The Argus (Melbourne, Vic. : 1848 – 1957) Wednesday 25 October 1865
THE GOVERNOR AND THE LEGISLATIVE COUNCIL.
In answer to an address presented by a deputation from a public meeting of protectionists in the Exhibition-building, His Excellency made a reply, which was virtually
an answer to the address of the Legislative Council:
“I will not fail to transmit, for submission to Her Majesty, the petition which you have
just committed to my care.
I thank you, as the representatives of the public meeting of citizens of Melbourne by whom the petition was adopted, for the expression of esteem and confidence in me
which it conveys,
Believing, as I do, that an exaggerated view prevails of the responsibility I am supposed to have incurred, by sanctioning the
course that has been taken In order to enable the Government to meet the just claims of the public servants and tho public creditors,
I avail myself of the opportunity which the presentation to me of your petition to Her Majesty affords, to record the simple facts of the case, as they have come under my notice, in considering the questions to which the present crisis has given rise.
” You are aware that, in pursuance’ of the provisions of the Audit Act, the public revenue has for some years past been deposited in certain of the Melbourne banks,
and that from the coffers of those banks it can only be withdrawn for application to the purposes for which it was granted by the
representatives of the people by the employment of certain forms established under the same law. One of the most essential of these
forms is, that, as a preliminary to the issue of the Governor’s warrant and of the Treasurer’s subsequent order to the bank to honour
specified cheques in favour of the public creditor, the Commissioners of Audit should certify that the amount required is ‘legally available’ for the proposed payment.
“The financial difficulty with which the Government has had to contend arises entirely, I may here observe, from the view which the Commissioners of Audit take of the
force of the term ‘legally available.’
“It appears to have been the practice in the earliest days of our Parliamentary government to issue the public revenue upon the vote of the Legislative Assembly, not
without the consent of the other deliberative branch of the Legislature.
” A doubt as to the legality of this practice occurred to the Commissioners of Audit at an early period after the Audit Act carno
into operation; and the commissioners accordingly, in December, 1857, requested the
advice of the law officers of the Crown.
“The opinion of the Solicitor-General, which office was then filled by the Hon. T. H. Fellows, was given in these words, namely :
-‘ Considering that the object of the Audit Act is to make the commissioners quite independent of the Government, I think the
opinion of the law officers should not be acted upon by them in a case like the present, but the House should be consulted, I will
see Mr. Ebden on the matter.’
“This opinion being communicated to the Commissioners of Audit, those officers requested that the view of the ‘House’ might
be ascertained accordingly. And it is important, with reference to the present position of affairs, to observe that neither the
Solicitor-General nor the Commissioners of Audit appear to have considered reference to the Legislative Council to be at that time necessary. Reference was to be made to the ‘House’ only.
“The second letter of the commissioners having been before, the Solicitor General, that officer gave the following clear opinion:
” ‘ I think that resolutions of a committee of supply, reported to and adopted by the House, make the amount ” legally available.”
In point of fact votes of credit wore passed and moneys issued on them during 1857, when changes of Ministers took place, and which have never been questioned. It is, moreover, in accordance with the practice of the House
of Commons. (Signed) Tnos. Howard Fellows. 11th January, 1858.’
“In accordance with the view expressed in this opinion, corroborated in the year 1859,
by an opinion given by Mr. Attorney-General Chapman, upon a cognate point, the Government, the Legislature, and the Commissioners
of Audit continued to act, until the month of January, 1862 ; the claims of the public servants and the public creditor of every description being satisfied upon the votes of the Assembly alone, in anticipation of the annual appropriation act.
“At the time referred to, discussions having taken place in both Houses upon the subject,
it was determined by the Government to introduce the more regular practice of obtaining what were called, I believe, consolidated
revenue acts; but being, in fact, acts authorising the application of the public money to purposes in regard to which, it should be remembered, the Legislative Council could exercise no voice whatever, since those acts included no appropriations, and were always in anticipation of the annual appropriation act, which is usually sent to the Council as the closing communication of the session from the Assembly.
“But, although a new system was thus introduced, neither at that nor at any subsequent period has the former practice, under which it was considered by Mr. Solicitor General Fellows and Mr. Attorney-General
Chapman that the public revenue was made ‘legally available,’ been declared by a resolution of either House, much less by any act
of the Legislature, to be illegal.
“The new practice was even announced by the Treasurer (that office being then filled by
the Hon. W. 0. Haines) to the Commissioners of Audit merely as an ‘intention of the Government,’ and so little Importance in point
of law was then attached to it that, although, as the Treasurer informed the auditors, the
first of the bills referred to was expected to become law in the course of the ensuing week,’ the Treasurer deemed it so absolutely
necessary to keep ‘faith with the public creditor’ (I use his own words) that he requested
those officers to concur in tbe issue of £40,000 under the expiring system, being the estimated sum which would be required before the act could be perfected.
“The Commissioners of Audit, evidently with great reluctance but remarking that ‘payments under contracts for postal services, the maintenance of prisoners, and for
many other important services,’ would become due before ‘the expiration of the week,’ felt it their duty,’ as they stated, ‘to certify
the warrant,’ and the issue took place accordingly.
“From that time to the present, the system of passing these acts of supply in anticipation of the passage of the annual appropriation act has been in force; but the Commissioners of Audit have never, as I understand, assigned any stronger ground for continuing to require such acts than that which they stated
in their annual report of the 30th May. 1863, viz., that the passing of the first of those acts was a distinct ‘declaration of the wishes of
Parliament as to the course henceforth to be pursued.’
“I do not doubt for a moment that the commissioners take this view on the conscientious discharge of their duty ; but I need scarcely observe that the wish of Parliament is not the law of Parliament;
neither is the wish of one Parliament necessarily the wish of the succeeding Parliament; and still more assuredly the wish of the Parliament of 1862 is not the wish of the Parliament of 1865, since that important branch of Parliament-the Legislative Assembly have, by the terms of their address to me, left no doubt that a temporary recurrence to the
former practice would meet with their approval.
“The necessity of keeping faith with the public creditor is, at least, quite as pressing at the present moment as in 1862 ‘Contracts for the maintenance of prisoners and
many other important services demand to be as punctually met by the present Treasurer as they did by the Minister whose laudable
anxiety to fulfil his public financial obligation I have just referred to.
“But there is this important difference between the case of 1862 and that of 1865.
In 1862 not even the first of the series of bills intended to authorise the issue of the public revenue had become law, while in 1865 not
only have acts of this nature been passed providing the necessary supplies up to the end of the month of June last, but the Appropriation Bill itself has been sent by the Assembly to the Council and the readiness of the
Council to concur in the expenditure for which the bill provides has been twice declared-first by resolution, and afterwards in the address of that body to me. There can, therefore, be no doubt in this matter of either the wish or the intention of tho present Parliament.
“I am bold, moreover, to affirm, and I am fortified in my opinion by competent legal advice, that the 45th section of the Constitution Act, which makes the payment of all revenue officers a charge upon tho consolidated revenue, and the Civil Service Act, are as good
appropriations under a plain, honest interpretation of constitutional law, as any other
enactment authorising appropriations for particular services.
“Under all these circumstances, and without, for one moment, meaning to imply that the more recent system is not the more re-
gular also, especially as embracing the concurrence of the three branches of the Legisla
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ture, there can, I think, be no question that the Government would have been fully justified in reverting, to a temporary measure, to the practice which prevailed from the commencement of Parliamentary Government up
to January, 1862-a practice which, as I have before observed, has never been pronounced illegal; and has, on the contrary, been declared by official legal authority to be in accordance with the practice .of the House of Commons.
“To the adoption of this course, however, an insurmountable difficulty was opposed by the view which, in conformity with the wish
of the Parliament of 1862, the Audit Commissioner now attach to the term ‘legally available,’ which term they consider can be satisfied only by an act duly passed by the three
branches of the Legislature; and it was to this well-known view of the Commissioners that I referred in my message to the Assembly of the 29th August last, as preventing the
issue of money in the regular and accustomed manner from what is termed in the law the ‘public account.’
” It thus appearing that there was no power of directly applying the public revenue itself to the purpose for which it was granted, the first obvious expedient to prevent the injurious consequences which would inevitably follow from the continued suspension of the
public payments, was to borrow money, if possible, for the discharge of the liabilities of
“On this point I shall only observe that, independently of the authority which I possess from Her Majesty ‘to take order for the present’ in regard to ‘anything’ -which may
be for the ‘advantage and security of the colony not provided for in the Governor’s commission and instructions,’ I have the opinion
of the able members of the bar by whom the Crown in this colony is at present advised, that Her Majesty’s local Government has legally the power to enter into contracts
binding on the Crown, for purposes of a public nature, and necessary for carrying on the proper functions of government, including contracts to borrow money for the payment
of existing legal public liabilities.
” No doubt this legal power must be exercised subject to the accountability of the Governor and his advisers respectively, to what-
ever bodies and authorities that accountability constitutionally lies; and no doubt, also, it is for the other parties to the contract,
but for them alone, to determine whether the guarantee for repayment of the money
borrowed is satisfactory and sufficient.
“With respect to the mode by which the Government has been happily enabled promptly to repay the earliest of the loans effected, and thus, I trust, insure their con-
tinuance, pending the ultimate fate of the appropriation clauses contained in the bill now in custody of the Legislative Council, it is, no doubt, an anomaly (and, in my opinion, a discredit to constitutional government),
that a state of the law can possibly exist under which the holder of a just and legal claim against the Crown cannot have that claim satisfied out of an overflowing treasury, upon his own demand, because the language of law which make that claim indefensible are
nevertheless not deemed technically sufficient to satisfy the terms of a certain prescribed
form, but may immediately effect that object by entering the Supreme Court, and transforming himself into a judgment creditor of
“In no way, however, could the provisions of the net for enforcing claims against the Crown be made more effectually to subserve the public interest, and promote just and righteous purposes, than by enabling the Government, as it does in the existing emergency, to appropriate the supplies ‘given
and granted’ to the Queen by the people’s representatives, to the payment of the lawful claims of Her Majesty’s servants, of the
pledged allowances to Her Majesty’s troops, and to the satisfaction generally of the demands of the public creditor, in a freely governed possession of Her Majesty’s Crown.
” I entertain, gentlemen, perfect confidence that the opinion of my proceedings which is expressed in your address to Her Majesty will, when the facts are correctly understood, be acquiesced in by the inhabitants of the colony at large, to whose judgment it may
well be left to determine whether those proceedings have violated either the spirit or the letter of the laws,’ or whether they constitute a scheme, either ‘collusive,’ unconstitutional,’ or ‘ revolutionary.