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1891 AUSTRALASIAN FEDERATION CONFERENCE
- DEBATES - MARCH 2
- DEBATES - MARCH 3
- DEBATES - MARCH 4
- DEBATES - MARCH 5
- DEBATES - MARCH 6
- DEBATES - MARCH 9
- DEBATES - MARCH 10
- DEBATES - MARCH 11
- DEBATES, - MARCH 12
- DEBATES - MARCH 13
- DEBATES - MARCH 16
- DEBATES - MARCH 17
- DEBATES - MARCH 18
- DEBATES - MARCH 24
- DEBATES - MARCH 31
- DEBATES - APRIL 1
- DEBATES - APRIL 2
- DEBATES - APRIL 3
- DEBATES - APRIL 6
- DEBATES - APRIL 7
- DEBATES - APRIL 8
- DEBATES - APRIL 9
- DELEGATIONS FROM COLONIES
- INDEX TO DEBATES
- APPENDIX. COMMONWEALTH OF AUSTRALIA BILL 1891
- INDEX TO SPEECHES
Content Window1891 Australasian Federation Conference
The text of this document has been electronically scanned from an original print copy. Freedom from errors or omissions cannot be guaranteed.
[Continue page 534]
WEDNESDAY, 1 APRIL, 1891.
Commonwealth of Australia Bill-Adjournment.
The PRESIDENT took the chair at 11 a.m.
COMMONWEALTH OF AUSTRALIA BILL.
Debate resumed (from 31st March) on motion by Sir Samuel Griffith:
That the draft bill to constitute the commonwealth of Australia, brought up by the Constitutional Committee, be referred for the consideration of a Committee of the Whole Convention.
Mr. WRIXON: I desire to ask the attention of the Convention for a short time to the consideration of this bill before it goes into Committee. I think that is the best course to shorten proceedings and to save time, for I have generally found in parliamentary procedure that where a bill is allowed to go without discussion on the second reading, on the understanding that it is to be discussed in Committee, more time is lost than saved. I wish to point out certain features in the bill which I should be glad to see amended; and I prefer to give notice of the points upon which I think the bill requires amendment rather than bring them forward at a moment's notice when we are in Committee I desire to say that I think our thanks are due to the Constitutional Committee that has so carefully and ably discharged its duty in framing the principles of the bill, and are also due to my hon. and learned friend, Sir Samuel Griffith, for the effective manner in which he has embodied those principles in the bill. So much am I impressed with the value of the bill as it stands, that if I could get no other form of federation than this I would be prepared to take it even as it stands. But, nevertheless, I think there are certain points in which it requires amendment, and which it behoves us to endeavour, if possible, to get amended; because we must observe that when we go back to our different provinces we hope to get the bill adopted in those provinces, and adopted without further amendment on their part. It is, therefore, very important for us to see what principles we settle upon here. Also I notice, on referring to the bill itself, that whenever it comes into operation it will be exceedingly difficult to amend it. There must be an absolute majority of the dominion parliament in the first place, and then there must be a vote of conventions. in all the states, giving a majority thereto in each separate state, before any amendments can be made in the bill. We, therefore, are engaged in a very serious matter, and it behoves us to look carefully to the principles of the bill of which we are asked to approve. I think the plan of the bill is good. I think it carries out what we agreed to in certain resolutions in the Convention. It is not proposed by us, and it is not proposed in the bill, to make a unified government. Certain powers are given to the federal parliament which are specified in the bill, and everything outside those powers is left under this scheme of constitution to the states. That is the scheme which we have had before us, and that is the scheme embodied in this bill. I do not think there need be the slightest fear on the part of those who represent states-I do not think there need be the slightest fear as far as that portion of the bill goes-of the rights [start page 535] of the states being entrenched upon. The different subjects which the federal parliament is to legislate upon are carefully specified, and I think it would be hard, in going over the list, to point out any topics which do not properly belong to the federal parliament. If, however, there are any, if any hon. member of the Convention thinks there are any, that, of course, will be matter for full consideration in Committee, and we can eliminate any power which we do not think ought to be given to the federal government. Therefore, so far, I think the bill faithfully carries out our view, and may command our approbation. But there is a portion of the bill, namely, the latter portion, which is devoted to the states, chapter v, headed "The States,"
which seems to me to depart from this principle upon which we have agreed, and to interfere with the states in a manner not consistent with a unified government. For example, I find in chapter v, a provision arranging for the states having power to appoint or elect their own governors. Now, I am not aware of how that comes within our Convention, or of how it comes within the scope of this federal government which is not a unified government. It is not a matter concerned with our federation, it is not analogous to the case of Canada, where the different states were presided over by deputies appointed by the governor-general. Here are vast dependencies, whose position is not to be interfered with, except in regard to certain specified topics of legislation, and we axe asked to go out of our way and provide for them power to elect their own governors. That seems to me an instance of our gratuitously interfering with what is the business of the states, and importing into our task-which, I am sure, is difficult enough already-a new difficulty. I doubt whether a majority of people will approve of this proposal to enable us to have an elected governor, with the system of responsible government known to the English Constitution. I do not see how the two would very well work. An elected governor would, no doubt, be the most powerful politician whom his party could produce, and they would take care to run-as the American phrase is-for this office of governor the strongest political man that they could get. That is all very well if you are in America, and if you are dealing with the American form of constitution; but if you are going to have the English form of responsible government, I do not see how the two would fit together. It seems to me a genuine case of putting new wine into old bottles. I apprehend that under such arrangement the vast prerogatives of the Crown, and they are very vast, would revive and become a reality in this prominent politician who would be in the governor's chair, and who thus would not merely reign, but govern. He would naturally feel bound by a spirit of allegiance to the party who put him there, so that if he had a ministry for the time belonging to another party I apprehend, without any imputation on his honesty, or the slightest reflection on his general integrity, that he would be very apt to lean towards facilitating the party to which he belonged rather than the party of his responsible ministers. In truth, the two things are incompatible, and if you mean to keep up the English Constitution, you had better not take the American system of electing governors. I merely point that out to show the difficulty you have when you go out of your way to interfere in a matter which seems to me not within our function, and which is a matter entirely for the states to determine as they think proper. Another point in which it seems to me that this bill departs in chapter V from the principle with which it started is where it provides that all references to the Queen from any province or state must be made through the [start page 536] governor-general. That would be very well if you had a unified government; but with our vast territories, with our vast states, I apprehend it would be found highly inconvenient. Suppose, for example, that the attorney-general in any state desired to convey advice to her Majesty-that would, of course, be to her responsible adviser at home-with regard to any bill which was in the province, or with regard to any proceeding in which the province got involved, he would be in this somewhat awkward, and, I think, humiliating position, that he would have to send his advice and all his papers through the governor-general of the dominion. That seems to me to be going out of our way to unify, contrary to the principle on which we started in the bill, which is not to unify, but to pick out certain matters which we give to the federal government, and as to the rest to leave the states untouched. Another power which, I think, transgresses the principle on which the bill starts, and which is also contained in chapter v, is a power given herein to the federal parliament to annul the state laws in certain cases. That seems to me a very serious power, and an inadvisable one. If the state law has exceeded its functions, there is no need to annul it, because it is void in so far as it goes beyond its functions, and any person affected by it can raise the question in any court, and have it determined by a competent legal tribunal, whether or not the law which the state has passed is within its functions. That is the course taken in the United States. A state there may pass a law which it is quite incompetent to pass, but the central government never thinks of annulling it, or of interfering with it, but leaves it to the operation of the law, and that is found to work satisfactorily. If a law touches and affects nobody, no harm is done; if it does touch or affect anybody he can go to a competent tribunal and have the law declared invalid; but in this case, if we retain such power as this, we shall put the federal parliament in the position of sitting as a sort of master over the provincial or states parliaments, and taking on itself to judge whether or not a law should be annulled. I think this is a case in which we are exceeding our power, and are departing from the principle with which we started. I think also that the provision contained in another part of the bill, enabling the federal
parliament at any time to confer with regard to any matter original jurisdiction on the Supreme Court, and thereby to oust the jurisdiction of the states courts, is exceeding the lines which we have sketched out for ourselves, for at any time we might find that the federal parliament would step in and take away some important function which the states courts had been discharging. No limit is placed to it-no bounds are assigned. I think that that is a case in which we are departing from the principle of not having a unified government. I am afraid, sir, that you will find, if we adopt these provisions, that not alone are you impairing the principle on which I understand we go, but you are creating a feeling of alarm in the states as to how far they are giving over their rights, privileges, and liberties in submitting to this federation. Therefore, to that extent I would be happy to see the bill amended, and I would be glad if those in charge of the bill would consider these points before we get into Committee, because I know from experience how unfair it is to any one in charge of a bill to start points and endeavour to make amendments at the legislative table; nothing can be more unfair. If amendments are to be made, they ought to be made on deliberation and consideration, and I therefore hope that this view which I have presented will be considered, and that the clauses which I have indicated in chapter v will not be insisted [start page 537] upon when we get into Committee. The next point to which I would ask the attention of the Convention is the question of state rights and finance. Hon, members, sir, are aware how this question arises. It is a very important question, and it is worth thinking over for a moment how we come to be faced with it. Of course it arises in this way: We have already agreed when the House was sitting in Convention to the principle of giving every state, however small, the same representation in the senate as has any state, however large. Thus Western Australia, with 40,000 or 60,000 inhabitants, has precisely the same voice in the senate with New South Wales, with 1,250,000 inhabitants. It thus becomes a very serious question what sort of body this senate is to be, because if you make the senate a very powerful body and give it a very controlling position, then most certainly you are providing for the government of the mass of the population by a very small proportion of the population, and the fact that they live in certain districts, or states, does not get over the difficulty. If you make the senate strong, you enable a few to govern the majority, and, in particular, if you give the senate a controlling voice in finance, you undoubtedly enable it to govern the government. For nothing is more certain under our English system of government, where you have the administration of the day in parliament, than that the legislative power which dominates finance will really control the government. Any of us may know that from our experience in our own province. We know what would happen if an upper house were able to control the financial operations of the government. And undoubtedly in this case of the senate, which will be a more permanent body than the house of representatives, and a more select body perhaps-, if you give the senate power over finance, you give to the representatives of the very few a great power over the government of the majority. That is the importance of this whole question. I sympathise with the efforts which the Constitutional Committee have made to get over this difficulty. I am quite aware of the difficulty which it presents, and I do not wish to pose as simply raising objections, and not being in a position to appreciate the question with which they had to grapple, and with which they grappled in the manner which hon. members see in the bill. They set out that money bills are to originate in the house of representatives, and they go on to make certain provisions which are limitations on the ancient rights of lower houses under the English system, but with which I quite agree, and which, are perfectly reasonable limitations, namely, that a tax bill is to be confined to one object, and that the appropriation bill is to be confined to the expenditure for the year; and then they go on to what we are asked to believe is to be a settlement of this financial difficulty between the two houses, and they provide, in a paragraph which is before hon. members, that with regard to those bills which the senate may not amend it at any time may send a message to the house of representatives asking it to strike out any particular item, and that thereupon the house of representatives may eliminate it if it likes. The difficulty which I feel about accepting this as a solution of the question is first the ambiguity as to the meaning of the clause, and secondly, the fact that it makes no provision for finality. As to what the clause means, I confess that that is undoubtedly a difficulty, and there cannot be a better proof of the difficulty than the fact that we ourselves here now interpret it differently. Of course it may be useful, I admit, if you simply want to get a thing passed, because in that light you can put the provision in two aspects. If you address a people's rights man you can say, "True, [start page 538] that provision is in the bill, but it means nothing; it is only providing that that may be done which may be done now. Any upper house may lay aside any bill, or mud a message down to the lower house, and request it to be amended, and if the
lower house chooses to amend the bill it may. Therefore, my people's rights friend, you need not be alarmed-it is nothing but the ordinary law." If, however, you want to satisfy a state rights man, it can be put in a different light. You can say, "The mere fact that this new provision is there shows that something is intended. This clause makes arrangements for the senate scrutinising the details of the estimates, which function does not properly belong to an upper house now; but it provides for so doing, and it provides the machinery for it objecting to any item of which it may disapprove. If the house of representatives will not accept that machinery, and will not act upon it, then, according to the plain meaning of this bill, the senate is entitled to fall back on its right to reject, and that not a right such as now belongs to upper houses-a right to be exercised in an extremity, but a right to be exercised in the ordinary vindication of its undoubted privilege under this bill to scrutinise items in money bills and in the appropriation bill." In fact, this power of rejecting in toto money bills, which is now only the occasional medicine of the constitution, under this bill will become its daily food, and whenever the upper house finds that the house of representatives refrains from respecting its wishes it is clearly entitled under that clause to throw out money bills altogether. The difficulty, I feel, is in our accepting as a solution a proposition which is two-faced, and which you may read in one way or in another way, reminding us, in fact, of what we learnt in our school days of the oracles of old, who, whenever they had to give a reply to some powerful potentate, whom it was disagreeable to offend, produced a reply in words which might be read in one way or in another way-in one way giving him complete satisfaction in regard to his wishes, and in the other way being quite contrary to his intentions. That is the sort of oracular deliverance-
Sir JOHN DOWNER: The words are clear enough!
Mr. WRIXON: But the meaning is not. I confess that at first when I read the provision I said, "Oh, that is nothing; it can be done now; we need not trouble about it."
Sir JOHN BRAY: Can it be done now?
Mr. WRIXON: Certainly.
Sir JOHN BRAY: In Victoria?
Mr. WRIXON: Unquestionably.
An HON. MEMBER: No!
Mr. WRIXON: Of course I do not say in so many words what is contained here, but the same result can be accomplished. The upper house may at any time lay aside a bill.
Sir JOHN BRAY: And send a message afterwards!
Mr. WRIXON: I do not say when they send their message.
Sir JOHN BRAY: The hon. member did just now!
Mr. WRIXON: It was a slip of the tongue. It is a matter of indifference to me when the message is sent. The point is that it can be done now under the ordinary parliamentary procedure in regard to any bill, and it has been done.
Colonel SMITH: Asking for a committee!
Mr. WRIXON: Asking for a conference, or for a committee. Apparently with a view of strengthening the state rights man's idea of this question, I notice in clause 54 that the old verbiage of all acts of Parliament, I think, with regard to money bills is dropped, and that they are not called money bills any more, but laws.
Mr. CLARK: Proposed laws!
[start page 539] Mr. WRIXON: No; it says laws-”laws appropriating any part of the revenue"-
Mr. CLARK: They are not laws until they are passed!
Mr. WRIXON: "Or laws imposing any tax"; and indeed it goes so far as, in clause 57, to fall into a manifest slip such as, of course, might occur in drafting any bill, because it says:
When a law passed by the parliament is presented to the governor-general for the Queen's assent.
Mr. CLARK: That is a slip!
Mr. WRIXON: Of course we all know that a bill is not a law until it gets the Queen's assent. But apparently with the object, I say, of strengthening the state rights man's view, and of showing that really some new power is to be given, these bills are called laws, which, I apprehend, is an inaccurate term. For example, in the case of an appropriation bill, the preamble shows that it is different from an ordinary law. Financial grants are grants by the mass of the taxpayers to the government: they are different from ordinary legislation, and they are subject to different conditions. If I could get nothing better, rather than see federation defeated I would take this bill. But I am bound to point out that I think we are only postponing the difficulty. I think we are creating a difficulty with regard to the large states, and to our getting the people of those states to assent to this bill. I think that if the bill is assented to, and should become law, you are only postponing the difficulty of this Convention to the federal parliament, and that the question will still have to be fought out as to what is the meaning of this clause, for undoubtedly a conflict of powers will exist. There will be the states-right party in the federal parliament anxious to make their weight felt, and there will be the masses of the people represented in the lower house anxious to govern, and in this clause I am afraid you only provide a platform for the fighting out of their differences. It is, in short, a cul de sac-leading nowhere. There is no solution. Therefore, I think that if you did retain this clause, the least you could do would be to add to it a proviso or sub-clause to the effect that where this did happen, that is to say, that where the senate sent down a representation with regard to a certain item, and the lower house would not eliminate it, the two houses should meet together and vote in common. You would then have some end to the question. At present there is none. You lead us up to a certain point and there you leave us. You guide the legislative bodies up to a point of antagonism and there you bid them good-bye. You ought to go further, and if you keep this method of procedure you ought to provide either for the two houses voting together, or, if you like, make a provision that after a general election the voice of the lower house shall prevail. That, of course, will not apply to the appropriation act, which must be kept separate, and which cannot afford to wait. The next point to which I ask the attention of the Convention is the establishment of constitutional government, and this is a question which I address rather to my learned friend, Sir Samuel Griffith, and to my other learned friends who may be here. There is a portion of this bill establishing constitutional government, and I think it was truly said yesterday that the effect of that portion would be to establish in this federation in its ordinary working responsible government. But the form in which ministers are to be appointed, I think, wants a little consideration, because it involves a very serious point. In clause 4 of chapter 11, page 13, it is provided:
For the administration of the executive government of the commonwealth, the governor- [start page 540] general may, from time to time, appoint officers to administer such departments of state of the commonwealth as the governor-general in Council may from time to time establish, and such officers shall hold office during the pleasure of the governor-general, and shall be capable of being chosen and of sitting as members of either house of the parliament.
Now, the point I wish to draw attention to is that I do not think the provision will convey to those officers thus appointed by the governor the great power and authority which, under the English system of government, belongs to a responsible minister of the Crown. That is something distinct from the position of an officer appointed to administer a department. My learned friends present will remember the remarkable case of Buron versus Denman, in which the captain of a ship of war had illegally destroyed certain property of a trader. After that had been done Lord Palmerston wrote a letter saying that he thoroughly approved of what the captain had done. An action was brought by the owner of the property which had been illegally destroyed, and it was held by all the judges at home that the mere fact of a minister of the Crown writing a letter expressing approval embodied the approbation of the Sovereign herself to that act, although it was admitted, of course, that she knew nothing whatever about it. That is a very great power, but it is a very essential power if you are to have every day government satisfactorily carried on. It is a vast power; but it is necessary that it should be given to a minister of the Crown under the system, and I am convinced that if the question were raised hereafter as to whether one of these officers appointed to administer a department really stood in the shoes, to use a common expression, of one of her Majesty's responsible ministers, the courts would hold that be did not. They would say, "Here is a statutory provision as to what the position is; nothing is said about responsible minister; nothing is said about minister of the Crown either. The officer is appointed to administer a department."
Mr. CLARK: Read the last line. The clause provides that the officers shall be members of the federal executive council!
Mr. WRIXON: It does not connect them with the Sovereign.
Mr. CLARK: It makes them ministers; it is done in Canada!
Mr. WRIXON: In Canada the act says ministers shall be members of the Queen's Privy Council.
Mr. CLARK: It is the same thing here!
Mr. WRIXON: I apprehend it is not the same. At any rate, the question has never been raised in Canada; but I think the question certainly would be raised here; and, according to my view, I think there can be little doubt but that the courts would hold that ministers so appointed did not inherit all the great powers of the Queen's ministers, and which powers are yet necessary for the carrying on of the government. If a few words will meet this point, I think it is most important that it should be met. I will now say a few words about the question of appeal to the Queen-in-Council. I observe that the bill provides practically that that appeal shall be taken away in all cases except where the public interests are concerned. That is practically the effect of the bill. I must say that I consider that a mistake. I do not think we should take away the right of appeal to the highest legal authority in the realm. It is said that this limitation of the bill is based upon the view which the Privy Council have taken of the proper reading of the Canadian act, and that it merely embodies that view. If that be so I would suggest that we take the terms of the Canadian act also, and leave the Privy Council, as they doubtless would, to take the same view of them. That would meet the difficulty. But as the matter stands you are in this position: you hold yourselves out to the [start page 541] world as saying that you will not allow an appeal to the highest legal tribunal in the realm unless there be some great public question involved. But there are vast industrial interests between England and these colonies; a vast amount of English capital is invested in these colonies, there are vast mercantile negotiations and businesses going on, intertwining one with the other, and I apprehend that the owners of capital and the projectors of business in the old country will view with anything but satisfaction a determination on the part of these colonies to prohibit them in the case of a conflict involving large interests on their part from having the opinion of the best judges in the land upon the question involved. I would here remark, with reference to the judicial part of the subjects that I observe an appeal is given by the bill to the federal court in criminal cases. That, with great respect, I think a mistake, and I should be glad to see the provision omitted. I am not aware that it has been asked for by any of the provinces, and the effect of an appeal to the federal court in criminal cases, seeing that the court might be sitting at uncertain
times, would necessarily be to cause great delay, and to give a great handle to persons who could command means in some cases to render it almost impossible to carry out the criminal law. I am aware of the popular and plausible argument, that when you give an appeal as to a small amount of property, you ought also to give it in regard to a man's life. To that I can only reply that the necessity of the thing is that the criminal law should be promptly administered, and I believe you will impede the administration of the criminal law, and not assist it, if you leave that provision in the bill. These are the principal points to which I wish to call attention at this staute. I notice that a point which was mentioned in the Convention, namely, that the federal government should have some power of controlling the railways of the states, so as to prevent a war of railway tariffs, has not been dealt with at all in the bill. It is a point that deserves attention, because if we are to have perfect freedom of trade between the different provinces it will be important to enable the federal government-
Mr. DEAKIN: It is in the bill. It comes under the general powers, chapter 1, clause 52!
Sir JOHN DOWNER: Look at clause 12, page 18!
Mr. WRIXON: If it is intended to cover that by the regulation of trade and commerce among the several states, a question might arise as to whether it is really covered by that provision.
Mr. DEAKIN: Then there is the other clause referred to by the hon. member, Sir John Downer-page 18, clause 12!
Mr. WRIXON: I am glad that the question has been considered, because it is undoubtedly an important point if we are going to have free-trade between the states. The language does not seem to me to be as precise and definite as could be wished, and it may be a matter for consideration in Committee whether we should not more definitely point to the question of controlling railway freights. So long as we are satisfied that the matter is dealt with, it will meet the views of the Convention generally.
Mr. ADYE DOUGLAS: That was not taken into consideration by the committee!
Mr. WRIXON: Several members of the committee seem to consider that it was, and certainly those clauses to which my attention has been drawn may possibly meet the case. They do not meet it expressly, but they may cover it. As long as it is intended to cover it, that is the important point. It is a mere matter of verbiage how we do it. There is another point I wish to refer to. I do not gather from the bill that the federal government [start page 542] will have sufficient control over the revision of the electoral rolls for its own electorate. There are clauses which give it power with regard to the conduct of the elections, but I think the federal government should also have the power of controlling and revising the electoral rolls, so as to be able to ensure the purity of the rolls by which the members of the federal parliament will be returned. It is a matter which I hope will engage our attention in Committee. There is only one other point which I will mention-it is perhaps more a matter of verbiage than anything else-that is, the clause which provides that a convicted criminal shall not be entitled to sit in the new parliament until he is discharged or pardoned. That is rather an unhappy clause. It is not a cardinal principle of the bill; but it is an unhappy provision, and I should be glad to see it omitted altogether. These are the chief points to which I will direct the attention of the Convention. I feel that at this stage the more we compress our observations the better it will be, so as to bring the bill as soon as possible into Committee, so that we may press it forward there with all reasonable speed. The subject is a great and a vast one; it is too great to allow of any small, petty, or provincial feeling intervening to cause delay or prevent our united wish that we may be able to make this bill as perfect as possible, so as to command the assent of the provinces and the assent of the people of the whole of this community. I think all our efforts will be directed to that end, and I hope the views I have suggested will have consideration, so as to avoid the necessity of making amendments when we actually get into Committee.
Mr. BAKER: I understand that it is the wish of hon. members, and I am sure it is my own wish, that this debate should be as short as possible. Therefore I am not going to address any remarks to any subject which I myself do not believe is of the utmost importance. I agree with a great deal that has fallen from the hon. member, Mr. Wrixon; but I do not intend to follow his example by criticising the whole of the bill, because I think it will shorten my remarks and meet the wishes of hon. members if I do not adduce any arguments which may be better adduced on matters of detail in Committee. There is only one point to which I will address my remarks-that is, our old friend, the question of state rights and state interests.
Mr. MUNRO: Our old friend? Old trouble!
Mr. BAKER: It may be our old enemy; but I look upon it as an old friend. We are sent here to form a federal government, and with all deference and humility, it seems to me that the bill which we are now discussing is not a bill to form a federal government. The quintessence of federation is left out, for this reason: that so far as the states themselves through their representatives are concerned, they will have no voice in matters of federal legislation. It is quite true that equal representation is afforded to the smaller states in the senate. But what is the good of equal representation in one branch of the legislature if you deprive that branch of the legislature of all its powers? I quite agree with the President in his disapprobation of paper constitutions. I hold that experience, wherever we can get it, is a far safer guide than theory, and we cannot in all federal questions obtain experience except from one or two countries. But we have in America a people practically of our own race, speaking our own language, brought up under the same circumstances as ourselves so far as political institutions are concerned, and we should be wanting in wisdom if we were to refrain from learning lessons from the experience which they have gained. I would first of all point out that according to the experience of America the [start page 543] federal constitution, although it is reduced to writing, yet is an exceedingly plastic document-that although the form may remain, the substance is entirely changed by the mighty force of human nature acting on political institutions. I crave leave of the Convention to give one or two quotations from two celebrated American writers in support of that proposition. Mr. Woodrow Wilson, whose name is very well known to all the members of the Convention, tells us that
there has been a constant growth of legislative and administrative practice, and a steady accretion of precedent in the management of federal affairs, which have broadened the sphere and altered the functions of the Government without perceptibly affecting the vocabulary of our constitutional language. Ours is, scarcely less than the British, a living and fecund system.
He tells us further on that
the central government is constantly becoming stronger and more active, and Congress is establishing itself as the one sovereign authority in that government. In constitutional theory and in the broader features of past practice ours has been what Mr. Bagehot has called a composite government. Besides state and federal authorities to dispute as to sovereignty there have been within the federal system itself rival and irreconcilable powers. But gradually the strong are overcoming the weak. If the signs of the times are to be credited we are fast approaching an adjustment of sovereignty quite as simple as need be. Congress is not only to retain the authority it already possesses, but is to be brought again and again face to face with still greater demands upon its energy, its wisdom, and its conscience-is to have ever-widening duties and responsibilities thrust upon it, without being granted a moment's opportunity to look back from the plough to which it has set its hands.
And Mr. Clason, in a book called the Seven Conventions," a history of seven of the most celebrated conventions in the United States, says:
Within less than a century the Constitution has become exactly what they who framed it and they who accepted it neither understood it to be nor meant it to be-a government of numbers by numbers for numbers, instead of a government by states for states.
Now, if these forces of human nature, to which I have referred, have had that effect in America, where the Senate, which was supposed to represent the states, has had not only all the power which the most strenuous advocate of state rights in this Convention wishes to give the senate here, but in addition has the great power and privilege of being one of the chief executive branches of the Government, has the power of making war and declaring peace-if the result has been in America that the central government has become stronger and stronger; if the government has become more and more government by numbers for numbers, and that the power of the states, as states, has constantly diminished in regard to federal matters what can we expect if we pass this bill in its present form? I cannot understand those hon. members of this Convention who are so exceedingly anxious to guard the rights of majorities. Why, majorities will always look after themselves. It is the rights of minorities that have to be considered. It has been stated that the best test of liberty in any representative government is: Are the rights of minorities properly guarded? We need not apply ourselves with any great assiduity to protect the rights of the majority, because the majority always will protect their own rights. It is absurd to say that the minority is going to rule. As far as I know, nobody in this Convention has ever set up the claim which it has been asserted in the newspapers has been made, that the minority shall rule the majority. I, for one, would not think of uttering such an absurdity. But it is a very different thing to claim the right to command and enforce obedience, and to claim the right to be consulted before a command is given. That is all we ask for-we who advocate the rights of the smaller states-that is all we have ever asked for. What I understand to be the contention of hon. members who represent Victoria is [start page 544] this: that all the powers shall be concentrated in one branch of the legislature.
Mr. DEAKIN: No!
Mr. BAKER: I think I shall show that that will be the ultimate result, that all powers shall be concentrated in one branch of the legislature, in which the majority, and the majority only, shall rule. What they claim is this: not government for the people by the people, but government by the people of Victoria and New South Wales for Victoria and New South Wales and all the rest of the colonies. That is what it comes to. If all the power is concentrated in one branch of the legislature, in which branch those two colonies, with their large populations, have a preponderant voice, that is what it comes to-government by the people of Victoria and New South Wales, not only for themselves, but also for the other colonies. A great deal has been said in the Convention and outside about these two great colonies not giving up their rights of self-government, the privileges for which they have struggled so long. I entirely agree with those sentiments; but are not the rights and privileges of the 350,000 people of South Australia as dear to them as the rights of the 1,250,000 people of New South Wales are to them?
Colonel SMITH: Their interests are identical!
Mr. BAKER: The hon. member says that their interests are identical. How does he know? If their interests are identical at the present moment, how can he tell whether in twenty or thirty years time they will be so or not? It seems to me that the plasticity of this constitution which we are asked to adopt will be manifested in a very short time, and that there are four causes which will operate to make the senate a mere dummy. First of all, there is the right of the initiation of money bills-and, as Mr. Wrixon says, finance is government and government is finance-and is it not an immense power to give to one house over the other that all financial measures shall be initiated in that house? And, in the next place, there is the refusal to allow the other branch of the legislature the alteration of money bills. That of itself is an immense power. Then when we come to the third point, that we are to have responsible government, the executive to be a committee of one house, what will become of the senate? Will the senate have any power?
An HON. MEMBER:-
Mr. BAKER: This bill does not say so. The hon. member, Mr. Munro, will admit that if we have a responsible form of government, which means that the executive shall obtain and hold the confidence
of one branch of the legislature, and of only one branch, that that branch will undoubtedly be the lower house, for this reason, if for no other, that that house has the control of the finances. If that is the constitution of the senate, what chance is there that men of character and position, to whom the President has referred, will seek to become members of the senate? Will not all the most experienced, all the most energetic men, all the most able men become members of that house which has the power concentrated in it? Is it likely that a man who has spent his life in directing the fortunes of the country, in controlling, perhaps, a turbulent legislature, will seek elevation to the senate, where there is really nothing to do except to register the decrees of the lower branch of the legislature? It seems to me that these four forces will actually make the senate perhaps even less powerful than some of the upper houses at the present time, and that is the reason why I say that the quintessence of federation is left out of the bill.
Mr. GORDON: It has a bias against federation!
Mr. BAKER: I understand that one of the great reasons which actuate the minds [start page 545] of the members of this Convention who desire to unduly, it seems to me, curtail the powers of the senate, is the fear of a deadlock. They say, "What is the ultimate solution in case the two branches of the legislature disagree?" Well, we know perfectly well that unless there is an absolute autocracy all forms of government are liable to deadlocks. The chance of deadlocks is the price we pay for our liberties; but how can anybody who has had experience in government in these colonies, where it is possible for a deadlock to occur any day, not only because of a conflict between the two houses of parliament; but even if the executive, the governor, or any other body exercise all the constitutional powers which are legally theirs, be afraid of a deadlock? We know very well that a deadlock is only obviated by the discretion of those who administer the government, and what right have we to suppose that there will be less discretion in both branches of the federal legislation than in our local parliaments? I would again ask to be allowed to give the result of experience in America in reference to this question of deadlocks. We know that no deadlock has occurred in America for 100 years, although the Senate there is the most powerful house, and although it has co-equal powers in every respect, except in the initiation of bills for taxation, with the lower house, and the reason for this is given by American writers. Mr. Woodrow Wilson, after making some preliminary remarks upon the subject, says:
But there is safety and ease in the fact that the Senate never wishes to carry its resistance to the House to that point at which resistance must stay all progress in legislation; because there is really a "latent unity" between the Senate and the House which makes continued antagonism between them next to impossible-certainly in the highest degree improbable. The Senate and the House are of different origin; but virtually of the same nature. The Senate is less democratic than the House, and, consequently, less sensible to transient phases of public opinion; but it is no less sensible than the House of its ultimate accountability to the people, and is, consequently quite as obedient to the more permanent and imperative judgments of the public mind. It cannot be carried so quickly by every new sentiment; but it can be carried quickly enough. There is a main chance at election time for it as well as for the House to think about.
It is put in another way by Mr. Bryce, where he says that the two branches of the legislature in America are both servants of the same master, whose will they must ultimately obey, and that that master is the sovereign people of America, And the master of both the houses of this commonwealth, if federation is brought about, will be the people of Australia. I do not care in what way you frame the constitution, the people of Australia will mould and modify it in accordance with their ideas and sentiments for the moment, although its outward form may remain the same. I will not detain the Convention any longer; but I must say that I am exceedingly doubtful whether, if this bill is passed in its present form, with such a weak, impotent senate, the smaller states of Australia can safely join the confederation. I would call the attention of hon. members to the wording of clause 54-I do not know whether it is intentional or not-on this very same question:
Laws appropriating any part of the public revenue, or imposing any tax or impost, shall originate in the house of representatives.
That means nearly every bill that is introduced. Almost every bill introduced either appropriates part of the public revenue or imposes a tax or impost. I know that in South Australia, where we have the same words as these in our Constitution, all the important bills, and four-fifths of all the bills, come under this category. It is quite true that in the next clause bills imposing a tax or impost are defined; but bills appropriating part of the public revenue are not defined. I do not know whether it was the intention to [start page 546] convey the same idea in both of these clauses; but it seems to me that they contradict one another. Clause 55 says:
The senate shall have equal power with the house of representatives in respect of all proposed laws, except laws imposing taxation and laws appropriating the necessary supplies for the ordinary annual services of the government.
That is quite contradictory to clause 54.
Mr. BARTON: No; it must be read subject to clause 54!
Mr. BAKER: If that is the intention, why not put it more clearly, and strike out, in clause 54, the words "any part of the public revenue," and insert "the necessary supplies for the ordinary annual services of the government "? There seems to me to be an inconsistency between the clauses, and this accentuates the point which I wish to make as to the exceedingly limited powers given to the senate powers which, in my opinion, make it incompetent to perform the duties of a federal senate, and to protect the interests of the states which ought to be confided to its care.
Mr. CLARK: There seems a disposition on the part of some members of the Convention to get into Committee as soon as possible. I have no wish whatever to take up the time of the Convention; but it has been thought by some members of the Constitutional Committee that at least one member of it ought to defend the bill against some of the attacks which have been made upon it by the two speakers who have addressed the Convention this morning. I had no wish whatever to take this particular task upon myself, and I very much regret that the chairman of the Constitutional Committee, Sir Samuel Griffith, was absent during the whole of the time that the hon. member, Mr. Wrixon, addressed the House; but, in his absence, I took a number of notes of Mr. Wrixon's speech. I concur with the hon. member, Mr. Wrixon, that it very often saves time in Committee to ventilate some matters of detail in general debate, so as not to spring amendments or objections upon hon. members in Committee. I listened with very great pleasure to the careful and intelligent criticism of the bill by the hon. member, Mr. Wrixon; and I think I may say for every member of the Constitutional Committee that we shall each and all be only too happy to listen to any number of speeches of the same kind as his, showing such a careful study of the bill, such an intelligent appreciation of its provisions, and containing so many suggestions for our consideration with regard to the possible improvement of the measure as it did. But I think that my hon. friend, Mr. Wrixon, misconceived the purport and effect of some of the clauses to which he referred. He devoted his attention particularly to chapter v, which deals with the states, and he seemed to think that the whole of that chapter was out of place because it did not deal with the question of federal government at all, but was an attempt to interfere with the internal affairs of each state. But I would like to put before the hon. member and before this Convention what appears to me to be a very important consideration with regard to this bill, and with regard to the future federation which we hope will arise under it, and that is, that every resident of the commonwealth of Australia, after this bill becomes law, will be a citizen of two distinct governments, and he has a right to look to each of those governments for the protection of certain fundamental rights and privileges; and this chapter dealing with the states only attempts to interfere with the action of the states in so far as the federal government thinks it right to do so for the protection of its individual citizens. I think if hon. members will read through all the provisions which appear to interfere with state action, or which do deliberately prohibit such action [start page 547] in certain subjects, they will see that it is for the protection of certain fundamental
rights and liberties which every individual citizen is entitled to claim that the federal government shall take under its protection and secure to him. So much for chapter v as a whole. Coming to the clauses in particular which the hon. member, Mr. Wrixon, criticised, I will refer first of all to the clause which says that the states shall adopt what mode they like for the appointment of their governors. It appeared to me that the hon. gentleman had come to the conclusion that this clause directly invited the different states to adopt the system of popular election for their governors; but I think that no such reading as that can be given to the language used. It simply leaves the states to decide for themselves in what manner their governors shall be appointed. We know that each and all of them can now obtain an amendment of their constitution from the Imperial Parliament, enabling them to alter the mode of appointing their governors, and this clause simply says that, without having to go to the Imperial Parliament, they shall have that right secured to them from the date of federation. It does not follow that they will go in for the popular election of their governors at all. In all probability most of them will continue for a long time to come to have their governors appointed as at present; and so far from being in any way an interference with the right of the people to say in what mode their governors shall be appointed, this clause leaves them absolutely free to do as they like.
Mr. CUTHBERT: What necessity is there for it? It is only a saving clause!
Mr. DEAKIN: Do not argue it now!
Mr. CLARK: I am only replying to the criticism of the hon. member, Mr. Wrixon, who seemed to think that this clause was a direct invitation to the people to adopt the system of popular election. The next clause to which the hon. gentleman objected was that which provides that references to the Queen shall go through the governor-general. I think we are all agreed that the object of federation is to make us one nation or one community with regard to the outside world, and if we are to be one nation and one community with regard to the outside world we surely ought to have only one channel of communication with the outside world. That is the sole object of that clause. It has no intention whatever of interfering with the executive government in the several colonies, or to give the governor-general or his ministers any power whatever to interfere with the executive affairs in the several colonies. If hon. members believe, and can show, that this method of communicating with the Queen will cause irritation and produce unforeseen results of a disadvantageous nature, I am sure every member of the committee will only be too happy to hear criticisms of that kind, and, possibly, on reflection, to alter their opinions with regard to the utility or necessity of this provision. On one subject to which the hon. delegate from Victoria referred I am entirely in accord with him. I refer to the clause authorising the federal parliament to confer original jurisdiction on the supreme court in additional cases. Of course it is well understood that every member of the committee reserved to himself the right in Convention to differ from any of the details of the bill. It is not to be expected that fourteen members would be absolutely unanimous on every point. Therefore I do not think I am guilty of any breach of decorum when I say that personally in the Judiciary Committee and in the Constitutional Committee I strenuously fought against this provision; but I was outvoted. I shall, therefore, be happy to join the hon. member, Mr. Wrixon, in attempting to get the [start page 548] clause excised. Then my hon. friend approached what is perhaps the knottiest and most difficult question in the whole bill, and that is, the relations of the senate and the house of representatives with regard to money bills and the question of finality with regard to legislation in general. I thought that the Convention had substantially adopted the compromise which is now embodied in the bill.
Mr. WRIXON: Oh, no!
Mr. CLARK: But if I am wrong in that impression, of course I must only wait to hear what other objections can be urged against it when the bill gets into Committee. I will not attempt to discuss the question now. But I will say with regard to the question of finality that if there is to be any system proposed by which finality shall be arrived at in all matters of legislation, so that the senate may be ultimately outvoted on any matter whatever, then it certainly ought to be put on a perfect equality with the other house with regard to money bills, so far as the right of amendment is concerned. It is, therefore, a choice whether you will accept this compromise with regard to amendments, or give the
senate absolute power of amendment, and provide some system of obtaining finality on any matter, whether it is a money bill or not. The reference which the hon. member, Mr. Wrixon, made to the use of the word "law" instead of "bill" I believe is perfectly correct in regard to the use of the word in several cases. I believe it has been a mere slip on the part of the draftsman.
Sir SAMUEL GRIFFITH: No!
Mr. CLARK: In clause 57 it is evidently a slip, because a measure is a bill when it is presented to the governor-general; it is only a law after it has been assented to.
Sir SAMUEL GRIFFITH: The word may be wrong, but it was used deliberately!
Mr. CLARK: One of the most important points touched upon by the hon. delegate from Victoria was the question of constitutional government. He seemed to think that the clause providing for the appointment of officers in charge of the various departments of the state did not provide for constitutional government as we understand it, with the very large and necessary powers which a minister of the Crown always possesses in a British community having responsible government. I interjected at the time that I thought the hon. member had overlooked the last line of clause 4, chapter 11, which says that such officers shall be members of the federal executive council; and I think the hon. gentleman will find, upon reflection, that the words that I have quoted constitute those officers what we ordinarily call ministers of the Crown, and that, being ministers of the Crown, they will have all the powers which the officers called ministers of the Crown at the present time in the constitutions of the several colonies by law possess. With regard to appeal to the Privy Council, I understand that the only objection the hon. member takes to the clause dealing with that question is that it attempts to set out the interpretation which the Privy Council has already put upon the language contained in the British North America Act reserving the right of appeal to tier Majesty-in-Council. If it is simply a question as to whether we should use the language of the British North America Act, which was at one time doubtful, and a subject of great argument, but which has now been interpreted, or whether we should use the very language used by the interpreting authority, I do not think there ought to be much hesitation in choosing the direct interpretation given by the constituted authority of that which before was doubtful and arguable. That is our justification for adopting that method, instead of repeating [start page 549] the language of the British North America Act. On the question of the control of the railway tariffs, I think we have sufficient power to prevent what are called differential rates, under the "power to regulate commerce." At least we know that in America they have passed an act called the Inter-State Commerce Act, in which they absolutely prohibit any railway company giving better terms to any number of its constituents than they give to others, or better terms to any localities than they give to others. Now, if in America, where the railways are all owned by private companies, the Congress has power in its Constitution to pass a law which says that no company shall give better terms or advantages to some of its constituents than to others, or to some localities than to others, we surely can adopt the same method in preventing one colony owning railways attempting to take traffic from another by running at lower rates for some people than for others, or running at lower rates for goods from some localities than from others.
Mr. WRIXON: A member of the committee stated that it was not considered by the committee!
Mr. CLARK: Stated it was not considered by the committee?
Mr. ADYE DOUGLAS: That point was not considered!
Mr. CLARK: I do not say that it was deliberately considered. I only speak in so far as I am concerned; and I believe other members of the committee are convinced that under the power to regulate commerce we have the power to prevent any colony attempting, by running at lower rates, to take away traffic from another colony.
Sir JOHN BRAY: No!
Mr. CLARK: Well, I believe we have.
Mr. BARTON: Each colony has supreme power within its own boundaries!
Mr. ADYE DOUGLAS: That matter was never discussed!
Mr. CLARK: I do not say that it was; but I say that it is the opinion of several lawyers that we have that power.
Mr. ADYE DOUGLAS: It is not so in America. The only provision there is this: they must not charge more to one state than to another. They can make any charges they like upon their particular lines; but they must not give a preference to one state over another state.
Mr. CLARK: That is not a provision of the Inter-State Commerce Act, as I will show the hon. gentleman when the proper time arrives. There is only one other matter to which I will refer. One hon. member seemed to think it was undesirable to allow an appeal in criminal cases to the federal supreme court, because he thought the execution of criminal law ought to be speedy. There is no doubt that when a man's life is involved, it is a very unsatisfactory state of things to have his fate suspended for any length of time. That is one objection, and that is the great objection, to appeals in criminal cases to the Privy Council. The hon. member, however, will see at once that an appeal to a court in Australia will not create the same lengthy delay as an appeal to the Privy Council in England does, and beyond that, appeals in criminal cases will not be always in regard to cases in which capital punishment is concerned. If the hon. member will look through the reports of criminal cases in England, I think he will find that the appeals in capital cases are very few indeed; but there are numerous appeals in cases of larceny, forgery, embezzlement, and fraud; and in those cases where life is not involved a man may be kept in prison until the point in dispute is settled. If it is settled in his favour be is discharged; if it is not settled in his favour he is left to complete his sentence. I do not think [start page 550] any very serious injury is done to the individual in cases of that kind, compared with the benefit to the whole community in obtaining the best and most authoritative decision on the points involved for the purposes of future practice. I said at the outset that I had no wish whatever to trespass upon the time of the Convention at this particular juncture; but several members of the Constitution Committee thought some one ought to take up some of the points mentioned by the hon. member, Mr. Wrixon. For that reason only I have trespassed on the time of the Convention, and I will leave anything further that may be suggested to me by hon. members remarks for discussion in Committee.
Question resolved in the affirmative.
Motion (by Mr. SUTTOR) agreed to:
That the Chairman leave the chair, and that the Convention resolve itself into a Committee of the Whole to consider the draft bill.
Clause 1. This act may be cited as "The Constitution of the Commonwealth of Australia."
Mr. MUNRO: I think that a very important question arises here as to the title of the federated colonies. I do not think that the committee succeeded in securing a happy title. It is a title with which we are not familiar, and a title which historically raises rather serious questions-questions that suggests a good deal of controversy in the minds of many people. Without taking up the time of the Committee, I beg to move:
That the word "commonwealth" be omitted with a view to insert in lieu thereof the words federated states."
I think that that will answer our purpose very much better, and will be more easily understood.
Sir JOHN DOWNER: Say "Federation”!
Mr. MUNRO: "Federated States" will properly convey our meaning.
Sir JOHN DOWNER: So will "Federation"!
Mr. MUNRO: If you merely say "Federation," that does not convey our meaning. Our meaning is that we are to be federated states, and for that reason I move this amendment. Before we go to lunch I think we should have some understanding, as to how late we are to sit to-day. Some hon. delegates think that we ought not to have an adjournment after dinner, and if we are not to have an adjournment after dinner, I think that we should sit at all events until half-past 6. I merely mention this matter so that we shall have an understanding not to run away at half-past 5 or 6.
Mr. DEAKIN: Sit to-night!
Mr. MUNRO: If we sit until 6, we shall see what progress we make.
Sir SAMUEL GRIFFITH: There is no hon. member in this Convention who is called home more urgently than I am; but notwithstanding that, and the great hurry which I am in to get home, I think that a great deal more harm will be done by rushing through business as proposed by the hon. member, Mr. Munro. If I had had this bill put in my hands yesterday afternoon, I should certainly not have been prepared to rush through it either to-day or to-morrow, or until next week. Some hon. members may have quicker apprehension and be able to do so; but, considering the vast importance of the subject that we have in hand, I protest against anything like undue haste. It is better to occupy two or three more days about it, and get our work done well.
Sir JOHN DOWNER: There has been too much haste already!
Sir SAMUEL GRIFFITH: As the hon. member says, there has been too much haste already. I feel that the work done during the last fortnight has been almost more than fairly could be done in that time, and if every hon. member is to [start page 551] be asked to express his final, matured opinion either to-day or to-morrow I fear that we shall make poor work of it.
Mr. MUNRO: We do not want that!
Sir JOHN BRAY: I should like some understanding as to what we are to do this evening. If the majority of hon. members are prepared to go on, I think that we should do so. I agree with those who suggest that we should not hurry, but we should not lose time. If hon. members are prepared to go on with the discussion, I trust they will support the suggestion of the hon. member, Mr. Munro, and go on as long as hon. members are prepared to do so; but of course not press any matter unduly to division. I at the same time agree with the hon. and learned member, Sir Samuel Griffith, that it is possible to make too much haste, and I think that the Constitutional Committee made too much haste in rejecting the recommendations of the Finance Committee as quickly as they did. I trust that as long as hon. members are prepared to carry on the discussion, without hastily pressing for a division, hon. members will be willing, even at some little inconvenience, to sit in the evening.
Mr. GILLIES: I do not know whether this is to be considered a conclusive expression of opinion with reference to the time we are to sit, or whether we are to return to the subject after lunch.
An HON. MEMBER: We can talk it over before we meet this afternoon!
Mr. DEAKIN: The word proposed has, like every other word that can be suggested, some disadvantages; but in the opinion of a majority of the committee, it possessed more advantages than any other name that was suggested. In the first instance, it is a distinctly English word, and a well known word. It is a title which has a pacific signification which, from the tone that has been taken in regard to the defence proposals in the measure, is an advantage. It indicates that the state is formed for a pacific purpose-for the common good of its people, for their common-weal. It is a name which has not yet been applied. It is not open to the objections which may be urged to such combinations as "federal states" or "united states," titles which have already been employed in one part of the world or another. It is an old word, but it is a new name as applied to a state. There is no existing state which is known as a commonwealth, although Great Britain is frequently referred to both by orators and political writers as a commonwealth; and the word has been already applied on occasions when speaking of Australia as a whole. It is, therefore, a word which I fancy we are justified in appropriating, and I trust that the Convention will not lightly change a word which was adopted after very full consideration by a majority of the committee, and that even those who may have some sentiment against the name will take full time to consider the objections that can be urged to any other title.
Sir JOHN DOWNER: It is quite true that a majority of the committee arrived at the conclusion that it would be expedient to make this new departure, and adopted a term which has not been usual in countries under a sovereignty.
Mr. DEAKIN: Oh, yes, it is usual in countries under sovereignty!
Sir JOHN DOWNER: Commonwealth is a very nice word indeed, but it is very important to recollect, as the hon. member, Sir Henry Parkes, pointed out at a somewhat early stage of the proceedings, that we have to consider, not only the technical meaning of the law, but also the popular understanding of the law, and the popular understanding of the word "commonwealth" is certainly connected with republican times.
Mr. DEAKIN: No!
Sir JOHN DOWNER: It is, in my opinion, connected with republican times, [start page 552] and it is certainly disconnected with that loyalty which we all, I am sure, not only profess, but very honestly feel towards the Crown.
Mr. DEAKIN: The most glorious period of England's history!
Mr. CLARK: Hear, hear!
Dr. COCKBURN: Was it under the Crown?
Mr. DEAKIN: There was then no Crown!
Sir JOHN DOWNER: It may have been the most glorious period; but as my hon. friend, Mr. Baker, says, it certainly was not the union under the Crown, which we are all of us most desirous of bringing about at the present time. I do not think that in the initiation of this matter we should mix up two conflicting propositions-one that we are thoroughly loyal, and the other that we are going to adopt in our very initiation a title which is certainly connected with ideas other than those which are strictly loyal. I do not much like the word which has been proposed in the place of the word "commonwealth."
Mr. MUNRO: I am quite willing to accept a better one!
Sir JOHN DOWNER: When that is disposed of I shall suggest that the name be Federal Australia.
Mr. PLAYFORD: In committee I was in favour of the words "United Australia," and then of describing the parliament of the federation as the union parliament, so that we might use the expression, "union parliament," right through the bill. But the word "commonwealth" was carried by a majority, and I am fain to confess, along with the hon. member, Sir Samuel Griffith, that the more I have thought over the matter the more I like the word "commonwealth." At first I was-well, I do not say prejudiced against the word, but I did not care about it very much. I believe that even if we get a majority to strike out the word we shall have some difficulty in getting a majority to substitute any other word. We shall find in the first place that those who go for the words "Federal Australia” will not be able to carry a majority, and in the second place that those of us who were originally in favour of the words "United Australia" will not be able to carry a majority. And we may find that after all there will be a larger number of us in favour of the word "commonwealth" than for the substitution of any other word. My hon. friend, Sir John Downer, has stated that we are not acquainted with the word "commonwealth" in connection with a monarchy. But if he will go back to English history, before the time of the Commonwealth, he will find that that great English poet, Shakspere, constantly alluded to the state of things in England as a commonwealth. We know very well that it is derived from common-weal, which is described in the dictionaries as the meaning of commonwealth.
Sir JOHN DOWNER: It means differently now!
Mr. PLAYFORD: No, it does not. Ogilvie, in his dictionary, defines the word "common-weal," in the first instance, to mean a commonwealth, and be introduces this Shaksperian quotation, "So kind a father of the common-weal." The writer goes a little further, and under the heading of "commonwealth" he divides the word into two parts, and gives its primary meaning and its secondary meaning:
"Commonwealth" is derived from common and wealth, meaning strictly common well being or common good.
Surely we are all desirous of forming this constitution so that it shall redound to the common good of the people of this great continent.
Sir JOHN DOWNER: It means common goods now!
Mr. PLAYFORD: The primary meaning of the word is:
The whole body of people in a state-
Surely that is a very good description of what we mean when we are forming a federal Australia:
the body politic; the public.
[start page 553] And another Shaksperian quotation is given:
You are a good member of the commonwealth.
So that if we go back to the time of Shakspere we find that the word is distinctly understood to mean a state under a monarchy. The secondary meaning of the word is given as the commonwealth which was established by Cromwell under the Protectorate. Now, discarding altogether the secondary meaning of the word, let us go back to the good old English meaning of the word in the time of Shakspere. When we are about to establish a union of these Australian colonies let us, if we can, hit upon a new name which shall unmistakably describe what we are all aiming at, and that I contend is
the common well being, the common good with regard to the whole body of the people in a state, the common good of the whole body politic. This word commonwealth commends itself to my judgment as the very best word that we can use, with regard to this union of the various colonies of Australia. I shall unmistakably support the retention of the word.
Sir GEORGE GREY: I ought, perhaps, to state to the Convention that I believe I first proposed the name of "Federal Australia," and I thought it was a good proposition; but when I heard argued out the question whether the word "commonwealth" should not be used instead of the words I had proposed, and which others thought should be adopted, I was convinced that the word "commonwealth" would be the better term, and I therefore voted for it. I think it right to state that I have changed my mind. I now have no doubt that the the word "commonwealth" is the better word to use. We are, I take it, assisting to create a commonwealth in terms of the strictest loyalty, love, and veneration for the Queen, who is absolutely made a member of our parliament. It being quite clear that we seek to do no wrong to the exalted individual who is made a member of our parliament, I think it is quite clear we ought not to be frightened by a bugbear such as has been suggested into an alteration of a resolution arrived at after long consideration.
Sir SAMUEL GRIFFITH: Like the hon. member, Sir George Grey, and the hon. member, Mr. Playford, I was one of those who did not like the word "commonwealth" when it was first mentioned; but I confess that I now think it a very good word indeed. The result of the arguments used in the committee was to satisfy me that it was better than any of the other words suggested-better, indeed, than any other possible word. I think the prediction of the hon. member, Mr. Playford, will probably be verified, and that there may possibly be a majority of this Committee who, if the question were put now, would probably reject the word "commonwealth"; but who, on the other hand, might not be able to agree to any word in substitution for it. Would it not, therefore, be better if the hon. member, Mr. Munro, instead of proposing the omission of the word, proposed to insert before it some other word? If we take the different proposals one after the other, and if, as I expect, they are all rejected, we shall probably come unanimously to the conclusion that the word "commonwealth" is the proper word.
Sir JOHN DOWNER: We must omit the word before another word can be inserted!
Sir SAMUEL GRIFFITH: Why?
Sir JOHN DOWNER: Because it is the parliamentary practice!
Sir SAMUEL GRIFFITH: Surely parliamentary practice is made for the convenience of discussion and determination. Are we the slaves of parliamentary practice? I do not know of any reason why it should not be proposed to insert instead of to omit. If the result of the insertion of a word were to render necessary the omission of other words these words would be omitted.
[start page 554] I believe there are about half a dozen members of the Convention who would like to have inserted the words "federal states"; others, again, like the word "federation"; others like the words "United Australia"; and these would consequently all combine in the rejection of the word "commonwealth." The course I suggest would be in strict accordance with parliamentary rule. It is not the way in which amendments are generally made, because it seldom happens that it makes any difference which way it is done, although in this case it does. I would remind hon. members of the practical inconvenience that would result if we should strike out the word "commonwealth," and should subsequently be unable to agree to any other.
Sir JOHN DOWNER: The hon. member assumes that that will be the case!
Sir SAMUEL GRIFFITH: Surely any hon. member is right in arguing upon the possible consequences of any proposed action. I am assuming a possibility. I assume that if this question were to go to a division this afternoon there would very likely be a majority against the word
"commonwealth," and I am equally positive that next Monday there would be a majority in favour of it. In the meantime, 500 or 600 amendments would have been made in the bill, which would have to be restored to its original form-amusing work for some one.
Mr. WRIGHT: The hon. member, Mr. Deakin, in speaking just now, said the word "commonwealth" had a special signification. I agree with the hon. member; but I think it is anything but a savoury signification, and that it is, therefore, altogether an improper word to use. It appears to have been assented to by many members of the committee for aesthetic reasons rather than for any other.
Mr. PLAYFORD: The hon. member evidently believes in the glorious memory of Charles I!
Mr. WRIGHT: And it is possible that there are certain members who have in their mind's eye a future Oliver Cromwell, who would say, "Take away that bauble," meaning by the bauble the allegiance we owe to her Majesty the Queen and the United Kingdom of Great Britain. I think the question might be solved by striking out the word "Commonwealth," and by merely leaving the words "Constitution of Australia." We are proud to consider ourselves by birth or by adoption citizens of this great country, and I therefore think my suggestion would meet the views of a majority of members of the Convention.
Mr. BARTON: I do not know that there is much necessity for me to address the Committee, because I am satisfied with all that the hon. member, Mr. Playford, has said. But I rise chiefly for the purpose of referring to the suggestion of the hon. member, Mr. Wright, that the title "Commonwealth" has an unsavoury signification. How that can be I do not know. If we are to be frightened away from the use of any proper word, or the expression of any proper idea, from the fact that it has been usurped or perhaps misused by others who have gone before us, we shall be deterred from doing a great deal we ought to do. If there are those who think that, under the great Protector whose name, as we live longer to understand history, will always be more venerated among English-speaking people-the process of republicanism as associated with the title given to the English body politic under him was inimical to the common-weal, and who think that on that account we ought to depart from the title, I would remind them that it was a name inherent in the minds of Englishmen long before that time. If any hon. member thinks, however, that such a reason should be sufficient to prohibit us from using a title which absolutely designates all that we [start page 555] desire to designate then as we go through this bill I am afraid we shall find ourselves rapidly denuding it of some of its best features. There can be nothing unsavoury in a title which means, according to the best authority, "the nation, state, realm, the commonwealth"-the word being interposed between "realm" and "republic," showing that it is used to signify the common good and that it has that signification whether under a queen or a republic. "Nation, state, realm, commonwealth, republic, commonweal, nationality." The words used by Roget as synonymous are among others "national" and "public." If these are the expressions associated by the highest authorities with the word commonwealth, why seek better? Shall we take confederation or federation? I will not give all the words which are stated as synonymous, because some of them express almost too much; but we find these, "league, alliance, coalition, confederacy, confederation." These are not altogether what we wish to express, because we know that although we have, embodied the operation of federal action in this commonwealth, still we seek to constitute a national government for national purposes. Our purposes of government may be national while we preserve the utmost loyalty to the monarch whom the constitution sets over us. As the hon. member, Sir George Grey, has expressed it, we have constituted the Queen a member, and the highest member, of our parliament. The association of the Queen with the action of the commonwealth is distinct, and is firmly embedded in the whole bill. If that is done, there can be no association of the idea of republicanism with this bill. However appropriate the name "commonwealth" may be to a republic, it has been clearly shown from the quotations made by the hon. member, Mr. Playford, from Shakspere to be associated in the minds of Englishmen with government for the public good-with government for the people-and as it so expresses in itself the very essence of government for the good of the people, and because we cannot suggest anything else which expresses the idea in one word, I hope we shall retain this name, and I believe that if we do, we shall all live to be proud of it.
Mr. J. FORREST: I objected in committee to the use of this word, and I have seen no reason whatever to change my opinion. The name is inappropriate for more than one reason. In the first place, it designates too much. If we were founding an independent nation, and not federating, it might be a very appropriate term to call it "The Commonwealth of Australia." That, however, is not the case. We are a number of independent sovereign states desirous of being federated, and we desire to have a name which will signify exactly what we are doing. On the face of it, I do not think it can be said that "The Commonwealth of Australia" would signify that a number of states had joined together in a federal union. In my opinion a much better term would be, "the Federated States of Australia," which exactly signifies what we mean. That might be regarded as too long, and we might say, "Federal Australia." Another reason why this name should not be adopted is, that in the minds of many people the word "commonwealth" is associated with a period of English history which was not very glorious. There is considerable divergence of opinion as to the good conferred on England by the Commonwealth. No doubt many historians believe that it was a very glorious one, but no one will deny that others hold an opposite opinion. If possible, we should adopt something new, and not follow a name which would give rise to unfavourable opinions such as the term "commonwealth" would certainly give rise to. The term "federated states" would [start page 556] show exactly what we intend, and if it is desired to shorten the name, "Federal Australia" would serve the purpose very well.
Mr. MARMION: It seems rather strange, after sitting here for a considerable period, that this assembly should, for the first time, now hear of this term "commonwealth." As a member coming from a remote portion of Australia, I have been sitting here many days anxiously and patiently listening to the words of wisdom from hon. gentlemen, but never on any occasion did I hear the term "commonwealth" mentioned. After the select committee sat for a considerable time, and after we had waited patiently for their report, we were surprised very much to find that a new term had been imported to denominate what shall hereafter be the great nation of united Australia.
Mr. BARTON: It was proposed at a very early stage in the committee!
Mr. MARMION: I do not allude to the committee, but to the distinguished assembly which appointed the committee. One would imagine that the select committee would act in the manner which is usual when a deliberative body is selected by a greater body. In this particular case it seems curious that the word "commonwealth" was chosen. I can see no reason why we should try to originate a newfangled idea with reference to the denomination of the new federated Australia that we are seeking to form. Why should not the word "Australia" be used in its pure and natural simplicity? We are all either native-born Australians or we have chosen Australia as the land of our adoption, and when we visit other lands we speak of Australia as our home. Why should we not speak of this as the constitution of Australia, which would explain itself not only to Australians, but in all its purity and simplicity would explain itself to people who live in the outside world? If a man living in Europe, Asia, or America intended to come here, what necessity should there be for him to say that he was about to visit the commonwealth of Australia? Why should he not say, "I am going to visit Australia?" In the case of America there was a good reason for using the words "United States," because America forms one great continuous continent, both North and South, and divided into a great number of various countries. Such is not the case in Australia. We are an island, united to a very great extent, and we hope to be united to a still greater extent under a federal dominion or nation. Then why should there be any reason for the use of this word? It is superfluous, and unnecessary. Although many hon. gentlemen may think that the commonwealth was associated with a glorious period of the history of Great Britain, yet there are a great number of people living in Australia and outside of it who do not consider that it was a brilliant period in English history. I say it is our duty here as statesmen, supposed to represent the intelligence, rising genius, and talents of this young country, to beware of those old associations and ideas which may cause discord in the minds of those who are endeavouring to form this great nation. I should be sorry to see this word chosen, and I trust that it will not be chosen, no matter how euphonious it may be, no matter how beautiful its meaning may seem in the various dictionaries which hon. members have been quoting. I trust that we shall choose a name that will be simple and easily understood-something that can be regarded with confidence by Australians
and the world, and recommend the adoption for its simplicity of the "Constitution of Australia." It may be said that there is some objection, because we have two other colonies which are likely to join the federation, one called Western Australia, and the other South Australia; but that is really no great ob- [start page 557] jection. Canada has two divisions, Upper and Lower Canada; but no one speaks of coming from or going to Upper and Lower Canada. It does not matter what part they belong to, they speak of going to or coming from Canada. A person who has been born in any Canadian state speaks of himself as having been born in Canada. It will be the same, with Australia. A man will speak of coming from Australia, not from the commonwealth.
Mr. PLAYFORD: What about the "Dominion" of Canada?
Mr. MARMION: You meet with that name when reading a work which goes into the history of the country; you do not hear of it in common parlance.
Sir SAMUEL GRIFFITH: We are not writing a geography now!
Mr. MARMION: No, nor have I any notion that I could convey much knowledge to the hon. member's mind. I am not so foolish as to imagine that the words I use will have much affect upon those who are listening to me. Whether they will have any effect or not, I feel sure that if the word is adopted the day will come when hon. members will recognise that what I have said was not all folly, but that there was some wisdom in it.
Question-That the word proposed to be omitted stand part of the clause-put. The Committee divided:
Ayes, 26; noes, 13; majority, 13.
Atkinson, Sir Harry Grey, Sir George
Barton, Mr. Griffith, Sir Samuel
Bird, Mr. Jennings, Sir Patrick
Brown, Mr. Kingston, Mr
Burgess, Mr. Macdonald-Paterson, Mr
Clark, Mr. McMillan, Mr.
Cockburn, Dr. Moore, Mr.
Deakin, Mr. Parkes, Sir Henry
Donaldson, Mr. Playford, Mr.
Douglas, Mr. Adye Russell, Captain
Forrest, Mr. A. Rutledge, Mr.
Fysh, Mr. Smith, Colonel
Gordon, Mr. Sutter, Mr.
Baker, Mr. Lee-Steere, Sir James
Cuthbert, Mr. Loton, Mr.
Dibbs, Mr. Marmion, Mr.
Downer, Sir John Munro, Mr.
Fitzgerald, Mr. Wright, Mr.
Forrest, Mr. J. Wrixon, Mr.
Question so resolved in the affirmative.
Clause, as read, agreed to.
Clause 2. The provisions of this act referring to her Majesty the Queen extend also to the heirs and successors of her Majesty, kings and queens of the United Kingdom of Great Britain and Ireland.
Mr. RUTLEDGE: It strikes me that this clause is capable of some amendment. I do not know that it is, strictly speaking, grammatically correct. I think that the more correct phraseology to express the meaning of the Committee would be that used in some of our own local acts. I therefore propose:
That the words "kings and queens" be omitted with a view to the insertion in lieu thereof of the words "in the sovereignty."
Sir SAMUEL GRIFFITH: There is no objection that I can see to the amendment. It is rather an improvement in sound, though it uses a word of four syllables instead of monosyllables.
Amendment agreed to; clause, as amended, agreed to.
Clause 3 (Power to proclaim commonwealth of Australia).
Mr. RUTLEDGE: Having in view the provisions of the bill, which refer to the time of the establishment of the commonwealth, I think that the words "and establish" should be inserted after the word "united," at the end of the clause. Such an amendment would make the clause clearer.
Sir JOHN DOWNER: No. The colonies are united; the constitution is established!
Clause agreed to.
Clause 6. The Federal Council of Australasia Act, 1885, is hereby repealed, but such repeal shall not affect any laws passed by the Federal [start page 558] Council of Australasia and in force at the date of the establishment of the constitution of the commonwealth.
But any such law may be repealed as to any state by the parliament of the commonwealth, and may be repealed as to any colony, not being a state, by the parliament thereof.
Sir JOHN DOWNER: I fancy that this clause needs a slight amendment. It provides for the repeal of the Federal Council of Australasia Act, but such repeal is not to affect any laws passed by
the Federal Council and in force at the date of the establishment of the constitution of the commonwealth.
But any such law may be repealed as to any state by the parliament of the commonwealth.
Should it not be that the law may be repealed altogether? As the clause stands, the federal parliament will be able to repeal a law as to a particular state, but not in toto. I would just raise the question by moving:
That in line 2, after the word "repealed," the words "or may be repealed" be inserted.
Sir SAMUEL GRIFFITH: Does not my hon. friend see that the amendment which he proposes is not correct? Of the colonies constituting the Federal Council some may come into the federation, but some may not, and the parliament of the commonwealth ought to have no power to repeal the laws of the council affecting those states which do not come into the federation. I take the cases of Western Australia and Queensland, which have fishery laws passed by the Federal Council. If either of those colonies do not come into the federation, why should the federal parliament have the power to repeal their laws? These laws may, however, be repealed in any state which is part of the commonwealth.
Sir JOHN DOWNER: I agree with the hon. member, and will withdraw my amendment!
Mr. MARMION: Should not the repeal be made on the application of the state affected?
Sir SAMUEL GRIFFITH: No; because all the matters that could be dealt with by the Federal Council can be dealt with by the federal parliament.
Mr. BROWN: I should like to ask the hon. member, Sir Samuel Griffith, what would be the effect of this clause with regard to the repeal of the Federal Council Act during the period that will intervene between the time at which this bill is passed and the time at which, under clause 3, it will come into operation? There will be a period intervening during which certain acts passed by the Federal Council, as, for instance, the Fisheries Act of Western Australia, will be repealed by this bill.
Sir SAMUEL GRIFFITH: If the hon. member will read the first part of the clause he will see that this does not repeal anything!
Mr. BROWN: I see my mistake.
Amendment, by leave, withdrawn.
Clause agreed to.
Clause 7. The constitution established by this act, and all laws made by the parliament of the commonwealth in pursuance of the powers conferred by the constitution, and all treaties made by the commonwealth shall, according to their tenor, be binding on the courts, judges, and people of every state, and of every part of the commonwealth, anything in the laws of any state to the contrary notwithstanding; and the laws and treaties of the commonwealth shall be in force on board of all British ships whose last port of clearance or port of destination is in the commonwealth.
Sir HARRY ATKINSON: This will be an act of the British Parliament, and it may, apply to British ships that may never reach here. Suppose a ship coming to Melbourne broke down at Gibraltar, any legal questions arising in connection with her would have to be dealt with by Australian courts, not by British courts. By this clause the ship would be part of the commonwealth.
Mr. PLAYFORD: No!
Sir SAMUEL GRIFFITH: I agree that these words appear rather startling. [start page 559] They are taken from the Federal Council Act of Australasia, and were inserted by the imperial authorities after consideration and in substitution for more limited words that were proposed by the Convention that met here in 1883. Finding those words there, and considering that the powers of the federal parliament are only to make laws for the peace, order, and good government of the commonwealth, it was thought perfectly safe to adopt them.
Mr. BAKER: Do I understand that if a ship leaves one of the Australian colonies for a British port, say London, having a British register, until she actually arrives in Great Britain, the laws of the commonwealth are binding upon her, and not the laws of Great Britain?
Sir SAMUEL GRIFFITH: No; but laws of the commonwealth, limited to laws for the peace, order, and good government of the commonwealth, will apply to her on her voyage. For instance, if it was necessary to send a prisoner to England, only such provisions as are essential for the laws of the commonwealth outside the 3-mile limit could possibly apply.
Mr. RUTLEDGE: I would point out that at the end of the clause the word "whose" appears to have been omitted before the word "port."
Sir SAMUEL GRIFFITH: I think that must have been a mistake in the copying!
Amendment (by Mr. RUTLEDGE) agreed to:
That the word "whose" be inserted before the word, "port," line 13.
Mr. BAKER: I may be rather dense, but still I do not understand this clause. It says "The laws of the commonwealth shall be in force." That means, I presume, all the laws. Therefore, if a ship leaves London bound for any port in Australia all the laws of the commonwealth will be in force on board that ship until she reaches here. That is the effect according to the wording of the clause, but it surely cannot be the intention. It appears to me to be a rather startling conclusion, that a British ship leaving London, presumably under the provisions of the British Merchant Shipping Act, shall not be under the British Merchant Shipping Act. At present, there is no such thing as a colonial ship; they are all British ships, and after they are outside the limit of our jurisdiction at sea, the laws of Great Britain are in force on board those ships. It is true that we have power to try persons for crimes committed on board the ships when they arrive in the colony; but we have that power by virtue of special acts of the Imperial Parliament, and the offenders have to be tried according to the laws of Great Britain. As I understand this clause, it seems to, alter that state of things, and to arrive at a very startling conclusion.
Sir SAMUEL GRIFFITH: The words of this clause to which exception has been taken were framed by the imperial law officers in 1885 in substitution for words of a more limited application which we proposed to have inserted. The question arose specially, as far as my memory serves me, with regard to the power to legislate in connection with fisheries and territorial waters outside the jurisdiction and the extradition of offenders. The laws of the commonwealth would only have effect within the land territory and 3 miles beyond. Of course parts of the commonwealth are separated from one another by sea, and the means of communication between different parts is, and will continue for a long time to be, by sea. It is absolutely necessary that these laws should extend beyond the territorial limit, and we asked for words which we thought would give effect to that idea. The imperial law officers substituted the words now adopted, which might possibly be thought to convey more than was [start page 560] intended. But, on consideration, I do not think that is the case. I do not see how any more limited words would give what we want. Take the case of the fisheries. A ship clears from an Australian port to the Torres Straits fisheries. She goes to no port in particular there. The laws are to be in force on board of her all the time she is away and until she returns to her port of clearance or destination. In the case put by the hon. member, Mr. Baker, of a ship coming from England-
Mr. BAKER: And being wrecked at Malta!
Sir SAMUEL GRIFFITH: There are no laws that are within the powers of the commonwealth to pass that could apply to any person on board a ship under those circumstances. If the hon. gentleman will look at the words of limitation in the clause conferring legislative powers on the commonwealth, I think he will see that no laws in any of those provisions could apply to a person on board a ship under the circumstances mentioned.
Mr. GORDON: What about the Employers Liability Act and the laws for the regulation of trade and commerce? Suppose you had a conflicting employers' liability act as between the commonwealth and Great Britain?
Sir SAMUEL GRIFFITH: The Employers' Liability Act is a matter affecting the rights of property in a state. It never occurred to me that such a thing would be within the powers of the commonwealth.
Mr. BAKER: There might be a question also as to the law of marriage and divorce!
Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that the only laws which can apply are laws for the peace, order, and good government of the commonwealth.
Sir JOHN DOWNER: "According to their tenor"!
Sir SAMUEL GRIFFITH: As the hon. gentleman reminds me, the words, "according to their tenor," were inserted in this clause exactly for the purpose of indicating that.
Clause, as amended, agreed to.
CHAPTER 1.-THE LEGISLATURE.
Clause 2. The Queen may, from time to time, appoint a governor-general who shall be her Majesty's representative in the commonwealth, and who shall have and may exercise in the commonwealth during her Majesty's pleasure, and subject to the provisions of this constitution, such powers and functions as her Majesty may deem necessary or expedient to assign to him.
Dr. COCKBURN: I should like information from the hon. member, Sir Samuel Griffith, or some other hon. member, as to the exact intention of this clause. Of course we know that, by letters patent, certain powers are at present delegated to the governors of the several colonies irrespective of their ministers. I think there is a feeling in the colonies generally, and also I think in this Convention, that the powers of those who hold the important office of ministers of the commonwealth should be in no respect-if it is possible to avoid it-inferior to the powers of imperial ministers. In such matters as the dissolution of parliament, and the inflicting of capital punishment, I think the powers of the ministers of the commonwealth should be absolute-that is to say, that instead of these two matters of exercising the prerogative of pardon and the power to dissolve parliament, being vested solely in the governor, they should be exercised by responsible ministers. I think it is much better that questions of this kind-the dissolution of parliament or the infliction of capital punishment-being strictly local questions, should be decided by the local authorities. Unless something is put into writing, I imagine, whatever the Imperial Parliament may do in giving effect to this legislation, that it will be competent at any time, for imperial ministers, by letters patent, to [start page 561] continue to vest in the governor-general those powers which are at present exclusively vested in the governors of local states. I would ask the hon. member, Sir Samuel Griffith, or some other hon. member of the committee, whether it is intended that the ministers of the commonwealth should have no power in such a matter, for instance, as the dissolution of parliament?
Mr. PLAYFORD: The hon. member means the dissolution of local parliaments!
Dr. COCKBURN: No; the dissolution of the federal parliament.
Mr. PLAYFORD: That the governor should not have power to say whether he will grant his ministers a dissolution?
An HON. MEMBER: How about a refusal?
Dr. COCKBURN: No case has ever been known for many years-I think for many hundreds of years-in which the Prime Minister of the Imperial Parliament has been refused a dissolution.
Mr. PLAYFORD: But the Queen has the power to refuse it!
Dr. COCKBURN: If the governor-general by letters patent is instructed to exercise that power, he will do so. Unless something is definitely stated on this point, I imagine the letters patent to the governor-general will be in this particular no different from the letters patent to ,the governors of the different colonies; and I wish to ask the hon. member, Sir Samuel Griffith, whether it is his intention, in connection with the commonwealth, with all the presume which it will have, that an important matter such as the dissolution of parliament, which is purely a local matter, should not be vested in those ministers who are directly responsible on the spot to the people of the colonies?
Sir GEORGE GREY: I am afraid I shall lose my chance of moving an amendment to this clause if I do not do it at this stage. I move:
That the words "The Queen may, from time to time, appoint," lines 1 and 2, be omitted with a view to the insertion of the words "There shall be."
The intention is that the governor may be elected. I feel that in bringing this subject under the notice of the Convention I am entering upon very delicate and very debatable grounds But I feel that, in point of fact, the future of vast multitudes of persons will depend upon the manner in which this question is dealt with. This is a question of the interests of nearly 4,000,000 persons at the present moment who look to us; and it appears to me extremely inexpedient that the power of appointing the governor-general to rule so vast a confederacy should be left in the hands of any minister of the day in Great Britain. The terms used are "the Queen shall appoint"; but we all know perfectly well that that means that the minister for the time-being shall appoint such person as he pleases, whilst such appointment might be absolutely obnoxious to her Majesty herself. The meaning of the thing is that a friend or any other person chosen by the minister may be appointed without the people of this great confederacy being in any way consulted. I understand that the reason usually alleged for that by persons who support the appointment being made by the Queen is that a social appointment is to be made. That is the term usually applied-it is a social question, and not a political question. I contend that the question is twofold, and those two things cannot be separated. The governor has political functions to exercise and he has social functions to exercise, and in either case I hold that a person so appointed is much less fitted to exercise those functions than a governor-general chosen by the people of the country would be. I do not understand how it can be said that any social ends whatever, or, at all events, of [start page 562] any magnitude, are attained by the appointment of the governor-general by the Crown; but I do hold that social ties and social questions of the strongest possible kind require that the governor-general should be elected by the people of the confederacy. Take the case of a widowed mother, herself well educated, perhaps brought up as a teacher in one of your public schools, and possessing great ability; imagine her with her orphaned children, deprived of a father, night after night teaching those children, with a hope that the highest offices of the state of every kind may be open to them all. Is not that a social question-a social gathering of the highest and noblest kind? And hundreds, I may say thousands, of such social gatherings would be witnessed every night in this great commonwealth, if all the highest offices of state were filled by election by the people. If you follow it
out, you will find that in all social relations of the family-fathers, mothers, children, brothers, sisters-this question is intimately concerned as being something which binds the whole family together for common objects, and opens paths of distinction to every one of them, if they prove themselves great and deserving men. Why should you say to all these 4,000,000 of people, "No one of you, nor any one of the other millions who are to occupy this country, shall have the slightest chance of ever attaining to an honor of that kind"-that it shall always be open, as it certainly, or almost certainly would be, to distant persons with no claim whatever upon the inhabitants of this country, all of whom would be shut out from so great an opening as that of which I speak? It is more materially necessary that we should consider this point now, and that we should come to a just decision upon it, because I will show hereafter, as the discussion on the bill proceeds, that in every instance all hope is shut out from the great masses of the colony to succeed to any one of the important posts which under this bill will be open to the people of Australia. I say that, looking to our duty to our Sovereign, we owe it to her to select the worthiest man we know to represent her here-to be certain that the man so chosen is worthy to represent her; and in no other way than by his being chosen by ourselves from people whom we know can we be certain that the worthiest man will be chosen to represent the Queen within the limits of the great confederacy which we are about to constitute. Considering the openings that would be given to every inhabitant of Australasia under such a system as I propose, with so many families, as will necessarily do it, directing their every exertion and effort to raise up children worthy of the great opportunities laid open to them, I ask whether this is not to us a greater social question than a few balls and dinners given at Government House, at which none but those in the immediate vicinity can be present? I ask what comparison is there between these two things-one great and far-reaching, extending to millions, the other a mere sham, as it were, representing what passes in another place, as if one were looking through the wrong end of a telescope at some procession that was going on? All matters connected with Government House are diminished here as compared with Great Britain and the influence exercised there. There it is the influence of an hereditary monarch descended from a long line of ancestors. There it is the influence belonging to certain professions-the army and navy-who look to receiving honor from the hands of such a sovereign. Here there are no ties whatever of that kind; and yet for a mere imaginary show, or what is called the performance of social duties-entertaining strangers and also citizens immediately surrounding the vice-regal court, which are the only benefits that are abso- [start page 563] lutely gained-all those benefits that I speak of are lost. Let us look at it in another way, which is also worthy of our consideration. What is the necessary consequence of having a governor-general of this kind, with an enormous salary, and vast expenditure upon various subjects-a salary more than adequate to the duties to be performed? You will find set down in this bill a salary of £10,000 a year.
The VICE CHAIRMAN: I ask the hon. member not to discuss that matter, as the question of salary is dealt with in the next clause.
Sir GEORGE GREY: I find a difficulty in separating the two questions. They may be separated in clauses; but the one argument will hardly carry the full meaning of what it is necessary for me to say so that the matter maybe understood. I hardly see how it is possible for me to divide the subject, because if I admit that the governor-general should be appointed by the Crown, what is the use of my afterwards arguing about the salary? If, whilst I am arguing upon what must follow upon the appointment of governor-general, I cannot refer to the salary, how can I make the matter thoroughly understood? I would submit, sir, that this is a case in which clearly it is impossible to separate the two.
Mr. FYSH: Go on!
Sir GEORGE GREY: Well, I can allude generally to the subject of powers and functions. Limiting myself, then, to the use of the term large, salary, may I say, without naming the exact amount, that the President of the United States, until but lately, received £6,000 a year for his salary for ruling 40,000,000 people, and at the present time I believe his salary is £10,000 a year for ruling 60,000,000 people, and daily augmenting in number. Here we are expected to pay at least as large a salary as is paid to the President of the United States for ruling 60,000,000 people, and to pay a governor-general nominated by the Crown. I ask is it just whilst so many poor people have to be taxed
to pay their share of that salary, to deprive them of the honor, and, I may say of the just pride, of themselves electing some worthy man, known throughout so great an extent of country as Australia, to occupy that honorable post, with the certainty that such an example will operate upon every individual of the community, stirring noble faculties in many men, giving hope, perhaps, to some thousand or more of the people that they may possibly attain to such an honor? Is it right to make the people pay such sums of money, and to deprive them of honors to which they ought justly and rightly to look? And when, as I shall prove by-and-by, as we go on with the bill, each office is closed by some restriction or other to all chance of fair competition in the country, let us, at the very first, indicate in this clause that this great office shall be open at all times to that man in Australia who is deemed the greatest, and worthiest, and fittest to hold so noble a post, and to satisfy his fellow-citizens that they have wisely chosen one who will be an honor to the whole community. Can any of us believe that if at the time of the disturbances in the United States in regard to slavery a man had to be chosen by the British ministry of the day in London, there was the slightest hope that such a man as Lincoln would have come to the front to achieve the great and noble objects which he accomplished? I am sure the universal admission must be that there would have been no hope of such a thing. Yet from the forests of the United States there came one who had been a mere splitter of timber, worthy justly and rightly to exercise the highest power for a time in the United States and to accomplish the great ends at which he aimed. Are we in Australia to be told that also can find no man worthy to succeed to a post of that kind? Are we to be told that we must [start page 564] forego the chance of selecting a man of that sort, and that some thousands a year must be expended unnecessarily, when the money might be applied to great and good objects? And if it should be so expended will it be for the benefit of the people? No. I say it will be to their detriment, by depriving them of such just objects of ambition-objects just in themselves, find which would soon be dear to the hearts of all. To my mind, to subject the people of this new federation to a rule of this kind is to degrade, and not to ennoble; is to lower them in their own estimation, instead of raising them in their own estimation; is to say that they are not worthy to compete with their fellow-men in other parts of the world. As far as it rests with myself, I know that I am venturing upon dangerous ground. I know that I must raise enmity in many minds by what I am doing.
Hon. MEMBERS: No!
Sir GEORGE GREY: But I feel it my duty to run this risk in order to tell what I believe to be impregnable truths, and to try to lead this Convention to do that which I am confident will stamp greatness upon every man who assists in obtaining that benefit for his country. I believe that those who force this clause into this bill, instead of not having done good to Australia, will virtually have conferred a great benefit upon the country by creating a necessity for a discussion of this question. If, now that the question has been raised, it is decided in favour of the people of Australasia-if they are told that this great boon is open to them; if this night we send a thrill from one part of the country to the other with the news that this great object has been attained, I say it will have been for all those who have aided in it one of the happiest days in their lives, and that they will be benefactors to countless generations yet to come in having obtained so great and good an object for them. And further than that, I say that to attain this object, to gain this principle will be to ensure for a long period of time the love of Australasia for England; to remove to a greater distance all chances of separation between the two countries, and to lead me, and I believe many others, to rest assured that a step of the strongest kind has been taken to strengthen the great union of Australasia for yet centuries to come, instead of endangering it, as I am certain will be the case, by blocking that union with the disastrous admission that we must take from Great Britain such governor-generals as she may please to send out, and that none of the citizens of this country may hope to obtain that great and, shall I call it, magnificent office. Actuated by these sentiments, I have felt it my duty to raise this question, and I trust that I shall have some support, if not a majority of the Convention, ill favour of that which I ask for.
Mr. MUNRO: I am rather surprised at the hon. member, Sir George Grey, bringing this question forward at the present time.
Dr. COCKBURN: He mentioned it in the former debate!
Mr. MUNRO: The hon. gentleman was a member of the committee which drafted the bill. Was not the matter thrashed out by the committee?
Sir SAMUEL GRIFFITH: We are not bound by the report!
Mr. MUNRO: I do not say we are; but the hon. gentleman told us that the arguments made use of in the committee were sufficient to convince him that he was wrong, and I thought the same course might have been followed on the present occasion, because if he was wrong in his views then most assuredly he is wrong now. The hon. member tells us that one of the great effects of electing our own governor-general would be to put him in the position of Abraham Lincoln-to give him similar [start page 565] powers and a similar position. Under our form of government that position is occupied by the Prime Minister, and no matter whether the governor-general were elected or not, he could not under constitutional government exercise the functions which Abraham Lincoln exercised. No governor-general could undertake that responsibility, whether appointed by the Crown or not. If the hon. member's argument were carried out to its legitimate issue the people of England ought to elect their sovereign. That is really what it means. The governor-general is to appear here as the representative of the Queen. Under our constitution the Queen is to be in some sense present among us. The only way in which we can have her present is through her representative, and if her representative is to be elected by us, and not by herself, he will be not her representative, but ours. To carry the hon. member's argument to its legitimate issue, therefore, he ought to say that the people of the empire should elect their own monarch. That is what it means. If the hon. member is not prepared to say that, he ought not to go to the extent to which he wishes to go. I do not think, however, that this is a matter to which we ought to devote much time at this stage; because, since we have already agreed-and we have done so that we are to have a form of constitutional government under the Crown, we must allow the Crown the power of being represented in the union. If we carry out the proposal of the hon. member, the result would be that we must abandon the proposed union, and have a union in a different direction, certainly not under the Crown. The hon. member said the result of his proposal would be to strengthen the union with England; but I think few persons will agree with him in that respect. I think the people of Australia will agree with me that the result of his proposal would be to weaken the union. We should, in fact, begin to ask why we were connected with England at all. If we could appoint our own governor-general, if we could carry, on all our legislation, and do the whole of our business, the question would soon be asked what we had to do with England, and then where would the connection be? I do not see the necessity for considering the hon. member's proposal at the present time. I am proud of being a citizen of the great British empire, and shall never fail to be proud of that position. I have no desire to weaken a single link binding us to that empire, whether as regards the appointment of a governor-general or anything else. I desire to hold those links sacred, and if possible to strengthen them, and I am satisfied that in making his proposal the hon. member is not consulting the feelings of the people of Australia.
Sir GEORGE GREY: I wish to answer a few of the arguments raised by the hon. member. I understood him to say that Abraham Lincoln would not be wanted here.
Mr. MUNRO: I did not say that. I said that our governor-general could not do what Abraham Lincoln did in America!
Sir GEORGE GREY: And that in that way he would have been unnecessary.
Mr. MUNRO: That be would be unable to do what Abraham Lincoln did!
Sir GEORGE GREY: But the hon. member has not touched upon this point, What would be the effect of opening this great office to all, of raising up Abraham Lincolns as ministers to advise the governor-general? That is the point. By raising such men, the governor-general would obtain better advice than he would be likely to obtain if the offices were not open. I have no doubt whatever that this is a complete answer to that question-that the one thing is to raise many Abraham Lincolns in the state. Should we be the worst for it? They might not be necessary to-day or [start page 566] at any particular moment, but undoubtedly it would be a great object. There is another phase of the question which the hon. member raised-that it would amount to severance from the empire if the Queen did not appoint the governor-general. The Queen does not appoint the governors now. Ministers advise the Queen as to who should be appointed; but I say that you should rather allow the whole people to give the advice. Why cannot the united people of Australia be capable of choosing a man, and advising the Queen as beneficially as a person who knows nothing about us, and who may be in the hands of colonists at home who are spending large fortunes in an endeavour to get into high life in England, and who may possibly mislead official persons there as to what the desires of the colonists are. I have heard no single reason advanced that would induce me to change my mind in the least degree. Let me hear some good and conclusive answers given to my argument, and I will deal with them; but do not let the subject be dismissed without any reply being made. Let us fairly argue out one of the greatest questions that can occupy our minds in connection with this bill. I am ready to answer any arguments that way be brought forward; but I cannot see that there is any weight whatever in the arguments of the last speaker.
Sir SAMUEL GRIFFITH: I am, to a great extent, in sympathy with the object desired to be attained by Sir George Grey. I believe the highest offices of the state ought to be open to its own citizens; but I do not think it follows that the necessary way to bring about that result is to provide that the governor-general shall be directly elected by the people. Probably the greatest difficulties which have arisen in the United States are owing to the manner in which the president is there elected, If you have a direct election of the president by the people, or such an indirect election as has been substituted for it there, the practical result would be that at every election of the governor-general there would be a canvassing throughout the whole dominion or commonwealth by the representatives of respective parties, and the governor-general, when elected, would regard himself as the nominee or head of a party, and would devote a great part of his time and attention to securing his re-election. These we not the objects which the hon. member, Sir George Grey, desires to attain. I am inclined to think that this is one of those matters that will work out by itself. I am much inclined to think that before many years are over not only the governor-general, but the governors of the different Australian colonies, will practically be appointed, not, perhaps, by the direct election, but with the full consent and concurrence, known in advance, of the people of these colonies. I believe the tendency is strong in that direction at the present time. I know that other members of the Convention are of a different opinion. I am now expressing my individual opinion. I believe it will be to the interests of the Government of England to appoint the best men, men acceptable to the people of the commonwealth, and that they will exercise all proper care to bring about that result. I have no doubt, especially considering the greatly altered conditions of the commonwealth, that great weight will be paid to the wishes of the people, and that some means will be found of nominations being made, if not directly by the Australian commonwealth, yet under such circumstances as to secure appointments which would be known to meet with the concurrence of the people of these colonies. I am of that opinion; I cannot say how it will work out in detail. I believe, also, that when the people of Australia are of opinion-and surely an opinion may be shown in other ways than by [start page 567] an act of parliament-that it is desirable that a distinguished Australian should be appointed to the office of governor-general, some instances will be found-if, indeed, the course is not invariably adopted-in which distinguished Australians will be appointed to the position. That, I take it, is all that the hon. member, Sir George Grey, desires to attain; and it can, compatibly with the retention of our relations with the Crown, be attained by leaving the appointment as it is proposed to be left, in the hands of the Queen.
Mr. KINGSTON: I cannot help sharing the sentiments which have been expressed by the hon. member, Sir George Grey, as regards the desirability of our possessing the power of at least altering
the present practice with reference to the appointment of governors. We need not go very far back in our history to recollect occasions when the public mind was profoundly agitated on this question, and a desire was very generally expressed in some of the colonies, at least, that the people of Australia should exercise a much larger power in connection with the appointment of governors than they do at present. Looking at the bill, I find that this growing sentiment is recognised to a certain extent. It is recognised so far as the various states are concerned by provision being made in the bill enabling the state parliaments to alter the practice as they may see fit. We should be proceeding wisely and in a way which we should be able to defend, if we conferred the same power on the federal parliament. Sir Samuel Griffith has said that in the natural order of things something will be done to give effect to Australian aspirations in this direction. Something has been done so far as the states are concerned; and surely it is only a logical sequence that the same power should be given to the federal parliament.
Mr. MUNRO: We have not yet given that power to the states!
Mr. KINGSTON: The committee have recommended that we should recognise the principle that the people should decide the question through the medium of the local parliaments. It is quite logical that we should urge that the same power should be given to the federal parliament. I do not think that the hon. member, Sir George Grey, will be able to secure a majority at this stage to affirm that in future we should elect our own governor-general; but I think he can fairly claim a most substantial support for a proposition to enable the federal parliament from time to time to deal with the question, and to make such provision on the subject as will be in accordance with Australian sentiment. If he proposes to amend the clause in the direction I indicate, providing that the present practice-shall continue until otherwise altered, I shall be happy to support him.
Captain RUSSELL: It is extremely difficult to follow with any chance of success an address so impassioned, so eloquent, and put in such charming language, as that of my hon. colleague, Sir George Grey. I dissent absolutely and entirely from the whole tone of his speech. I feel that I shall be only doing my duty by expressing the opinion that if his proposal is carried it will bring a great evil on Australia. He gave us a great deal of declamation; be told us about the unnumbered benefits which were to come to the rising, generation of Australia; but what they, were he did not explain. He led us to understand that we have now no men in our colonial parliaments who are men of note, of ability and independence, or worthy of public support. He told us that we had no Abraham Lincolns amongst us. If I may use such a word, I would say that that is all nonsense. We have lots of men who have not so extensive an arena as Abraham Lincoln had, but who have devoted the whole of their time, ability, and intelligence to the Service of the country.
[start page 568] They only need a wider arena to perform deeds equal to those of any statesman. We have every inducement to make us aspire to the high positions of premiers and responsible ministers. So long as that is the case the mere desire to be elected governor of his own state, or of Australasia, will not deter any man from coming into public life, and serving the country to the best of his ability. But let us go a little further. If the proposition of my hon. and venerable colleague be given effect to, we had better at once tear up the bill we have prepared, because it will be useless for any purpose whatever. Although I was a member of the committee which prepared the bill, I will not say that I agree with the whole of it. But the whole basis of the bill is responsible government. And what do we propose to do if we resolve that the governor-general shall be elected by the whole people of Australasia? We intend either to make him an absolute dummy, an absolutely useless man under the thumb of the ministry of the day, or we intend to confer upon him such absolute power that the ministry of the day will be absolutely useless and effete. He must be either an autocrat or a useless image set up to represent the governor-general, which, I venture to say, is not what we desire. Further than that, what are his powers and functions? That seems to be forgotten. And here I will point out to the hon, member, Mr. Kingston, that we are not by any means agreed on the question of electing the governors of the states. The divisions in the select committees on that question were very close. It yet remains to be proved that this Convention will by a majority agree with the principle of electing the governors of the states. It seems to have escaped the observation of hon. members who have spoken on this point that the
functions of the governor of a state, and pre-eminently the function of the governor-general of Australasia, is that he represents not alone the state or people of Australasia, but that he is the type of and represents imperial interests-the connection which binds the whole British empire together. Are we to destroy that? I believe that my colleague, Sir George Grey, desires that there shall be separation from the Imperial Government. The hon. gentleman says that it is not his desire. I can only say that the impression upon my mind is that such is the case. The on. gentleman says that it is not so, and I accept his statement from the bottom of my heart. But the inevitable result of the election of the governor-general must be to declare that the people of England shall have no power whatsoever in connection with Australasia; that they shall have no power of dealing with any imperial matter. I believe that would be an injury to Australasia, and if it were on that ground only, I would object to the governor-general being elected by the people.
Sir GEORGE GREY: I feel it necessary to reply to some of the things that have been said. From the bottom of my heart I believe that those men who do not want to have an elected governor are themselves likely to bring about a disruption between this country and Great Britain. I believe that the hon. member, Captain Russell, is the man likely to do that, and not myself. There are two classes of men in the country. There are the seven who for a long time under the system of plural voting have exercised a vast influence-men who will by their wealth exercise a vast influence as long as there is not an elected governor here. Honors might, perhaps, be obtained from home. I said "honors," but I should have said "decorations," because the meaning of honors is something given for great services performed. So long as there are governors-general sent here from England, so long, I believe, there must inevitably be what is called an aristocratic British party resident in Australasia, [start page 569] who never will cease attempting to carry out their objects. Such is almost a necessity of the case, and I firmly believe that those who say that the people here are worthy to choose their own governors, and ought to have the power, are those who are fighting for the cause of Great Britain and for the union of the colonies with Great Britain for a long period of time. How can it be said that there will be no tie to bind the colonies to England unless we have a governor-general appointed from home? Is there not a sufficient tie in the fact that we have to send every one of our laws home for the Queen's approval? We place ourselves so absolutely under the power of the British Crown that every law has to be sent for her Majesty's approval. What stronger tie can there be than that?
An HON. MEMBER: We do not send all our laws home!
Sir GEORGE GREY: Yes we do. The hon. member does not know what he is saying. Every one of our laws goes home for the Queen's approval. The hon. gentleman who denies that knows nothing of the Constitution. Although our laws are assented to here, they go home to the Queen. Assent being given to them here only brings them into immediate operation. Hon. members are entirely ignorant of what they are talking about. Full power is given to the Queen to allow or disallow our laws. There can be no stronger tie than that binding us to Great Britain. Just fancy 4,000,000 people going to the Queen as soon as they have an opportunity to make their own constitution, and saying, "We will still send every law we make to that Sovereign whom we-I was going to say almost adore-in order that she may assent to or dissent from the measure." What stronger tie than that can bind us to Great Britain? What stronger proof can we give of our devotion to the British interests? What will a few balls at Government House, or the presence of a governor here, do to alter that? The very gentlemen who argue in that way say to me: First you make a governor-general something that he ought not to be; he is advising his ministry instead of his ministry advising him. Then immediately afterwards they say, You must have a governor-general appointed by the British ministry in order that he may let them know what the British interests are, and look after them. The two things are absolutely contradictory. If hon. members will fairly consider the subject they will see that I ask nothing but what is just, nothing but a right which the people have, nothing which derogates from the powers of the Crown, nothing which does any evil to the country, but something which would confer blessings in every direction. We are told that there are many Abraham Lincolns here. Now, I accept that. Suppose the country is in such a blessed state that it has a number of men of that kind, how many more would it have if new objects of just and legitimate ambition were opened to them to rouse their faculties in a way in which they have never been roused until the present day, to make them feel their dignity as
men, and not to go home, as I shall to-night if this is carried, feeling that no fair opportunity is given to me, not of becoming governor-general, but of exercising my ordinary faculties when you tell me that I have no chance of having great offices open to me, that I am standing on a lower level than my fellow-countrymen in Great Britain, for they have the chance there of obtaining by influence good appointments which the whole of the 4,000,000 of Australasia can never know and never have bestowed upon them. To tell truths of this kind is called declamation. But I ask, can any one contemplate on the one hand without shame the idea that he is to be shut out from all the great offices of the country, and, on the other hand, can he do [start page 570] anything but feel great fervour when he contemplates the advantage to his countrymen that would ensue from all those offices being open to them? It may be said that this is declamation; but I say that it is the honest truth, a great truth, and a holy truth, which no man can utter without feeling raised somewhat above his ordinary mood and manner of life. I admit that I do feel that I rather glory in entertaining this feeling; and I feel sorry that no single voice is raised to aid me in what I believe to be a truly great and noble object.
Mr. DEAKIN: If no voice is raised to support the hon. member, I believe it is because most of us are utterly unable to take the same view which he does of this particular office, and of the ambition which is supposed to exist to fill it. I should be loath to say a single word that would appear to derogate from the great dignity and honor attaching to the office of governor of one of the colonies, and much more to that of the governor-general of Australasia, a most high, and honorable, and dignified position. But is it a position to which any number of the people of the colony are ever likely to aspire? In my opinion there is nothing in it to arouse the ambition of those who claim to stand on the liberal side of the community. What they seek, if they seek anything, if their ambition is a worthy one, is to give effect to the principles in which they believe-to be able to do something, to strike some blow, to be able to do some small deed which shall establish their principles in the government of the country. What can a governor or a governor-general do to give effect to the highest principles which he holds? Nothing. What do his convictions count for in a country such as this is and will be? He may cling to his principles with an ardour and devotion equal to that of any other man, but he of all men in the community is the one who is debarred from the privilege of doing anything to advance them. Setting aside the tacit, the silent, personal influence which such a man inevitably exercises upon those who surround him, he is as much removed from the interests and the future of the country in which he lives as if be were still a resident in the mother country. What we say is, therefore, that the ambition of the democracy of this country is an ambition to shape its laws, to guide its destinies, to widen its opportunities, to make life in this country better worth living than it has been hitherto. For this purpose the position of a representative in any of these colonies is infinitely superior to that of governor-general. We say that any man who has received his authority direct from the people, who is commissioned to devote his abilities to great tasks, and who joins his fellowman in performing public duties, fills a position, politically, far higher than the post of social distinction occupied by the governor-general. When the hon. member points to the splendid example of Lincoln, the hero of America, his proposal to make such a man a governor or a governor-general, is almost grotesque, Lincoln exercised powers such as will never be possessed by any governor-general. If we have any Abraham Lincolns in this country who desire to fulfil the same destiny, the position of governor-general is the very last into which we should put them. If we ever possess a man of his rude, rugged, magnificent nature we should not offer him an office of this kind which, indeed, he would not deign to accept, because he would feel that in it his splendid powers would be wasted. What should we do with such a man? I trust that we should make him premier of Australia; and I should say then that he was filling the office for which he was fitted, that he had stepped into the position in which be could best employ all his ability, that he had found the worthy object of his ambition, and that he could [start page 571] fulfil his own destiny and the destiny of his people. It is because we take this position, because we cannot see that the office of governor or governor-general is one so much to be desired by those who take the democratic view of it, and because we have a better use to which to put our great men, that we feel so little concern about the matter. For my part, if I can see established in Australia responsible government in the fullest acceptation of the term-a government in which the governor can take no action which is not counter signed by his responsible advisers, who must answer for their conduct to their parliament, and in which the governor-general, so far as his political status is concerned, has no authority whatever except to chose his advisers subject to the approval of
parliament, I shall be satisfied. It is proposed by one hon. gentleman that even his power of refusing a dissolution should be taken away. It is proposed to reduce the governor's political powers, more than ever though he may at any time increase his social and personal influence. In a community such as ours, with the future which we believe to lie before it, the office of governor-general is not one to which a democrat will aspire. To make it an object of ambition you must change its character altogether, and make it an office like that of the President of the United States-a high executive office in which a man can carry out his ideas and give effect to his principles. If you do that, you must consider his election. We should insist upon it. If he becomes a personage in the political life of the country, his office must be elective. We cannot afford to have in our constitution any man exercising authority, unless he derives it from the people of Australia. At the present time we say that the governor-general exercises no such authority. He exercises the power of the Sovereign of Great Britain, and no more than the people of Great Britain feel degraded and limited, because no one there can hope to aspire to be the monarch of that country, do we feel degraded and limited because we cannot aspire to be governor-general. We are satisfied with all the other offices in the state being open to us, it being possible for the meanest, humblest, and poorest to aspire to the highest office in the commonwealth-that is, the premiership. We feel no regret through being debarred from this one ceremonial office. High though it may be, it is but ceremonial, and we feel no deprivation in any sense because it is closed to us. So, while cordially echoing all the sentiments to which the hon. and venerable member has given utterance, and though in full sympathy with his opinions, the younger democrats must confess themselves to have no sympathy with him in this particular aim on which he has set his heart. We cannot help regretting that even on what we consider a small point, we should not be found fighting on the same side with him. Our minds, however, run in such a different channel, and we fix upon such a different object as the summit of Australian ambition, that we regard with little favour the title which seems to him so valuable, but which appears to the active politician to be little better than a glittering and gaudy toy.
Sir JOHN DOWNER: Listening as I do, with the greatest pleasure to everything that falls from the hon. member, Sir George Grey, I should be anxious in every way to agree with him if I could by any means bring myself to concur in his views. If the hon. gentleman had commenced his argument by asking what was the necessity for a governor-general, or for a governor at all, he might have appealed to the sympathies of a good many of us, because, as Mr. Deakin said, the office both of governor-general and of the local governors must in the nature of things be so much of the character of ceremonials, and have so little substantial authority, [start page 572] that had the hon. gentleman suggested that we should dispense with these-as some persons might consider them-baubles, there might have been a good deal to be said in favour of the proposition. But when the hon. gentleman, who I think generally believes in the British Constitution, at the same time advocates with such earnestness, eloquence, and seriousness the appointment from amongst ourselves, and from our own population of the gentlemen occupying the position of governor-general, I would ask him in what position will the governor-general be when he is elected? If he is elected by the voice of the people, does the hon. gentleman assume that history will not repeat itself, and that the governor-general will not assume a position something like that of the President of the United States, so that the cry amongst political parties will be, "Who is for the president, and who is against him?" If what we want to do is to get rid of the authority of the Queen, and to make the real substantial authority of the realm the person in the position of governor-general, the way to do it is to appoint the governor-general in the way the hon. gentleman suggests; but if we want to retain the authority in the people-apart from the question whether it is to be in the senate or in the house of representatives, or in both co-ordinately-subject to the authority of the Sovereign, it would be inviting at once an interference with that authority to put at the head of the government a person elected by the people, and who, from the very nature of his election, would speak with authority, and assume a dominion over the commonwealth, which we are certainly not prepared to concede. I think the hon. gentleman must not attribute to any one of us the slightest disrespect, or feel hurt because we do not arrive at the same conclusions as be has arrived at, because, although, as the hon. member, Mr. Deakin, said, as a general principle, we think that all authority should come from the people, and that all officers should be elected by the people, we are not prepared to interfere with the cardinal principle of our constitution, and that is, that
the nominal head of the government should be only the nominal head of the executive, and not become a real, substantial, legislative force in the community.
Sir GEORGE GREY: I have two sets of arguments which run in very nearly parallel lines to answer. The first of the two last speakers, I should say, has overlooked one point altogether. The Sovereign of Great Britain has a great stake in the empire and in Great Britain -the preservation of the throne for her race-and she has also great authority. Hon. gentlemen also overlook this fact, that on many occasions the Queen has been the adviser of her ministers. She has been consulted by them, and her advice has been gratefully taken. It has been the advice of one agitated by no political passions, by no feelings of animosity against different persons such as are engendered by debate, and in many instances this advice has been of the greatest possible use to the nation, and I contend that over and over again crises have taken place in these colonies where the opinion of a governor elected by the whole of Australia, who was also a man of ability, and therefore entitled to respect of the highest kind, might have been of the greatest possible use. I believe that if in dealing with all these labour questions we had such a man of philosophic mind, of trained intellect, not agitated by the passions of debate in parliament, not elected by a certain party in the state, and therefore representing them and bound to protect their interests-I believe that if the government had had an adviser of that kind many and great difficulties would have been avoided. He must have taken their advice, and he [start page 573] would have done so with cheerfulness and good will, and endeavoured to render it successful when they persisted in it; and that there should be such a power to help and guide them would, I am certain, be of the greatest possible advantage to the country. These arguments apply also to the speech of the hon. gentleman who last spoke. I feel sure that if he will reflect over it in his own mind be will see that it will be far better to have a man of that kind here than one sent from Great Britain, possibly bound up strongly with a political party there, and anxious to create a political party here, which Government House influence would enable him to a great degree to do. I believe that the presence of such a person in the state would be infinitely more injurious to it than would be the presence of an elective governor chosen by the people of the country. I thank the hon. member, Sir John Downer, for his remarks about the feeling with which the opposition to all I say has been made. I feel no anger at all. I am delighted that hon. gentlemen have spoken as they have; that the whole matter has been fully and completely discussed. But all that I have heard simply confirms me in my opinions more and more. I am satisfied that I am right. As I stand here I feel satisfied that if to the people of Australia themselves was left the power of expressing their views on the subject, an enormous majority would be found to agree with me, and I only hope yet that if this mode of appointing the governor-general is determined upon, petitions will come to parliament from this country, and I believe that those petitions will be so largely signed that parliament will feel that the great strength of Australian opinion is in favour of the election of the governor-general by the people, and that parliament will yield to what it finds to be the belief of the people, and that that will ultimately become law if a constitution is to be given to us; for however hon. gentlemen may persuade themselves that they have the opinions of the people with them, I am satisfied from my knowledge of the persons in various parts of the country with whom I have been in correspondence that a totally different opinion really does subsist, and that a much larger majority of the people than they believe hold the views that I have expressed to-day, and which I have done my very utmost to get approval given to by this Convention. I am sorry naturally that I have failed in my object; but I cheerfully submit to what is the will of the majority. I will endeavour to render everything they do successful for Australia in every form, though adverse to my own views. But feeling all that, at the same time I feel that I have wisely, and, I believe, justly, advised the Convention this afternoon.
Question put-That the words, "The Queen may from time to time," proposed to be omitted, stand part of the clause. The Committee divided:
Ayes, 35; noes, 3; majority, 32.
Atkinson, Sir Harry Gordon, Mr.
Baker, Mr. Griffith, Sir Samuel
Barton, Mr. Hackett, Mr.
Bird, Mr. Jennings, Sir Patrick
Brown, Mr. Loton, Mr.
Burgess, Mr. Macdonald-Paterson, Mr.
Clark, Mr. Marmion, Mr.
Cuthbert, Mr. Moore, Mr.
Deakin, Mr. Munro, Mr.
Dibbs, Mr. Parkes, Sir Henry
Donaldson, Mr. Playford, Mr.
Douglas, Mr. Adye Russell, Captain
Downer, Sir John Rutledge, Mr.
Fitzgerald, Mr. Smith, Colonel
Forrest, Mr. A. Suttor, Mr.
Forrest, Mr. J. Wright, Mr.
Fysh, Mr. Wrixon, Mr. Gillies, Mr.
Cockburn, Dr. Kingston, Mr.
Grey, Sir George
Question so resolved in the affirmative.
[start page 574] Amendment (by Sir SAMUEL GRIFFITH) agreed to:
That the words "her Majesty's," line 5, be omitted with the view of inserting the words the Queen's."
Mr. BAKER: I move as an amendment:
That after the word "functions," line 7, the following words be inserted:-"as are contained in schedule B hereto, and such other powers and functions not inconsistent there-with."
It will be seen that we are deliberately making the instructions given to her Majesty's representative part of our Constitution.
Mr. CLARK: No; subject to the Constitution!
Mr. BAKER: I admit that no instructions can be given which are inconsistent with the constitution, but instructions can be given which are additional to the constitution, and which cover grounds not mentioned in the constitution.
Sir SAMUEL GRIFFITH: How?
Mr. BAKER: Why, under the provisions of an act a despatch was sent from the Government of Queensland, I think it was, to England, in which it was stated that the royal instructions to the governor are part of the constitutional law of the colony. I believe that is undoubted, and we are affirming that in this particular clause. Why should we go to Downing street for any part of our constitution which we can put into this act?
Mr. DEAKIN: What do you propose to put in, then?
Mr. BAKER: Well, I am not prepared to put in the whole of the powers and functions which are to be expressly set forth as having to be performed by the Governor; but I want to affirm the proposition that they shall be, as far as possible, contained in our constitution. Here is one matter to which I will allude. In 1878, after the Dominion of Canada had been formed, they objected to the instructions given to the Governor-General of Canada. They said that they did not consider that he was sufficiently amenable to his advisers, that a good many of the matters upon which he had instructions from the home government were matters upon which he ought to have followed the advice of his constitutional advisers, and Mr. Blake, who was the Minister of Justice, wrote several able despatches on the matter, and proceeded to England, I believe, twice. He certainly proceeded to England once, and after a great deal of trouble, and a great deal of friction the home Government gave way, and they erased from the former instructions an immense number of instructions which had formerly been contained in them. Among other things I will mention one matter which, I think, certainly ought to be inserted in the schedule of this bill, and that is as to the manner in which the governor-general is to exercise the prerogative of pardon. We know very well that, according to the instructions now extant, which have never been altered, our colonial governors have the right of exercising their own discretion; and we also know that whenever Downing-street has been appealed to to uphold a governor in carrying out the powers which they say be ought to possess, they have shuffled in the matter. In Canada it has been provided that the power of the prerogative of pardon is to be exercised by the governor-general:
1st. As to capital cases, with the advice of the Privy Council.
2nd. As to other cases, with the advice of at least one of his ministers.
3rd. As to cases in which pardon or reprieve might directly affect the interests of the empire, or any country or place beyond the jurisdiction of the Government of the Dominion, the Governor-General is, before deciding, to "take those interests specially into his own personal consideration, in conjunction with such advice as aforesaid."
[start page 575] That is clearly laid down, I think. The last portion-the third subdivision-is quite proper, because he acts in matters relating to the interests of the empire as an officer of the Imperial Government; but in all other cases it is expressly laid down that be is to act on the advice of his responsible ministers. That is only one point. I should like to see in the schedule to this bill all the powers and functions of the governor-general which it is possible to define and to reduce to writing, so defined. I do not wish that we should have to go to Downing-street from time to time to find out what the powers of our constitution are.
Mr. DEAKIN: The first question that arises might be as to whether this is the best means of accomplishing, the end which the hon. member has in his mind. If the hon. member proposes to define the powers of the governor-general so far as they can be defined, I am cordially with him. The matter, indeed, received some attention at the hands of the committee, though the question as to the method of definition to be adopted was felt to be surrounded with difficulty. The solution which I wish to suggest to the hon. member who has now moved his amendment is that it would be better to embody in the bill itself anything that we have to say on this subject; and for my own part, I cannot conceive that it will be necessary to do anything more-if I may repeat what I was urging a few minutes ago in connection with another subject-than to insert in this bill, and to state on the very face of the constitution, that the governor shall invariably act on the advice of his responsible ministers, that every act of his shall be countersigned by a responsible minister who shall make himself responsible by his signature for that particular act. That will apply even to circumstances under which a governor-general changes his ministers.
Sir SAMUEL GRIFFITH: He has got to turn out the first lot on nobody's advice!
Mr. DEAKIN: Exactly; but, as the hon. member is perfectly well aware, having gone through the process so often himself, the incoming ministry invariably take that responsibility upon their shoulders.
Sir SAMUEL GRIFFITH: That is not acting on advice, though!
Mr. PLAYFORD: It is acting on his own responsibility!
Mr. DEAKIN: Not at all. However, the question is one of phraseology. If we are agreed on the principle, we can easily embody it in language; and I would suggest to the hon. member, Mr. Baker, that it would meet all the purposes of the schedule which he proposes, and do away with what seems to be an indirect method of dealing with the matter, to say directly that the governor's powers shall be limited by the necessity on his part of obtaining the signature of a responsible minister to every one of his acts.
Mr. WRIXON: It seems to me, sir, that if we take care, when we come to the portion of the bill dealing with the executive government, to thoroughly establish responsible government, we may let this clause go as it is, because whatever functions are vested in the governor-general will then necessarily come under the operation of responsible government, and we need do nothing further. It is just like the case of the Sovereign herself. She has vast prerogatives, great powers but however vast or great they are does not signify to the people of England so long as there is responsible government established. Therefore, instead of seeking to limit the powers which the Sovereign may depute to the governor-general, or to schedule the acts which he may or may not do, we have to take care to thoroughly establish responsible government, and, if we do that, the rest will take care of itself. For example, take the very point which the hon. member, Mr. Baker, puts about pardon. I maintain that the prerogative [start page 576] of pardon is now, in all these communities where we have responsible government, just as much under the operation of responsible government as is any other prerogative, and the thing works in this simple way: Supposing that the head of the executive-the governor-desires, we will say, to hang a man whom the government of the day think should not be hanged, they walk out of office, and will not accept the responsibility. It is all a question of whether they are or are not prepared to take the responsibility of any action of the governor.
Dr. COCKBURN: Is it not absurd to have a crisis on such a matter as that?
Mr. WRIXON: It is all a matter of consideration in each case. I do not say that in every case the ministry will go out of office-not at all; but I say that that is the way in which the thing works, and it works for itself. You want no definition or enumeration of the powers. All you have to take care is that you thoroughly establish responsible government, and I think that a few words ought to be added to the bill when we come to that portion.
Dr. COCKBURN: I agree with the remarks of the hon. member, Mr. Deakin. In fact he has put in the most succinct language what I was trying to bring under the notice of the Convention. I think it is agreed that the exercise of all power should be responsible, and-I do think that after the debate which we have had on the former portion of the clause it will be all the more necessary to clearly point out that the governor-general shall not exercise any powers without the distinct advice of his executive, because if any one suffered in the debate which has lately taken place it is the future governor-general. It was pointed out that his highest function would be to be a dummy, and that although he was the only link between us and the Crown, in being that link he was less than the least in the whole of the colonies-a useless image and a bauble-and as the vote subsequently taken rather proved that this high conception of the office of the governor-general was the opinion of the vast majority In this Convention, and that his election by the people would be to create him a real person instead of an imaginary one, I think it is all the more necessary, as we have decided to have this imaginary functionary, that his powers should not be real, and certainly no powers of life and death should be vested in such an officer as the majority of the Convention wish to see the governor-general reduced to. I think that in every way the voice of the people should prevail, and I certainly think that we should have had nothing to fear, even if the hon. member, Sir George Grey, had been successful in carrying the amendment which he moved a little while ago, and in regard to which I had the honor of voting with him. I am much obliged to the hon. member, Mr. Deakin, for having suggested a manner in which the wishes that I had expressed may be carried out.
Mr. PLAYFORD: There is one point on which I think you cannot say that the governor-general shall act with the advice of his ministers for the time-being, and that is where his ministers ask for a dissolution of the house.
Mr. DEAKIN: But then he gets somebody else to advise him not to dissolve the house!
Mr. PLAYFORD: The hon. member now says that he would act with the approval of some other persons.
Mr. DEAKIN: Yes, responsible ministers!
Mr. PLAYFORD: But he commits the act of refusing a dissolution to the ministry of the day before other ministers are there at all.
Mr. DEAKIN: He finds some one to take the responsibility!
Mr. PLAYFORD: He must act on his own responsibility.
[start page 577] Mr. DEAKIN: No, never. " The Crown can do no wrong!"
Mr. PLAYFORD: He must act on his own responsibility.
Dr. COCKBURN: To whom is he responsible?
Mr. PLAYFORD: He is, I imagine, responsible to her Majesty the Queen. I can entirely, understand the position, and I say that under ordinary circumstances, and in the great majority of instances, he must undoubtedly act with the advice of his ministers; but there is that one case in which he cannot act with the advice of his ministers.
Mr. DEAKIN: That is only a matter of expression-either with the advice of his responsible ministers for the time-being or with that of some others who accept the responsibility.
Mr. PLAYFORD: If the hon. member likes to put it in that way it does away with my objection; but in the granting or refusing to grant a dissolution the governor-general must act on his own responsibility, and not on anybody's advice.
Mr. MUNRO: The Queen does not do that!
Mr. PLAYFORD: The Queen has the power to do it whether she has or has not done it. I know the Governor of South Australia exercised the power only a short time ago against the hon. member who has asked that the power shall not be allowed to be exercised.
Mr. DEAKIN: He evidently found some one ready to support him!
Mr. PLAYFORD: Undoubtedly he did. All I have to say in the matter is that we had better leave it as it is. There is no necessity to define the governor's powers, which appear to me to be small enough at the present moment.
Mr. DEAKIN: We want to make them clear, not small!
Mr. PLAYFORD: We have not felt any inconvenience with regard to the powers given by the Queen in letters patent to the governors, and I think that we shall not find any difficulty in the commonwealth.
Dr. COCKBURN: I am arguing simply what I have always argued ever since I have been in politics-that is to say, that the exercise of power should be vested in those directly responsible to the people; and I say that the punishment of ministers who dare to bring about a dissolution of parliament, unless the voice of the people is with them, is sudden and fatal, and that any men who brought about a dissolution of parliament unless they had the voice of the country behind them would be politically ruined, if not for ever, at least for a considerable time; and I think it better to sheet home the responsibility as far as possible to the ministers themselves. It is all very well to say that they are responsible. The governor, of course, is responsible to the Queen for the exercise of his authority. I think that the exercise of such a large power as that of dissolving the house of representatives should be vested in those directly responsible to the people, and not in some one responsible to a distant authority. In advancing the views I have put forward, I have not been guided by any recent events in politics, but have simply expressed the views I have held ever since I first had the honor of entering parliament.
Sir SAMUEL GRIFFITH: I would point out, sir, that the discussion is rather departing from the amendment before the Committee, which is to define the powers of the governor-general. I should like to ask the hon. gentleman, Mr. Baker, if he has attempted to make out a list of the executive functions of the governor-general? I think he would find it a difficult task, and would have to introduce general words which would mean no more than the words now in the clause.
Mr. BAKER: I am willing to admit that it would be impossible, and most [start page 578] impolitic to try, to define all the powers of the governor-general; but I would point out to the hon. and learned member, Sir Samuel Griffith, that, as draftsman of the bill, he has partially done what I am advocating. In clause 57 he has defined the powers of the governor-general in reference to assenting to bills, and why should we not do the same in regard to any other matter which is capable of being defined? Take, for instance, the exercise of the prerogative of pardon. Is there any sound reason why the duty and the power of the governor-general should be defined in reference to giving the royal assent to bills, and not in reference to the exercise of the prerogative of pardon? I can see none. I would ask leave to withdraw my amendment, because I think there is a good deal of force in what the hon. member, Mr. Deakin, said, that perhaps this is not the best way to attain my object. I shall, if I am allowed to withdraw the amendment, consider whether I can draw one or two clauses, which will come in after clauses 57 and 58, and be a sequence, as it were, to the example therein set, of defining the powers of the governor-general.
Amendment, by leave, withdrawn.
Amendment (by Sir SAMUEL GRIFFITH) agreed to:
That the words "her Majesty may deem necessary or expedient" be omitted with a view to insert in lieu thereof the words "the Queen may think fit."
Clause, as amended, agreed to.
Clause 3. The annual salary of the governor-general shall be fixed by the Parliament from time to time, but shall not be less than ten thousand pounds, and the same shall be payable to the Queen out of the consolidated revenue fund of the commonwealth. The salary of a governor-general shall not be diminished during his continuance in office.
Mr. BARTON: I propose to omit the words "the same" as being quite unnecessary. The alteration will, I think, improve the bill.
Sir HARRY ATKINSON: I should like to see all the words after "from time to time" omitted, for I do not see why we should fix the amount at £10,000. I therefore move:
That the words "but shall not be less than ten thousand pounds" be omitted.
Mr. GILLIES: I should like to know from the hon. member the object of omitting the words. Is it that there shall be no salary at all?
Sir HARRY ATKINSON: No; it is that the federal parliament shall be left perfectly free to deal with the question of salary itself.
An HON. MEMBER: I suppose the hon. member would do the same with the ministers?
Sir HARRY ATKINSON: I should do exactly the same with the ministers!
Mr. MUNRO: I feel that the hon. member, Sir Harry Atkinson, cannot have considered what he proposes to do. The governor-general must be appointed before the parliament is called into existence, and does the hon. member think that any one will take the office without some assurance that he will get a salary of some sort? Surely the governor-general ought to know Something about the office be is to fill and the emolument attached to, the position! If the amendment be made the result will be that the appointment will be made without any assurance as to the emolument which the holder is to receive. The hon. member says he will make a similar proposal with regard to the ministers of the Crown. I venture to say that the two proposals are really unwise, and that we ought now to attach some decent salary to the office giving power to the parliament to vary it, but not to reduce it during the term of office of the gentleman appointed afterwards. My conviction is that a salary of £10,000 is altogether inadequate for the office. My feeling is that the gentleman to be appointed ought [start page 579] to be equal to the gentleman appointed as governor-general of India. He ought to be a gentleman capable of being a cabinet minister in England, and for that purpose the salary ought to be very much larger than what is proposed. I do not think it is to the advantage of the colonies to hawk this position about in such a way that no man of good standing or position will take it. When the Constitution of Victoria was agreed to many years ago, I think the population of the colony was about only 250,000, and yet they fixed the governor's salary at £10,000, with an allowance of £5,000, making it £15,000 in all. Since then it has been reduced to £10,000 a year, but a house is provided furnished, so that practically the emolument comes to £15,000 a year now. Now, this Convention, representing the whole of Australia, is going to give the governor-general a salary equal to what is given to the Governor of Victoria at the present time.
Mr. CLARK: You will reduce yours!
Mr. MUNRO: No, we do not intend to reduce ours. We think the Governor of Victoria is entitled to the salary, and perhaps more, if we could afford it. At any rate, I think that instead of striking out these words, and making the amount indefinite-in fact, making no provision at all-the words ought to be struck out with the view of increasing the amount very considerably.
Sir SAMUEL GRIFFITH: Another reason why the words should not be struck out is not only the importance of the first governor-general knowing how much be is to get-a very important consideration in choosing him-but that the federal parliament might simply by reducing the salary cut the connection with Great Britain altogether. Supposing that it were to reduce the salary to £100 or £1,000 a year! That is the reason why in all the constitution acts there has been the reservation of a fixed sum, which is made payable to her Majesty, so that she has always money to pay her governor-general, and therefore can always secure the appointment in the country of her representative with an adequate salary. I agree with the hon. member, Mr. Munro, that the salary is too small, having regard to the salary given to the Governor of Victoria.
Sir JOHN BRAY: I think it is desirable to fix the salary of the first governor-general. The clause says that the salary shall not be less than £10,000. It is very possible, I think, that that expression may lead to very serious misunderstanding. It is an intimation to the governor-general that he shall get £10,000 a year, and probably a good deal more than that. He ought to know when appointed what his salary is to be, and I think, therefore, that the salary of the first governor-general should be fixed in the bill. The words "but shall not be less than" should therefore be omitted.
Sir SAMUEL GRIFFITH: That would enable the federal parliament to reduce the salary to £1,000!
Sir JOHN BRAY: No, because the clause provides that the salary shall not be diminished during the governor's continuance in office. But I am astonished to hear it suggested that the federal parliament would be so supremely ridiculous as to fix a nominal salary for a governor-general. It is to my mind utterly out of the question to imagine that such would be the case. If we leave the clause as it stands we say to the federal parliament, "We cannot trust you to fix the salary; we will fix it at not less than £10,000, whatever the circumstances of the federal government may be." Surely if we give the federal government the powers which it is proposed to give them we can trust them to see that proper provision is made for the salary of the governor-general. I think we should fix the salary, of the first [start page 580] governor-general at £10,000, leaving it to the federal government to fix the salary subsequently.
Sir SAMUEL GRIFFITH: The hon. member, Sir John Bray, surely could not have heard my argument. Does he suggest that the framers of the constitutions of the various colonies did not understand their business? This reservation in regard to the salary of governors is made in the whole of the acts.
Sir JOHN BRAY: But there is power to alter the act!
Mr. GILLIES: Only by a certain majority!
Sir SAMUEL GRIFFITH: The salary cannot be diminished unless by an amendment of the act, and that is the object of the reservation. The idea is to secure the means of providing a representative of the Queen in the colony with an adequate salary. I will put this illustration. If you give to the federal parliament absolute power to reduce the salary, some persons may be constantly endeavouring to earn a little cheap popularity by proposing reductions. You will have continual agitations for the reduction of the salary to £8,000, or £6,000 or less. It would, perhaps, be regarded as a very popular move on the part of some persons.
Dr. COCKBURN: Is that not rather a serious reflection upon public opinion?
Sir SAMUEL GRIFFITH: I have heard of persons who, in order to gain a little cheap popularity have been capable of that sort of thing. I think the proposed amendment would be a great mistake. The salary of course could be altered as part of the constitution; but then it would be only by the deliberate action of a majority of both houses, and with the approval of the states.
Sir JOHN BRAY: Why not leave the salary to the federal parliament?
Sir SAMUEL GRIFFITH: It might then be determined by an accidental majority perhaps at the end of the session.
I understood the hon. member to suggest that the salary should not be either increased or diminished during the governor's tenure of office, and to argue that if the words "but shall not be less than" were retained, the governor would perhaps expect more than £10,000. I hope, for the reasons I have given, that the Committee will not omit the words.
Mr. DEAKIN: There is another contingency possible, if the hon. member, Sir John Bray, feels that there is force-and there is force-in the remarks of Sir Samuel Griffith as to the necessity for protecting the salary of the governor-general against hasty reduction, allowing it to be reduced only by the machinery provided for an amendment of the constitution. The hon. member can yet press-and very properly-an amendment omitting the words "not less than," because while this renders it impossible to diminish the salary without altering the constitution, it leaves it perfectly possible to increase it by means of an ordinary bill.
Sir SAMUEL GRIFFITH: That is as the clause stands now!
Mr. DEAKIN: If it were desired to provide £12,000 or £15,000, the extra amount could be appropriated by an ordinary act of parliament, because it would not alter the constitution. I think, therefore, that the hon. member, Sir John Bray, is justified in pressing his amendment to the point of rendering it necessary to alter the constitution, if it be wished to raise or diminish the salary of the governor-general.
Sir SAMUEL GRIFFITH: Why for the purpose of raising it?
Sir GEORGE GREY: I entirely differ from the hon. member, Sir Samuel Griffith, in thinking that the power of reduction would be exercised for the sake of popularity. It is to suppose that a majority of the federal parliament would make an alteration from an unworthy motive. It might [start page 581] be thought that the salary was much too large, and that it was injurious to the interests of the colony to pay such a large salary. The salary of the governor-general should be reduced whenever Parliament so desires, and should be increased at any time parliament may see fit to increase it. I think parliament ought to have the fullest power in fixing the salary.
Sir JOHN BRAY: I understand that if the amendment of the hon. member, Sir Harry Atkinson, is put, and it is determined that the words shall stand, the amendment I desire to move cannot be put.
The CHAIRMAN: That is the case.
Sir HARRY ATKINSON: With the permission of the Committee, I should like to withdraw my amendment.
Amendment, by leave, withdrawn.
Sir JOHN BRAY: I move:
That the words "but shall not be less than," line 3, be omitted with a view to insert in lieu thereof the words "and until so fixed shall be."
Sir SAMUEL GRIFFITH: That is exactly the same amendment; it strikes out the minimum!
Sir JOHN BRAY: It is not the same. My proposal is that the salary of the governor-general shall be £10,000 until it is fixed by the federal parliament. Surely we ought to intrust the federal parliament with the power of making proper provision for the salary of the governor-general, and ought not to make it necessary to alter the constitution act in order to alter the salary paid to that official. If we have any faith whatever in the federal parliament, we ought not to hesitate to empower them to either reduce or increase the salary as may appear to them to be necessary.
Mr. GILLIES: I should have been pleased if the hon. member, Sir John Bray, had replied to the statements made on the other side by the hon. member, Sir Samuel Griffith, in reference to what has been the universal practice. The hon. member must surely know that the salaries of judges and other high officials are fixed by act so that they may be generally known: but this does not prevent parliament from altering them. If the proposed words are inserted the federal parliament may consider it its duty, as soon as it met, to consider the whole question of salary. If we are to have a suitable person to occupy the position of governor-general both he and we ought to know what salary he is to receive.
Sir HARRY ATKINSON: It will be fixed permanently for his term of office!
Mr. GILLIES: I beg pardon; we have not yet gone far enough in the clause to decide that question. The proper thing for us to do is to adhere to the practice in all constitutional colonies by which the salary of the governor is fixed. It can be altered by parliament, as has been done in Victoria, in the proper way, provided by the constitution. As my hon. colleague, Mr. Munro, has said, it was fixed at £10,000 a year, and £5,000 a year for allowances. But the salary could not be altered except in the way provided by the constitution. That is the case not only with the salary of the governor, but with the salaries of other high officials, such as the judges. That is a rational proceeding. This course is not proposed because there is any fear or doubt as to the honor or uprightness of the federal parliament. It is only proposed because it is desirable in the public interest that every person who is called upon to occupy a very high position in the state should know what his salary and emoluments are. If it is found desirable afterwards in the public interest to reduce or increase that salary it can be done by the legislature; but it must be done in the way provided by the constitution. If we pass the clause including the words which prevent the salary from being altered so long as the gentleman who first fills it occupies the position, but leaving it open to the parlia- [start page 582] ment to resolve that the salary shall be reduced immediately he ceases to hold that position, I venture to think that what the hon. member, Sir Samuel Griffith, has indicated might happen. There might be a gentleman extremely anxious to be popular, or who might honestly believe that the salary could be reduced without disadvantage, and he might take steps to reduce the salary forthwith. Why should we not leave this question to be dealt with by the federal parliament, but make it necessary to carry out the alteration in the same way as other important alterations in the constitution have to be made? Why should we leave it to a chance vote of the legislature to decide this question? I believe that it would be a mistake to do so-not because I have any fear of the federal parliament, but because I think we should adhere to the practice hitherto followed in constitutional colonies. If it is desired to alter this provision, let it be altered in the same way as other fundamental provisions of the constitution are altered.
Mr. KINGSTON: I understand that the contention of the hon. member, Mr. Gillies, is this: that if in future there is a desire to alter the salary of the governor-general it should be passed in the mode prescribed in the last part of the bill that is, a convention should be called to consider the question, and there should be no power whatever to give effect to the desire of the federal parliament, unless by a reference to conventions of the various states its action was approved. I utterly fail to see the necessity for the course suggested. I am in sympathy with the amendment proposed by the hon. member, Sir John Bray, to give power to the federal parliament to deal with this matter as from time to time they
may think fit. In the first instance, the amount has to be fixed some how or other, and I have no objection to the amount now proposed, and it is also rendered impossible to alter the salary which is payable to a governor-general during his tenure of office. Something has been said with regard to the practice that obtains in other colonies with reference to the alteration of salaries of this description. So far as Canada is concerned, it appears to me that section 105 of the British North America Act gives to the Canadian Parliament the power to do what is proposed by the hon. member, Sir John Bray. The provision is:
Unless altered by the Parliament of Canada, the salary of the Governor-General shall be £10,000 sterling.
Dr. COCKBURN: And they did alter it-they reduced it!
Mr. KINGSTON: With regard to Canada, hon. members who have referred to the practice of other colonies will find from the passage I have quoted that they are not consistent in their contention. Similarly, with reference to our own little colony, no doubt we have a provision that certain clauses in our Constitution Act cannot be altered unless the bills for the alteration are assented to by specified majorities. So far as South Australia is concerned, this restriction of the powers of the legislature only applies to alterations in the constitution of the two houses, and we have the fullest power by any act of Parliament-subject, of course, to the royal veto-to deal with this question of the salary payable to the governor in such manner as we think fit. It appears to me that the precedents referred to support the contention of the hon. member, Sir John Bray. Why, then, should we proceed to tie the hands of the federal parliament and prevent them from dealing with this question as they may think fit? I am not going to take exception to the amount of salary proposed. I have listened with a great deal of interest to the arguments which have been advanced on the subject of the position of the governor-general, and a late division in this Committee [start page 583] proves that a very large majority of the Convention are impressed with the idea so eloquently urged by various delegates, that the position of governor-general is utterly unfit for, and unworthy of acceptance by, every citizen of the Australian commonwealth. Under these circumstances, there is reasonable ground for doubting whether or not we are not erring on the side of excessive liberality in fixing the amount to be paid to the first occupant of the office at £10,000 per annum. There is no fair ground either in precedent, or point of principle, for insisting on the necessity of tying the hands of the federal parliament in fixing the salary to be paid to the governor-general. There are much more important questions with respect to which they have a free hand. It is inconsistent to give them the fullest power to deal with those important questions while we refuse to do so with regard to this question of the salary of the governor-general. Subject to the qualifications that the amount in the first instance shall be specified, and that it shall not be altered during the continuance in office of any governor-general, I shall do my utmost to give the fullest power to the federal parliament to deal from time to time with the salary.
Sir SAMUEL GRIFFITH: I would call the attention of the hon. member, Mr. Kingston, to this consideration-does he or does he not intend to make the Queen a permanent part of this parliament? Does he intend that the commonwealth of Australia is to be presided over by the Queen? If he does, I ask, does he intend to provide that distinctly by the constitution, and does be wish it to be a real connection, or that it may, by a passing whim of the parliament, be made merely a nominal one? This guarantee of £10,000 a year is the only thing reserved to the Queen under this constitution. We say that the Queen is part of the-parliament, that she is the head of the commonwealth. We wish her to exercise this function in the commonwealth; but we leave it entirely to the parliament to say whether we shall give her any allowance for doing so. I maintain that that is wrong in principle. If the Queen is to be part of the parliament, and to exercise authority in the commonwealth, we must have a deputy, and we are bound to say that we intend to make provision for the payment of his salary. That must be part of the constitution, otherwise there need be no salary, and the governor-general may be a mere shadow.
Mr. KINGSTON: I decline to recognise the connection between Australia and the mother country as resting on such a slender thread as the payment or non-payment of a sum of £10,000 as the salary
of a governor-general; and I say, with all respect to the hon. and learned member, that it is unfair to put the position in a contrary light. The maintenance of the connection with the mother country was not in the slightest degree endangered by the provision which we find in the Constitution of Canada.
Sir SAMUEL GRIFFITH: Yes!
Mr. KINGSTON: I have quoted the clause.
Sir SAMUEL GRIFFITH: I believe they tried to reduce the salary, and the act was disallowed!
Mr. KINGSTON: The connection was not in the slightest degree endangered by the insertion in the Canadian Constitution of the provision which we seek to have embodied in this bill. Sir John Bray's amendment seeks to give effect to the same principle, and the power reserved to her Majesty to assent or withhold her assent to Canadian acts, will apply equally to acts passed by the federal parliament of Australia.
Sir SAMUEL GRIFFITH: Has the hon. member considered what a serious thing that is-disallowance?
[start page 584] Mr. KINGSTON: No doubt it is a serious thing, and it would be a serious thing if the federal parliament were likely to disregard the obligation to provide a suitable sum for the gentleman selected for the office of governor-general. But I say we have no right to consider it probable that they would disregard that obligation. We have had no experience which will warrant such a supposition. We have no experience to warrant the suggestion that they will lightly disregard the obligations imposed on them. We have had power in our colony to make any regulations on the subject which we might think fit, and I am sure that the discretion observed in that colony, as in other places where similar laws prevail, will be sufficient to rebut the suggestion that the power is likely to be abused by a legislature which should be trusted with it.
Question-That the words proposed to be omitted stand part of the clause-put. The Committee divided:
Ayes, 24; noes, 12; majority, 12.
Baker, Mr. Griffith, Sir Samuel
Barton, Mr. Hackett, Mr.
Brown, Mr. Jennings, Sir Patrick
Burgess, Mr. Macdonald-Paterson, Mr.
Clark, Mr. McMillan, Mr.
Cuthbert, Mr. Munro, Mr.
Dibbs, Mr. Parkes, Sir Henry
Donaldson, Mr. Russell, Captain
Douglas, Mr. Adye Rutledge, Mr.
Downer, Sir John Smith, Colonel
Forrest, Mr. A. Suttor, Mr.
Gillies, Mr. Wrixon, Mr.
Atkinson, Sir Harry Gordon, Mr.
Bird, Mr. Grey, Sir George
Bray, Sir John Kingston, Mr.
Cockburn, Dr. Loton, Mr.
Deakin, Mr. Moore, Mr.
Fysh, Mr. Playford, Mr.
Question so resolved in the affirmative.
Amendment (by Sir GEORGE GREY) negatived:
That in line 3 the word "six" be substituted for the word "ten."
Amendment (by Mr. BARTON) agreed to
That in line 4 the words "the same" be omitted.
Amendment (by Mr. DEAKIN) proposed
That in line 7 the word "altered" be substituted for the word "diminished."
Sir SAMUEL GRIFFITH: I am under the impression that the first federal parliament will think £10,000 too small a salary for the governor-general, especially if Victoria continues to pay its governor £10,000. But I do not see that we should interfere in this matter, since it is strictly the business of the federal parliament. It is the business of the Queen, and of the whole of the colonies before they come into the federation to see that the Queen shall be paid a sufficient sum to enable her to be represented in the commonwealth; but I do not see that we should prevent the federal parliament from increasing the amount if they think proper.
Mr. DEAKIN: We say, "During his term of office." There will be nothing to prevent the federal parliament from raising the salary of the next governor, though, if it is improper to reduce the salary of the governor during his tenure of office it is equally improper to increase it.
Sir JOHN BRAY: We have left a very important question still unsettled, and that is, what is to be the salary of the first governor-general. The clause says that it is not to be less than £10,000, though it implies that it may be more. I do not know why we should not intrust the federal parliament with the power of increasing the salary, if it thinks proper. Why should we say that it must not be raised or diminished I
Mr. GILLIES: It will be contradictory!
Mr. DEAKIN: The clause is imperfect, not contradictory!
Sir JOHN BRAY: We say it may be more; but, at the same time, we say it shall not be altered. I suggested that we [start page 585] should fix the salary of the first governor-general at £10,000 until the federal parliament alter it.
Mr. DEAKIN: That is the proper thing to do!
Sir JOHN BRAY: But I am willing now to leave it to the federal parliament, and I object to the amendment proposed by the hon. member, Mr. Deakin.
Mr. DEAKIN: We have got the word "diminished " already!
Sir JOHN BRAY: That is to prevent any injustice to the governor-general; but surely we can intrust the federal parliament with the power of increasing the salary. Let us leave a little to their discretion, and give them a little power, instead of tying up their hands in the way proposed.
Mr. GILLIES: I should like to ask for a ruling upon the subject. We have decided to retain the words "not less than," and I should like to ask you, Mr. Chairman, if an amendment can be moved which would be contradictory to these words?
Mr. DEAKIN: It is not contradictory in any sense. The one is a negative limitation, and the other simply refers to the salary when fixed. I confess that the clause is quite imperfect; but it is certainly not contradictory to say that though the salary cannot be reduced it shall not be altered during the governor's term of office.
The CHAIRMAN: The amendment is quite in order.
Mr. HACKETT: I observe that the last line and a half is a virtual adoption of part of a clause in the American Constitution; but the President there is practically never absent from the seat of government. This clause, however, would allow the governor-general to draw his full salary during a year's leave of absence; and I would point out that that leave of absence rests with the authorities in Downing-street. The clause, therefore, would allow the Colonial Office to arrange that the governor-general should draw his full salary during a year's absence, when an administrator would have to be appointed in his place, who would have to be paid a large salary for doing the work. Who would pay him?
An HON. MEMBER: The governor-general!
Clause, as amended, agreed to.
Clause 6 (Governor-general to fix times and places for holding sessions of parliament-Power of dissolution of house of representatives-First session of Parliament).
Sir SAMUEL GRIFFITH: I wish to call the attention of the Committee to a point raised by some hon. members as to whether six months is long enough to enable provision to be made by the different local parliaments for the representation of their respective colonies in the federal parliament.
Clause agreed to.
Clause 8. The privileges, immunities, and powers, to be held, enjoyed, and exercised by the senate and by the house of representatives, respectively, and by the members thereof, shall be such as are from time to time declared by the parliament, and until such definition shall be those held, enjoyed,
and exercised by the Commons House of Parliament of the United Kingdom and the members thereof at the date of the establishment of the commonwealth.
Mr. ADYE DOUGLAS: I suggest that in the first line of this clause the word "powers" should be omitted. Nobody intends, I presume, that the powers of the House of Commons shall be vested in the senate or house of representatives.
Mr. DEAKIN: Not in the senate!
Mr. ADYE DOUGLAS: Nor in the house of representatives. Nobody knows what the powers of the House of Commons are; but we know what its privileges are. I beg to move as an amendment:
That the word "and" be inserted between the words "privileges" and "immunities" with the view of afterwards striking out the words "and powers."
[start page 586] Sir SAMUEL GRIFFITH: I would point out that this is a phrase which has been used in so many constitutions that it has come to have a regular recognised meaning. At the same time, this is not dealing with the powers of parliament, but with the powers of the houses of parliament. One of the most important of those powers is, I presume, to keep order, and to summon persons before the house, and to give evidence before select committees, and that is not a power which falls within the word "immunities"; nor does it, I think, fall within the word "privileges." "Authorities" might do if the word "powers" is thought to be too large.
Mr. ADYE DOUGLAS: It is well understood that the powers of the House of Commons are just what they choose to declare them to be. There is nothing fixed nor definite; and a parliament such as ours ought not to have power to declare what its powers are, and to extend those powers as the House of Commons may do.
Mr. BAKER: As the hon. member, Sir Samuel Griffith, says, these are well known words. No doubt they are; but we are establishing a different form of government altogether. We are establishing a form of government in which the federal parliament shall have certain specified powers, and the states parliaments shall have certain specified powers, and I confess that this word "powers" puzzled me when I first read it. I understood the intention to be as stated by Sir Samuel Griffith, but I do not think it is at all clear. The word "powers" should either be left out altogether or the word "authorities" substituted. There should be something to show that it is not intended, as would appear from the clause as at present worded, to give to the senate and the house of representatives power to declare that they can do anything they like.
Mr. DEAKIN: Drop out the "senate," then it will be all right!
Mr. BAKER: Perhaps the house of representatives might be dropped out too; that would be the best way, and let the clause read "the members thereof." I do not think the wording of the clause is satisfactory, although I agree with its intention.
Mr. WRIXON: It seems to me that it would be better if we followed in this case the formula adopted in more than one of our constitution acts, and defined the privileges, immunities, and powers by saying they shall not exceed those enjoyed by the Commons House of Parliament. Then you have a limit; you know what you are doing, and you define the extent of the powers and privileges which you are conferring.
Mr. DEAKIN: Why should we tie our own hands?
Mr. WRIXON: I think it would be unwise to leave it perfectly open to the federal parliament to claim anything and call it a privilege. Ample privilege is now vested in the House of Commons for
every legislative purpose, and I think that this would meet the view of the hon. member who raised the point.
Mr. ADYE DOUGLAS: No, it does not. You have now simply the rules of the House of Commons as defined up to the present time; but the House of Commons could to-morrow declare its present powers extended in any way it wished, and by the clause as now worded we would give to the federal parliament all the powers of the House of Commons, and surely that is not the intention.
Mr. DEAKIN: Yes!
Mr. ADYE DOUGLAS: I see no objection to giving the federal parliament all the powers of the House of Commons as defined up to the present time; but this clause would give to the parliament all the powers of the House of Commons at any time.
Mr. WRIXON: It would give to the parliament anything they liked to claim!
[start page 587] Mr. ADYE DOUGLAS: There is no legislative limit to the powers of the House of Commons; they may extend them as they please from time to time. I think it would be sufficient if we gave to the federal parliament only the privileges and immunities of the House of Commons.
Sir JOHN DOWNER: I confess that I had grave doubts as to whether or not we ought to give to either the senate or the house of representatives unlimited authority with respect to what they might be pleased to consider their privileges, immunities, and powers, and if I knew of any intelligent way of limiting the powers of the federal parliament, I should be glad to limit the powers of both houses. But after consideration, I have come to the same conclusion as that arrived at by some members of the committee, namely, that if we limit the authority of the federal parliament ultimately to the analogy of the House of Commons, we shall have the greatest difficulty in finding out what that limitation really is. I think it would be as well to let the clause stand as it is, and trust to the good sense of the commonwealth as sufficient to guide us, without adopting an analogy with reference to the House of Commons which we do not understand, and cannot define.
Mr. ADYE DOUGLAS: There appears to be a clerical mistake in the sixth line of the clause. Instead of the words "until such definition," I think it should read "until so declared."
Sir SAMUEL GRIFFITH: The hon. member is correct; the word "definition" is a mistake. The word originally used in the same line was "defined," but it was altered to "declared."
Amendment (by Sir SAMUEL GRIFFITH) agreed to:
That the words "such definition" be omitted with the view of inserting in lieu thereof the word "declared."
Mr. BAKER: I may state that this clause is copied almost verbatim from the British North America Act. An act was passed-38 and 39 Victoria-repealing that section which we are now going to adopt, and which act says:
And whereas doubts have arisen with regard to the power of defining by an act of the Parliament of Canada, in pursuance of the said section, the said privileges, powers, or immunities; and it is expedient to remove such doubts, be it therefore enacted-
It then goes on to say what the clause really meant. As there were doubts about this clause, and it was necessary to pass an imperial act to remove them, surely it is not wise for us to adopt it.
Mr. DEAKIN: Read the amendment!
Mr. BAKER: First of all they repeal that clause, and then they say:
The privileges, immunities, and powers to be held, enjoyed, and exercised by the senate, and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by act of the Parliament of Canada; but so that the same shall never exceed those at the passing of this act, held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.
Mr. DEAKIN: That is no better!
Mr. BAKER: I do not know the reasons which actuated the Imperial Parliament in repealing this clause which we are now seeking to adopt, and in inserting the other, but there must have been some reasons. I believe this act was passed at the suggestion of the Canadian Parliament.
Sir SAMUEL GRIFFITH: I think there is no difference in the point raised from the one raised a few moments ago. The Parliament of Canada never had power to take any more privileges than were enjoyed by the British House of Commons in March, 1867, and they did not know how to go to work in 1875 subject to that condition.
Clause, as amended, agreed to.
[start page 588]
Part II.-The Senate.
Clause 9. The senate shall be composed of eight members for each state, directly chosen by the houses of the parliament of the several states during a session thereof, and each senator shall have one vote.
The term for which a senator is chosen shall be six years.
Mr. WRIXON: With regard to this clause, I wish to say that I will not propose that it be postponed, because that would lead to inconvenience with regard to other clauses; but I would observe that, when we come to determine the position and powers of the senate, if there should be a majority in the Chamber to give the senate large powers-certainly any larger than are now contained in the bill-we must go back upon the clause and reconsider it; because it will never do to give equal representation to the smallest, as well as to the largest states, if the senate is to be a large and determined power in the constitution. In passing the clause now without challenge, I wish to observe that we leave it open to go back to it after we have settled the constitution of the senate.
Sir SAMUEL GRIFFITH: I have an amendment to propose in the clause. There is no mode of returning the names of the senators as chosen by the governor-general. Certainly a provision of that kind must be inserted.
Mr. MUNRO: I should like to know if the Convention have fully considered the proposals made in this clause, first, with regard to the number of senators, and, second, with regard to the term for which they are to be elected. A number of our friends are continually telling us to look back to the grand Constitution of the United States; but we find that in the United States they have only two senators for each state. At the time the Constitution was framed there were only thirteen states, and two senators for each state, or twenty-six senators altogether. Now, we propose to have eight senators for each of the seven states to start with, amounting to fifty-six senators. I consider that that number is too large, and that we ought to reduce it. I think at the outside that six senators for each state would be quite sufficient. They ought also, in my judgment, to be elected at times different from those proposed
in the latter portion of the clause. I think it is too long to leave a period of three years between each appointment or election, or six years altogether. In the event of any difficulty arising there ought to be power to make the appointments at least every second year. In order to test the question, I move:
That the word "eight," line 2, be omitted with a view to inserting the word "six."
Mr. CLARK: The hon. member, Mr. Munro, appears to object to the number "eight," because he thinks the senate will be too large a body. He also says that we calculate on having seven states to commence with, which will give fifty-six senators. Although we all hope that we shall have seven states to commence with, we have to face the difficulty that we may have only six or only five to commence with. If we only have five states to commence with a senate of forty members will not be too large a body. Another matter which we must remember is that the number of states in the commonwealth of Australia will never be anything like the number of states in America. The conditions are altogether so different that, I think, although it is generally considered very unsafe to prophesy, we may rest assured there will never be more than about a dozen states in the commonwealth of Australia. We may, however, have such a population in the whole commonwealth as will ultimately raise the number of representatives in the house of representatives to the number in the House of Representatives in America, It may so happen that we may have 300 members in [start page 589] the house of representatives, and if we should have anything like that number the senate should bear its proportion.
Mr. DEAKIN: Hear, hear. It is easy enough to increase!
Mr. CLARK: It is easy enough to increase, but we shall have to increase by an amendment of the constitution, and I think it is a very bad thing to tinker with a constitution to meet contingencies as they arise. I think the constitution ought never to be amended, excepting upon the discovery of some radical defect which experience has proved to exist, or to provide for some totally unforeseen contingency. If you can possibly provide for probable contingencies, provide for them at once, and do not devise a constitution with the deliberate intention, or with the certainty in the natural evolution of events, that it will require amendment. I should like to point out to the representatives of the smaller states-and I represent a small state myself-that we may only have four or five representatives in the house of representatives. Take the colony of Tasmania, or the colony of Western Australia. If we have only four representatives in the house of representatives and eight representatives in the senate, it will only be a total representation of twelve members, and surely that is not too large for either of those colonies. I say deliberately that twelve members are not at all too many to represent Tasmania in the commonwealth. If Western Australia is to be entitled to four members in the house of representatives, twelve members will not be at all too many to represent that colony. On that ground alone I would ask hon. members to consider seriously before they cut down the representation.
Mr. BARTON: If there is any force in the objection that there might be a large number of states, and therefore too large a senate in the course of time-though I do not think there is anything in the objection-that could be provided for, not by diminishing the number, eight, now proposed, but by making other provision in case the states should reach a certain number. If, for instance, we were to have twelve states-and I think it will be a long time before we do-it might possibly be worth considering whether we should not have only six members in the senate for each state; but probably we shall begin with five states, and not have more than six or seven states for a number of years, and surely we shall not consider that forty members in the senate will be too many, seeing that the house of representatives will begin with 115 or 116 members.
Mr. HACKETT: If all the states of the continent send members to the senate there will be 48 members, and if the present proportion, the present unit of election, is retained at 30,000 for the house of representatives, by the time this constitution comes into force its membership will rise to as many as 120. That will make altogether 168 members in the senate and house of representatives. Owing to superior inducements to natural ambition, and also of a more material character, it is quite certain that a large number of the best men in the states will gravitate towards the federal capital, and it is
provided by section 10 of chapter v of this constitution that no member either of the senate or of the house of representatives shall occupy a seat in the local legislature.
Mr. CLARK: That is not decided yet!
Mr. HACKETT: If that is carried, it means that there will be 168 of our best men taken away from the states for service in the central legislature. That is a very serious consideration for the states.
Sir SAMUEL GRIFFITH: If the number is eight, it cannot be divided by three. I am disposed to think that it would be a good thing, sir, for you now to leave the chair and report progress. This [start page 590] is a matter that we ought not to go into when we are tired, and a great many hon. members are tired. After four hours' continuous application, they have a right to be tired.
Mr. DEAKIN: We are going on to-night!
Sir SAMUEL GRIFFITH: Whether we are or not, I do not know.
Mr. DEAKIN: Certainly!
Mr. MUNRO: I intended to move that we should meet in the evening after dinner, but on consulting hon. members I found that the majority were in favour of sitting each day until about half-past 6, but not later, and for that reason I did not press the matter. If hon. members are inclined to adjourn to-day at 6 o'clock I do not object.
Sir JOHN DOWNER: Go on till half-past!
Sir SAMUEL GRIFFITH: This is one of the most important clauses in the whole bill, and I do not think it is fair to begin a discussion on such a clause at this hour.
Convention adjourned at 6.3 p.m.