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3-236 (Original)

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author,male,Legislative Council,un addressee
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Government English
Petitions & Proclamations
Clark, 1975
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We, Your Majesty's dutiful and loyal subjects, the Legislative Council of Victoria, in Parliament assembled, beg to approach Your Majesty with expressions of our attachment to Your Majesty's throne and person, and of desire that Your Majesty's constitutional authority in this colony may be upheld. [410]
We most humbly desire to bring under Your Majesty's Gracious attention the fact that the laws of this Colony have in a measure been dispensed with, the Constitution superseded, and Your Majesty's authority disregarded, if not abused.
in the month of February, 1865, resolutions for altering existing duties of Customs, and for imposing new duties, were reported and agreed to by the Legislative Assembly.
In consequence of a statement made by the Chief Secretary in the Legislative Assembly, the Commissioner of Public Works (who was then a Member of this House), was, on the 23rd day of March, 1865, in his place in the House, asked whether it was the intention of the Government to introduce the New Tariff Clauses into the annual Appropriation Bill, and in reply to such enquiry he stated that "it was time then intention of the Government to do so".
Upon such answer being given, this House appointed a Select Committee to search for precedents on the subject of the tacking of Bills, and also on the subject of dealing with Bills of Supply and Tax, and Bills of Appropriation, and to report thereon.
The Committee brought up their report on the 4th day of May, 1865; and in order that full and ample notice might be given to the Government of the impolicy of the course they proposed to adopt, this House forthwith and without a division resolved: - 
(1) That this House will insist upon adhering to the practice and usage of the Imperial Parliament in regard to the matters which, according to such practice and usage, may be comprised in one Bill.
(2) That it is contrary to such usage and practice to introduce any clause or clauses of Appropriation or other foreign matter into a Bill of Aid or Supply.
(3) That it is contrary to such usage and practice to introduce any clause or clauses of aid or supply or other foreign matter into a Bill of Appropriation.
After and notwithstanding those resolutions, the annexed Bill was, in the month, of July, 1065, transmitted by the Legislative Assembly to this house for its concurrence, and until that day no Bill for imposing new or altering the existing duties of Customs was so transmitted.
On the question being put in this House, That the Bill be read a second time, an amendment was carried by a majority of 20 to 5 - "That as, by the thirty-fourth section of the Constitution Act, the rules, forms, and usages of the Imperial Parliament are required to be followed, so far as the same may be applicable to the proceedings of the Legislative Council and Legislative Assembly respectively, until altered by some standing rule or order' to be adopted by both time said Council and Assembly, and as it is contrary to those rules, forms, and usages, which have not been so altered, that any clause of appropriation should be introduced into a Bill of Supply; and as this Bill of Supply contains a clause appropriating the supplies granted during the present session of Parliament to the service of the years 1864 and 1865, and moreover regulates the disposal of minerals in the waste lands of the Crown (over which this House claims to exercise equal power with the Legislative Assembly), and therefore encroaches upon the just privileges of this House, the subject-matters of this Bill be not considered until they are dealt with in separate measures, and that this Bill be laid aside." [411]
Shortly after the foregoing amendment was carried, the following resolutions were, on the motion of the Chief Secretary, agreed to by the Legislative Assembly: - 
(1) That the right of granting aids and supplies to the Crown is in the Legislative Assembly alone.
(2) That the power conferred by the Constitution Act on the Legislative Council to reject Bills for appropriating the revenue, and Bills for imposing any duty, rate, tax, rent, return, or impost, is justly regarded by this House with peculiar jealousy, as affecting the right of the Legislative Assembly to grant and appropriate supplies, and to provide the ways and means for the service of the year.
(3) That to guard against an undue exercise of that power by the Legislative Council, and to secure to the Legislative Assembly its rightful control over taxation and supply, this House has in its own hands the power so to impose and remit taxes, and to frame Bills of Supply, that the right of the Legislative Assembly as to the matter, manner, measure, and time, may be maintained inviolate.
(4) That this House has learned with regret that a Bill passed by the Legislative Assembly for the supply and appropriation of revenue, which was framed in accordance with the rules, forms, and usages of the Imperial Parliament, and with the view of securing the Legislative Assembly its rightful control over taxation and supply, has been laid aside by the Legislative Council, and that the Legislative Council has refused to consider the subject-matters of such Bill until the same shall be comprised in separate measures; that such refusal evinces a disregard of the rights and privileges of the Legislative Assembly; and that this House hereby declares its determination not to entertain any further or other Bill for the appropriation of supplies for the service of the year 1865 until the rightful control of this House over taxation and supply shall have been acknowledged by the adoption by the Legislative Council of the Tariff approved of by this House, and contained in a schedule to the said first-mentioned Bill. [412]
Immediately after such resolutions were passed, a notice under the hand of the Treasurer, was published in the Government Gazette, and in the daily newspapers, "That the amount legally available on account of moneys voted by the Legislative Assembly for the public service of the year being insufficient, payment of salaries, wages, and contingencies must be delayed until the necessary authority for the expenditure should have been obtained."
Subsequently to the publication of the beforementioned notice, the Governor communicated to this House an Address which he had received from the Legislative Assembly, together with His Excellency's Message in reply to such Address, and at the same time transmitted to this House a Message to the Legislative Council.
The Legislative Assembly, in their Address, acquainted His Excellency that, in consequence of the laying aside of the Legislative Council, without message of communication to the Legislative Assembly, of the Bill of Supply and Appropriation passed by the Legislative Assembly, the salaries of the civil servants for the month of July had not yet been paid, and other obligations were yet undischarged; and prayed His Excellency to cause such measures to be adopted as should, in the opinion of His Excellency's Responsible Advisers, be expedient or necessary for satisfying the liabilities aforesaid and for maintaining the efficiency of the public service.
The Governor's Message in reply to that Address, stated that the Governor had never failed to give respectful attention to the opinions and advice of his Responsible Ministers; and that he desired to assure the Legislative Assembly that he was prepared to take into his earnest consideration any measures his Ministers might recommend, whereby, in the exercise of his legal and constitutional powers, it might seem possible to alleviate the existing pressure upon the civil servants and the public creditor, resulting from the delay which had occurred in the passing of the "Annual Appropriation Bill". But the Governor begged to remind the Assembly that, so long as the 44th and 55th sections of The Constitution Act, and the 24th and 25th sections of the Act 22 Vie. No. 86 (Audit Act Amendment) remained in force it was not competent to him to sanction the issue of money from the public account, either for the payment of the salaries of civil servants or for any other object, unless the amount required was rendered "legally available" by an Act duly concurred in and passed by the three branches of the Legislature.
The Governor's Message to the Legislative Council stated that it was the Governor's earnest desire to aid, by all possible means within the scope of his duty and legitimate authority, in accomplishing the objects which the Address of the Assembly had in view; and the Governor trusted that the Legislative Council would recognise, in the reference made by the Assembly to a resolution of the Council, and in the exceptional and embarrassing position of affairs in the Legislature, a sufficient reason for the expression to the Council of the Governor's hope that active legislation in regard to the finance of the colony might be promptly resumed. [413]
In an address in answer to the last-mentioned message, this House, while pointing out the novelty of such a message, thanked His Excellency for his announcement that "he would not sanction the issue of money from the Public Account unless the amount required was rendered 'legally available' by an Act duly concurred in 'and passed by the three branches of the Legislature;" and concurred in the "hope that active legislation in regard to the finance of the colony might be promptly resumed". We also acquainted His Excellency that "the exceptional and embarrassing position of affairs in the Legislature" had been occasioned by a departure from the ordinary usages of Parliament with regard to the annual Appropriation Bill. We recalled to His Excellency's memory a despatch dated 16th April, 1849, from Your Majesty's then Principal Secretary of State for the Colonies, to His Excellency's predecessor in the Government of Jamaica, in which the former stated that "the regular and constitutional practice of keeping Revenue and Appropriation Bills separate from each other, was fully established in the United Kingdom", and we informed His Excellency, that it had been the invariable practice in this Colony to keep Revenue and Appropriation Bills separate from each other, and that even had it been otherwise, the Constitution Act, which requires the "rules, forms, and usages" of the Imperial Parliament to be followed so far as the same are applicable to the proceedings of the two Houses, imperatively required that we should refuse to entertain a Bill introduced in violation of them, and we acquainted His Excellency with the nature and contents of the annexed Bill and informed him that we were and always had been ready and desirous to agree to a Bill for appropriating the supplies in the usual and accustomed manner; we likewise informed His Excellency that we gathered from the Address of the Legislative Assembly that the House considered itself placed in a difficulty by reason of this House having laid aside the Bill without message or communication to the Assembly, and we pointed out that, when either House disposed of a Bill, either by negativing the motion for its being read, or by postponing the second or third reading for six months; it was not the practice to send any message or communication to the other House, and that therefore we had not omitted any Usual step; we also reminded His Excellency that, when either House desired to be informed of the mode in which the other House had dealt with any Bill transmitted to it, the practice was to cause a search to be made in the journals of the latter "to see what proceedings had taken place respecting the Bill".
In reply to the last-mentioned address, the Governor acquainted the Council that, without violating either the letter or spirit of the laws, he had, with the advice and concurrence of his responsible ministers, succeeded in making temporary and provisional arrangements for meeting the inevitable pecuniary liabilities of the Government in the present emergency and he stated that, as he understood the view of the Assembly, they were, in effect, contending for a fundamental principle of the Constitution. [414]
The "temporary and provisional arrangements" referred to consist of a loan effected by the Governor and the Executive Council (without the authority of the Legislature), from the London Chartered Bank of Australia, after the other banks, in which the public account is kept - the Banks of Australasia, New South Wales, and Victoria, the Union Bank of Australia, and the Colonial Bank of Australasia - had declined to advance money, on the ground that the proposed loan was illegal.
For the purpose of giving to the London Chartered Bank of Australia a semblance of security for the repayment of their advances, judgments by confession have been given to that bank in several suits against Your Majesty.
By the law of this colony, judgments against Your Majesty may be satisfied out of the consolidated revenue, without any specific appropriation.
The confession of judgment for debts incurred without the authority of the Legislature, and for the purpose of applying the consolidated revenue without the concurrence of this House, appears to us to be not only collusive but unconstitutional, if not revolutionary.
In addition to the grievances to which we have already referred, we have to bring under Your Majesty's notice the fact that, after and notwithstanding the loss of the annexed Bill, the duties of Customs thereby proposed to be imposed have been levied not only without the authority of the Legislature, but without any attempt to pass a Bill for legalizing their collection ion, and a period of about seven months has now elapsed since such duties were first collected by the Executive, without any lawful warrant.
Several suits in the Supreme Court have been instituted for recovering back the duties thus levied upon imports, and that court has decided that their collection was not warranted by law; but nevertheless the Governor still allows the pretended duties to be collected as if no such judgment had been pronounced.
We would submit for Your' Majesty's consideration, whether the Governor was justified in permitting the continual publication of the notice that "The payment of salaries, wages, and contingencies, must be delayed", and in subsequently assenting to a scheme by which, through the judgments above referred to, such payments were made; and whether, after the decision of the Supreme Court in regard to the illegality of the pretended customs duties, the further collection of them should have been permitted.
We therefore pray Your Majesty to take the premises into Your Majesty's most gracious consideration, and to adopt such measures as to Your Majesty may seem fit for maintaining in this colony the Constitution as by law established. [415]