. -~

The legislaHve Co~cll of Vicloria

1851-1856

RayWright

© Department of the Legislative Council, Parliament

ofVictoria

First Published 2001

This book is copyright. No part may be reproduced by any

process except in accordance with the prm'isions of the

Copyriaht Act

National Library of Australia

Cataloguing-in-Publication data:

Wright, Raymond, 1950-

A blended house. the Legislative Council in Victoria.

Bibliography.

Includes index.

ISBN 0 9579188 2 8.

1. Victoria. Parliament. Legislative Council - History.

2. Victoria. · Politics and government History.

3. Legislative bodies -Victoria. History. I. Victoria.

Parliament. 11. Title.

328.945

Parliamentary Paper No. I 06 Session 1999-2000

Designed by Jason Phillips, Polar Design Pty Ltd

Typeset by Polar Design Pty Ltd

Published by the Department of the Legislative Council,

Parliament ofVictoria, Spring Street, Melbourne,

Australia, 3002

List of Photographs

List of Figures

List ofTablc.s

Conver sion Table

Acknow lcdgcments

INTRODU CTION Lighting A Bonfire 1850

SESSION ONE Representatives of the People 1851 -52

SESSION T WO Want of Confidence 1852 -53

sESSION THREE Drafting a Constitution 1853-54

SESSION FOUR Insurrection 1854-55

SESSION FIVE Responsible Governm ent 1855-56

CONCLUSION The Blended House

Appendices

A Members of the Legislative Council, 1851 -56

B Bills of the Legislative Council, 185 1-56

C Select Committees of the Legislative Council , 1851-56

Notes

Select Bibliography

Index

IV

vi

Vll

viii

IX

I

11

36

56

86

108

128

134

143

144

153

164

173

Ill

IV

Charles Joseph LaTrobe (1801-75)

Government Offices, William Street, Melbourne, c. 1851

John Pasoce Fawkner ( 1792-1869)

William Stawell (I 8 I 5-89)

John O'Shanassy (1818-83)

Dr. Palmer's Kettle

An Act to Interpret and Shorten the Language cif Acts cif Council, 1851

Supreme Court (Constitution) Act, 1852

James Fredcrick Palmer (1803-71)

Speaker's Chair, 1851-56

St. Patrick's Hall interiors, c.1920s

Hugh Childers (1827-96)

St Patrick's Hall , c. 1870s-1880s

An drew Clarke ( 1824- 1902)

John Foster ( 18 18- I 900)

Victorian Constitution Act, 1854

St Patrick's Hall, c. 1870s- 1880s

Charles Pasley ( 1824-1890)

Charles Hotham ( 1806-55)

Muni cipal Institlltions Act, 18 54

Toorak

5

6

7

16

20

21

28

29

30

30

38

4 2

53

57

59

71

75

77

87

90

93

•

LIST OF PHOTOGRAPHS V

Eureka Flag, 1854

Peter Lalor (1827-89)

William Haines (181 0-66)

Message No.1, 23 November 1855

Peter Kerr (1820-1912)

William Nicholson (1816-65)

Sir Edward Macarthur ( 1789-1872)

Henry Samuel Chap man ( 1803-81)

Secret Ballot Act, 1856

St. Patrick's Friendly Society Commemorative Plate

Parliament House, Spring Street, Melbourne

Jolimont, home of Charles Joseph La Trobe

Unless otherwise indicated, all photoaraphs are held by The Library, Parliament q{Victoria

97

98

107

111

119

121

123

124

125

132

133

i

VI

News of Separation

John Pascoc Fawkncr, 15 November ISSO

Principal locations, Melbourne, mid IS 50s

St. Patrick's Hall, Bourke Street, Melbourne, IS51

Legislative Council Chamber, St. Patrick's Hall, !SS 1

Electoral Districts, Victori a, 1SS I

Legislative Council Opening, I 3 November ISS I

Legislative Council Opening, 13 November !SS I

Victorian squatting districts, IS4 7

"A Skitch of the 'Ouse"

Rewat·d Notice, !SS4

Electoral Districts, Victoria, IS 55

Change of Ministry, ! SSS

The First ParliamentaJy Election, Bendigo, 18 55

2

7

12

13

14

IS

22

2 3

4S

67

99

104

112

115

•

Members of the Executive Council and Legislative Council, 185 1

2 Members of the Executive Council and Legislative Council, 1853

3 Yoter:Eiector Ratio, 18 53

4 Schedule of Accommodation, Parliament House, 185 3

5 Members of the Executive Council and Legislative Council , 185 5

17

58

69

98

117

VII

VIII

I inch = 0.254m

I foot = 0.305m

I yard = 0.914m

I mile = I. 609km

I penny (Id)= 0.83 cents

I shilling (Is) = I 0 cents

I pound (£) = 2 dollars

•

R eaders with an interest in Victorian history will recognise the many scholastic

debts I have incurred in preparing this work. Two that I particularly wish to

acknowledge arc Geoffrey Serle's The Golden Age. A histo1y of the colony of

Victoria 1851 -1861 (Melbourne 1963) and Edward Swcetman's Constitutional

Development in Victoria 1851-6 (Auckland 1920), wo rks to which our first legislative

counci llors might have taken exception, but which I found invaluable.

Many friends, colleagues and advise1·s have contributed to this study. I would espe­

cially like to thank the Hon. Bruce Chamberlain, M. L. C, President of the Legislative

Council ofVictoria, and Mr. Allan Bray, former Clerk of the Legislative Council , for ini­

tiating and supporting this work. I am also grateful to Mr. Wayne Tunnediffe, Clerk of the

Legislative Council, for his forbea1·ance and encouragement during a busy work period.

Geoff Barnett was a source of constant help and assi stance without which this

book, and the many other projects on which we have collaborated, would not have

been completed. Bruce Davidson, as ever, provided considerable support, as did

Debra Reeves, Mary Lloyd and Bevcrley Skinner. I wish to thank my colleague, Pat

Gregory, for generously permitting me to read a d1·aft of his forthcoming (and per­

ceptive) history of the VictOJ·ian Parliamentary Library. Steve Black, Gavin Bourke,

Tim Brown, Grant Campain, Phi\ Clifford , John Connelly, Brian Costar, Bill Jarrett ,

Megan McDougal, Anthony Meade, Jason Phillips, Chris Scoble, Judy Scurfie ld and

Pau l Viney helped in many ways, as did John Boothroyd, Clem Ming, Sheila Adams,

Frank Lee, Thomas and Elizabeth Wright, and Elise Wright.

IX

-

X

For permission to access or reproduce works in their keeping, I would like to thank

Ms. Louise Kinder of Government House, Melbourne; Ms. Wendy Doolan of the

Royal Historical Society ofVictoria; Father Peter Helligren of the Swedish Church of

Australia; Ms. Belinda Nemec of the National Trust of Victoria; Ms. Dianne Reilly of

the State Library ofVictoria; Ms. Margaret Rich and Ms. Jo Foley of the Ballarat Fine

Art Gallery; and Ms. Leanne Fitzgibbon, of the Bendigo Art Gallery.

For assistance in locating the original Acts of the first Legislative Council I wish to

thank Mr. James Butler, Supreme Court Librarian, and Mr. Richard Jefferson, Deputy

Registrar-General ofVictoria.

My greatest debt, however, is to Sarah, for her courage, insight and patience; it is

to her that I dedicate this work.

INTRODUCTION

l1ghHn~ ,a RQnfh:e ·tBso

A nd aJu·rca.r it ir apcdicntthat tlte l)irtticl ofPon Pin/lip. now part qj'tltr~ Colon y

of!\h t; Soutlt ~0tler. rltollid IH' etertcd rt.r a -Jr~pamte Colony . .. there . rlmllhr~

wtilnit rmd Jhr tlu' Colony of' Virtrmlt u .rqHJmtr' lq;irlmit;e Co11nctl

An Act for the better Gove rnment of Her Majesty's Australi an Colonies

(5 August 1850) , s. l & 2

I he sound of wheels on the carriageway follmved by urgent rapping on the door

caused the guests to pause. Their host, Superintendent Charles Joseph La

Trobe, sent his servant to investigate. A moment ... and in burst vVilliam

Nicholson and Augustus Greeves, respectively the current and ex-mayors of

Melbourne. The Adelaide papers had just been landed. The Imperial Parliament had

agreed to Port Phillip's independence. Melbourne had gone wild. \Vhat , asked

Nicholson, should he do? La Trobc smiled and to ld him to go light his bonfire. Off into

the dusk rushed Nicholson and at Flagstaff Hill lit his separation bonfire. Seeing his

fl ame, o thers lit their beacons until a chain of light passed down the coast signalling

that the Port Phillip District of New South \Vales was to become a self-govern ing

colony. lt was Monday, 11 Nove mber 1850. La Trobe returned to hi s di scussion of how

in India plantain leaves were used as plates 1•

Pressure to separate from New South Wales had built steadily from the late 18 30s. The

region had been occupied illegally by overstraiters from Van Diemen 's Land and over­

lander·s from New South Wales fmm the early 1830s, had been officially n~cognised in

1836 , and had been declared a squatting distri ct in 1839, the same year in which La

-

A BLENDED HOUS E

Trobe had been appointed Super intendent, or administrator, of the region. The wealth

associated with pastoral activity, combined with distance and disdain from Sydney,

persuaded many Port Phillipians of the need for independence, a belief ignored by the

Colonial Office and the Governor of New South Wales alike.

The importance of wool, and there fore of local settlers, was partially acknowl­

edged in 1842. The district was granted representation on the Legislative Council of

New South Wales; six of 24 elected members would represent the region. The experi­

ence proved less than ideal. The cost and time in travelling to and from Sydney, under­

representation on the Council ensuring that debate never favoured Port Phillip, the

reluctance of the Sydney-based administration to support infrastructure '.Narks in the

district, and the use of revenue raised in Port Phillip elsewhere in the colony soured

local settl er s. In July 1848, a cynical electorate in Melbourne voted Earl Grey,

Secretary of State for the Colonies and a world away in London, as their local repre­

sentative. Two months later they nominated the Duke ofWellington, Sir John Russell,

Sir John Pee l, Lord Brougham and Lord Palmerston, all firmly resident in England, as

News of Separation, Melbourne Morning Herald Extraordinary, 11 November 1850

Victorian Parliamentary Library

candidates in a fortJ1coming district-wide poll.

Although the peers were defeated , the gesture

made a point. Earl Grey remained Melbourne's

representative on the Legislative Council of

New South'vVales until November 18502.

Unbeknown to local settlers, their argu­

ments had already been largely conceded . In

184 7 Earl Grey had indicated his support for

separation and instructed the Board ofTrade to

investigate tariff, excise and customs implica­

tions associated with granting independence to

the various Australian colonies. The inquiry

found nothing to prevent separation. On 4

June 1849 an enabling bill was therefore intro­

duced into the British Parliament. In New

South 'vVales similar conclusions had been

reached and in August 1849 it was agreed that

from I January 1850 Port Phillip would be

granted access to all revenue raised in the dis-

•

LIGHTING A BONFIRE 3

trict. On 5 August 1850, following Gladstone's hour and a half peroration which fell

on "unwilling ears" in an "indifferent and inattentive House"3, An Act for the better

Government if Her Majesty'sAustralian Colonies passed the Commons. On 30 August 1850

the act, preceded by reports in the press, was sent to Australia.

The act made provision for liberalised voter qualifications and a bicameral legisla­

ture in New South Wales, established Legislative Councils in Van Diemen's Land and

South Australia; and, subject to financial independence from England and the preference

of local settlers, indicated that a Legislative Council could in the future be created in

Western Australia. Earl Grey emphasised, however, that the primary purpose of the act

was to confer independence on Port Phillip4• The new colony, "to be known and des­

ignated as the Colony of Victoria", was to be ruled by a Governor advised by an

Executive Council, and by a Legislative Council.

This model of government had been utilised in Newfoundland between 1842 and

1848 and, since 1842, in New South Wales5• Its most important feature was the power

vested in the Governor to initiate, modifY or veto: in the Governor could govern

largely independent of any Legislative CounciL Victoria's Executive Council was to be a

four-member body chosen by the Governor. The Legislative Council would consist of ten

Crown-nominated members and 20 elected representatives: it was, as later parlance had

it, a "blended house'>6. Of the ten nominees, five were to be "official" or government rep­

resentatives, and five to be "non-official" or non-government members. The 20 elected

members were to be chosen on a restricted franchise. Voters were to be males of at least

21 years; to be in possession of freehold estate valued at£ 100 or occupying dwellings with

an annual value of £10; or to be in possession of a depasturing licence. Upon the issuing

of"Writs for the first Election of Members of the Legislative Council of the said Colony

ofVictoria such Colony shall be deemed to be established"7• In the interim, the New

South Wales Legislative Council was to prepare the necessary legislation.

In the excitement that accompanied the news of separation, two aspects of the

Australian Constitution Act 1850 were largely overlooked. The first was that under sec­

tion 32 of the act, approval was given

to establish in the said Colonies respectively, instead if the Legislative Council, a Council

and a House if Representatives, or other separate Legislative Houses ... Provided always,

that every Bill which shall be passed o/ the Council in any if the said Colonies for any if such Purposes shall be reservedfor the Signification if Her Majesty's Pleasure thereon;

4 A BLENDED HOUSE

This ability to restructure the legislature indicated in formal language what was being

conceded privately within official circles ~ namely the inevitability of full colonial

independence and the establishment of bicameral parliaments. The second was that the

act neither mentioned nor made provision for the notion of"responsible government"

(a ministry or ministers responsible to a legislature and through it to the people).

Many colonists, La Trobe included8, supported separation and independence. Many

fewer understood the concept of"responsibility" and those few that did tended to treat

the term synonymously with contemporary understanding, and therefore fear, of

"socialism" and "anarchy". Accordingly, while there was in Victoria a "cabinet" com­

prising a mixture of executive councillors and official nominees to the Legislative

Council, and a "ministry" of executive councillors, all official policy resided in the figure

of the Governor who was not responsible to the Legislative Council.

This model was considered, at least by London-based legislators and officials, as

the most liberal of its kind. It avoided the notion of an hereditary upper house used in

Canada. It enfranchised those considered most able to vote responsibly. It provided a

safeguard by conferring on the Crown's representative a power of veto. It protected

Crown interests in the colony by reserving for Westminster approval all land disposal

policies, the use of revenue raised from land sales or resource extraction, and any sub­

ject that might properly fall under the notice of the Crown or Parliament in London.

It made provision for the establishment of a bicameral legislature in the future. Crown

powers of reservation, veto and autonomy, a lack of responsible government, and the

prospect of later change were other characteristics of the constitution about to be

applied to Victoria. The glare cast in Melbourne and Geelong by illuminations and balls

and bonfires celebrating separation threw these matters into shadow. Only in the day

to day practice of the "blended house" would they be revealed.

Musing over his dinner and wondering whether he should have waited for official

documents confirming separation before releasing Nicholson to light his bonfire, La

Trobe was nevertheless pleased by the news if not by the prospect of independence.

Fifty-one years of age, cultured, charming and retiring by nature, La Trobe had been

Superintendent of Port Phillip for 11 years. Popular within his own circle, he was

unpopular without, for despite vast experience of the district La Trobe had won a rep­

utation for indecision and procrastination9• Ever-constrained by a torrent of instruc­

tions, orders and demands from superiors in Sydney and London, he appeared to local

settlers more loyal to officialdom than to them, while home officials judged him lack-

I.IGI-ITING i\ BONt-IR!·. 5 0 --- -~--------- -~----

lustre. If such conclusions were not entirely wrong, nor·

were they entirely right. Motivated always by the best

of intentions, La Trobe could be firm when neces-

sary. Since 184 7 he had refused to concede secu­

rity of tenure to squatters in the Intermediate

and Unsettled dist•·icts of Port Phillip despite

the apparent instruction of Orders-in-Council

and the howls of the squatters. In August 1849

he refused to allow the convict vessel Rudolph

to berth at Melbourne, thereby thwarting

transportation to Port Phillip and \\·inning

grudging respect even from his detractors. In

1849 he also questioned the use of Aboriginal

Protectorates. He was underpaid, which had the

effect of undermining hb place in society and

the refore his place as its natural leader, and was

largely under-appreciated. By late 1850 sq uatters and

extreme conservatives vilifi ed him; ordinary folk judged

him weak; Whitehall superi ors thought he lacked f1air; the

local press considered him vacilli atory.

Ch,ules Jose ph La Trobe ( 180 I 75 )

The announcement that La Trobe was to be appointed Lieutenant -Governor o f' the

new colony was therefore gree ted with some dismay 10• Even the lesser title of

"Lieutenant-Governor" appeared confirmation that in England he was considered sec­

ond rank (thereby ignoring the fact that, for trade reasons , Whitehall e nvisaged a ''fed ­

erated" Australia with a governor-gene ral located in Sydney who was simul taneously

gove rnor of New South Wales, Victoria , Van Diemcn's Land and South Australi a; the

Crown representati ve in each colony was accordingly termed "li eutenant-govcrnor" 11).

It was therefore La T.-obe's burden, and opportunity, to he Lieutenant -Governor as the

district moved to become Vi ctoria, the newest colony of Empire.

But on 11 November 1850, none of this mattered. A five day public holiday was

declared. Shops and buildings in Melbourne were illuminated. Sports and picnics took

place. Balls and soirees added gloss . Pubs roa red with excitement. On Tuesday, 12

6 A BLE N DED HOUSe - -·----- ---- - --- e._.,

Government Offices, William Street, Melbourne. c. 1851

Royal Historical Society of Vicroria

November, a 21 gun salute was fired from flagstaff Hill. Thursday, 14 November, w.1s

set aside for religious observance . On Friday, 15 November 1850, a vast procession of

the trades wolllld its way li·om Government House on the corner olvVilliam and Lonsdale

streets - home not of the Governor but of government bureaucracy to the newlv /

constructe<.l Prince's Bridge over the Yarra River. Bands, u·ade and craft workers, native

troupers, drays and, in a f01·mal carriage, Supe1·intendcnt La 1i·obe, moved slowly past

the cheering crowds lining Melbourne's streets. The must compelling part of the pro­

cession was a dray carrying a printing press from which was produced a separation

missive flung to the crowd by its author, John Pascoe Fawkner. \<Vhen La Trobe's carriage

finally reac hed the centre of the bridge his cursory "I declare Prince's Bridge open"

was scarcely no ticed 12 All that mattered was independence, sel f-government, and a

future built on pasto ralism.

"Johnny" Fawkner was the antithesis of LaTrobe in everything save his commitment

to the di strict . Short where La Trobc was tall, intemperate where La Trobe was dis ­

creet, passionate where La Trobe was refined, Fawkner was "the scourge of privilege" 13

and the gadfly of Melbourne. Fifty-three years of age , whippy, and asthmatic , his

claims against John Batman as the fathe r of Melbourne were imposed on all and

LIGHTING i\ llONI-'IRE 7

sunch·y. Fotmdcr of Melbourne's first newspaper, pas­

toralist, businessman and indefatigable spruikcr for

Melbourne and Port Phillip, he believed in the town

and district's future long before many others,

thereby being regarded with amusement by less

confident pioneers. AI·gumentative, verbose, a

"political whirligig" 14 quick to take offence,

he was also quick to forgive and a good friend

of those less well off. As much as any man,

Fawkncr had argued for separation. Now, on

1.5 November 18.50, he was darting around

the dray, cheering with the crowd, printing his

lea flets, and flinging them to the streets.

When news of separation was received in

Melbourne, there were 77,34.5 people resident in Port

John Pascoe Fawkner, 15 November 1850

VVilliam Srrulf, Vicwrian Parliamentary Library

Phillip. Approximately one-third lived in Melbourne. A John Pascoe Fawkner (1792- 1869)

further 2,000 lived in Geelong, with each of the remaining

8 A BLENDED HOUSE -------------·~

major townships Portland, Port Fairy and Warrnambool holding less than 1 ,000

inhabitants. Large tracts of the interior were occupied by squatters who exerted sig­

nificant economic and political influence in the district even though never numbering

more than 900 to 1000. There was almost no industrial activity, wages were low,

prices were high and the wool industry, while important, had already peaked. In

February the district had been oppressed by major bushfires. Immigration was low and

internal migration from New South Wales proper and from Van Diemen's Land had

dried to a trickle. There were barely 80 square miles of agriculture and roads to the

interior were poor to impassable. There was no established public service. The legal

structure was flimsy. The Aboriginal Protectorate was detested. Port Phillipians were

preoccupied with wool, with establishing social networks based on societies and clubs,

with the squatters' lack of security of tenure, with the slow pace of survey and land

sales, with the treacherous state of Melbourne's streets in winter, with news from

"home", and with the gossip and stories and scandals oflocal society. It was a young,

rough society thrilled by the prospect of independence but with no real understand­

ing of what self-government entailed15•

On 1 May 1851 the Legislative Council of New South Wales passed The Victorian

Electoral Act I 85 I, assented to by Governor Fitz Roy the next day. Following the direc­

tions of the Australian Constitution Act 1850, it defined electoral boundaries in Port

Phillip, specified how the election was to be conducted (votes would be cast in each

electorate on a single day in September, albeit on a different day depending on locality,

between 9.00 a.m. and 4.00 p.m.), and made provision for such machinery matters as

courts of disputed returns, by-elections, and how to resolve charges of bribery and

corruption.

Writs for the election were duly issued on 1 July 1851. On that day the district

formally separated from New South Wales and Victoria existed as an independent

colony - and then came the most extraordinary coincidence.

Since the late 1840s there had been speculation that gold was to be found in Port

Phillip. La Trobe himself, fearing uncontrollable consequences, had in 1849 sup­

pressed reports of traces near Geelong. From this time rumour and speculation raised

expectations of finds, particularly from what would become known as the Ballarat dis­

trict. News, when it broke, was therefore confirmation rather than surprise.

------- -------------------------·-···---~

LIGHTING A BONFIRE 9

On 7 July 1851, gold was discovered at Clunes. A few days later, colour was found

at Anderson's Creek, near Warrandyte. Further finds were announced in August from

Buninyong and then, as expected, from nearby Ballarat. In September accounts of a

vast reef in the Mt. Alexander district, specifically at Castlemaine, were reported.

Then, in late September, actual nuggets were displayed in Geelong. The impact of such

irrefutable proof was immediate and precipitated Victoria's first major gold rush. In

October and November, Melbourne was emptied as colonists rushed to the diggings.

Prices soared; speculators profited; pastoralists could not hold their workforces; what

few public service activities were operational halted as jobs were abandoned. In some

Melbourne suburbs entire neighbourhoods lay empty while in others households and

streets were left in the care of women and children. The colony began to feel the

shock of gold rushes as miners dashed from rumour to rumour. By late Spring, the

Maryborough district was jammed. By mid-October there were 6,000-10,000 miners

at Ballarat (and just 300 by Christmas). By mid-November there were 8,000 miners

at Mt. Alexander and 20,000 by mid-December. Two hundred and twelve thousand

gross ounces of gold was raised in 1851, and 2. 2 million ounces in 1852 (rising to

Victoria's peak of 3.1 million ounces in 1856). Although news of substantial finds at

Ballarat in particular, and then seemingly everywhere else in Victoria, first reached

England in January 1852 and captured popular imagination from April, it was not until

August 1852 that vast numbers of immigrant diggers began arriving in Victoria. But it

was enough. Almost overnight the pre-separation assumptions that had underpinned

Victorian visions of a pastoral future were shattered16 •

The challenges confronting the new Legislative Council were immense. Aside from

having to deal with procedural intricacies that lay at the core ofWestrninster govern­

ment, there were now the additional problems of goldfield management, of unpre­

dictable population growth and uncontrollable urban expansion, of financial control,

of meeting the demands of extremely mobile and increasingly vocal miners, of social

restratification, and of calls for political realignments of a kind unconsidered in the

quiet before July 1851.

It is now conventional wisdom that between November 1851 and March 1856,

Victoria's new Legislative Council struggled under the weight of expectation, population

numbers, press cTiticism, unbalanced relations with the Crown's most senior officials,

----·····---

IO

a volatile economy, and settlers who grew ever-more demanding. The interest in this,

however, lies not in demonstrating the ineptitude of particular members or specific

policies: these are evident to all who look. Rather it is to indicate that within such a

context and despite such impediments, the Council achieved much in so short period

with such members and against such odds. In these outcomes is found the story of this

"blended house".

SESSION 0 N E

Repres~nla~iv~s . oJthe People ·· 18sr~s2

Tlu~fir:sl June of!lze jzi;yf a cl of lite 11ew Counal, Wllllllellte-J· Loday at noon; the !em­

pie r?fwirdom being lite Si. Patridc J· Hall, itz Boar/a: Si tee!.

1irgm, 11 Nove mbe r 1851

I he first scene when it came wa~ anti-- climactic.

Victoria's first Legislative Council met for the fir~t time on a threatening

Tuesday, 11 November 1851. T he gathering took place in St. Patrick's Hall,

Bourke Street, the only building in Melboume large enough to hold the new

legislature. The "unfavourable state of the weather" notwithstanding, the ga ll eries were

fill ed 17.

At 12 noon precisely, John Barker, Clerk of the Legislative Council, stood and read

Lieutenant-Governor La Trobe 's proclamation of 17 October 1851 convening the

meeting. Colonial-Secretary William Lonsdale read a commission authorising himself

and Attorney-General William Stawell to SII'Car in the members. The members were

duly sworn.

O n the motion of William Westgarth, seconded by William Rutl edge, Dr. James

Palmer was installed as Speaker Elect , although not without some discussion . Dr.

Francis Murphy, a fellow medical practitioner, questioned whether it was appropriate

for Westgarth to congratulate Dr. Palmer before his appointment was ratifi ed by the

Council. When Palmer himself stood to speak he was abruptly sat down by Murphy,

not because Murphy disagreed with the motion, but because he insisted that proper

form be followed. The motion supporting Palmer was eventually ca rried and the

mover and seconder, in time-honoured Westminster tradition , conducted Palmer to

( (

12 A flL FN D E D H O U S E

PL.U< .. K&LBOJJalfB

,_..;:. .. -c ~u6u6i. ) -.....--- -:::,..

... Principal locations, M elbourne, mid -1850s

After G. Slater, Plan of Melbourn e and irs Suburbs, /857, State Library of Vicwria

the chair where he thanked members. Lonsdale advised the house that the Lieutenant-

Governor would receive the Speaker Elect at Government House at noon tomor-row.

The house then adj ourned - and so ended the first day. The chamber had sat for­

an hour and a quarter. The visitors dispersed. The newly -sworn members went about

REPRESENTATIVES Of THE

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St. Patrick's Hall , Bourke Street, Melboun1e, '185 1

Vic1 orian Parliamenrary Libmry

their business . The doorkeepers closed St. Patrick's Hall. It \vas a muted beginning

entirely at odds with what would become the short, eventful history of the Legislative

Council oFVictoria.

St. Patrick's Hall was one of only three buildings in Melbourne large enough to accom­

modate the Council (the others being the Mechanics' Institute and the Protestant Hall).

Built by the St. Patrick Society in 1849 near the north -west corner of Bourke and Queen

streets, the hall was "little more than a large, cold-looking, two-warded barracks" 1s

founcl within an "outer brick shcll" 19. Visitors ente1-ccl the ground fl oor directly from

Bourke St1-eet or climbed a staircase to the upper level where they attended meetings

and balls. In Feb1·uary 1851 Colonial-Architect Henry Giru1 recommended the hall for

the ne,.v legislatlll·e and on 9 May a three-year rental agreement of .£.300 per annum was

struck between the administration and the St. Patrick Society.

-

1\ BLENDtU HOUSE --------- ~

The hall was extensively remodelled between July and Novcrnbct· 1851 .The ground

floor was divided into four "apartments", three for administrative purposes and on e

for a committee room . Legislative councillors did not have, nor did they expect to

be assigned , offices in the hall. Official nominees met in offices either set aside in

their various departments or at Government House in vVilliam Stt·eet. The upper level

was converted into a legislative chamber, strangers ' gallery and reporters' gallery.

Following negotiations with the Jewish community whose synagogue lay next door on

the west, a small strip of synagogue land was fenced and used as a walkway that, with

the slope of the land and by means of a new doorway, now directly admitted visitors to

the upper level strangers' gallery. Such remodelling proved expensive. Some £626 was

spent on refurbi shment works and £5 14 on furniture and fixtures20.

In the chamber, a large table covered in green baize occupied the centre of a wooden

floor, now carpeted in red. The Speaker's chair, ornately carved and upholstered in green

velvet, was placed at the northern end of the hall opposite the Bourke Street staircase

entrance. A minstrel's gallery behind and above where the Speaker sat \vas assigned to

reporters. Members sat in two banks of seats to the left and right of the Speaker. A

further row of seats behind the members, and another bank of seats at the far end of the

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Legislative Council Chamber, St. Parrick's hall , 1851

William Struu, ViciOrion Parliamentary Library

REPRESENTATIVES OF THE PEOPLE IS

chamber, was set aside for visitors - "a little henroost"21, sniffed one visitor. The

Clerk of the Council sat at the upper left hand corner of the table, and recording clerks

to his left. Large, semi-circular windows along the walls provided light that Ginn supple­

mented by adding "the first horizontal light introduced into the colonies": A "flood of

illumination" was thus "admitted through the roof"22• While admittedly a "plain apart­

ment" and sometimes labelled "cold and draughty", St. Patrick's Hall was well appointed

and "amply sufficient for the accommodation of the members"23•

By November 1851 Victorian colonists thought the opening of their legislature long­

overdue. La Trobe had announced membership of his Executive Council on 16 July

1851. Elections had been held in September. But seeking to make government haste

slowly, La Trobe delayed convening the Council until as late as possible in the year. He

named his ten nominees on 31 October. When finally he called together the 20 eleL-ted

Members and ten official nominees (Table 1; Appendix A), four months after separation,

it was regarded as a decision wrung reluctantly from the Lieutenant-Governor.

La Trobe already knew that his four-man advisory Executive Council lacked quality.

As Colonial-Secretary Lonsdale was notionally the most senior government official

(the local press liked to call him "Prime Minister"). He was also the most reluctant.

He had been resident in Port Phillip since 18 36 he was the first police magistrate

- and so was informed by close familiarity with the region. Loyalty and anxiety to

do well could not disguise a nervous if sincere speaker and a not always nimble thinker.

La T robe had appealed to Lonsdale 's sense of duty and so persuaded him to assume the

position until a suitable replacement could be found.

Two of La Trobe's other Executive Council appointments also proved inadequate24•

Treasurer Alistair McKenzie was out of his depth. Collector of Customs James Cassell was

"brimful of information ... but not much of a speaker". Cassell was also miffed. La Trobe

had refused his claim to be Attorney-General25 • Which left La Trobe with just one reliable

executive councillor.

William Stawell was the most able man in government. Fair, ruddy and six feet

talF6, the 36 year-old Corkman had been educated at Trinity College and was a lawyer.

Finding opportunities on the bench limited in Ireland, he had emigrated to Port Phillip

in 1843 and dallied with a pastoral career until the novelty waned and the law beckoned.

He was very successful. With his close friend Redmond Barry, he was considered the

16 A BLENDED HOUSE

district's best lawyer. A fine horseman and a spirited

carouser, he underwent a conversion of sorts after

listening to a sermon by new Anglican Bishop

Charles Perry in 1848. He mended his ways and

grew serious in public while remaining good

company in private. Thoughtful, scrupulous, a

sincere and measured speaker, charming when

he had to be, and a conservative with (by the

standards of the day) liberal leanings, Stawell

brought practical vision and rectitude to

his position as Attorney-General. He also

brought austerity and occasional stubbornness

that could sometimes lead him to support

untenable positions. vVidcly held to be the brains

behind La Trobe, Stawell was for a number of

years the most important member of both the

executive and legislative councils27.

William Stawell (1815-89) And therein lay La Trobe's problem. When flnally he

came to select ofllcial nominees for the new Legislative

Council capable of representing and promoting the government, he could only bring him-

self to nominate Stawell and Lonsdale. Cassell and McKenzie were ignored. This in turn

meant that of the flve official nominees selected by La Trobe to sit in the Legislative

Council -- Stawell, Lonsdale, Barry, Charles Ebden, and Robert Pohlman- only two

were members of the Executive Council. Only Lonsdale and Stawell were therefore in a

position to discuss and defend government policies adequately in the Council while the

remaining three government representatives were obliged to promote ofTicial policy

without being privy to Executive Council decisions. Apart from Stawell, only Charles

Ebden stood out in the government ranks. Ebden had a "very gauzy surface" that belied

his "ability and good common sense"28. Pompous and dandyish he might have been, but

he was also clever and hardworking. Given Lonsdale's unease and Ebden's isolation from

the Executive Council, it was a circumstance that further promoted Stawell as principal

government spokesman.

RE P RES E NTA TI V E S OF T HE PEO P L E 17

Executive Council Appointed 15 July 1851

President Charles LaTrobe

Colonial Secretary Will iam

Lonsdale

Attorney-General William StaweW

Collector of Customs James Cassell

Colonial Treasurer Alastair McKenzie

'Official Nominee to legislative Council

legislative Council of Victoria

:Pffldal Nominees .Holding Office

Appointed 31 October 1851

.Colonial Secretary William Lonsdale'

Attorney-General William Stawell

Solicitor-General Redmond Barry

Auditor-General Charles Ebden

Chairman of Court Robert Pohlman

of Requests

Nori~da' Nominee$ · Holding No Office

Appointed 31 October 1851

Alexander Dun lop

Charles Griffiths

William Haines

James Ross

Andrew Russell

. Elected Representatives Elected September 185r

Belfast Thomas Osborne

Dund~s James Frederick Palmer

Geelong Robert Robinson

Geelong James Strachan

G~ppsland . Robert Tu rnball

Grant Joh n Mercer Kilmore Peter Snodgrass

Loddon William Campbell

Melbourne John O'Shanassy

Meli;Journe William Westgarth

Melbou rne James Johnston

Murray Francis Mu rphy

North. Bourke Charles Dight

North Bourke John Smith . Portland Thomas Wilki nson

VUi iers William Rutledge

Ripon Adolphus Goldsmit h

South Bourke Henry Miller

Talbot John Pascoe Fawkner · Wimmera Will i_am Splatt

Table 1 Members of the Exec ut ive and Leg islat ive Co uncil, 1851

Wimmera

Dundas Follett Norman by

Warnambool

Elecroral Districts, Victoria, 1851

Rlpon Hampden Grenvllle Polwarth

l.oddon

United rowns of Kyneton Seymour Kilmore

South Bou rke Evelyn Mornington

Melbourne (3)

Unless otherwise indicated, each electoral district returned one member

Murray

Gippsland

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R E P R E S E N TAT I V E S 0 F T H E P E 0 P L E 19

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The first Legislative Council comprised seven squatters, six merchants, four land­

holders, three barristers, three shopkeepers, two newspaper proprietors, two doctors,

one miller, an attorney and a financier 29 • Their average age was 42 years. Twenty-three

of the members were in their 'thirties and 'forties (eight and 15 respectively); five

were aged 50 or more. The oldest was Fawkner, who was 59 years and the youngest

was John Mercer aged 28 years. Eight members were Irish, another eight Scottish, and

seven were Englishmen. There were two New South Welshmen, and two other members

who had been born in Portugal and Cape Colony respectively; three were of unknown

origin. All had arrived in Port Phillip in the pre-separation days30•

The official nominees were firm government men. The non-official nominees were

held to be strongly but not absolutely sympathetic to the government. The elected

members were "in fact and in principle alike, opposed to the nominated; and that, by

consequent instincts, ever meant simply the Government"31• They were generally

unsympathetic to La Trobe, his Executive Council and the official nominees. Yet in the

absence of any party organisation, party discipline or clearly articulated political policies,

opposition members were also "unorganised", "disunited" and "raw throughout"32 •

Even the ascription of "political labels" was not without its problems. "I think", said a

contemporary,

many if the terms in use in England to desionate different parties are inapplicable here.

We are accustomed to talk there if conservatives, liberals, radicals, and riformers, but I

do not think these terms are applicable here33•

Local politicians were called" exclusives", "democrats", "liberals", "radical democrats",

"conservatives" and any number of other titles. Many would-be legislators sought to

avoid such terms because they implied some sort of association or grouping which, in

the 1850s, was considered inappropriate because it was not transparent. It was not

unusual for electoral candidates throughout the 1850s to use banners or give speeches

headed "I am of no party"*. Provided, however, that the complexities of pioneer political

behaviour are acknowledged -it was individualistic, unplanned, local in focus, fun­

damentally pragmatic and above all unpredictable certain political "leanings" or

"alignments" may be identified among the 20 elected representatives.

A numerically small but nevertheless able group of urban businessmen, largely

from the Melbourne, North Bourke, South Bourke and Geelong electorates, tended

to band together. "Democrat'' in temper, they were for the most part liberal in sympathy

20 A TJ L E N D E D H 0 U S ~ ------------------------------ €?

and promoted value~ often associated with ea rlie r !Cxmu­

lations of Chartism, albeit from in~tin ct rather than

politi ca l certitude: adult suffrage; din':ctly electeJ

representatives; and , above all else, land rclt>rm .

The nominal leaders -- rea lly spokesmen by

dint of personality -·-·- were William Westgarth

and "Big Jac k" or "Lung John" O'Shanassy.

'vVestga r th was an "indefatigable yet unobtru­

sive man", a fin e writer and an indifferent

speaker who made himself master of his chosen

subjects. He strongly opposed transportation,

advocated a gold export duty rather than a

mining li cence fee, and disliked the "blended

house". O'Shanassy, a "tall, massivc"15, shambling

Idshman and anothe1· fom1cr mayor of lvlel ­

bourne, was not the least bit abashed about

speaking his mind even as he stumbled <>HT words

that fCII from him "rough, impe tuous , uncontro llable, as

a mountain tor rent" 36 . In I 851 he had not yet acquired

either the polish or the overt conse rvati sm that would cYcntually sec him become

John O'Shanassy (1818-83)

three times chief secretary of Victoria. Yet unlike most of his fellow councillors, "his

views of public affairs were character isti c of the statesman" 17 in that he sometimes

brought a wider perspective than immediate constituency to public affairs. But for the

moment he was the finn, sm iling leader of Catholics in Victoria and, as a result, a fer ­

vent supporte1· of state ai d for denominationa l schools. Other members of this loose

coa lition included Henry "Money" Miller, Dr. Alexander Thomson, James Strachan,

"ultra-radical" Jame~ Johnston 18 and, for the most part , the maverick Fawkncr.

Another "g rouping" compr ising squatter s and fellow travellers from rural electoral

districts liked to meet at the Port Phillip C lub Ho te l in Flindcrs Street. Less coherent

as a "faction", they tended to grav itate around 'vVilliam Splatt, 'vVilliam Rut ledge ·- the

"most vivacious member" whose earnestness contrasted with "a merry twinkle of the

eye"19 -- and the sometimes splenetic member for Loddon , 'vVi ll iam Campbc ll , who

almost always voted with the government (earning him the title "lost sheep of the

Loddon"40). Another of their number was Pcte1· Snodgrass, who won a reputation f(x

R FP R ESeNT i\T! Vf. S 0 ~ TH E P EO PL E 2 ! & ---- --·--- - ---- ------

shiftiness and, eventually, for"the hopeless poverty of his intellect"4 1.Thcir views often

paralleled those held by "exclusives" or "anti-democrats" who sought a return to the

ordered p1·e-gold rush society with which they had grown comfortable . The squatte rs

were conservative, o ften of Ascendancy o1· Calvinistic backgrounds, and aligned with

pastoralists, property developers, some urban businessmen and "society". As a group

they tended to the theoretical view that land management or business experience were

prerequisites for properly managing the affa irs of state, and to the practical view that

the Legislati ve Council was a means of protecting and influencing land settlement and

land alienation policy. While leaning politically towards the government, La Trobe's

reluctance to recognise their pre-emptive rights was an irritant . Nevertheless said the

Argus, "there was a sort of tacit understand ing that the squatters were to support the

Government, and that in return they were to have the land"42

Factional meetings were therefore par t of the political

culture of the Legislative Council as members for med

alliances, shifted positions, arranged CJUiet meet­

ings, or simply got together. What, for example,

was discussed at a discreet po litical meeting

that supposedly took place over Dr. Pa lme1·'s

kettle in his house in Richmond either on the

night before or on the day of the opening? A

gathering of friends? An early factional group-

ing? A caucus to decide the speakership? The

answer is now lost43 . Yet even the suggestion uf

such a meeting is a reminder that political life in 18.5 I

was more complex than simple classifications sometimes

D1· Pa l mer's KeLLie

Mende Family Col/ecrion

allow. Such, then was the backdrop against which the fi rst day was conJ.ucted . And if

there was a sense of anticipation in the first si tting of the Counci l then there was also

a certain apprehension.

At noon on 12 November 18.5 I the Speaker Elect, accompanied by the ncwly·s\vorn

members, walked to Government House. He was warmly greeted by the Lieutenant­

Govern()!', wished luck, and returned to St . Patrick 's Hall. The Cow1eil then formed its

fi rst select committee . Comprising the Colonial-Secretary, and members 'vVestgar th,

Miller, Mercer, Goldsmith, Ross and Mur phy, it was charged with drafting a reply to the

Lieutenant-Governor's O pening Speech.

•

22 A BLENDED HOUSE

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. :: "' '( . --.. ~· . ,(. , .. ·( .,__.,..;/; ,N. :; . ___ __ ... :;:.~ '. ' : .. .. -- - ,..~:... · ... ...,.-.;,. .

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Legislative Council Opening. 13 Nove mbe r 1851

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Arti st William Strutt prepared this sketch in the expectation that it would provide the basis for a much larger

work; the Leg islative Council refused to pay Strutt's fee and th e work was never completed.

William Srrutr, Victorian Parliamt'ntary Library

On 13 November 185 I, with cannons booming and trumpets flouri shing44, La Trobe

went to St. Patrick's Hall. He officially opened the first Legislative Council at noon.

"Yo u meet here this day", he told the new members, "as representatives of the people

of an independent Colony of the British Empire, with power to watch over the general

interests, and to control your own afTairs". There was no antagonism in Victoria, he

said, between "the government and the governed" and between the "legislative branches"

and the "administration". He emphasised that, now more than ever, local affaiz·s were

managed locally, and cited the ever-widening fran chise, greater control over expendi­

ture, and the ability to alte r the constitution as ev idence of a growing independence .

The only guiding principle, said La Trobe, was "the public interest". Members and guests

listening in St. Patrick 's Hall knew this to be a generous interpretation of colonial

autonomy that conveniently ignored the influence of the British Government in local

affairs. No matter - opening speeches had to be formal.

La Trobe continued . He emphasised the "most flattering and satisfactory" state of

the finances and suggested that "the business of the Session should be confined, as far

as practicable, to the consideration of the requisite Acts of Appropriation". He spoke

of the need for building programs and "inte rnal improvements", and for developments

in education and the judicial system. In particular, he suggested the "establishment of

Legislative Counc il Opening, 13 November 1851 VVilliam Strutt placed favoured figures to advantage in this sketch of the opening

~\'illiam Srrun, Victorian Parliamcncary Library

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24 A B L E N D E D H 0 U S E

a Supreme Court". All of these could, however, be deferred. For now it was a matter

of just getting started.

Yet, just as his audience might be beginning to fidget, La Trobe made one of his

understated points. He sought the Council's assistance, especially when instructions

from home arrive, which "may enable me to decide upon the character of the measures

to be adopted, and the expediency of calling for that co-operation". Although he

confirmed that he would always provide full information to assist the Council it its

deliberations, this was in fact the Lieutenant-Governor making it clear that ultimate

decision-making power lay with him.

LaTrobe alluded to the challenges attendant on the discovery of gold, in particular his

hope that the pastoral and agricultural interests would not be affected. He indicated that

he had already raised the remuneration of public servants in an attempt to provide a

stable administration. Then reminding Councillors and visitors alike that "What we sow

our children will reap", La Trobe concluded his speech with that observation that "It is for

us to prove to the Mother Colony, by the temper and prudence with which we fulfil our

duties, that we are not unworthy of her." Temper and prudence, alas, would prove elusive.

La Trobe concluded his speech at 12.30 p.m. and the chamber adjourned until

three. The speech's "prosy prolixity", muttered the Argus, "is its best defence'*5 although

all agreed that it had provided an adequate start to proceedings. And if the speech had

studiously avoided all reference to La Trobe's reluctance to grant security of tenure to

pastoralists, had ignored the difficult question of the imposition of personal taxation in

the form of a miner's licence on the small but now growing number of miners, and had

not even raised the vexed question of transportation in Victoria, it was, all things con­

sidered, a suitably cautious start to the business of self-government.

When the Council reconvened at 3.00 p.m., Speaker Palmer, following Westminster

practice, read a copy of La Trobe's speech. Then, stunning everyone, an outraged Stawell

leapt to his feet, objecting in the strongest possible terms to the ''blasphemous" and

"unparliamentary" language used in a notice of motion that was even now being circulat­

ed in O'Shanassy's name. Stawell insisted that it be "expunged" from the Notice Paper.

Palmer ruled the point of order out of order. A disputed electoral return against the

member for Geelong was noted. Murphy then moved the Address-in-Reply, which was

immediately brought before the house; unlike today the speech, which thanked La Trobe

and outlined the Council's intention to proceed cautiously, was prepared in advance.

The house then returned to Stawell's objections to O'Shanassy's motion. Discussions

had been held as to whether proceedings in the Council should begin each day with a

R E P R E S E N T A T I V E S 0 F T H E P E 0 P L E 25

prayer. Some members had proposed that a select committee be formed to draft a

prayer suitable for the purpose. O'Shanassy could not conceive of a prayer that would

suit all faiths and, like many other members, had concluded that the best course was

to avoid any prayer at all. His sardonic motion therefore proposed that an address be

sent from the Council to La Trobe

Praying him to place on the Estimates a sum not exceeding £I 0, 000, to be placed at

the disposal rf this prayeiful Committee, to enable them to rjfer a premium for the best

prayer to be so drawn as not to inteifere with the civil rights and privileges, and the reli­

gious feelings rf members ... 46

Stawell was offended by the implicit sarcasm of the motion. It was "absolutely essential",

said Stawell, "that due decorum should be observed in all notices and documents

brought before the house'>~-7 . Following lengthy debate, O'Shanassy indicated that he

was "disposed to waive the discussion of the propriety of the notice and withdraw it".

Up sprang Stawell, who, "begging the Hon. member's pardon", indicated that

O'Shanassy "must ask permission of the house before he moved to withdraw it'>4-8-

which he did immediately.

Having produced the Council's first point of order and statement of procedure, the

motion to form the prayer committee provoked on the following day the Council's

first division. Standard Westminster practice was used in divisions with the "Ayes" to

the right of the chair, and "Noes" to the left. Dunlop moved his motion that the house

commence each day with a prayer. The motion, "utterly needless and unserviceable"

muttered "Garryowen»+9, was lost in a not quite full house, 14 votes to 13. Significantly,

the division provided no commentary on government policy. Votes in the Legislative

Council tended to be largely matters of conscience. On this occasion, for example, the

Colonial-Secretary and Attorney-General voted against the motion, while the Auditor­

General voted in favour. The first major decision of the house was therefore not to

start each day with a prayer, so rendering the chamber "in its collective capacity ...

essentially Godless"50.

The house next turned to establishing ground-rules for debate and for chamber prac­

tice. On the motion of the Colonial-Secretary it was agreed that until such time as the

Council had adopted its own Standing Orders, the 1849 Standing Orders of the New

South Wales Legislative Council would be used. On 14 November 1851 the Council

26 A B L E N D E D H 0 U S E

therefore established a Standing Orders Committee to investigate appropriate proce­

dural rules. This committee reported back to the house with its recommendations on

28 November and the report was adopted on 12 December 1851 .

The Standing Orders determined that in all cases, "resort shall be had to the

Rules, forms and usages of Parliament". The Legislative Council day would be divided

into the consideration of motions, notice of which had to be given at least on the

previous day and had to appear on the daily Notice Paper, and orders of the day or

matters, usually bills, that had previously been introduced but not yet been finalised.

A distinction was drawn between public bills, or those introduced by a member, and

private bills not sponsored by a legislative councillor and accompanied by a petition.

Government bills were initiated either by the Lieutenant-Governor by means of a

message, or by a minister. They were then listed as orders of the day. Following the

Westminster dictum that deliberation rather than efficiency was a key legislative

value, all bills had be considered at least three times (first, second and third readings),

and had to be passed by a majority of members. The Lieutenant-Governor then had

right of veto over any bill passed by the Council or could reserve a bill for consid­

eration by Her Majesty in England.

One-third of the membership was a quorum; if a quorum was not formed with a

half-hour of the time of commencement, the meeting would be deferred until the

next sitting day. If, in the course of business, a quorum could not be found, the sitting

would be adjourned. When the house went into committee, the quorum was also set

at ten.

The minutes of each day's proceedings were to be kept by the Clerk of the

Legislative Council. These appeared as the Votes and Proceedings cf the Legislative Council.

Unlike today, notices of motion and orders of the day were incorporated in the Votes

and Proceedings and it was printed as a single document.

Sessional Orders were also adopted. It was determined that sitting days would be

Tuesday, Wednesday, Thursday and Friday. Each day would commence at 3.00 p.m., a

necessity caused by the lack of payment of members and the need, therefore, for most

to engage in on-going employment. Government business, and therefore orders of the

day, would take precedence on Tuesdays and Fridays.

These, then, were the rules which governed the conduct of the chamber. So too,

however, did instructions from England. La Trobe was given firm advice on what bills

would or would not be permitted. In this he was advised that he was to work with the

R E P R E S E N T A T I V E S 0 F T H E P E 0 P L E 2]

Legislative Council "With whose advice and consent you are empowered and autho­

rised to make Laws for the peace, welfare, and good Government of the said Colony".

La Trobe was admonished to "Maintain the integrity of the Acts". He was not to impose

religious discrimination. He was not to permit divorce. He was not to introduce bills

of credit or paper currency. He was not to permit lotteries. He was not to permit any

bill with a life expectancy of less than two years. He must protect the Queen's pre­

rogative. Fines must be used solely for the colony or for the Government. All "bills

which are extraordinary or unusual, or require special consideration, or which affect

property, credit or dealings with non-resident English subjects" must be reserved. Bills

brought before the Legislative Council were therefore subject to a three-tier assess­

ment process: first in the Council; then with La Trobe; and finally, if necessary, with

the Colonial Office51•

The Council slowly got underway and began to learn the ways and means of passing

bills and engaging in debate. In the first weeks of the session, the chamber generally

sat between 3.00 p.m. and 7.00 p.m. Beginning with discussion of the 1852 estimates

on 26 November 1851, and the introduction of the Appropriation Bill on 23 December

1851 , sitting days began to creep into the evening. Excluding the ceremonial days of

11, 12 and 13 November 1851, the shortest day of the session was 20 November 1851

when the chamber sat for one hour, twenty minutes; the longest day was 22 December

1851 when the Council sat for nine hours, twenty minutes.

Twenty-three bills were introduced in the Legislative Council's first session. Of these,

15 were passed and assented to by La Trobe. Three lapsed in the Council, three were

withdrawn, one was disposed of by deferring consideration for "six months hence" and

one negatived on the Third Reading (Appendix B). The first bill was A Bill to Interpret

and Shorten the Lanouase ?fActs ?f Council introduced by the Attorney-General on 18

November; it passed the third reading on 19 December, and was granted Royal Assent

on 24 December 1851. None of the 18 government bills were introduced by message.

Stawell introduced ten bills, Solicitor-General Barry had carriage of seven, and

Auditor-General Ebden introduced one, the Appropriation Bill. Private members intro­

duced five bills, four of which lapsed.

The bills where utilitarian measures concerned with such matters as the adminis­

tration of justice, gunpowder safety, property conveyancing, postage, scab and catarrh

28 A BI.ENU Fll 1-!0USL

AN ACT

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in sheep, licensing of public houses, postage

rates, and gambl ing and the use of obscene lan­

guage. It was all essential legislation, mundane

but necessary for the smooth running of the

new colony. There is a sense in all this of a leg­

islature feeling its way, of a chamber learning

how best to build a society .

Several important measures were passed.

An Act to Interpret and Shorten the Language of Acts of Council, 1851

The Administration rj Justice Bill which estab­

lished the Supreme Court ofVictoria was read

for the first time on 19 NoYcmber 1851 and

assented to on 6 January 1852 as the Supreme

Court (Constitution) Act. The UnauthoriLccl Mining

on Waste Lands Restri ct ion Bill, which attempted

to regulate trespassing gold miners on Crown

land was also assented to on 6 January 18 52.

And as noted above, Victoria's first Appropriation

Bill was introduced on 23 December 1851 and The first act of the Legislative Coun cil assented to on 31 December 185 I as An Act For

applying cerwin Sums arising ji-om the ReFenue

receivable in th e Colony ofViCLoJia w the Scrl'icc there~rfar the Year One thousoncl eight hun ­

dred and j!Jty-two, andJorjimher appropriating th e said Revenue 12. Discussion of the esti ­

mates of ways and means for the forth com ing year establi shed a pattern that was

repeated during each session of the Council: as noted above, once the estimates were

introduced, sittings of the chamber lengthened as members sought to undei-stand and

refine the estimates and, through them, the budget . Another important act established

a National Board of Education.

As well as debating and passing bills, members were also appointed to select

committees of which 11 were formed in the llrst session (Appendix C). The first

four committees focussed entirely on Legislative Council matters: the reply to the

Lieutenant-Governor's opening speech, standing rules and orders, the library, and on

elections and qualifications. The decision on 14 November 1851 to form a Library

Committee, the thin! select committee form ed in Victm-ia, ultimately led to the foun ­

dation of a parliamentary library. Other committees were concerned with steam eo m -

R ~- P K F S E N T A T I V t S 0 f T H t I' 1·. 0 I' I E 29 03·-

munication, roads and bt·idges, em igrant ships,

stock impounding, harbour masters, gold and

the Melbourne Gas and Coke Company. Again,

this was all the routine business of a pioneer

legislature: ships had to be berthed, roads and

bridges built, st1·ay stock impounded, and con­

trols placed on the extraction of gold.

Speaker Palmcr had control of (kbate. The

Argus was astonished that he had been appoint­

ed to the position. For if some judged him "an

accomplished scholar" with a "highly cultivated

intellect"5l. others held him to he "one of the

most self-willed and stubborn men that ever

ex isted on the surface of the g lobe"54 . An "Old

Tory", he brought to the position "a classic,

florid, though often over-laboured sty le"".

There was amused speculation among some of Supreme Court (Constitution) Act, 1852

the new councillors as to how their Speaker would dress. Sure enough, he entered St.

Patrick's Hall in "a plain quaker- like hut much braided coat". He caused further mirth

whenever a procedural issue was raised, for he could be seen leafing through Erskinc

May's Parliamentazy Practice, searching for precedents; it prompted 0 'Shanassy to tell

all and sundry that May had "taken definitive possession of Palmer's hrain"1(; _ Indeed,

the'Town Clerk of Melbourne, \1\lilliam Kerr, took to sitting in the gallery and, spying

Palmer searching for procedural guidance, would send him hastily scribbled notes of

advice. Yet as 'Nestgarth was the first to admit, "vVe were all, confessedly, terribly raw

in all matters of Parliamentary form" 57 . Kerr himself was blunter. They were, he said,

"a motley group" 5s.

Palmer was assisted significantly by Clerk of the Lcgislati\T Council , John Barker.

As well as maintaining the official reco rd of ,·otes and proceedings, Barker also pro ­

vided such procedural advice as Palmer was prepared to accept. Barker had won a not

entirely-accurate reputation f(Jr getting his priorities right when, as the f'irsl pastoral

occupant of Cape Schank and during a fire \vhich destroyed his homesteau, he hau

30 A 11 L E N D E D H 0 U S E

rushed into the conflagration to rescue a barrel of brandy.

Heroism aside, Barker was an earnest and hard­

working officer of the house. He "took bravely to

his duties", said \"'estgarth, "and soon became a

useful referee"' 9. Over time he earned a repu­

tation for being a workaholic who dedicated

himself solely to the workings of the

Legislative Council.

Barker was supported by a C lerk­

Assistant, a Ser·jeant-at-Ar·ms (macclcss until

1856), a Clerk of Papers, a housekeeper and a

small staff of sessional messenger-s and door­

keeper s. A notable member of Barker's staff was

Clerk of Papers Edmund Finn who, under the

lames Frederick Palmer (1803-71)

pen-name

"Garryo,vcn",

won fame for his

published recollections of Port Phillip's early

days. Clerk of the Executive Council, George

Rusden, was another who became well kno1v11

as the author of the first History ~I Australia

( 1883), (a work of arch-conservatism that

provoked Alfred Deakin to label it "as untrust­

worthy as a partisan pamphlet well can be

without deliberate dishonesty"). But for the

moment he was an inspired billiards player

whose Tory pronouncements and affectations

caused him to be labelled "a walking West­

minster Abbey"60.

Palmer's and Barker's difficult tasks were

complicated by the inexperience of members.

There was "a want of knowledge of the mode

Spea ker's Chair, 1851-56

Parliament of Viccoria

REPRESENTATIVES OF THE PEOPLE 31

of conducting business""1• Members had to learn the standing orders and manners of

a legislative chamber. Members also had to learn how to give speeches and present

their arguments. Debate was fuelled not by overt reference to political differences or

matters of principle, but rather by a culture of complaint. The accepted style was to

carp about the government, its policies, and La Trobe. "Politics", wrote one contem­

porary with conservative leanings, "then seemed to consist solely of abusing the gov­

ernment, denouncing the squatters, and patting the diggers on the back"62 • The need

to offer alternatives appeared, if at all, as after-thoughts. Members struggled to debate

issues being unused either to public speaking or to marshalling arguments.

All of this took place in a draughty hall that appeared on some days to be almost

empty and on other days to be filled with members and their friends who lounged on

the opposition and government benches watching, chatting and doubtless offering

advice. Only during divisions did standing orders insist that such "strangers" vacate

the chamber proper. Members therefore had to speak across an undertone of con­

versation and movement, and such other constants as Fawkner's hacking cough,

O'Shanassy's thick Clonmel brogue, Rutledge's tangential speeches, Ebden's affecta­

tions (he once provoked mirth and disgust in equal measure when he murmured that

he "feared" he was about to become "disgustingly rich"63) and William Campbell's

furious outbursts.

Fawkner was sui aeneris. He very quickly won a reputation for speeches that were

often intemperate, frequently irrelevant and always long-winded. Many members

acknowledged Fawkner's commitment while simultaneously groaning when he leapt

to his feet on points of order or launched off into yet another circumlocutious speech.

When he spoke, opponents tried to distract him by calling "Chair, Chair!". He would

shout back "Stool, Stool!"64 .

Only Stawell compelled attention. "The natural graces of his unstudied elocution",

wrote one devotee,

the purity rf his classical diction, the lucid arranaement rf his perspicuous arouments,

and this readiness in reply or in combatin9 interruption satiped me at an early date rf his surpassin9 aptitude for his position rf Attorney General65

•

Stawell was "a deuced clever fellow", always moving things along, prodding members,

articulating government policy more clearly than his opponents could ever refute it,

persuading La Trobe, and in many ways holding the government together. It has even

32 A BI,ENDED HOUSE

been claimed that the Legislative Council "often adjourned its proceedings if he were

detained in court or was for some other reason unable to be present"66.

Debate thus lurched from complaint to indifference. Sir Charles Nicholson,

Speaker of the New South Wales Legislative Council, was driven to remark after a visit

to St. Patrick's Hall that "prepared as he was to find a crude spectacle, he had never

imagined an assemblage of such helpless incompetency'"'7• There was, however, one

issue which suggests that deeper political impulses were sometimes at work.

On 26 November 1851, as the Council was about to resolve itself into a committee of

the whole to consider the "Estimates and Probable Expenditure for Victoria for the

Year 1852", Henry Miller moved as an amendment that

It be an Instruction from this Council to the Committee, not to vote from the General

Revenue any sum for additional Expenditure caused by the discovery if Gold Fields in

the Colony ifVictoria68.

This was a calculated challenge to the government's fiscal authority.

In colonial Victoria, a distinction was drawn between General Revenue, which fell

under the purview of the Legislative Council through the estimates and annual appro­

priation bill examination and approval processes, and the Territorial Revenue, or rev­

enue derived from the sale and use of Crown lands which included monies raised from

the imposition of licence fees on gold miners. The Territorial Revenue was controlled

exclusively by the Executive Council, which in essence meant La Trobe.

The government insisted that revenue obtained from gold by means oflicence fees,

a form of direct taxation, was a product of Crown lands and therefore contributed to

the Territorial Revenue. The government further insisted that it was not subject to

supervision or direction by the Council and that general colonial expenses must be

met from the General Revenue. Miller's amendment therefore directly addressed a

matter that irked anti-government members. In essence, the Crown raised revenue

from licence fees which was then placed in the Territorial Revenue, but the Legislative

Council had to vote funds for the prmision of all physical, regulatory and social infra­

structure necessary for the management of the goldfields which, insisted La Trobe and

his official nominees, had to drawn from the General Revenue.

R E P R E S E N TAT I V E S 0 F T H E P E 0 P L E 33

The Council tV~-ice divided on Miller's amendment: first on whether the question

should be amended; second on whether the amendment should be endorsed. Although

the government held firm and voted as a bloc, it lost both divisions 19 votes to ten.

And although La Trobe was not obliged to listen to the Council or take any notice of

such a vote, it was nevertheless the government's tlrst major loss to the Council in the

1851-52 session.

Against discussion over the General and Territorial revenues, and with public anger

mounting at proposed government changes to the cost of monthly licence fees in

December 1851 the government abandoned its plan to double the licence fee to £3

per month - the official nominees, and especially Stawell, made a tactical error. On

4 December 1851, five sitting days after Miller's amendment, Stawell introduced into

the Council a 'K:Israncy Act Amendment Bill, read a first time on 11 December 1851.

Innocuous enough on the surface - ostensibly, the bill was intended to eliminate

vagrancy -the bill in fact made no distinction between vagrancy and gold mining. It

was a barely concealed attempt by the government, now being attacked for goldfields

mismanagement, to be seen to doing something to control the goldfields. Political

enemies joined to call the bill ambiguous and unnecessary; Fawkner threatened the

Council's first filibuster69 (or deliberate obstruction of chamber work by endless

speech). Following committal of the bill on 22 December, the committee recom­

mended that the bill be withdrawn. Faced with now overwhelming opposition Stawell

had no option and so, on 23 December 1851, withdrew the bill. It was a major loss to

the government, not least because it demonstrated to the disparate opposition that it

was possible to defeat the government.

Then, on 12 December 1851, the day after Stawell introduced his Vaarancy Bill to

the Council, James Johnston, who had a "strong aversion to La Trobe"70 and was much

given "to pungent snapping at the heels of the nominees"71, placed a lengthy motion

on the Notice Paper. The motion was concerned with management of Crown lands

and again raised the issue of which body should control revenue derived from the gold

fields- the government or the Legislative Council? What especially galled legislative

councillors was the inaccessibility of the Territorial Revenue in general, and what was

known as the Land Fund in particular. Territorial Revenue was divided into a Land

Fund that could be expended by the government, and an Immigration Fund that under

Colonial Office instructions was used to support assisted immigration. IfVictoria was

~---------------------···-···-·····-·

34 A B L E N D E D H 0 U S E

independent and self-governing, asked Miller and Westgarth and O'Shanassy, why

could the legally-constituted legislative body neither access nor use this component of

the revenue? Johnston's motion proposed that an Address be sent to Her Majesty seeking

Legislative Council control of the Land Revenue. Debate took place on Tuesday, 16

December 1851.

Johnston's position was

That the revenue accruingjrom the sale and occupation cif the Waste Lands cif the Colony

... is in reality the property cif the colonists, and ought consequently to be subject only

to the appropriation and control cif the Colonial Legislature.

He continued: "That the retention of the droits [revenue} of the Crown simultaneously

with a reserved Civil List, is an anomaly in the British Constitution unknown, except in

the Australian Colonies"72 • This was a direct attack on a government over which the

Council had no power. It therefore followed, argued Johnston in Paragraph Three, that

the Administration cif the Waste Lands cif the Colony, and cif the Territorial Revenue

thence arising, is as unsatiifactory to the Colonists as the reposing such Junctions in

Officers in whose appointment the Colonists have no voice, and over whose actions they

have no control, is unjust and unconstitutionaF3•

As a result, "the appropriation of the Land Fund should be vested in the Legislature of

the Colony". The example of Canada, which was treated differently in this regard from

Victoria, was cited, an address proposed, and a select committee recommended to

prepare the address.

With the exception of Paragraph Three, the Council was unanimous in accepting

the motion. Certainly there was an amendment: the term "droits" was amended to

"Crown Land Revenues" and the proposition added that Victoria could fully fund its

own Civil List (implying that such a public service could then be brought under the

supervision of the Council). Only on Paragraph Three was there a division, with the

Solicitor-General, the Melbourne democrats and such squatters as Splatt voting for

retention, and Lonsdale, Stawell and Ebden, Snodgrass and future Chief Secretary

William Haines, voting against. Paragraph Three was therefore lost. La Trobe duly

despatched the Legislative Council's address to Whitehall seeking control of all rev­

enue associated with the colony and, by extension, for full control of the public service

and public affairs of the colony.

R E P R E S E N T A T I V E S 0 F T H E P E 0 P L E 3.)

Debate in the Legislative Council might have been haphazard, but the three losses

experienced by the government- estimates committee instruction; Vaarancy Bill; and

control of the Territorial Revenue -- were severe reversals. Indeed, the three debates

appear to be making a claim of sorts for full independence and even, in the desire for

autonomy, for responsible government. They can also be construed as votes of no­

confidence in the government, even if they were not so interpreted at the time. Yet if

the underlying motives were sophisticated and the Council had out-manoeuvred the

government, Victoria's pioneer colonists were left with the impression that the opposi­

tion victories had been won not by force of argument but from an opportunity for

such unlikely political bedfellows as urban and squatting representatives to combine

their different complaints against the government. The squatters wanted their runs

protected; the urban liberals wanted better management of the gold fields and more

expeditious use of revenue for public works.

This left colonists unsure about the merits of independence and uncertain about

their legislature. The opposition could not defeat the government on the floor of the

chamber in general debate. Only by motions such as Johnston's was it able to exert

pressure on the executive. Put another way, the "blended house" necessarily created a

distinction between the elective and non-elective members that reinforced rather than

bridged differences.

At 1.30 p.m. on 6 January 1852, 11 weeks and 34 sitting days after it first met, La

Trobe prorogued the Legislative Council. "His Excellency then left the house followed

by his suite. The members also took their several departures, and thus ended the first

session of the first Legislative Council of the Model Colony"74• The session left

colonists with a sense that the government, especially in the person of La Trobe, was

unable to control the Legislative Council, while the Legislative Council was unable to

carry a debate or promote measures designed to assist Victorian settlers.