his place.1 In addition to this constitutional official, the Legislative Council generally appoints other officials, such as the Chairman of Committees, and the Clerk of the Council, and others. The positions of some of these officials are regulated by statute, but their appointment is not compulsory, though obviously desirable. The Legislative Council cannot proceed to business unless one-third of its full list of members, exclusive of the President, are present, but no failure of election incapacitates the House if the required quorum be present.* By the Constitution Act the Legislative Council is expressly prohibited from altering any "Bill for appropriating any part of the Revenue of Victoria," or " for imposing any Duty, Rate, Tax, Rent, Return, or Impost," though it may reject such bill in toto. The wording of this prohibition has given rise to much discussion, but it will be better to postpone the consideration of the subject till we deal with the financial powers of the Assembly. In all other respects the legal powers of the Council are the same as those of the Assembly. It may originate or amend bills, and its concurrence in legislation is essential. It has even one special advantage, for there is no restriction upon the number of Responsible Ministers who may occupy seats in it. A member of the Assembly may not, of course, sit in the Council." 1 Constitution Act Amendment Act, § 42. 2 §§ 348-367. 6 Cf. Constitution Act Amendment Act 1890, § 13. 7 Constitution Act, § 16, and Constitution Act Amendment Act 1890, § 22. CHAPTER XXVIII THE LEGISLATIVE ASSEMBLY THE sixty members given to the Assembly by the Constitution Act1 were increased to seventy-eight in 1858,2 to eighty-six in 1876, and to ninety-five in 1888. They are now distributed among eighty-four electoral districts,5 of which eleven have two members, and the others one each. All the districts except eight densely-populated urban constituencies are subdivided into "divisions" for polling purposes." 8 Each Assembly expires by effluxion of time at the end of three years from its first meeting, and may sooner be dissolved by the Governor." We have seen that new writs must be issued within seven days after its expiry or dissolution.10 To be qualified for election to the Legislative Assembly, a candidate must be a natural-born subject or a person who has been naturalised for five years and resident in Victoria for two years." He is subject to the general disqualifications for membership of Parliament,12 but does not require any property qualification.13 A member of the Legislative Assembly receives reimbursement of his expenses in relation to his attendance at the rate of £300 per annum.' But the receipt 14 3 40 Vic. No. 548. 5 Constitution Act Amendment Act 1890, § 122. 7 Ibid. In these exceptions "district" and ". division are co-terminous. 8 Ibid. § 127. The Constitution Act (§ 19) had fixed five years. The change was made in 1859 (22 Vic. No. 89). 9 Ibid. 10 Ante, p. 240. 11 $124. 12 Ibid. 13 This is almost doubtful under the peculiar wording of § 124 of the Constitution Act Amendment Act. But there can be no doubt as to the practice. of official salary abates the allowance for expenses pro tanto.1 The following are qualified to vote in the election of members to the Legislative Assembly : 1. Any male of the age of twenty-one years, natural-born or natural- 2. Any such person who is also owner in possession of a freehold The Legislative Assembly has a constitutional officer, the Speaker, who is elected at the first meeting after every general election, and vacates his seat by expiry or dissolution of the Assembly, and by death, resignation, or a removing vote of the Assembly. The Speaker is not subject to the disallowance of the Governor, but is usually presented to him on his election. He presides at all meetings of the House, and, as we have seen, issues the writs for bye-elections to the Assembly. The Legislative Assembly usually also appoints other officials, such as the Chairman of Committees and the Clerk of the Assembly, as well as ministerial officials," but these appointments are not of a constitutional character. 11 8 The Assembly cannot proceed to business unless twenty members, exclusive of the Speaker, are present, and the Speaker has a casting but no substantive vote.10 As in the case of the Council, no failure in the elections invalidates the proceedings of the House if the proper quorum be present. No member of the Legislative Council may, of course, sit in the Assembly.1 The Legislative Assembly is subject to one disability and one privilege alike distinguishing it from the Council. Not 1 § 126. Members of Parliament are also entitled to free passes over the public railways during their tenure of seats. 2 Constitution Act Amendment Act 1890, §§ 128, 129. 3 § 130. 4 § 135. Cf. e.g., V. and P. (L. A.), 9th April 1889. 7 Constitution Act, § 20. 5 Constitution Act, § 20. 8 Ante, p. 240. 11 Ibid. § 22. 9 Cf. Constitution Act Amendment Act 1890, §§ 346-367. 10 Constitution Act, § 21. 12 Constitution Act, § 16. Constitution Act Amendment Act 1890. 12 1 CHAP. XXVIII FINANCIAL PRIVILEGES OF THE ASSEMBLY 255 more than eight of the salaried officials specially exempted from the rule disqualifying Crown officials from sitting in Parliament may at any one time be members of the Assembly. This clause was probably intended to secure to the Council at least two of the ten Responsible Ministers who may be appointed. But if this be the case, it is entirely inadequate to its object, for the Governor is not bound to have more than eight Ministers, and even if he have, only four need sit in Parliament at all.2 The peculiar privilege of the Assembly in financial matters has more than once been the subject of serious difficulty, to which, as it is essentially a legal question, it will be necessary to refer. It is hardly necessary to say that it will be treated here as a legal question merely. By S56 of the Constitution Act "All Bills for appropriating any Part of the Revenue of Victoria, and for imposing any Duty, Rate, Tax, Rent, Return, or Impost, shall originate in the Assembly, and may be rejected but not altered by the Council.” But by § 57 "It shall not be lawful for the Legislative Assembly to originate or pass any Vote, Resolution, or Bill, for the Appropriation of any part of the said Consolidated Revenue Fund, or of any other Duty, Rate, Tax, Rent, Return, or Impost, for any Purpose which shall not have been first recommended by a message of the Governor to the Legislative Assembly during the Session in which such Vote, Resolution, or Bill shall be passed.” The reference to "the said Consolidated Revenue" in § 57 relates to a previous section (the 44th) which provides that all the revenues of the Crown in the colony of Victoria shall form one consolidated revenue, available for the public service of the colony. One other section is also worthy of notice "The Consolidated Revenue of Victoria shall be permanently charged with all the Costs, Charges, and Expenses incident to the Collection, Management, and Receipt thereof, such Costs, Charges, and Expenses being subject, nevertheless, to be reviewed and audited in such Manner as shall be directed by any Act of the Legislature." "13 It will be observed that these sections place the parliamentary initiative both in taxation and expenditure in the 1 Constitution Act Amendment Act 1890, § 13. 3 Constitution Act, § 45. 2 §§ 13, 14. hands of the Assembly, subject to the proviso that its use of the initiative in the latter capacity can only be exercised on the recommendation of the executive. The action of the Council is limited to a direct approval or negative; though, doubtless, it is perfectly open to the House to explain that its negative is only applied to induce an amendment. The sections in question remained unaltered in the Constitution Bill sent to England from the colony in 1854; but it is not, of course, permissible to go behind the Act itself to ascertain the intentions of its framers. Such a course leads to endless disputes, for, after all, its framers had no authority to impose their views either on the colonial or Imperial legislatures. The real question is not What was intended? but, What was done? The present state of the question may perhaps best be gathered from the discussion which took place in the years 1877-8. In the year 1877 the question of the payment of members came before Parliament. The practice had been adopted by two temporary Acts,' the second of which was about to expire. Mr. Berry's Government, which was in favour of the continuance of the practice, was in a minority in the Legislative Council, which in December 1877 refused the second reading of the continuing measure.2 Anticipating this event, Mr. Berry, in the Governor's name, had included a sum of £18,000 in the Appropriation Bill of the session, for the purpose of providing payment as an ordinary item of expenditure.3 Thereupon the Council, on the motion of Sir Charles Sladen, "laid aside" the Appropriation Bill, and the Government, in order to meet daily necessities, ordered the collection of the duties voted by the Assembly in the Appropriation Bill, which the Council had refused to pass, founding their action upon the alleged precedent of the House of Commons, and, with regard to the expenses of collection, upon the 45th section of the Constitution Act.5 In this action the Government was supported by the opinion of its law officers, but the Supreme Court had, in a previous crisis, refused to recognise 134 Vic. No. 383, and 38 Vic. No. 499. 2 Votes and Proceedings of the Legislative Council, 11th Dec. 1877. 4 Ibid. of the Legislative Council, 20th December 1877. 5 Ante, p. 255. |