First Council History

A Short History of the First Legislative Council of NSW
by Robert Lawrie, Manager, Parliamentary Archives

From 1788 to 1824 the Colony of NSW was an autocracy ruled by Governors with virtually absolute power. Commissioner Bigge's Reports on the colony led to the passing of the NSW Act 1823 (4 Gep IV. c96) which made provision for a Legislative Council and a Supreme Court for NSW. The Legislative Council was to consist of a minimum of five and a maximum of seven members appointed by the Governor.

The Council first met on 25 August 1824 and was presided over by Governor Brisbane. All the members were holders of public office. They were the Chief Justice, Francis Forbes; the Colonial Secretary, Major Frederick Goulburn; the Principal Surgeon, James Bowman; and the Surveyor-General, John Oxley. The Lieutenant-Governor, Colonel William Stewart, was not present at the first meeting. Governor Brisbane thought it wise not to attend subsequent sittings, and it was thenceforth chaired by the Chief Justice.

The Governor thus presided over the Council, and he initiated its business. The Chief Justice of the Supreme Court had a limited power of veto, as section 29 of the Act forbade the Governor to submit any bill to the Council unless the Chief Justice had been sent a copy and had transmitted to the Governor his certificate to the effect that the proposed measure was not repugnant to the laws of England. The Governor also had power to overrule the Council if he thought it necessary.

In 1825 the Council was increased to seven members including some not holding public office, and an Executive Council was formed . The Executive Council and the Legislative Council shared the same premises, had common members, and shared the same Clerk (the Clerk of the Councils). The positions of Clerk were separated in July 1843 .

The 1823 Act was a temporary measure, and was to expire in July 1828. It was replaced by the Act of 1828 (9 Geo IV, c.83) which increased the size of the Council to fourteen, seven of them non-official, but all nominated by the Governor. The Governor retained his initiative in introducing measures, but members could submit their own bills and, if refused, record their dissent. The Governor was also required to preside in the Council even while his bills were being discussed, and to abide by a majority decision, though he had both an original and a casting vote. The veto of the Chief Justice was abolished, though each new enactment was to be sent to the Supreme Court for enrolment where any one of the judges could protest its repugnancy to the laws of England and thereby compel its amendment, the major provision of this Act being that all the laws and statutes in force in England in 1828 were to apply to NSW.
In 1843 the Council was again reconstituted by the Australian Constitution Act (No. 1) of 1842 (5&6 Vic, c.76). The membership of the Council was increased to 36, of whom 12 were to be appointed by the Governor and 24 were to be elected. The elective Members were to be elected by male landowners and householders who fulfilled certain property qualifications. Only 9,315 out of a male population of 76,147 had sufficient property to qualify to vote .

This Act meant that the Governor ceased to be a member of the Council. Now one of the members was to be elected as Speaker, to preside at meetings. The enlarged, 'blended' Council met in a new chamber built onto the northern or harbour end of the Rum Hospital in Macquarie Street. (This Chamber, since enlarged, is now the Legislative Assembly Chamber).

The 1842 Act showed a strong British interest in protecting the Governor from the consequences of adding elected members to the legislature . He was financially independent, having control over the money raised from the control of crown land (the "waste lands"), and from fines and penalties.
Although the Governor no longer sat in the Council and had lost his right to solely initiate legislation, he could compel the Council to consider his legislative proposals and could refer back with suggested amendments any bills that the Council had passed .

In 1850 the British Parliament passed the Australian Constitution Act (No.2) (13&14 Vic, c.59) which separated the Port Philip District from NSW and erected it into the Colony of Victoria; and which also provided for future constitutional change.

In 1851 further changes occurred in the composition of the Council. There were now 54 Members, of whom two-thirds were elected.

William Charles Wentworth (1790 - 1872), an elected Member of the Council since 1843, worked within the Council and in a private capacity in a movement demanding responsible government. In 1853 he became Chairman of two consecutive Select Committees appointed to prepare a Constitution for the time when the Colony achieved responsible government. Wentworth, in his desire to follow the English political model, planned for an hereditary Upper House, like the House of Lords. This idea was treated with derision with claims that hereditary peers in Australia would be a "bunyip aristocracy". What emerged in 1856 as the successor to the old Council was a bicameral Parliament consisting of an appointed Upper House (the new Legislative Council) and an elective Lower House (the Legislative Assembly).

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