New South Wales. With the Third Charter of Justice, the Judiciary became more independent of the government. It is worth noting that even though the doctrine of separation of powers between the Legislature, the Judiciary and the Executive became an accepted principle within our system, it has never been embodied in the Constitution of New South Wales, nor, it was held in Clyne v. East [1967] 2 N.S.W.R. 483, does it form part of the constitutional structure of the State. There is evidence to suggest that in the first half-century of the Colony, the common law was more readily accepted than the statute law, even though the local circumstances and conditions were often crying out against it; the local judges were more hesitant to accept English statutes. A number of British Acts were judged to be inapplicable to the special circumstances of the Colony. In 1828, the laws of England were officially received as the laws of New South Wales. Under the Australian Courts' Act, passed by the Imperial Parliament, all the common laws and statutes in force in England at that date were to be applied in New South Wales whenever it was appropriate. The Legislative Council Expands, 1825-42 In July 1825, the Legislative Council was restructured to consist of seven members. At the same time, Governor Darling was instructed: " ... there shall henceforward be an Executive Council of Government." " ... You do in all things consult and advise with (the) Council, and that you do not exercise the power and authorities (committed to you) except by and with the concurrence and advice of Our ..Council". The formation of a Legislative Council marked a turning point in colonial government. Four of the seven members of the Legislative Council were to be "official" members on the Executive Council. John Macarthur was one of the three non-Executive members and represented the landed interests, the wealthy free settlers and squatters who were to be so influential in the colony and the Council until the Gold Rushes of the 1850s. In 1828 the colony of New South Wales shrank somewhat when Van Diemen's Land (later renamed Tasmania) was separated to become a separate colony with a similar structure of government. Later in the same year the census figures showed that New South Wales had a non-Aboriginal population of 36,598, of whom slightly less than half were convicts under sentence, but of the remainder about 13% were free settlers by origin and the rest emancipists or children of convicts or emancipists. The Governor's power was further eroded in 1829 following another Act of the Imperial Parliament. The Legislative Council number was increased to a maximum of fifteen and a minimum of ten members. The balance of power was swinging towards the Council. The official members, who were members of the Executive Council, now numbered seven and there were seven non-official members. In this year, too, the Legislative Council began to hold its meetings in a room of the Surgeon's Wing of the Sydney "Rum Hospital" in Macquarie Street. Over the next decade or so, as its need for space expanded, the Council gradually took over the entire building. This historic building, completed in 1816, remains the central element of the facade of the modern Parliament House. The role of the Judiciary was also extended. All judges now considered bills before they were introduced in the Council. Council business became slightly more public, with proposed bills being published at least one week before being introduced in the Council. In 1832, extracts of proceedings were provided to the Press by the Clerk of the Council, but members of the Press and the public had to wait until 1838 to be admitted to Council meetings. In 1825 instructions issued to the Governor created an Executive Council, consisting of certain officials of the colony. The Governor was directed to consult with the Council and to act on its advice except where a need for urgent action made consultation impossible. Where the Governor did not act on the Executive Council's advice, he was required to provide his reasons to the British Secretary of State. The Governor-in-Council, which is the official term used to describe the Governor and the Executive Council, acted as a body of appeal from the decisions of tribunals: " ... that in case any of the parties shall consider himself herself or themselves aggrieved by the decision of the said Court of Quarter Sessions it shall be lawful for him her or them within one calendar month after such decision to appeal unto the Governor and the Executive Council for the said Colony ...". [Roads and Streets Act of 1833 ( 4 Gul. IV, No. 11)] Governor-in-Council granted licences, as in the Leasing Tolls Act of 1850 (14 Vic. No. 5), the Merchant Seamen Act of 1847 (11 Vic., No. 23) and the Colonial Spirits Distillation Act of 1838 (2 Vic., No. 24). It contracted with other bodies, as in the Postage Act of 1852 (16 Vic, No. 35); it leased out the right to collect moneys, as in the Sufferance Wharves Act of 1846 (10 Vic., No. 11);.and it directed and controlled officials, as in the Prisons Regulations Act of 1840 (4 Vic., No. 29), the Gunpowder Magazine Act of 1852 (16 Vic., No 47) and the Police Regulation Act of 1852 (16 Vic., No. 33). Constitution Act of 1842 By 1840, the population of New South Wales was around 130,000 Europeans. In the period since the Legislative Council was established in 1824, free immigration had dramatically increased, as had the native-born population, while the convict proportion of the population had diminished to around 30%. Wool exports were giving the colony a sound economic base and increasing prosperity. Within New South Wales popular distaste for the convict system was growing but there was still strong support for transportation from the landowners and others who benefited from the cheap, though not very efficient, labour. General discontent was growing, also, with the unrepresentative system of government. A meeting of landowner, middle class and professional men in 1835 established the Australian Patriotic Association to promote self-government, amongst other issues. Its leaders included William Charles Wentworth and James Macarthur, both great landowners with conservative liberal views, but amongst its members were also Chartists and others who argued for a very wide male franchise. In England in 1837-38 a House of Commons committee inquired into the effectiveness of transportation of convicts as a means of punishment and reform and came to the conclusion that the system should be ended. In October 1840, Governor Gipps announced to the Legislative Council that transportation had ceased. Many felt that now transportation had ended, the Colony should be seen in a different light and the stigma previously attached to it as a penal colony be removed. But others, members of the "squattocracy", were already beginning to argue for the reintroduction of transportation and its source of cheap labour. A small but growing group of radicals and Chartists were advocating male suffrage but for the moment landowners like William Charles Wentworth were determining the direction of change. Wentworth had been educated in England and had absorbed English liberal ideas of the time. He dreamed of transplanting the English political model to Australia, but it was a model in which voting was linked to property. He was a barrister-at-law, a newspaper editor, a person of wealth and ambition. From the early 1820s he agitated for political reforms. He was to play a leading role in the great constitutional changes of the mid-nineteenth century and came to be known as "the Father of the New South Wales Constitution". In 1842 the growing demands resulted in the British Parliament passing New South Wales' first Constitution Act. It was a compromise between the extreme viewpoints but one which was closer to that proposed by Wentworth and the landowner members of the Australian Patriotic Association. It made the first significant step towards responsible government in New South Wales. Membership of the Legislative Council was increased to 36. The duration of each Legislative Council was to be five years from the return of the writs. Twelve members were nominated by the Crown and appointed by the Governor. Of these no more than six were to be members of the Executive Council. The Crown appointments were leading government officials and some prominent settlers. Two-thirds (24) of the Members, including six from the Port Phillip district (later to be Victoria), were elected by landowners and householders who fulfilled the property qualifications. The electoral districts were heavily biased toward the landed classes, with Sydney and Melbourne towns having only 3 seats between them. Only 9,315 men had sufficient property to be enrolled to vote and even fewer had sufficient property to stand for election. In 1843 the Governor ceased to be a member of the Council and one of the members was elected as Speaker, to preside at meetings. The Speaker was paid, making the Speakership the first salaried Parliamentary office in New South Wales. This enlarged Council met in a new chamber built onto the northern (Harbour) end of the former Surgeon's Wing of the Macquarie Street "Rum Hospital", the first of the many additions that would be made to the original building. The Governor still, however, had more power than the Council. If the Council proposed a law with which the Governor disagreed, the Council could be dissolved and the bill referred to the British government. This was, of course, an excellent delaying tactic. The Governor also had control over the money raised from the sale of crown land, so he was financially independent of the Council. The colonial legislatures had to wait until October, 1852, to gain control of the "waste lands" and the finance they generated. Nevertheless, the period from 1843 to 1856 was an important stage in democratic development as the expanded and partially elected Legislative Council discussed and generated further discussion of the issues of government. Political parties did not exist at this stage; Councillors tended to align on specific issues and vote according to their particular interests or philosophies. The Council provided opportunity for entry into parliamentary life for many of the men such as Wentworth, James Macarthur, Charles Cowper, James Martin, John Bayley Darvall, Henry Parkes and John Dunmore Lang, who went on to dominate the later political history of New South Wales. The Executive Council During the first seventy years of New South Wales colonial history, the Executive was not subject to the control of parliament. Its members were appointed by the Governor and the Secretary of State for the Colonies, in London. They did not have equal status with the Secretary of State or the Governor, but were subordinates. After the first Legislative Council was set up in 1823 they were Members of the Council. After this, the legislature could criticise, but not control the governors. All this changed with the introduction of responsible government in 1856. RESPONSIBLE GOVERNMENT ACHIEVED, 1856 The Golden Decade: the 1850s Some of the landowners of the Patriotic Association, including Wentworth, advocated the resumption of transportation as a cheap solution to their labour problems and resisted radical political change. But free and assisted immigration was growing, adding to the workforce and the demand for improved representation in government. In 1850, the few thousand convicts left in New South Wales made up barely 2% of the population, whereas in the three years 1848-50, 62,000 free immigrants arrived from Britain to an Australia already being represented as a 'working man's paradise'. The year before, the British government had attempted to revive transportation of convicts to New South Wales and, in June 1849, the arrival of the convict transport Hashemy provoked large demonstrations in Sydney and the formation of an anti-transportation league. In 1850 the Legislative Council called on the British Government to end transportation permanently and, in fact, no more ships arrived in Sydney after the Hashemy. It was the first major statement of popular political independence from Britain and an indication that the "squattocracy" was starting to lose its political dominance. In 1850 the Australian Colonies Government Act was passed by the Imperial Parliament. In New South Wales it expanded the Legislative Council so that by 1851 there were now 54 members – again, with two-thirds elected. Property qualifications still existed but were reduced which meant that about 25% of the adult male population was eligible to vote. The Act also permitted the creation of three other self-governing colonies with Legislative Councils on the New South Wales model: South Australia (never part of NSW); Tasmania (which had been separated from NSW in 1828); and Victoria (now separated from NSW by this Act). Also in 1850, construction began in Sydney on the first Australian railway – although it was five years before it reached Parramatta, by which time another railway had opened in Melbourne. Taken in conjunction with the electric telegraph which linked the major eastern cities of Australia by the end of the 1850s, and the arrival of the first England to Australia steamship in Sydney in 1852, it heralded the opening of a new age of communication which would have enormous economic, social and political consequences and link the colonies more closely both with each other and the rest of the world. More dramatic in its immediate impact, though, than any of these, was the announcement in May, 1851 of the discovery of gold in the Bathurst area. The possibility of transportation resuming ended at last, with even Wentworth joining radicals like Parkes to oppose it, fearful of the impact of shiploads of convicts breaking away for the goldfields. The discovery also reversed the exodus beginning to the Californian goldfields after 1849, bringing instead a sudden and enormous influx of population. After the separation of Victoria in 1851, the population of New South Wales was 187,000. By 1860 it had almost doubled to 348,000, even after the colony of Queensland had been separated from New South Wales in 1859. While some of the newcomers left the colony again with or without their hoped-for riches, most stayed and settled in the cities or countryside. The miners on the sprawling goldfields were resentful about authoritarian attempts to impose licences and other controls on their activities without proper representation. Their growing demands for democratic government could not be ignored. At the same time, the arrival of large numbers of Chinese miners led to racial violence and demands for governments to control non-white immigration. Enormous economic changes followed – initially in the mining and export of gold – which transformed the economy. Some 3,280,969 ounces of gold were produced in New South Wales between 1851-60, valued then at £11,530,000 (and at current gold values around $1.6 billion). The longer term impacts included increasing urban development and industrialisation funded by newly generated capital. Labour shortages in the cities during the rushes drove the wages and conditions of workmen well above those of the rest of the world. As miners left the fields, there was rapid urban growth and housing booms fuelled again by goldfields capital. In the countryside, there was a growing demand to "unlock the lands" for free selection of small holdings to break up the great runs of the squatters who had dominated politics before the gold rushes. Along with demands for liberal political change from the affluent and confident middle and working classes came demands for similar progress in education, trade, public works and transport and free selection. Towards Responsible Government The period of representative government under the Governor and Legislative Council was coming to an end as the demand for full self-government grew, and the British Government was increasingly content to hand over the expenses and responsibilities of running the colonies of Australia to the colonials themselves. In 1851 the Legislative Council sent a "declaration, protest and remonstrance" on the inadequacies of the 1850 Australian Colonies Government Act to the British Government. Sir John Pakington, the British Secretary of State for War and Colonies, responded in 1852 agreeing that the gold discoveries in the Australian colonies had "imparted new and unforseen features to their political and social condition" and that "it has become more urgently necessary ... to place full powers of self-government in the hands of a people thus advanced in wealth and prosperity". As well as self-government, the nature of the system envisaged would be responsible government: a situation where the executive branch of government was answerable to the people, or to the people's representatives in Parliament. Under the doctrine of responsible government -
In the expanded Legislative Council, following the receipt of Sir John Pakington's despatch in May 1853, a Select Committee chaired by William Charles Wentworth began drawing up a constitution for responsible self-government. The Committee's proposed Constitution was placed before the Legislative Council in August that year and, on the whole, accepted. Not accepted, however, were Wentworth's proposals for a Lower House electoral distribution which would heavily favour the country and squatting interests and an Upper House of hereditary peers, like the English House of Lords. There was widespread objections to these proposals led by other Members such as Henry Parkes and John Bayley Darvall and the idea of the hereditary peerage was treated with particular derision by the outstanding young orator, Daniel Deniehy, who described it as a proposal for "a bunyip aristocracy". The revised Constitution had an Upper House whose Members were to be appointed for life and so, shorn of its aristocratic pretensions, the new Constitution was sent to the British Parliament and, with some further amendments, passed into law on 16 July 1855. The New Parliament and Executive Council, 1856 The new Parliament of New South Wales was a bicameral (two house) legislature, similar to that of England, consisting of an Upper House (the Legislative Council) and Lower House (Legislative Assembly). The new Legislative Council was to consist of no fewer than 21 Members nominated by the Governor on the advice of his Executive Council and initially appointed for 5 years and thereafter for life. There were no property qualifications for appointment but Public Servants could not be appointed. The new Legislative Assembly of 54 Members could be anyone qualified and registered as voters except for holders of office or pension under the Crown, public servants, active military officers and ministers of religion. Sixteen of the 34 electoral districts would return more than one Member (four in the case of the Sydney (City) district). Voters had to be men over 21 who met a fairly modest property or income qualification, such as owning freehold land worth at least £100, earning a salary of £100 p.a. or renting a room or lodging for at least £40 p.a. Voters who fulfilled the qualifications in more than one district could have multiple (plural) votes. The Governor retained significant powers, money bills had to originate in the Assembly, and amendments to the Constitution required two-thirds majorities in both Houses. Although many significant changes have been made over time, the broad structure established in 1856 remains. On 22 May 1856, the bicameral New South Wales Parliament opened and sat for the first time. A second meeting Chamber for the Upper House had to be added quickly to the Parliament building in Macquarie Street, not an easy task when building materials and skilled labourers were rare and expensive because of the gold rushes. The solution was found in a prefabricated iron hall sent to Melbourne from Britain for the goldfields. It was purchased for £1,835, shipped up to Sydney and erected in the position where it still stands as home to the Legislative Council. Both the Governor's instructions and the New South Wales Constitution Act required the continuing existence of the Executive Council, but there were no formal requirements that its members should be the Ministers of Departments. Ministers did not even have to be Members of the Parliament. Under Westminster convention, however, Executive Councillors were both Members of the Parliament and Ministers of the Crown thus forging a bridge between the Parliament and the Executive. This convention was followed in New South Wales. There were five "official" members, or Ministers, in the Legislative Assembly. These, with the Governor, made up the official body, the Executive Council. The Council's role was to advise the Governor in carrying out his functions in the administration of the State. The Public Service The executive arm of government operates through the Public Service, the government departments and bodies which implement and administer policy. The Public Service in New South Wales had been growing well before the establishment of responsible government. From 1856 the organisation of the Public Service was embodied in a series of Acts which gave overall responsibility for newly formed departments to "the Governor and Executive Council". REFORMS AND REFINEMENTS, 1856-1900 Electoral Reform The establishment of responsible self-government in 1856 was an important basis for liberal democratic government but was not in itself the achievement of democracy. Universal suffrage, secret ballot, equal value votes, a universal right to stand for Parliament, payment of Members, and an elected Upper House, had still to come. Until 1858, only landowners had the right to vote. In 1858, despite strong resistance from the Legislative Council, an Electoral Reform Act was passed. This Act gave the right to vote – and to vote in secret – to almost every adult male in New South Wales. Every male over the age of 21 years could vote if he was "natural born or who being naturalised ... shall have resided in this Colony for three years". Workers, such as the miners who had flocked to the colonies in the 1850s, now had the right to vote. Electors for any Gold Fields Electoral District could vote after holding a Miner's right, business licence or mining lease for 6 months. The wealthy and better-educated of the colony still, however, had a disproportionately strong voice in government. Plural votes continued and the number of registered voters may have been as much as 15% higher than the actual number of individuals entitled to a vote. The University of Sydney or at least "100 superior Graduates who shall have taken therein any or either of the Degrees of Master of Arts, Doctor of Laws or Doctor of Medicine ... shall return one Member to serve in the Assembly ...". The secret ballot was also introduced into New South Wales by the 1858 Act, two years after Victoria and South Australia, and was such a new feature of voting that it was known for a time around the world as "the Australian ballot". Electoral boundaries were changed almost totally in 1858 to be more in line with population, but there were still great disparities between electorates. Pastoral districts sent one member for approximately 3,000 voters, while Sydney elected one member for 5,900 voters. This meant, in effect, that the pastoral vote was worth twice as much as the urban vote. In 1893 plural voting was abolished. From then on, the principle was espoused of "One man, one vote", which, one might argue, is fundamental to democracy. So, by the end of the nineteenth century almost all adult males could vote, even though not all exercised that right. Voting was not made compulsory until 1929 and until then only about 50-80% of the possible number of voters actually voted at elections. However at least two great inequities remained. Despite the effective voice of a growing women's suffrage movement in the 1880s and 1890s, women could not yet vote in New South Wales, and, although not legally denied the right to vote in New South Wales, Aboriginal people were effectively disqualified through a range of discriminatory regulations and practices. Running for Parliament Although most male residents had the right to vote by 1858 and almost all of those with that right could, in theory, stand for Parliament, very few could afford to, since Members were not paid until 1889. Candidates also needed money to run election campaigns, because until the 1880s there were no clear divisions into political parties to meet Members' election expenses. From 1889 until 1960 New South Wales' Members were paid what was termed as "Parliamentary allowances". Until 1893, elections took place over several days and were held at different times in different electorates. This meant that a candidate defeated in one electorate, could then run for another seat. New South Wales Parliamentary sessions in the mid-nineteenth century could last as long as 10 months. Country Members often needed to be at home during shearing and harvest time, so it is not surprising that many country electorates came to be represented by city lawyers, merchants or professional men. A Comparison with Britain While the Australian colonies derived their political system from Britain, they quickly moved ahead of "the mother country" in applying liberal democratic institutions, becoming leaders in the development of political democracy. Prior to the Reform Act of 1832, very few Englishmen had the right to vote. 1832 is considered a watershed in the history of the growth of British parliamentary democracy, yet only 7% of the English adult population had the vote after the Act was passed. The Act was important because it made the British middle and working classes realise that their lack of rights was not set forever. It defused the simmering discontent within British society and averted the revolutionary problems occurring on the continent, but the extra numbers it enfranchised were not really significant. The Second Reform Act of 1867 increased the number who could vote, but this still only amounted to about 16% of the adult population: the Third Reform Act of 1884 increased the percentage to about 28% of the adult population. Full manhood suffrage was not granted in England until 1914 (1858 in New South Wales). Indeed, some of the soldiers who volunteered to fight at the beginning of World War 1 may not have had the right to vote. World War I helped British women to get the right to vote. They had shown themselves indispensable in the war effort, taking on traditionally male tasks and in 1918, women over the age of 30 were given the right to vote (1902 in New South Wales). Those between 21 and 30 had to wait another 10 years until 1928 when they were enfranchised. The secret ballot was not introduced in England until 1872 (1858 in New South Wales) and plural voting remained until 1948, when university graduates and some business proprietors lost their right to a second vote (one man one vote in New South Wales in 1893). United Kingdom parliamentarians were granted salaries in 1911 (1889 in New South Wales). New South Wales after Responsible Government, 1856-1900 Population: The second half of the nineteenth century was a period of solid population, economic and political growth for the colony of New South Wales. During the gold rushes it fell behind the population and economic growth of Victoria but by the end of the century had nudged ahead again. In 1856 the white population of New South Wales numbered 288,000 (33% of the total for Australia); by 1900 it was 1,360,000 (36% of the total). In 1859, Queensland, with a population of 23,000 people was formally separated from New South Wales. The New South Wales Legislative Assembly was reduced in size from 80 to 72 by the loss of the Queensland seats and Queensland adopted a bicameral legislature along virtually the same lines as New South Wales. Government : From 1865, the Australian Colonies could repeal or amend British laws which had been received into the Colonies in 1828. Under the Colonial Laws Validity Act they were, however, still bound by any British statutes which applied by "express words or by necessary intendment" to the Colonies. Between 1856 and 1901, ministries in New South Wales were short-lived. The first, under Premier Stuart Donaldson, lasted just 11 weeks. On average, they lasted for about 18 months. The reason for the changes was the factional, rather than party, nature of the Assembly. Factions were small groups of elected Members who gathered around particular men, who became faction leaders. They usually formed because the members supported the man, his ideas and policies rather than the concept of the faction. Faction leaders needed support to gain power in Parliament and their supporters usually expected something in return. The person judged able to count on the most support in the Parliament was asked, by the Governor, to form a government. But factional bonds were often weak, with ministers likely to vote against each other on particular issues. Groupings were shifting and fluid. Some might argue that this type of system, compared with the strictly-enforced party system, was more likely to encourage corruption. Members competed for votes and personalities were often seen to be more important than policies, principles or politics. The size of both Houses of Parliament tended to grow over time, sometimes in the case of the Upper House because of attempts to push through contentious legislation by "swamping" the House with new appointments. By the end of the century the 21 Legislative Councillors had become 69 and the original 54 seats in the Legislative Assembly had become 125. The economy: Against this background the Colony was undergoing rapid change. The great economic boost provided by the Gold Rushes marked a turning point in Australian history for the wealth they brought, and more importantly, for the social changes they heralded. The Legislature in some areas responded well to the needs of the Colony. In the 1860s the government was responsible for the Free Selection Acts which "unlocked" the land (crown land, including much of that occupied by squatters), by financing generous hire-purchase agreements. The influence of the squatters was still felt and the economic importance of sheep farming was enormous – New South Wales sheep numbers growing from around 5 million in 1860 to over 60 million in 1890. Mining industries were encouraged and by the 1870s and 1880s new sources of wealth were exploited. With the growth of primary industries such as wheat, fruit, sugar and dairying came a need for transport. The government opened up the country, building irrigation schemes and encouraging experimentation in science and technology. Land under cultivation increased from 100,000 ha in 1861 to 335,000 ha in 1891. Railway growth was slow until the 1870s and 1880s and then escalated so that by 1891 there were 3,500 km of track. This in turn gave more impetus to the wheat industry and encouraged men such as Thomas Mort in their inventions. By the 1880s, frozen meat from the Australian Colonies was being shipped to Britain. The Gold Rushes had also meant growth and expansion of banking in the Colony. New South Wales was predominantly a Free Trade State, although there was a strong Protectionist faction, especially in the 1880s and 1890s. Under a Free Trade policy, imported goods could enter New South Wales without restriction, compelling local industries to compete on the open market. It also meant that a wide variety of goods was available to the consumers. In Victoria, the government was staunchly Protectionist. In an attempt to provide employment for the thousands who had settled there after the Gold Rushes, high tariffs were placed on imported goods in an attempt to encourage citizens to buy local, rather than imported goods. Social change: The laissez-faire doctrine of non-intervention in the social life of a country existed in the Colonies as well as in Britain in the mid-nineteenth century. Whilst governments were expected to legislate on such things as railways, public water supplies, postal services and customs duties, they were reluctant to act in areas such as social security or health. Governments, it was argued, should act only if, by not doing so, greater ill would ensue. People paid far less tax than we do and factionalism worked against governments being able to achieve any but the most popular policies. As a result public health, the legal system, social services and working conditions were approached very carefully. Liberal legislation was however, passed in the 30 years that the "faction system" held sway in New South Wales. The Government of New South Wales had been playing a big part in one area of social concern, education. The Public Instruction Act of 1880 made education compulsory for all children from 6 to 14 years of age. Secular (non-religious) state schools were established, and education was placed under the control of a government Minister. Approaching the Twentieth Century In the last decade or so of the nineteenth century, a period which began with a severe economic depression, several new factors began to dominate political life. Political Parties began to emerge. By 1889 the opposing Free Trader and Protectionist factions were forming what was, in effect, the first full-scale 'party' organisation in New South Wales, and Sir Henry Parkes' last Ministry (1889-91) was Free Trade party government. He was succeeded by Sir George Dibbs' Protectionist government (1891-1894) and then the Free Traders again under George Reid (1894-99). In the 1891 election, 35 members of the newly formed Labor Electoral League entered Parliament although they split almost immediately over the protection-free trade issue. Their numbers were significant but not sufficient for Labor to form a government until 1910. The New South Wales Female Suffrage Movement had its origins in the late 1880s. New Zealand had been the first country in the world to grant women the right to vote, in 1893, and South Australia followed in 1894-5, also allowing women to stand for election to both Houses of Parliament on the same terms as men. In New South Wales several bills for female suffrage were proposed between 1891 and 1901, generally passing in the Lower House but being defeated in the Upper. Despite widespread ridicule of the idea of women being involved in politics, especially by the media, the movement gathered momentum and by the dawn of the new century was less than two years away from success. Federation was the other great issue of the last decade or so of the century. It will be treated in detail in the next section but as the writers of the new Federal Constitution understood very clearly, it would have a tremendous impact on the powers and role of the Parliaments of the former colonies such as New South Wales. AFTER FEDERATION, 1901-1990s Federation and the Parliament With the coming of Federation in 1901, the Parliament of New South Wales resigned its control over the areas specified as Commonwealth powers by the Constitution –defence, customs and excise, coinage, postage, etc. Momentarily, some wondered if there was a real role left for the state Parliament, but in fact the powers retained were substantial and limited only by the specific exclusions made in the Federal Constitution. The many alterations to the New South Wales Constitution since 1855 were consolidated in a new Constitution Act in 1902 and, following a referendum, the Legislative Assembly was reduced to 90 to take account of the narrower responsibilities and the new level of political representation which the electors now had through their Federal Parliamentarians. The Parliament also contributed substantially to the membership of the new Federal Parliament. Of the 32 representatives elected from New South Wales, 27 had previously been Members of the Parliament of New South Wales, including two former Premiers. The group included Edmund Barton, who became the first Australian Prime Minister, and four others who also later became Prime Minsters (John Watson, George Reid, Joseph Cook, W. M. Hughes). Women's Suffrage Women gained the right to vote in Federal elections of April 1902, and New South Wales gave women the vote in August 1902. However, women could not become Members of the Legislative Assembly until 1918 or Members of the Legislative Council until 1926. The first woman elected to the New South Wales Parliament, Millicent Preston-Stanley, (the second woman to be elected to any Australian parliament) served in the Legislative Assembly 1925-27 and the first women appointed to the Legislative Council (in 1931) were Catherine Green and Ellen Webster. Aborigines Unlike the situation in several other Australian states and the Commonwealth, Aboriginal Australians in New South Wales were never officially prevented from voting. However, welfare and protection acts together with residential requirements and prevailing attitudes effectively denied them the vote. In 1949 all Aboriginals who had served in the military forces or who could vote in state elections were able to vote Federally. In 1962 all Aboriginal Australians gained the right to vote in all States and in Federal elections but voting was not compulsory for Aboriginal people until 1984 when it was made compulsory for all Australians. Political Parties The two party system that dominated most of the twentieth century emerged in the decade after Federation. The old Free Trade and Protectionist parties had lost the issue that divided them with the establishment of the Federal Parliament and its protectionist programs, and gradually the division that emerged was between Labor and non-Labor conservative parties. The Liberal Reform Party of the first decade of the twentieth century was followed in turn by the Nationalist, United Australia and finally modern Liberal Parties. This party, under its various names, was allied almost from the beginning with the Progressive Party which had emerged in 1915 and which by 1925 had evolved into the Country (now National) Party. Throughout the twentieth century in New South Wales, the various conservative and the Labor parties have held office for almost equal periods (conservative parties 52% of the time, Labor 48%). The longest period one political party held office was the unbroken succession of Labor governments which lasted from 1941 to 1965. The Electoral System At the beginning of the twentieth century voting was by the "first-past-the-post" system, whereby the winning candidate was simply the one with the largest number of votes. So if there were ten candidates and the one with 30% of the votes had the highest number, that candidate was declared the winner even though 70% of the electorate had voted against them. In 1910 a second ballot was introduced in instances where no candidate had an absolute majority. From 1918 to 1926 a proportional representation system was tried with multiple representatives from each election. It proved very difficult to administer and was replaced by the contingent vote in 1926 and a return to single member electorates and this led almost immediately to the modern form of preferential voting in 1928. Preferential voting involves the voter voting for all candidates in order of the voter's preference and, if no single candidate has a clear majority, the votes of those first preferences whose totals are too small to win are passed on to their second preferences and so on until someone does have a clear majority. In 1979 the system was modified to allow optional preferential where either a single vote or a full list of preferences could be shown by the voter. Postal votes were introduced in 1918 and voting was made compulsory in 1928. Until 1979 electoral distribution favoured the non-metropolitan areas of the state. All electorates, rural and urban, are now required to have approximately equal number of electors. Since 1874, elections were required to be held at least every three years, although most occurred a little earlier than that. In 1981 the term of Parliament was increased to 4 years and in 1993 legislation was passed which made it very difficult for governments to call early elections. The size of the Parliament continued to vary over time, the Legislative Council (see later in this chapter) changing the most radically. In 1988, becoming effective in the 1991 election, the size of the Parliament of New South Wales was reduced – the Legislative Assembly from 109 to 99 and the Legislative Council from 45 to 42. The Legislative Assembly was further reduced to 93 members from March 1999. The Modern Ministry The Constitution of New South Wales provides for the Parliament to make laws "for the peace, welfare and good government of New South Wales in all cases whatsoever". Some idea of the range of concerns of the modern Parliament can be gained from the current list of Cabinet or Ministerial portfolios (areas of responsibility). Under the Constitution Act there can be any number of Ministers holding office at any one time, however a number of Ministers have more than one portfolio. Current portfolios: Premier, Deputy Premier, Aboriginal Affairs, Ageing, Arts, Attorney General, Citizenship, Climate Change and the Environment, Commerce, Community Services, Corrective Services, Disability Services, Education and Training, Emergency Services, Energy, Fair Trading, Finance, Gaming and Racing, Health, Housing, Industrial Relations, Infrastructure, Juvenile Justice, Lands, Local Government, Mineral Resources, Planning, Police, Ports and Waterways, Primary Industries, Public Sector Reform, Regional Development, Regulatory Reform, Roads and Transport, Rural Affairs, Science and Medical Research, Small Business, Special Minister of State, Sport and Recreation, State Development,Tourism, Treasurer, Volunteering, Water, Women, Youth. Parliament will make laws on these and other matters. In practice, all matters of concern to people in New South Wales can be raised within the Parliament even though there are some matters about which only the Federal Parliament can actually pass laws. The Role of the Governor Under responsible government, the executive is subject to control by Parliament and holds office only through the support of Parliament and most of the powers vested in the Governor can generally only be exercised on the advice of and through the ministers responsible to Parliament. The role of the Head of State in New South Wales is, thus, primarily a formal or ceremonial one rather than as an active participant in the decisions and affairs of government. The Governor appoints the Premier and Ministry on the basis of their having sufficient support in the Lower House; presides over meetings of the Executive Council; assents to bills passed by Parliament, thus making them law. On the advice of the government, the Governor proclaims regulations which form part of Acts of Parliament, and determines the dates of Parliamentary sessions and elections. However, the Constitution does reserve considerable powers for the Governor, even if convention requires that they not be exercised personally but only on the advice of the government. In the twentieth century, the use by Governors of reserve powers and the taking of action independent of government advice has been rare, the best known instances being the dismissal of the Whitlam Federal Government by the Governor-General in 1975, and the dismissal of the Lang Government by the Governor of New South Wales in 1932. In the New South Wales case, Premier J. T. Lang, amidst the most serious depression in Australian history, sought to delay payments on government borrowings overseas. The issue quickly came to a head between the State and Commonwealth Governments with the Commonwealth regulating to take over state taxes. Lang still refused to conform with the Commonwealth requirements, and Sir Philip Game, the Governor of New South Wales, determined that Lang was acting unconstitutionally, and dismissed his government on 12 May, 1932. Opposition Leader, Bertram Stevens, was appointed as Premier and an election called which Stevens won decisively. It seems unlikely that any future Governor would again intervene in the affairs of government to the extent that they did in 1932 or even 1975. However, the reserve powers do remain, and each time a Premier of New South Wales enters Government House, they are reminded of this as they pass under the carefully placed portrait of Sir Philip Game above the doorway to the Governor's office. THE UPPER HOUSE An Appointed Legislative Council, 1856-1934 The original Legislative Council of New South Wales appointed by the governor was established in 1824 as the first legislative body in Australia. As noted earlier, it became a more representative body in 1843 when two thirds of the Members were elected. The old Council continued until 1855, growing in influence as the single legislative body in New South Wales. With the establishment of responsible government in 1856, most of the old Council's functions were absorbed by the new Legislative Assembly, and the new Legislative Council was created as the Upper House of a bicameral Parliament. From 1856 the new Council was to consist of not less than 21 members, appointed by the Governor on the advice of the government of the day, for a term initially of 5 years and, from 1861 until April 1934, for life. Much of the former role of the Legislative Council was taken up by the new Legislative Assembly but under the Constitution Act of 1855, the Council had almost the same powers as the Lower House and it used them fully. The use of these powers however, was contrary to the popular belief that the peoples' will was expressed by the elected Lower House which should, therefore, be predominant. This attitude became stronger after the granting of manhood suffrage in 1858, a Bill which the Upper House had strongly opposed. The new Council Members tended to be prominent wealthy and older citizens with views that were more conservative than most Members of the Legislative Assembly. The Council could amend or reject any Bill sent from the Assembly, even money Bills. As a result, popularly elected governments were often frustrated in their attempts to pass laws based on public demand. Partly as a result of this, six ministries fell during the years 1856 to 1861. The Council Under Threat Attempts to reform, reconstruct or abolish the Legislative Council began as early as 1860 when Premier William Forster's Bill to reconstruct the Council was defeated. In 1861 when the Upper House refused to pass Robertson's Land Bill under Premier Charles Cowper, the tactic of "swamping the House" began to be used by Governments. In this instance 23 new appointments were made to the Legislative Council in order to get Legislation passed. Similar tactics were used at later times so that the numbers in the House fluctuated but tended upward, reaching 126 by 1932. Liberal governments came to realise that the conservative, obstructionist nature of the Council was not in the best interests of stable government. Conservative governments feared that an unreasonably hostile Council could lead to its abolition and from 1861 to 1934, the Legislative Council actions were generally less controversial, it being usually accepted that the elected House was supreme in money matters. Reform, however, was consistently rejected, eight attempts at reconstituting the Council having failed by 1900. During this period, the Council performed the characteristic roles of a House of review, considering Lower House legislation, investigating social and political issues through committees, and amending or delaying hasty or ill-advised legislation. It saw itself as the final safeguard of the constitution and a counter-balance to the often faction-torn Lower House. Nevertheless, many opposed the concept of a non-elected Council and argued that there was no reason for it to exist at all. Its abolition had been a Labor Party policy since the party's inception. Not surprisingly, Members of the Upper House were unwilling to agree to their abolition. In 1922 the Labor Government in Queensland succeeded in abolishing their Upper House. New South Wales Labor Premier, J. T. Lang, attempted to follow the Queensland example in 1925 by appointing 25 new Members to the Legislative Council to support an abolition proposal. The proposal failed, however, when some Labor MLCs did not support it. Lang lost power at the next election. In 1929, under the Nationalist Party Premier, Thomas Bavin, a new section, 7A, was inserted in the Constitution Act. This provided that no bill to abolish the Council should receive the royal assent unless it were passed by both Houses and approved at a referendum. In New South Wales a referendum is carried if a majority of the electors vote 'yes' to the proposal. In November 1930, the Labor Party was again returned under the leadership of J. T. Lang who immediately set about fulfilling the avowed policy of the Labor Party for the abolition of the Legislative Council. Governor Sir Philip Game would not accept further appointments to the Council because they were aimed not at resolving a deadlock but at abolishing the Council, so Lang secured the passage of a Bill through both Houses, for the abolition of the Council. He failed, however, to observe section 7A and his law was challenged in court. Both the High Court and the Privy Council held that the abolition bill was invalid because it was counter to section 7A. Lang's dismissal from office by Governor Game on 13 May 1932 brought the episode to an end. An Indirectly Elected Legislative Council, 1934-1978 As well as arousing public concern about the role of the Governor, the dismissal of Lang also raised concerns about the Legislative Council's role in the State's political process. There was general agreement that the Council should be reconstituted. The new Stevens-Bruxner coalition government held a referendum on 13 May 1933 at which the electorate approved of an elective Council based on the system of proportional representation. The Legislative Council was now to be a House of 60 members, elected by the members of both Houses of Parliament. Members of the Legislative Council were to be elected for a term of 12 years, with 15 members (one quarter) retiring every 3 years. The indirect method of election was favoured because of fears that the Council would rival the Assembly if it was elected on an equal mandate. Concerns were expressed that it might claim equal financial powers and be able to unmake governments. The idea of giving a longer term of office to Members of the Upper House was to protect Parliamentary democracy from sudden swings of opinion. Under the changes, bills for appropriating revenue or imposing new taxes (money bills) had to originate in the Legislative Assembly. The Legislative Council could reject, fail to pass, or return money bills to the Legislative Assembly suggesting amendments, but they could still be presented for royal assent. If there was a `deadlock' over other types of bills, a referendum could be held. The reconstituted Council met on 24 April 1934. Its independence was intact but it could no longer influence government monetary policy. It could delay legislation to allow time for expressions of public opinion; provide an opportunity for Ministers to tidy up Bills that may have been hastily drafted before passing the Lower House; undertake a more inquiring level of debate on Bills referred to it than often possible in the larger Lower House; act as a watchdog on the Constitution; and be a defender of minorities and the fundamentals of democracy. Between 1934 and 1978, however, elected Governments often found themselves confronted with a hostile Council. The replacement of only a quarter of the membership of the Council every three years did not always enable the House at that time to reflect the political preferences of the majority of the electorate. The Labor Party, which held government from 1941 to 1965, remained committed to the abolition of the Council. Attempts to reform or abolish the Council in 1943 and 1946 failed, as did a private member's bill in 1952. In 1959, Labor Premier Heffron introduced another Bill for the Council's abolition which, after extended debate, was soundly defeated at a referendum in 1961. An Elected Legislative Council, 1978–present In 1977, the Wran Labor Government introduced a Bill to reform the Upper House but it was not passed by the Legislative Council. After two months, the Bill was re-introduced. At a free conference of managers, proposals and counter proposals were considered and agreement was finally reached on amendments to the Bill which allowed it to pass both Houses. The amended Bill was presented to the people and approved at a referendum in June, 1978. Under this 1978 Act, the Constitution and Parliamentary Electorates and Elections (Amendment) Act, No. 75, the Legislative Council became a House of 45 members directly elected by the people by a system of proportional representation. One third (15) of the Members retired at each General Election which, given the maximum three year terms of Parliament meant a term of up to 9 years. In 1981 the maximum term of Parliament was increased to 4 years, increasing the maximum term of MLCs to 12 years. Since 1978 in the smaller, proportionally elected Upper House, neither the government nor the largest opposition party has usually had a majority, and minority groups have generally controlled the balance of power. This has certainly added substance to its role as a House of review. The debate about the need for a second House is likely to be always with us. Some would claim that such a "Chamber becomes either a frustrating, obstructionist body or merely a rubber stamp". Others, such as in the report of the Study Group of Commonwealth Parliamentary Association in 1982, reaffirm the need for Second Chambers. This report notes the worth of the specialist tasks they can undertake by way of committee work; how they provide the "checks and balances" needed to protect human rights and the fundamentals of parliamentary democracy; and how they can ease the sheer weight of business before Lower Houses by initiation, checking or revision of legislation. Today, few democratically governed countries operate without Second Chambers. Some exceptions are New Zealand, Denmark and Greece. Strong or useful Second Chambers exist in the U.K., U.S.A., France, Germany, Canada and Australia, including all states except Queensland. In 1991, as the result of a referendum called by the Greiner Liberal-National Party Government, the number of Members in both Houses were reduced. The Legislative Assembly was to comprise of 99 Members and the Legislative Council 42, 21 of whom were to be elected at each four yearly General Election. Since 1999 the Legislative Assembly has comprised of 93 Members. First Printed: July 1992 Updated: September 2009 |
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