welfare and good government of the said colony," with two great restrictions, viz.

1. No such law is to be repugnant to the law of England.

2. No such law is to interfere in any manner with the sale or other appropriation of the lands belonging to the Crown within the colony, or with the revenue thence arising.1

The Governor is to have power to submit the drafts of any proposed bills to the Council, and to suggest any amendments in bills sent up by the Council, and his drafts and amendments must be regularly considered. Every bill presented to the Governor for the royal assent may be either assented to, refused, or reserved by him, in accordance with the directions of the Act or his Instructions, where the case is provided for in either, or at his own discretion, if there be no such provision.3 The Act provides that certain bills shall be in every case reserved by the Governor, unless they be of a temporary character, and declared by the Governor to be necessary on account of some public and pressing emergency. These bills which must be reserved are

1. Bills altering the electoral districts, or the number of members returned by them, or the whole number of the Council.

2. Bills altering the salaries of the Governor, Superintendent, or any of the judges.

3. Bills affecting customs duties.4

A bill so reserved does not come into force in the colony until and unless, within two years from its presentation to the Governor, the latter signifies the royal assent by speech in or message to the Legislative Council, or by proclamation.5 But, besides this check, the Crown reserves the right of disallowing, within two years of its receipt by the Secretary of State, any bill assented to by the Governor, and thereupon, upon similar notification in the colony, the Act becomes void as from the date of the notification."

The revenue clauses of the Act are also very important. In the first place we have seen that the Council cannot pass any law interfering with the sale or appropriation of Crown lands and the revenue thence arising. Moreover, by common law, the

1 § 29.

2 § 30. This is strictly in accordance with English precedent, except that in England the Crown acts through its Ministers.

CHAP. VIII

REVENUE CLAUSES

73

Council could not levy any tax on Crown lands or other Crown property, for this would be to make a grant to Her Majesty of her own money.1 And finally, as we have seen,2 any Customs. Bill requires special reservation for the royal assent. But, subject to these exceptions, the Governor and Council seem to have power (though only by implication) to raise any kind of taxes and to any amount that they please. But a powerful check is laid on possible extravagance of the Council by the introduction of the good English constitutional rule, that no money can be voted for any purpose by the legislature, unless it is expressly asked for by the Executive.3 This brings us to the important appropriation clauses of the statute, which enact that all the taxation revenue of the colony shall be appropriated to the public service within the colony, in manner determined by legislation. But this general direction is limited by two special clauses, one of which is very important.

The first subjects the revenue to the charges and expenses of collection. This stipulation is obvious and reasonable, especially as the control of the collection is placed entirely in the hands of the local legislature.

6

The second charges upon the revenue a permanent Civil List of £81,000 a year payable to the Governor without special vote, the object being, of course, to secure the independence of the colonial executive. But as the whole of this sum does not stand on the same footing, it will be necessary to go slightly into details.

The sum of £81,000 a year is divided between three different objects, dealt with by the statute under three separate schedules, A, B, C. Schedule A reserves a sum of £33,000 for the salaries of the Governor, the Superintendent at Port Phillip, the judges, the law officers, and the expenses of the administration of justice. These salaries are alterable only by Act of the Council specially reserved for the royal assent.7 Schedule B reserves a sum of £18,600 for the political officials of the colony, the Chief Secretary, the Treasurer, the Auditor-General, and their departments, but the sums thereby

1 This action is expressly forbidden to the contemplated local councils by section 43, but it is equally beyond the power of the central legislature. Of course there is no legal objection to taxing the occupiers of Crown property. 2 Ante, p. 72.

3 § 34.

6 § 37.

4 § 34.

appropriated are variable at the pleasure of the Governor,1 and, moreover, within thirty days after the commencement of the session the Governor is to lay before the Council detailed estimates of the amounts required for the ensuing year from the sum reserved by schedule B, for the purposes therein mentioned.2 About the sum reserved by schedule C (Public Worship) the Act is silent, but as the Governor is entitled to receive annually the total amount of the sums reserved by the three schedules from the Treasurer without special vote,3 and as he is accountable for their expenditure to the Home Government, presumably the appropriation for Public Worship is placed, by the strict law, entirely in his hand. But as the requirements for Public Worship very soon increased beyond the limits of the sum provided by schedule C, it seems to have become the practice for the Governor to include details of that department in his estimates. The actual expenditure of the revenue is to be only by warrants of the Governor directed to the Treasurer; but this is mere machinery, leaving the duty of each official, to see that the share he takes in the expenditure is warranted by law, quite untouched.

6

Leaving the important sections relating to municipal government for discussion in a separate chapter, we may note finally the clauses of the statute relative to the constitution of new colonies.

Her Majesty is empowered, by Letters-Patent under the Great Seal, to define the limits of the colony of New South Wales and "to erect into a separate colony or colonies, any territories which now are, or are reported to be, or may hereafter be comprised within the said colony of New South Wales: Provided always that no part of the territories lying southward of the Twenty-Sixth Degree of South Latitude in the said Colony of New South Wales shall by any such Letters-Patent as aforesaid be detached from the said Colony."7 In any such newly erected colony Her Majesty may create a Legislative Council of nominees, not less than seven, which shall, under the Instructions of the Crown, have power to legislate for the peace, order, and good government of the colony, both Instructions and legislation being not repugnant to English law, and being 1 § 38.

2 § 39.

3

§ 37.

5 Cf. (e.g.) Votes and Proceedings (N. S. W.), 1843, pp. 409, 410.

4 § 37.

7 § 52.

CHAP. VIII

SUMMARY OF THE CONSTITUTION

subject to the review of the Imperial Parliament.1

75

The limits

of the 26th degree of south latitude excluded the operation of the 52d section in any territory lying south of Moreton Bay, which embraced what was, in 1842, the Moreton Bay District itself, with the town of Brisbane, the colony of New Zealand, and the colony of Van Diemen's Land, but, of course, do not interfere with future subdivision of such territories by new legislation. All such provisions of the 9 Geo. IV. c. 832 and its continuing and amending Acts as are not inconsistent with the new scheme are made permanent.* The most important of these provisions are those relating to the administration of justice.

3

The two great objects of the Act of 1842 were the introduction of representative government for central and for local purposes. With the latter we shall deal in a future chapter, the scope of the former may be here briefly summarised.

The Act creates a colonial legislature, variable in size and distribution (subject to the veto of the Crown) according to the need of circumstances, but with a fixed proportion of twothirds of elective members to one-third of nominees. The qualifications of the elective members and their electors are fixed by the statute, but these may be freely altered by the colonial legislature. The nominee members are actually appointed by the Home government, although the process of appointment passes through the hands of the Governor. One object of the nominee reserve is obviously to secure the presence in the legislature of certain high government officials, but this policy is limited to the appointment of one-half of the nominee members. The object secured by the nomination of the other half is probably the permanent presence in the legislature of men of experience and substance who, for some reason, do not care to face an election. Taken altogether, the nominee members are to form the permanent and aristocratic element in the council.

But it must be carefully noted, that while the official members of the council undoubtedly will bring the executive

1 § 52. This section is practically a reproduction of the 3d section of the 3 & 4 Vic. c. 62, the Act under which New Zealand had been constituted a separate colony. 2 Ante, pp. 14-17.

3 6 & 7 Will IV. c. 46, 1 Vic. c. 42, 1 & 2 Vic. c. 50, 2 & 3 Vic. c. 70, § 53 of 5 & 6 Vic. c. 76.

3 & 4 Vic. c. 62.

into closer relations with the representative body, the latter is given absolutely no direct control over the former. On the contrary, the independence of the executive is secured by the guarantee of the permanent Civil List, which the Governor is empowered to draw without vote, and which is sufficient at least to maintain the barely necessary machinery of government without support from the Council. Similarly the legislature is given no control over the administration of justice. The old Executive Council and the old Supreme Court are absolutely untouched. On the other hand, the legislature can, indirectly, to a certain extent affect both the executive and the judicature. By questioning officials in the Council, by demanding papers and accounts, by refusing to vote increased grants, it can seriously hamper the action of the executive and the judges. It is worth the latters' while to keep on good terms with the Council. Thus there is every incentive to harmony, while, at the same time, the possibility of discord is not averted. But there are sometimes worse things in an administration than discord.