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I request that the thesis be withheld from any use w oever for ......... years from this ri (c) date but I agree that a Committee consisting of e Librarian and the Chairman of the Academic Board or their nominees, and the propriate Head of Department, may upon request, and after consultation with in the Committee's opinion I am reasonably available, make the thesis availab or research or private study (not including copying) under such conditions as the mmittee thinks fit. (d) I request that eld from any use whatsoever for a period in excess of three years an .... years from this date but I agree that a Committee consisting of t hairman of the Academic Board or their nominees, and the rtment may, after consultation with me if in the Committee's · · · may determine the right of acces.s 3. Must be completed by an author who selects option 2(b) or 2(c) above 4. An author who selected option 2(d) above must attach a submission (maximum of one A4 page) outlining the reasons for his/her request. 5. I agree to my thesis being microfilmed by University Microfilms International and an abstract (maximum 350 words) being pu 'shed in Dissertation Abstracts International subject to adherence to my declaration i . · '"'-,.;~· ___ 6. Signature of candidat ........... ............................... Date ......f.cl:f..~ .... * a non detailed statement may be attached if insufficient space here Of the people, by the people, for the people: Law-making in New South Wales, 1843-1855. Kerry Fraser Mills M.A. LLB. (University of Sydney) A thesis submitted for the degree of Doctor of Philosophy of the University of New England November 2006 Certification I certify that the substance of this thesis has not already been submitted for any degree and is not currently being submitted for any other degree or qualification. I certify that any help received in preparing this thesis, and all sources used, have been acknowledged in this thesis. ' ./ ' ~ ............................... Signature Abstract This thesis examines a central issue of Australian history, using an historiographical model developed by British scholars. Historians exploring developments in Great Britain in the first half of the nineteenth century generally agree that modem methods of government and of conducting parliamentary business emerged there during that period. Some emphasise historical forces as the explanation for change, others the impact of ideas. Insofar as Australian historians have written about such issues, they have paid little attention to methods of government and the creative uses of authority in New South Wales. A core problem for tlus thesis has been to consider how closely developments in mid­ nineteenth-century New South Wales followed those in Great Britain and, in the process, to consider what ~olonial governments and legislators actually did in the field of law-making, especially in the 13 years leading up to the commencement of responsible government in 1856. While much was adapted from British experience in terms of legislative precedent and methods of government, New South Wales was no mere replica of its parent. The willingness of early "conservative" legislators to experiment in a creative and radical manner led to a period of dense and impressive social reform in the late 1840s and early 1850s. Between 1843 and 1855, after the establishment of a partly elected legislature but before responsible government, increasingly potent methods of introducing public opinion and public accountability into the b1,1siness of law-making were being perfected in New South Wales, petitions, the press and, especially, select committees of the legislature, all playing a part. At the same time, a growing emphasis was placed on the need for expertise in government and the public service, especially by adherents of utilitarianism. This study reveals a period of tremendous legislative and, even, nation-building effort which provided a strong launching pad for responsible government. However, the introduction of that form of government was itself followed by something of a legislative denouement, the factionalism that accompanied the triumph of the liberal democrats and overwhelmed clear utilitarian priorities militating against the passage of all but ? few landmark reforms in the parliament's early years. 1 Acknowledgments From the beginning of this journey, my principal supervisor, Professor Alan Atkinson, has been a constant source of encouragement and support and has urged me on when I faltered. His critical and expert examination of the evolving text, acute observations and suggestions have been invaluable. I cannot thank him sufficiently for his guidance, patience and tact over several years. I thank the New South Wales Parliamentary Counsel's Office for the loan of statutes and texts. I also acknowledge the assistance that I have received from Fisher Library at the University of Sydney, the Mitchell and State Reference Libraries in Sydney, the City of Sydney Archives and Clayton Utz, solicitors, the successors to the legal practice of G.R. Nichols, the City of Sydney's first solicitor. I especially thank the unfailingly patient, helpful and expert staff of the Dixson Library at Armidale. My special thanks are also due to Robert Lawrie, Manager of Parliamentary Archives at the Parliament of New South Wales, who has made the legislative journals and records at his office freely available to me. On a different plane, I wish to acknowledge the debt that I owe to many members of the New South Wales public service who have inspired me over my working career by their professionalism, dedication and capacity for sheer hard work. In particular, I must mention the late Frank Hayes, a former Principal Parole Officer, the late Bruce Penman, a former Public Solicitor, Hugh Roberts, a former Crown Solicitor, the late Don Johnstone, a former Director of National Parks, Dennis Murphy, a former Parliamentary Counsel, and Don Colagiuri, the present incumbent in that position. Lastly, I thank my friends for their support. Wendy Relton, who taught me history at school, has read several chapters as has Cheryl Cordery. Cheryl and Mary Webster have been generous with their time and·expertise in assisting me with the formatting of the thesis. Above all, I owe my profound thanks and gratitude to Dianne Pease who has borne the principal responsibility of caring for our farm and garden without complaint for several years while I beavered away with books. Dianne has stoically endured my absences for research purposes and my sloughs of despond when things were not going to plan. Without her constant, unselfish support and encouragement, this project would have been abandoned long ago. 11 ~~~ ------------------- Contents Introduction 1 Chapter 1 The birth of the modem state 18 Chapter2 Setting the scene 42 Chapter 3 From the first elections to the departure of Governor Gipps, 1843-1846 65 Chapter4 The fourth council and public opinion; 1843-1846 92 Chapter 5 The fourth council and Govero.or FitzRoy, the early years, 1846-1848 112 Chapter6 The fifth coun<;il, 1849-1851 134 Chapter? The sixth council and tb,e Sydney Corporation 160 Chapter& The sixth council and public health and sanitation 182 Chapter9 The sixth council and law and police reform 201 Chapter 10 The Constitution of 1855-56 and beyond 221 Chapter 11 Aftermath 245 Conclusion 258 Appendices 267 Bibliography 302 111 Abbreviations ADB Australian Dictionary of Biography. The letters ADB are followed by the number of the volume, e.g., ADB, 2. co 201/ Colonial Office: New South Wales, Original Correspondence, 1849- 1860 (Australian Joint Copying Project) (Dixson Library, University of New England microfilm) HRA Historical Records of Australia. The letters HRA are followed by the number of the series and the number of the volume, e.g., HRA, 1, 23. JRAHS Journal ofthe Royal Australian Historical Society ML Mitchell Library, Sydney JNSWLC Journal New South Wales Legislative Council PRNSW New South Wales Parliamentary Record, 1824-1856 SMH Sydney Morning Herald SRNSW State Records New South Wales V&PNSWLA Votes and Proceedings of the New South Wales Legislative Assembly V&PNSWLC Votes and Proceedings of the New South Wales Legislative Council (before 1856) Appendices Membership of the fourth legislative council 267 Fourth council-bills initiated by government and elected members and summary of bills in fourth council 273 Membership of the fourth legislative council 278 Fifth council-bills initiated by government and elected members and summary of bills in fifth council 285 Membership of the sixth legislative council 287 Sixth council-bills initiated by government and elected members and summary of bills in sixth council 297 lV Portraits Richard Windeyer 74 George Robert Nichols 137 Henry Parkes 172 William Montagu Manning 194 William Charles Wentworth 227 The first executive council under responsible government 249 Tables Legislation enacted by first three councils 1824-1843 64 Legislation between August 1843 and December 1855 256 Legislation between May 1856 and November 1864 257 V Introduction Introduction This thesis is concerned with law-making in New South Wales in the middle decades of the nineteenth century.