Role and History of the Legislative Council

Role of the Legislative Council

The Legislative Council is the Upper House of the Parliament of NSW.

NSW has its own Constitution and its own system of Government and is part of the Commonwealth of Australia. The NSW Parliament makes “laws for the peace, welfare and good government of NSW”. This means that it creates legislation relating to issues such as health, education, transport, the built and natural environments, leisure activities, state development, police and emergency services, energy, and so on. National issues such as immigration and foreign affairs are the responsibility of the Federal Parliament in Canberra.

Parliament consists of the Governor, the upper house – Legislative Council – and the lower house – Legislative Assembly. The Legislative Council is often also called the House of Review.

From the meetings of the first Legislative Council in 1824 – a group of five appointed legislative advisers to the Governor – to the diverse and democratically elected House of today, the Council has always been an integral part of the legislative and democratic processes in NSW.

Since the introduction of a bicameral (two house) Parliamentary system in 1856, the Legislative Council has had the role of a House of Review. The original intention of the framers of the 1855 Constitution was to create a House of Review which was more deliberative and could consider matters with more objectivity; a House quarantined from the wilder “excesses” of popularism and democracy and which would “moderate” the more radical decisions of the Lower House. Legislative Council Members consequently developed a tradition of independence, resisting the introduction of the party system in the House well into the twentieth century.

The House became popularly elected from 1978, but even then, the system adopted ensured that the Legislative Council is reasonably cushioned from the larger swings of public opinion that can affect the Lower House so dramatically.

The Upper House is more deliberative in style than the Lower House. There are generally no time limits on Members’ speeches, and there is a slower, more careful and less adversarial style evident in the debates.

Impact of last election on role of Council
When the first NSW Legislative Council met in 1824, only five legislative advisors to the Governor were appointed. Today the 42 Member House is democratically elected by the people. Whereas, in the Lower House each Member represents an electorate, in the Legislative Council Members represent the entire State.

At each state election in NSW, one half (21) of the Upper House Members (MLCs) must either retire or stand for re-election, so each MLC has an eight year term in office (that is two terms of the Lower House).Parties or individuals are elected according to the proportion of the total vote that they receive. The proportional representation system has created a diverse Membership which tends to represent a rather different cross-section of the NSW community from that of the Lower House. The current Legislative Council has a very diverse membership: see Member Statistics. Between them, all Members have a wide range of political, social and cultural interests reflecting the diversity of NSW citizens.

Governments have not had a majority in the Council since 1988. It has been argued that this contributes to the tradition and constitutional intention of an independent House of Review. It is certainly true that the second opinion offered in the Legislative Council sometimes reflects a different range of community opinion from that of the Lower House.

Role of Committees

Committees are an important part of the Legislative Council because of the Council’s role in reviewing legislation and acting as a check and balance on the government of the day. Committees provide an opportunity for individuals and groups to put their views directly to parliamentarians. Members of the public can make submissions, give oral evidence, attend public hearings, and obtain copies of committee reports.

Committees allow Members to examine an issue in more detail and with greater public input than if the matter was considered by the House as a whole. Committees therefore benefit the community by producing better laws, more informed policy-making and greater government accountability.

For details of Legislative Council Committees and current parliamentary inquiries, see Committees.

History of the Legislative Council

Year	Event
1823	First Australian Legislature established by British Parliament
1824	First meeting of 5 member advisory Council on 25 August 1824
1825	Council increased to 7 members
	Tasmania separated from colony of NSW
1829	Council increased to between 10 and 15 members
	Council begins meeting in Surgeon's Quarters of General Hospital in Macquarie Street
1836	South Australia separates from colony of NSW
1850	Australian Colonies Government Act passed, Council becomes 54 Members, 2/3rds elected
1851	Victoria separated from colony of NSW
1853	New Constitution for NSW drafted and accepted by the Council
1856	NSW Parliament becomes bicameral (two Houses) with an appointed Council (upper House) and an elected Assembly (lower House).
1858	Full suffrage for men only (formerly only men in a certain income bracket could vote)
1925-6	Labor Premier Lang's two attempts to abolish the Council fail
1929	Section 7A inserted into Constitution Act 1902 — any future attempts to abolish the Council must be approved at a referendum of the people
1930	Lang once more attempts to abolish the Council, fails to go to referendum, loses Premiership as a result
1932	Council reaches a peak of 125 members
1933	Reforms mean that Council members are elected by both House of Parliament, rather than recommended and appointed by the Governor
1978	House of 45 Members becomes directly elected by the people on a system of proportional representation across whole state
1991	Number of Members in the Council is reduced to 42.

The First Legislature Established, 1823

In 1823 the British Government passed an Act “for the better administration of Justice in NSW and Van Diemen’s Land, and for the effectual Government thereof ...”, in line with a general policy which had been developed allowing controlled legislatures in the colonies.

The Act, which is usually called “The NSW 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 the Governor but they had no real law-making power. 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 Legislative Council Expands, 1825-42

In July 1825, the Legislative Council was restructured to consist of seven members. 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.

In 1828 the colony of NSW shrank somewhat when Van Diemen’s Land (later renamed Tasmania) was separated to become a separate colony with a similar structure of government.

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.

Constitution Act of 1842

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 could be removed. By 1842 the growing demands resulted in the British Parliament passing NSW’ first Constitution Act, making a first significant step towards responsible government in NSW. 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. 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. In 1843 the Governor ceased to be a member of the Council and one of the members was elected Speaker, to preside at meetings. The Speaker was paid, making the Speakership the first salaried Parliamentary officer in NSW.

The Governor still, however, had more power than the Council. If the Council proposed a bill 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. 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 Executive Council

During the first seventy years of NSW 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.

Towards Responsible Government

In 1850 the Australian Colonies Government Act was passed by the Imperial Parliament. In NSW it expanded the Legislative Council so that by 1851 there were now 54 members - again, with two-thirds elected. The Act also permitted the creation of three other self-governing colonies with Legislative Councils based on the NSW 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).

In 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 were 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. The revised Constitution, with an Upper House whose members were appointed for life, 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 NSW 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, initially appointed for five years and thereafter for life.

Although many significant changes have been made over time, the broad structure established in 1856 remains.

On 22 May 1856, the bicameral NSW 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 and shipped up to Sydney and erected in the position where it still stands as home to the Legislative Council.

An Appointed Legislative Council, 1856-1934

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 five 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.

Background to the 1934 reconstitution

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 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 three 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.

There were three, unsuccessful, attempts to reform or abolish the Legislative Council during the period 1934 to 1978. The first two occurred during the period in which Labor, in the form of the McKell Government, was faced with a conservative controlled Upper House.

The Constitution (Legislative Council Reform) Bill 1943 sought to reform the Council, potentially as a first step towards its abolition, which remained official ALP policy. Under the 1943 Bill the House would have been directly elected, with the state divided into 30 electorates (each made up of three LA seats) each returning two members. The deadlock provisions in section 5B of the Constitution Act were to be amended and, most ominously, it was proposed to repeal section 7A. The Bill was defeated in the Council when the question that the Bill be now read a second time was amended, on the motion of Sir Henry Manning by deleting the word “now” and the addition of the words “this day six months”, on division by 34 votes to 21.

The Legislative Council Abolition Bill 1946 simply sought to abolish the Council. The Bill was defeated when, with the numbers being equal at 29 Ayes and 29 Noes on the question that the Bill be now read a second time, the President, referring to the practice and precedent as set out in relevant parliamentary authorities, cast his vote with the Noes “in order to preserve the status quo of the Legislative Council.”

Commentators have expressed varying views as to the seriousness of the Government’s intent with its reform and abolition attempts in 1943 and 1946. On the one hand, the timing of the introduction of the Bills, close to the end of a session preceding an election, and the difficulty this posed in terms of the operation of the deadlock provisions in the Constitution Act in relation to the 1943 bill, and the fact that the 1946 Bill was introduced in the Council, thereby obviating the deadlock provisions, suggests that these attempts may not have been pursued with great vigour. This fits with the thesis that the existence of the conservative dominated Upper House, with which accommodation could be reached on most important legislation, was useful to McKell as a means of keeping in check the expectations of more radical supporters. On the other hand, it has been argued that the timing of the 1946 abolition attempt and the fact that the Bill was introduced in the Council was due to the Government’s desire to seize the opportunity provided by the granting of leave of absence to three members of the Opposition to possibly get the legislation passed by the Council.

The third attempt to abolish the Council during this period came in 1959 when the Heffron Government introduced the Constitution Amendment (Legislative Council Abolition) Bill. This attempt at abolition raised numerous issues of significance in terms of parliamentary practice, law and politics, and was accompanied by great drama.

When the Bill initially reached the Upper House, the Council resolved by 33 votes 25 to send a message to the Assembly that the Council declined to take the Bill into consideration (on the grounds that a Bill affecting the constitution of the Council should have originated in that House). Seven ALP Members who had voted against the Government were subsequently expelled from the Labor Party. When the Bill was returned to the upper house in 1960 the Council again resolved to send a message to the Assembly to the effect that that the House declined to consider the Bill and further that, as the Council had neither rejected or failed to pass the bill within the meaning of section 5B of the Constitution Act the Council did not consider any situation had arisen whereby a free conference of managers of the two Houses was either necessary or proper.

On 13 April 1960 both Houses received messages from the Governor convening a joint sitting on 20 April. The Council resolved, by 33 votes to 22, that it did not consider that a situation had arisen conferring constitutional power on the Governor to convene such a joint sitting, and informing His Excellency in the Address-in-Reply that the Council had decided not to attend the joint sitting. However, a joint sitting of Members, including 85 members of the Assembly and 23 government supporters in the Council took place on 20 April. On 12 May, the Assembly resolved that the bill be submitted to a referendum. Later that day legal proceedings were instituted by Colonel Clayton, Leader of the Opposition in the Council, seeking an injunction to prevent the referendum being held.

The full bench of the Supreme Court found for the defendants by a majority of four to one. Subsequently, an application for special leave to appeal to the High Court was refused, with the application of section 5B of the Constitution Act 1902 and a number of related matters being dealt with in the leading judgment, and the Government’s handling of the constitutional requirements upheld.

In January 1961 Premier Heffron announced that the referendum would be held on 29 April 1961. The conservative parties led a spirited campaign opposing abolition of the Council. The referendum was defeated with 57.6% of the vote favouring retention of the Legislative Council.

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 nine years.

The transitional arrangements for the reconstituted Council provided for the pre-existing House of 60 members to be replaced by a popularly elected House of 45 Members, over the course of three elections (which took place in 1978, 1981 and 1984).

Following the 1984 election, the House was fully popularly elected and consisted of: 24 Government, 18 Opposition, three Cross bench members. Following the 1988 election the make up of the House was: 19 Government, 21 Opposition, five Cross bench. No government has had majority control over the Legislative Council since 1988.

In 1981 the maximum term of Parliament was increased to four years, increasing the maximum term of MLCs to 12 years. In 1995 the Constitution Act 1902 was amended to provide for fixed four year terms of Parliament.

Subsequent reforms to the system for elections

While the 1978 reforms laid the framework for the system of election for the Legislative Council, various reforms since that time have had a significant impact upon the actual make up of the House. Above the line voting (optional) was introduced before the 1988 election. This gave parties greater control over the flow of preferences.

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 and the Legislative Council was restructured to 42 members, half of whom (21) were to retire or stand for re-election at each General Election (ie. a maximum of four years). By increasing the number of members elected at each periodic election, the quota required for a candidate to be elected was reduced. Party names were also added to ballot papers from 1991.

Following the 1991 election the make up of the House was: 20 Government, 18 Opposition, 4 Cross bench. Following the 1995 election the make up of the House was: 17 Government, 18 Opposition, 7 Cross bench members, and following the 1999 election was: 16 Government, 13 Opposition, 13 Cross bench members. Following the 2003 election the make up of the House was: 18 Government, 13 Opposition, and 11 Cross bench members.

A record 264 candidates, representing some 80 groups or parties, stood for the Legislative Council at the 1999 periodic election. This produced the so called tablecloth ballot paper, which attracted a good deal of public consternation and anger on election day, as well as bringing the electoral system and even the House itself into disrepute.

A number of reforms were put in place to address the issues which arose in 1999. These reforms, which applied to the periodic election to be held on 22 March 2003, include: stricter requirements for party registration (minimum number of members, substantial application fee for registration); requirements for a party to be registered for 12 months prior to the election; and provision for electors to indicate preferences by numbering boxes above the line.

At present, the political strengths in the Council give a majority to neither the government nor the largest opposition party. As a result minority groups control the balance of power in the Council.

Other significant developments since 1978

Salary parity with the Legislative Assembly	In 1985 the Parliamentary Remuneration Tribunal determined that there should be parity in the salaries of members of the Legislative Council and the Legislative Assembly. This meant that for the first time all members of the Council were able to devote their full time energies to parliamentary duties.

Committee systems	In 1985 the House appointed the grandly titled “Select Committee on Standing Committees” to investigate and report upon a structured system of standing committees for the Legislative Council. The Committee’s report recommended the establishment of four standing committees. Following the 1988 election, two standing committees were created, dealing with Social Issues and State Development. In 1995 a third standing committee, on Law and Justice, was established, (together with a Standing Committee on Parliamentary Privilege and Ethics). These standing committees remain an important aspect of the work of the House. The focus of the inquiries conducted by these committees is on public policy and they have developed a strong reputation for the quality of their work. Many recommendations have been taken up by governments and they have had a significant influence upon public policy. These committees generally operate in a non-partisan manner and it is rare for there to be a dissenting report. In 1997 the House established a second set of standing committees, known as General Purpose Standing Committees. There are five of these committees, and between them each ministerial portfolio is covered. The membership of these committees reflects the make up of the House and the Government does not have a majority on these committees. These committees have tended to be focussed upon accountability, conducting inquiries into matters of immediate topical and political interest, or into areas of public administration. Some of the inquiries conducted by these committees have attracted a high public profile and have had a significant impact (eg Olympic Ticketing and Cabramatta policing). These committees also conduct the budget estimates hearings each year.

Orders for Papers	Since the establishment of responsible government in 1856, the Legislative Council has made numerous orders requiring the production of state papers. The vast majority of these orders have been complied with by the government of the day without demur. However, in 1995 and 1996 the Government sought to resist a number of orders for papers on the ground of an asserted lack of power on the part of the Council. In the past, disputes have arisen in a number of Australian Parliaments between upper houses and executive governments over the production of state papers. Until 1995/96 all such disputes had been resolved politically, with no resolution of the claims of the House or the government. The actions of the Legislative Council during this period were significant as they represent the first occasion on which an upper house has acted on assertions that the executive government is accountable to it by enforcing orders against the minister concerned. The Legislative Council asserted that it possessed an inherent, common law power to make these orders for the production of state papers, and to take action to enforce them. (The House invoked common law powers because unlike other jurisdictions, NSW has never comprehensively legislated in relation to the powers and privileges of Parliament.) On 2 May 1996, following repeated calls for compliance, the Legislative Council suspended the Treasurer and Leader of the Government for the remainder of the sitting for his failure to produce all the documents required. The Treasurer brought legal proceedings challenging the validity of the suspension (and his removal from the precincts). Both the NSW Court of Appeal and the High Court upheld the validity of the Legislative Council’s suspension resolution. The High Court held that the Legislative Council possesses such inherent powers as are “reasonably necessary” for the proper exercise of its functions. To apply that principle, the Court first found it necessary to identify the functions of the Council. These were found to be: firstly, a law making function as a legislative body; and secondly, to review executive conduct in accordance with the principle of responsible government. The Court effectively found that responsible government included the principle that a minister in the upper house is liable to scrutiny by that house in relation to the conduct of the executive government. The power to require the production of state papers was reasonably necessary for the performance of the two functions of the House, and the House may impose a sanction on a Minister for the purpose of enforcing such an order (but not so as to punish the Minister). Further legal proceedings followed in relation to orders for papers in 1998-99 over the extent of the Council’s powers to require the production of documents in respect of which the Government claims public interest immunity or legal professional privilege. Again, the Court of Appeal found that it was reasonably necessary for the Legislative Council to have the power to make orders for the production of such papers. The only limitation upon the power was held to be in relation to Cabinet documents. Since June 1999 the House has made numerous orders for the production of state papers, which have all been complied with by the government. There have also been three occasions where committees have made formal orders for papers using the same procedure and terminology as the House. Some of these orders have resulted in the production a single folder of documents. Others have resulted in the production of many boxes of documents. Except where there is a claim of privilege and the documents are able to be inspected by members of the Legislative Council only (if the claim of privilege is not disputed or adjudged to be inappropriate), the documents may be inspected by members of the public. Often an interest group which has lobbied members to have the order made will send representatives in to review the documents in detail. Sometimes, orders for the production of papers have operated in conjunction with, or as a prelude to, a committee inquiry.

Amendments to Bills	Of course, in addition to its role in scrutiny of the executive government and contributing to public policy through its committees, the Legislative Council’s law making role has also been evolving. In the 48th Parliament from 1984 to 1988, the last Parliament in which the government of the day had a majority, there was a total of 357 amendments moved to bills. In the 51st Parliament (1995-99) there was a total of 2733 amendments. This trend has continued through to the current, 53rd Parliament. While the number of amendments continues to grow, there have been very few bills actually defeated in the Legislative Council (10 in the 49th Parliament – 1988-91 and 2 in the 51st Parliament – 1995-99).

Conclusion

Never a stranger to controversy, the Council has had its fair share of critics over the years, including those who have called for, or sought to bring about, its abolition. However, the Upper House has withstood all such efforts to date. Through its legislative work and its scrutiny of the executive government, the House plays a unique role and remains an essential part of the system of representative and responsible government in this state.

Opening of Parliament February 2002.

Upper House Traditions
Particular traditions and ceremonies are associated with the Upper House, such as the Opening of Parliament, and the Usher of the Black Rod. A Day in Chamber also has many smaller traditions and rules by which those in the Chamber manage proceedings.

Ceremonial Dress
The current President and Clerks do not wear traditional wigs and gowns.

Opening of Parliament

Traditionally, the opening of a new session of Parliament takes place in the Legislative Council Chamber at the start of a new Parliamentary session. It normally takes place in the presence of the Governor of NSW or, on rare occasions, the Monarch. The first occasion upon which a Monarch was present in the Chamber was on February 4, 1954 during Queen Elizabeth II’s visit to Australia – the first by a reigning sovereign.

Official openings of Parliament are accompanied by considerable pomp and ceremony. Sometimes there are guards of honour in Macquarie Street, with the Governor (or the Monarch) arriving under mounted Police escort and being formally received and escorted into the Legislative Council.

The official opening has traditionally taken place in the Legislative Council since, by convention, the Monarch or the Monarch’s representative does not enter the Lower House. This convention reflects the historical development of the House’s right to freedom of speech and uninterrupted debate.

Once the Governor, Members of the Legislative Council and the official guests have assembled in the Council Chamber, the Usher of the Black Rod is sent by the Governor to summon the Members of the Lower House. When Black Rod arrives at the Legislative Assembly Chamber, the doors are shut. The Usher of the Black Rod raps three times on the door (with the Black Rod) and awaits the Speaker’s invitation to enter the Chamber. Black Rod then delivers the message summoning the Members to the Upper House. Led by Black Rod, the Serjeant-at-Arms and Speaker, Members walk in procession to the Upper House for the opening ceremony. The ceremony itself includes a speech by the Head of State outlining the Government’s broad legislative program for the upcoming session.

Her Majesty Queen Elizabeth II in the Legislative Council Chamber opening Parliament 1954.

Her Majesty Queen Elizabeth II in the Legislative Council Chamber opening Parliament 1954.

The ceremony, in part, arises from one of the more significant moments in the development of the Parliamentary institution. Parliament’s independence was won over several centuries from a struggle for power between Sovereign and Parliament. The English monarchy, always dependent, at least to some extent, on the nobility, adopted (or was forced to adopt) the practice of calling together Parliaments of nobles and commoners, particularly when additional funds were needed. In return for approving taxes, these Parliaments increasingly demanded more say in relation to the expenditures, as well as demanding settlement of various grievances before taxes were approved. The Parliaments also adopted the practice of passing laws themselves. This increasing struggle for authority culminated in the mid 17th century with the English Civil War. A Parliamentary victory established its supremacy and even when the Monarchy was restored, the Bill of Rights (1689) and other measures guaranteed the supremacy of Parliament.

The barring of the Lower House doors to the Monarch or their representative arose from a well-known incident in the months before the English Civil War broke out. A Parliamentary Petition of Rights in 1628 had provided that no taxation should be imposed without Parliamentary consent. Charles I (King of England, 1625-49) continued, however, to make frequent new taxation demands and in 1641 five Members of the House of Commons, who had opposed the King’s demands for money, were impeached for treason.

The Commons refused to deliver them up to the King and on January 3, 1642, Charles I arrived at the House accompanied by armed soldiers intending to seize the offenders. Understandably, the five Members had left, and the Speaker stated that he was unable to give the King any information about them unless the House directed him to. The King noted angrily that “all the birds have flown”, and left. Within a few months King and Parliament were at war with each other. King Charles’ entry into the House of Commons remains the first and last time a Monarch ever did so, and, indignant at this breach of privilege and in defence of their rights, Lower Houses have barred their doors to the Monarchy ever since.
The tradition of barring the doors is maintained by the NSW Parliament.

The Usher of the Black Rod

The Usher of the Black Rod is a position with ancient origins. Letters of Patent were issued in 1361 by King Edward II to create the Usher as a Court position involved in meeting with the Parliament. By the sixteenth century, the Gentleman Usher of the Black Rod had become a position entirely associated with the House of Lords, where he acted initially as the Monarch’s representative in the House but gradually developed the range of responsibilities held today.
Since the first Legislative Council in NSW (1824-55) had a Serjeant-at-Arms, the Usher of the Black Rod position in NSW was not created until 1856. Its first incumbent was Major Edmund Lockyer, a soldier, explorer and surveyor whose diverse achievements included establishing the colony’s first smelter and the first British settlement in Western Australia. His house, Ermington, gave that Sydney suburb its name.

The Usher of the Black Rod has both significant ceremonial and administrative duties including Chamber security and supervision of the Attendants and visitors, oversight of the Chamber including maintenance and its preparation for sessions. “Black Rod”, as the Usher is usually known, assists the President during session and has various responsibilities for facilitating the smooth operation of the House. Within the Chamber, Black Rod also has the task of escorting Members from the House should the House or the President order them from it – not a common event in the Upper House. In addition to Chamber duties the Usher of the Black Rod is responsible for organising ceremonial openings of Parliament, receives distinguished visitors and visiting groups.

The Black Rod

The Black Rod itself, a symbol of authority carried by the Usher, is similar in appearance to the one used in the House of Lords. It is approximately one metre long and made of black ebony with silver gilt elements which include the State Coast of Arms and the waratah. It was presented to the Parliament in 1974 and is the third Black Rod to be used in the House since 1856. Presented to the Legislative Council by the Bank of NSW, it was made by Garrard and Co., Ltd, the Crown Jewellers, London.
On the top of the rod is a silver gilt lion holding, in its paws, a coloured enamel shield bearing the Coat of Arms of the State of NSW.

In the centre is a silver gilt knob embossed with the floral emblem of the state – a Waratah. It is also inscribed with the words, “Legislative Council of NSW.”

Another silver gilt knob embossed with a Waratah forms the base. Engraved into the base are the words “donated by the Bank of NSW 1974” appears.

The Rod was used for the first time when His Royal Highness Prince Charles, Prince of Wales, was present in the Legislative Council Chamber to deliver a message from Her Majesty the Queen commemorating the 150th Anniversary of the first meeting of the Council.

The Prince of Wales later approved a replica of his “feathers” badge being fixed near the top of the rod to mark the event. The 18 carat gold badge was also made by the Royal Jewellers and fitted by Fairfax and Roberts in Sydney in 1975.

During non-sitting times all three black rods are on display in a case in the Legislative Council Foyer. During a sitting though, the current rod is placed at the end of the Clerk’s table in front of the Usher of the Black Rod, to signify that the House is in Session.

lower end of the Black Rod

The "other place"
The practice of referring to the Legislative Assembly as 'another place' rather than by name, has its origin in the ancient ill-feeling between the House of Lords and the House of Commons.

Father of the House
The 'Father of the House' is the Member who has been a Member of the Legislative Council for the longest continuous period. The current Father of the House is Revd the Hon Fred Nile MLC.

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