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1898 AUSTRALASIAN FEDERATION CONFERENCE
- DEBATES - JANUARY 20
- DEBATES - JANUARY 21
- DEBATES - JANUARY 24
- DEBATES - JANUARY 25
- DEBATES - JANUARY 27
- DEBATES - JANUARY 28
- DEBATES - JANUARY 31
- DEBATES - FEBRUARY 1
- DEBATES - FEBRUARY 2
- DEBATES - FEBRUARY 3
- DEBATES - FEBRUARY 4
- DEBATES - FEBRUARY 7
- DEBATES - FEBRUARY 8
- DEBATES - FEBRUARY 9
- DEBATES - FEBRUARY 10
- DEBATES - FEBRUARY 11
- DEBATES - FEBRUARY 14
- DEBATES - FEBRUARY 15
- DEBATES - FEBRUARY 16
- DEBATES - FEBRUARY 17
- DEBATES - FEBRUARY 18
- DEBATES - FEBRUARY 21
- DEBATES - FEBRUARY 22
- DEBATES - FEBRUARY 23
- DEBATES - FEBRUARY 24
- DEBATES - FEBRUARY 25
- DEBATES - FEBRUARY 28
- DEBATES - MARCH 1
- DEBATES - MARCH 2
- DEBATES - MARCH 3
- DEBATES - MARCH 4
- DEBATES - MARCH 7
- DEBATES - MARCH 8
- DEBATES - MARCH 9
- DEBATES - MARCH 10
- DEBATES - MARCH 11
- DEBATES - MARCH 12
- DEBATES - MARCH 16
- DEBATES - MARCH 17
- COMMONWEALTH OF AUSTRALIA BILL 1898
- MEMBERS: ALPHABETICAL LIST
- INDEX TO DEBATES
- INDEX TO NAMES
- THIRD SESSION
Content Window1898 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 657]
TUESDAY, 8TH FEBRUARY, 1898.
Paper: Money Bills-Printing of Amendments-Commonwealth of Australia Bill-Order of Business.
The PRESIDENT took the chair at half-past ten o'clock a.m.
Sir RICHARD BAKER (South Australia).-I ask leave to lay on the table a paper on the powers and practices of the two Houses of Parliament (South Australia) in reference to Money Bills. It was prepared for the Constitutional Committee in Adelaide and printed, but, as that committee have never brought up their minutes before the Convention, it would not be bound with the Convention papers. In order that it may be included, I beg leave to move that it be printed.
The motion was agreed to.
PRINTING OF AMENDMENTS.
Sir JOHN FORREST (Western Australia).-In Sydney I gave notice of a new clause which has been printed on a separate paper, but it does not appear in the list of amendments. Would it not be [start page 658] better to insert it among the other amendments for the information of honorable members?
The PRESIDENT.-As attention has been called to the matter, no doubt it will be attended to.
COMMONWEALTH OF AUSTRALIA BILL.
The Convention then resolved itself into committee of the whole for the further consideration of the Commonwealth of Australia Bill.
Discussion (adjourned from the previous day) was resumed on clause 109-
A state shall not make any law prohibiting the free exercise of any religion.
The CHAIRMAN.-No amendment has yet been moved.
Mr. HIGGINS (Victoria).-I spoke on this clause Yesterday evening. I now want to say that, after careful deliberation, I think the wording of my amendment ought to be rectified before it is submitted to the Convention. The existing clause is-
A state shall not make any law prohibiting the free exercise of any religion.
There is no application to the Federal Parliament at all in the clause as it stands. I intend to propose amendments which, if adopted, will make the clause read as follows:-
A state shall not, nor shall the Commonwealth, make any law prohibiting the free exercise of any religion, or for the establishment of any religion, or imposing any religious observance.
Mr. O’CONNOR.-The Commonwealth will have no power to do that.
Mr. HIGGINS.-I explained yesterday evening that, in the Constitution of the United States, there is a prohibition on Congress making any law for this purpose.
Mr. HIGGINS.-With all respect to the honorable member, there is.
Mr. SYMON.-Prohibiting religion?
Mr. HIGGINS.-Yes. If you look at the first amendment of the Constitution you will find that there is no prohibition on a state doing this thing, but there is a prohibition on Congress against either making a law prohibiting the free exercise of any religion, or for the establishment of a religion. I add, here, "or imposing any religious observance." It is quite true, as Mr. O'Connor says, one would have thought that in the absence of an express power given to Congress to do these things, there would not be power to do them, but I had the opportunity yesterday afternoon of indicating the course of the decisions of the courts to the leader of the Convention, and he knows how very largely from single expressions used in the Constitution there have been inferential powers deduced. In consequence, for instance, merely of a decision of the Supreme Court that that country was a Christian country, there was a law passed and carried into effect prohibiting the opening of the Chicago Exhibition on Sunday, so that there is no doubt this will provide against a real subsisting danger, and I am moving this amendment with the view of reassuring a number of honest people here who, having regard to the experience of America, are gravely objecting to the insertion of any words in the preamble of the Constitution. I can foresee that that preamble will be carried, and I wish to provide against having a number of people voting against the Constitution on the ground that it will introduce a number of difficulties which, in this new country, ought to be laid for ever. I beg to move my first amendment-
That the words "nor shall the Commonwealth" be inserted after the word "not."
Mr. GORDON (South Australia).-I think there was a good deal of force in the remarks that fell from the Right Hon. Sir Edward Braddon yesterday afternoon, shortly before the Convention adjourned. So long as this prohibition only extends to the mere mental exercise of faith, I am with Mr. Higgins; but I do not think that the prohibition should extend to interference with the exercises of faiths that are carried to lengths which are objectionable from a sociological point of view. I do not know whether any such [start page 659] extreme cases as those mentioned by Sir Edward Braddon would occur in this community, but it is quite likely that the faith healers who have been punished in England for failing to provide medical attendance and medicines for their sick might come here, and I would like to know whether a prohibition of this sort will interfere with faith healers who think that the cure of their sick should be made, not a matter of medical advice and medicine, but a matter of faith and prayer?
Mr. O’CONNOR.-They are subject to the English law.
Mr. GORDON.-Yes, they are; but whether they are subject to the common law or the statute law of England, I do not know. What I would like to know is will this provision prevent such people, if they come here and act in the same way as they have acted in England, being prosecuted here?
Mr. SYMON.-It might do so.
Mr. GORDON.-Then I think we ought to safeguard it to this extent, directly the exercise of religious observances injures the community or any person in the community, I think that both the state and the Commonwealth ought to have the right to interfere.
Mr. SYMON (South Australia).-I agree with the honorable member. Of course, what we want in these times is to protect every citizen in the absolute and free exercise of his own faith, to take care that his religious belief shall in no way be interfered with; but one would think from reading this clause, which appears to me objectionable in every possible way
Mr. HIGGINS.-Do you mean the clause in the Bill?
Mr. SYMON.-Yes, I am with my honorable friend in desiring to have the clause amended. The idea of the clause is good enough-that is, the preservation of absolute freedom of religious belief, but the mode in which it is carried out in this clause seems to me to be obnoxious. The clause is either a great deal too wide, or it is not wide enough. It is a great deal too wide in saying that no law shall be enacted. I am not referring merely to the state, in what I am now saying, because undoubtedly it ought to be the Commonwealth rather than the state. However, it seems to be, prima facie, an interference with the legislative authority of the state itself. But putting it both ways-a prohibition against the state and against the Commonwealth making any law prohibiting the free exercise of any religious faith is, I think, a little beyond what any of us is prepared to go. Would it, for example, prevent or raise doubts as to whether the Commonwealth could pass a law prohibiting the exercise of such a religious creed as that mentioned by Mr. Gordon? We know what took place in Wales, in connexion with the faith healers, where most abominable cruelties were practised in the name of religion, and whilst no one ought to be allowed to interfere with the faith of these people-the creed they profess-still, the law, in the the interests of the community and of humanity, ought to put a stop to the exercise of that faith in such a way as it was exercised in those cases. We are living in a very advanced age, not in medieval times, and there is no necessity for a prohibition of this kind, but if there be a prohibition there should also be a provision showing what is meant by religion, and what is meant by free exercise. Then again, whilst this is to be a prohibition against the state or the Commonwealth enacting a law interfering with the free exercise of religion, is it to be implied that the state or the Commonweath may pass a law interfering with persons of no religion-Agnostics, Atheists, and Deists?
Mr. GORDON.-A Deist has a religion.
Mr. SYMON.-Some people would not admit that a Deist has a religion.
Mr. GORDON.-A Jew is a Deist.
Mr. SYMON.-Well, I am not skilled in the refinements of theology, but I ask the leader of the Convention whether it is necessary that the present clause should remain in the Bill at all? The [start page 660] points referred to by Sir Edward Braddon last night are of the very highest importance. We may be willing to admit people professing Oriental faiths, but unwilling to permit the exercise of those faiths as those people would wish to exercise them in this country, detrimental in every possible way to the cause of religion and of freedom itself. I would suggest to Mr. Higgins whether it would not be better to do away with this clause altogether, and limit the prohibition to the imposition of any religious test?
Mr. HIGGINS.-Say "observance."
Mr. SYMON.-I do not know whether "observance" does not go too far.
Mr. HIGGINS.-"Test" might include oaths administered in our courts and elsewhere.
Mr. O’CONNOR-"Observance" might include Sunday observance laws.
Mr. SYMON.-I do not like the word observance it seems to me to go a little too far. I think that the object we have in view will be sufficiently met if we prohibit the imposition of any religious test as a qualification for any public office of trust. That is as it existed in the original Constitution of the United States. If we do that, I think we are giving a sufficient assertion in this Constitution to the
principle that religion or no religion is not to be a bar in any way to the full rights of citizenship, and that everybody is to be free to profess and hold any faith he likes but the Commonwealth must be the judges of when it is proper to interfere with its open exercise.
Dr. COCKBURN (South Australia).-I do not think that either the clause or the amendment should occupy the attention of the Convention very long. I consider the whole clause an anachronism, and that it applies to a state of things that can never occur in these days. At the time the American Constitution was framed, the framers of that Constitution had in mind certain events which they wished never to be repeated, and which never will be repeated in our civilization. I do not see why the states should not have the same rights of self-preservation under a Federal Constitution as they have at the present time. There is no atrocity which the human mind can devise which has not at some time or another been perpetrated under the name of religion, and the states should have the power to prevent such occurrences as those referred to by the right honorable member (Sir Edward Braddon) and others which might be mentioned ad libitum. There are a number of sects in different parts of the world whose religious observances embrace every form of horror one can imagine. I think that the clause should be struck out, and that the states should be allowed to retain the right to do what they think necessary to preserve and maintain their civilization. With regard to the amendment of the honorable member (Mr. Higgins), I think the honorable gentleman himself admitted yesterday that it would prevent a state from making laws against Sunday trading for example.
Mr. HIGGINS.-No; it would only prevent the making of laws for a religious reason.
Dr. COCKBURN.-Who could determine the intention of the state? The amendment would simply prohibit the enactment of these laws.
Mr. HIGGINS.-My desire is to prevent the Federal Parliament from dictating to the states in these matters.
Sir EDWARD BRADDON.-Are we not getting on very well as we are?
Dr. COCKBURN.-I think so. I think that we should recognise that the clause is an anachronism, and should leave it out of the Constitution.
Mr. BARTON (New South Wales).-I am rather doubtful about the amendment, because, notwithstanding the American decisions to which the honorable member (Mr. Higgins)has referred, I can scarcely conceive it possible that the insertion of a provision in the preamble acknowledging the existence of the power of the Deity [start page 661] could ever induce the High Court or the Court of Appeal in the old country to hold that that imported a power to make laws regarding religion. I think it is, quite clear that the Commonwealth will have no power to make any law regarding religion, even if no amendment such as that which has been suggested is agreed to The Commonwealth will have no powers except such as are given to it either expressly or by, necessary intendment. It will have only such powers as are given to it in so many words, or as are necessary for the exercise of these powers. If we apply this principle, we must see that the Commonwealth will have no power to make laws regarding religion. The reason why the prohibition in the first draft of the Bill which, was prepared in 1891 was confined to the states was that it could not, by any possibility, be concluded that it was necessary to extend such a provision to the Commonwealth, because no power was given to the Commonwealth to deal with the matter of religion. The position is the same now, and I do not think it will be substantially altered if the blessing of Divine Providence is invoked in the preamble. A preamble does not give power to anybody. The decision of the United States Court which has been referred to was something to this effect. Congress had passed a law prohibiting the importation of any person for labour or service. Of course, that law was really intended to prohibit the importation of manual labourers; but a religious corporation made an agreement under which a preacher was brought over, and a question was raised as to the legality of the agreement. The Supreme Court in the United States decided that the arrangement was legal, because the prohibition of the Act of Congress only applied to manual labourers; but it further decided, because of expressions in various charters given to
plantations which afterwards became states, and in grants such as those given to Sir Walter Raleigh and others for the encouragement of colonization, that the United States was a Christian and a religious nation. Having decided this matter to their satisfaction, the Judges proceeded to say that upon that ground also the arrangement was a lawful one. The latter part of the decision was what lawyers call an obiter dictum.
Mr. HIGGINS.-But that decision has been acted upon.
Mr. BARTON.-Yes, since then, as is pointed out in a little handbook which my honorable friend lent me. But the question for us to consider is whether a court like the Federal High Court or the Privy Council would ever come to such a conclusion. One would think it highly improbable. The real question that may arise under this Constitution is whether the Commonwealth can make a law establishing or prohibiting the free exercise of any religion. I take it that in the absence of a provision in the Constitution conferring that power upon the Commonwealth it will be impossible for the Commonwealth to do so. For this reason I think we need scarcely trouble ourselves to impose any restrictions. Under a Constitution like this, the withholding of a power from the Commonwealth is a prohibition against the exercise of such a power. If the amendment of the honorable member were adopted, the clause would read:-
A state shall not, nor shall the Commonwealth, make any law prohibiting the free exercise of any religion, or imposing any religious test or observance.
Mr. ISAACS.-Would that prevent the Commonwealth from insisting upon Sunday being kept as a day of rest?
Mr. BARTON.-The honorable and learned member (Mr. O'Connor) pointed out that it might prevent the passing of a law for Sunday observance. The real question for-as to decide is whether the clause should or should not remains. The only difficulty I have upon the point is this: I do not anticipate any trouble from the want of a prohibition upon the states forbidding them from dealing with religious questions, but we must always [start page 662] recollect that humanity has a habit of throwing back to its old practices. Since a couple of hundred years ago we have been tolerably free from sumptuary laws. But there is in many quarters a great disposition to take to these laws again, and we may before many years have passed be overwhelmed with them.
Dr. COCKBURN.-And it might be a good thing.
Mr. BARTON.-It may be a good thing. Who knows that there may not be a similar throwing back in regard to religious laws?
Dr. COCKBURN.-That may be a good thing, too.
Mr. BARTON.-Yes; those who say that the people are always right might say that it was a good thing. My honorable and learned friend will have many successors, and so shall I. But if the enlightenment of this day supposes itself to be right in saying that the free exercise of religion should not be prohibited, the question arises, should not a provision to that effect be placed in the Constitution? The trouble arises when you try to insert a proviso modifying this prohibition. For instance, if it were desired to prevent the application of the clause to any fiendish or demoralizing rite, that might be done by inserting the words "so long as these observances are inconsistent with the criminal laws of the state," because if there were no criminal law in existence at the time with which these observances were inconsistent, it would be possible for the state to pass such a law, and so, to use a common expression, euchre the whole business. I think, however, that we can do remarkably well without the clause at all.
Sir JOHN DOWNER (South Australia).-I agree with the honorable and learned member (Dr. Cockburn) that the clause is an anachronism, and it is inconsistent with federation. The principle of
federation is that the states shall retain all such powers as they do not hand over to the Commonwealth, but this clause attempts to legislate for the states. Still they have not hitherto required any law of this kind. The Commonwealth cannot exercise any authority in the matter, because you have not bestowed it upon the federal authority.
Mr. HIGGINS.-Clause 109 commences-"A state shall not make any law." I agree with the honorable member that that provision should not be there. I am willing that the prohibition should extend only to the Commonwealth.
Sir JOHN DOWNER.-I do not think that is necessary, because the Commonwealth will have only such powers as are expressly bestowed upon it, and by no straining of construction can you find that the Commonwealth has been given any power to legislate with regard to religion.
Mr. SYMON (South Australia).-I would like to ask my honorable friend (Mr. Higgins) if he is prepared to withdraw his amendment with a view to striking out the clause, and inserting a declaration of this sort:-
No religious test shall be imposed as a qualification for any public office or trust in the Commonwealth or in a state?
I think that a declaration of that sort will be necessary if we insert the words that it is proposed to insert in the preamble.
Sir EDWARD BRADDON (Tasmania).-Although I moved an amendment yesterday with a view to making the clause reasonably safe in regard to so called religious practices, I confess that I should prefer to see it struck out altogether. Even with the qualification suggested by me, I do not know whether some occurrence which we should all deprecate might not take place and make us regret that the clause was ever put into the Bill.
Mr. HIGGINS (Victoria).-I am very glad that I have called attention to this clause. I thoroughly agree that as it stands it is an anomaly, and that there should not be a prohibition upon the states. All I said was that if you prohibited the states from making laws respecting religious observance, and if you inserted in the preamble a recognition of the Almighty, [start page 663] it was fit that you should extend a similar prohibition to the Commonwealth. It would answer my purpose absolutely if the clause only enacted that the Commonwealth should be prohibited from passing a law of this kind. A number of honest people will have a great deal of difficulty about voting aye for the Constitution if there is no prohibition against the making of laws affecting religion by the Parliament of the Commonwealth. What they ask is-"Why cannot we follow the example of the United States of America?" They point out that there is far more reason for a prohibition in our Constitution, because it is proposed to insert in the preamble a recognition of the Almighty.
Dr. COCKBURN.-But the Almighty does not belong to any special religion.
Mr. HIGGINS.-I do not want to argue that question. I admit that there is a great deal of force in what the honorable gentleman says, but I have to speak most delicately on this subject, and I cannot go any further. Although it is quite true that a reference to the Almighty does not refer to any particular religion, still a reference to the Almighty in the preamble involves a recognition of Him, and it involves to a certain extent a religion. It has been found in the United States that, even though there is no reference to the Almighty in the preamble, yet it has been held that it is a Christian country, and, therefore, there was a federal law which prevented the opening of the Chicago Exhibition on Sunday. Honorable members will understand that it is not a question whether it is proper to open exhibitions on Sunday but that law was framed and enforced, and people were compelled to obey it on account of the dictum of the Supreme Court that it was a Christian country. Now, if you can enforce a good thing you can also enforce a bad thing made by the same power. All that I want to put to the Convention is this: That although I should have thought in the absence of
express powers that the Commonwealth could not legislate on this subject, still I cannot but see, having regard to the decisions in the United States Court, that there is danger in an implied power. In the preamble of the United States Constitution they say-
We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessing of liberty to ourselves and our posterity, do ordain, &c., &c.
Under the head of "general welfare," coupled with the statutory powers, they have extended the power of the Commonwealth hugely. If you are going to confer absolute power to promote the general welfare you do not know how far that will extend. First of all, the plea was to promote the general welfare; then there is power to make all laws which are necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the Government or proper officers of the states. Then, if you have coupled with that a declaration by the Supreme Court that this is a Christian nation, there is power to enforce Christian observances. The leader of the Convention has urged what I knew would be the chief objection to what I propose, that is, that there is no express power given; but I say that, in the face of the decisions given in the United States, it is not safe for us to assume that there may not be an inferential power in this preamble. There are hosts of people in Australia looking at that preamble to see it any safeguard will be put in. As far as I am concerned, I shall be willing to take out all this provision prohibiting the states from doing what they think fair. I think that the importance of preserving to the state the residuary powers is overwhelming; but I say that we ought to do at least the same as was done in the United States. There they provided that the Federation shall not make any law prohibiting the free exercise of any religion, or for the establishment of any religion; then I want to add "or imposing any religious observance." In [start page 664] conclusion, it has been said that this would prevent the imposing of a day of rest. My amendment would not.
Dr. COCKBURN.-A general day of rest.
Mr. HIGGINS.-It would not; it would simply prevent the imposing of a day of rest for religious reasons.
Dr. COCKBURN.-You want to break down religious sanction.
Mr. HIGGINS.-A number of laws have been held to be unconstitutional in America because of their reasons and because of their motives. There was a funny case in San Francisco, where a law was passed by the state that every prisoner, within one hour of his coming into the prison, was to have his hair cut within one inch of his head. That looked very harmless, but a Chinaman brought an action to have it declared unconstitutional, and it turned out that the law was actually passed by the Legislature for the express purpose of persecuting Chinamen.
Mr. BARTON.-That took place under the next clause in this Bill, which is a similar enactment.
Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite right in saying that it took place under the next clause; but I am trying to point out that laws would be valid if they had one motive, while they would be invalid if they had another motive. All I want is, that there should be no imposition of any observance because of its being religious.
Sir JOSEPH ABBOTT (New South Wales).-The honorable member has stated that there are host of people who are anxiously watching what is being done with this preamble, because it may lead to certain laws being passed; He has not stated of whom the host is composed, or where it exists; but I gathered from his remarks yesterday that he was referring to the Seventh Day Adventists, a very powerful body in America, who have recently set up here and in New South Wales. That body denies the right of the State to impose any law whatever which will prevent them from working on any particular day. I believe they are earnest good people, but, in defiance of our laws, they persist in
working on the day which we set aside and call Sunday. They set aside another day, Saturday, and call it the Sabbath. If that is to be allowed throughout the whole community, how can there be a uniform day of rest? And what greater harm can befall the people than to say that any sect can set themselves up and defy the State to set apart any particular day as a day of rest, whether for religious purposes or otherwise? Take the case of the Jews. Whilst they observe their own Sabbath on Saturday they never in any shape or form attempt to interfere with the recognised Sabbath of the rest of the community. The Seventh Day Adventists have defied the law in that respect. If we allow one body to do that, instead of having any uniform and universal Sabbath or day of rest, we may have six or seven such days established.
Mr. Higgins' amendment was negatived.
Amendment suggested by the House of Assembly of Tasmania, to add at the end of clause-
Nor appropriate any portion of its revenues or property for the propagation or support of any religion.
The amendment was negatived.
Sir EDWARD BRADDON (Tasmania).-I do not intend to press the amendment which I gave notice of yesterday.
The clause was negatived.
Clause 110-A state shall not make or enforce any law abridging any privilege or immunity of citizens of other states of the Commonwealth, nor shall a state deny to any person within its jurisdiction the equal protection of the laws.
The CHAIRMAN.-On this clause there are various amendments proposed. The Assembly of New South Wales and the Legislative Council of Tasmania propose to omit all the words from "make" in the first line to "state" in the fourth line, and the Legislative Council of Victoria propose that we should insert, after [start page 665] the word "Commonwealth," in the third line, the words "or impairing the obligation of contracts." If I put the whole of the amendments suggested by New South Wales and Tasmania that were carried, it would not be competent to put the amendments suggested by Victoria. Therefore, I propose to put as a test question the amendment proposed by New South Wales and Tasmania so far as to leave out all the words to the word "Commonwealth," The question now is, that the words proposed to be left out stand part of the question, viz.-"Make or enforce any law abridging any privilege or immunity of citizens of other states of the Commonwealth."
Mr. BARTON (New South Wales).-I should like to have a little time to consider this question. The effect of the amendment proposed by the Legislative Assembly of New South Wales would be that a state, as far as the Commonwealth is concerned, would be in a position to make or enforce any law within its Constitution abridging the privileges or immunities of the citizens of other states. This is a provision inserted in the Constitution for the equality of citizens of the Commonwealth-for the prevention of those of them who happen to reside in one state having their citizenship abridged as compared with citizens of the same Commonwealth residing in another state.
Sir JOHN FORREST.-Would citizen mean an alien?
Mr. BARTON.-No, unless he has become a citizen by naturalization.
Mr. ISAACS.-There is no definition of "citizen" in this Bill. In the United States there is a definition.
Mr. BARTON.-There is no deviation of the word "citizen" here, but I take it that a citizen is either a natural-born or a naturalized person possessing the ordinary political privileges of the Commonwealth, or of a state. The question is whether we should here allow anything which would enable a state to deprive citizens of the Commonwealth simply because they reside outside the borders of that state of any of the privileges and immunities which other citizens of the Commonwealth would possess.
Mr. GORDON.-What sort of privileges put a concrete case?
Mr. BARTON.-It is hard to put a concrete case; I think you will find some reference to cases in Baker's Annotated Constitution of the United States. But I do not want to trouble the committee at any length. It seems to me that we ought to maintain in some farm of words the purpose which exists in this clause, otherwise it would, be open to a state, by imposing disabilities of one kind or another upon citizens of another state-we will not say in respect of the holding of land, but in respect of this or that privilege-to raise an inequality amongst the citizens of the Commonwealth, which would never be the intention of a Constitution such as this, and which would tend to defeat its purpose.
Mr. ISAACS.-Could we not strike out the words "of other states"?
Sir JOHN FORREST (Western Australia).-I have no doubt that the Commonwealth will legislate in regard to these matters, but in the meantime it seems to me that there will be a difficulty in regard to coloured aliens and to coloured persons who have become British subjects. In Western Australia no Asiatic or African alien can get a miner's right or go mining on a gold-field. We have also passed-an Immigration Act which prohibits, even undesirable British subjects, from entering the colony. I do not know how this clause will act in regard to these matters but it seems tome that the word "citizen" should be defined. In Western Australia an alien can hold land in just the same way as he could if he were a British subject-no doubt that is the case in other colonies, probably in thins colony-and he would probably think himself a citizen, whatever nationality he belonged to, having resided for a long time in the colony, and having acquired property [start page 666] therein. It is of no use for us to shut our eyes to the fact that there is a great feeling all over Australia against the introduction of coloured persons. It goes with-out saying that we do not like to talk about it, but still it is so. I do not want this clause to pass in a shape which would undo what is about to be done in most of the colonies, and what has already been done in Western Australia, in regard to that class of persons. It seems to me that should the clause be passed in its present shape, if a person, whatever his nationality, his colour, or his character may be, happens to live in one state, another state could not legislate in any way to prohibit his entrance into that state. I think there is a great deal to be said against the state being allowed to do that, but until the Federal Parliament legislates in regard to it, it certainly ought to be in the power of the state not only to maintain the laws existing, but also to legislate further if it should so desire.
Mr. CARRUTHERS (New South Wales).-In the Legislative Assembly of New South Wales I was asked on all sides to explain what this clause meant, and I must confess that then, as now, I was incapable of giving an explanation as to what the first portion of the clause did mean. Because the members of the Assembly, as well as myself, were unable to fathom the meaning of the clause, it was proposed that that part of it which we could not understand should be omitted. I would ask the leader of the Convention to give us some instances of the immunities possessed by citizens of other states which a state might abridge by any law. I confess that it is hard for me to discover what immunities-I can discover others which may be created-are possessed by a citizen of Victoria which the state of New South Wales can abridge by any of its laws. I cannot conjecture an example of these immunities, nor do I know of privileges possessed by citizens of Victoria which are abridged by any law of New South Wales.
Sir JOHN FORREST.-There might be.
Mr. CARRUTHERS.-I can understand, in regard to Western Australia-
Sir JOHN FORREST.-And here, too. A Chinaman of this colony you would not allow to go into your colony, perhaps, and surely that would be abridging his right?
Mr. REID.-Surely we would have the right to abridge his rights.
Mr. CARRUTHERS.-I want to know what immunity a Chinaman naturalized in Victoria possesses which he is deprived of by any law of New South Wales, or what privilege is denied to him? I can understand, in regard to Western Australia, which has a law to prevent persons who can neither read nor write, or who are not possessed of a certain amount of means, from immigrating into the colony-I can understand that there is a restriction there, but still that is not an immunity or a privilege possessed by a citizen of another state. There is no immunity possessed by a citizen of another state to go into Western Australia when he cannot read or write, or when he has not a certain amount of means, nor is it a privilege possessed by a citizen of another state. No citizen of a state can take his privileges and immunities into another state. When he divests himself of the jurisdiction of a state and takes upon himself the jurisdiction of another state the laws of the former will have no force and effect outside its boundaries. Once a man comes within a state boundary he is surely liable to be under the jurisdiction of the laws of that state, and that state should not be limited in its powers over the privileges and immunities of persons who voluntarily place themselves within the jurisdiction of its laws. Now, the danger of a clause of this character, the meaning of which is vague, is that the future perhaps creates difficulties. The Federal High Court would wrestle with this clause to give it some meaning, the Federal Parliament would wrestle with it to give it some meaning, and we might have it tortured into an effect which this [start page 667] Convention never contemplated. No one can doubt that the language of the clause is vague and ambiguous. The Constitution should be so framed that he who runs may read, that there should be no pitfalls on account of ambiguous phraseology. I confess that I like the proposal which has come from the House of Assembly of Tasmania, which gives in clear language something that would show what this clause, perhaps, is intended to show:-
The citizens of each state, and all other persons owing allegiance to the Queen and residing in any territory of the Commonwealth, shall be citizens of the Commonwealth, and shall be entitled to all the privileges and immunities of citizens of the Commonwealth in the several states, and a state shall not make or enforce any law abridging any privilege or immunity of citizens of the Commonwealth, nor shall a state deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of its laws.
That language to me is clear and intelligible, but I must confess that as clause 110 is now drafted it is very difficult of comprehension. Is it directed at any system of taxation? Is it directed at those persons who hold property in one colony but reside in another? And are we to give a power to one colony to grant an immunity to its citizens from taxation at the hands of a neighbouring state? It may be, possibly, that the construction of the clause may be strained to that effect, or we may have some construction put on the clause to limit the right of Western Australia to regulate immigration to that colony. I do not pass these remarks in any cavilling spirit, but I think that the clause is one which may very well be taken in hand again by the Drafting Committee, so that we may have some clear intelligible expression of what may be the desires of the Convention after they have been expressed.
Mr. TRENWITH (Victoria).-It seems to me that this clause is altogether unnecessary. It seems to me that everything which can be acquired by it is obtained in clause 101. There we declare that the law of a state which conflicts with a law of the Commonwealth has no effect. Now, when the Federal Parliament has legislated upon any point in connexion with citizenship, the states cannot legislate in conflict with that federal law. That seems to me all that is required. Take the question of naturalization, which is probably a question about which a difference would arise. As a separate state, a colony naturalizes an alien, and when he leaves that colony he has to be naturalized in the colony be goes to. When we have created a Commonwealth, we shall have a Commonwealth citizenship, and when aliens are naturalized, they will be naturalized as citizens of the Commonwealth. But if a state desires to make some restrictions with reference to some class within its territory, and there is no objection to it on the part of the Commonwealth, it seems unwise that we should put here a bar. If
there turns out to be an objection on the part of the Commonwealth, beyond doubt the Federal Parliament will legislate on that subject, and then the state law, if it conflicts with the federal law, will have no effect. It seems to me that we have all the protection we require without this intensely ambiguous clause. I would, therefore, suggest that, inasmuch as it is unnecessary, it should be struck out. I can see no better purpose to be served by the clause than is served already in a simpler form by clause 101. With a view to test the feeling of the committee on that point, I propose to move that the clause be struck out.
Mr. DEAKIN.-No; you must vote against it.
Mr. ISAACS (Victoria).-There is a very great deal of force in what my honorable friend (Mr. Trenwith) has said as to whether this clause is or is not necessary. The origin of the clause, which is certainly very modified, is the 14th amendment of the American Constitution.
Mr. DEAKIN.-Which has given them a great deal of trouble.
[start page 668] Mr. ISAACS.-Which is very much better, and which has been to a large extent paraphrased more, in accordance with our own requirements by the House of Assembly of Tasmania.
Mr. SYMON.-That is the better amendment.
Mr. ISAACS.-Yes, it is very much better than the others, but I do not know that it is wanted at all. And when one recollects how the 14th amendment came into the American Constitution, one is a little surprised to think that it is necessary to put such a clause in this Bill. It was put in the American Constitution immediately after the Civil War, because the Southern States refused to concede to persons of African descent the rights of citizenship. The object of the amendment was purely to insure to the black population that they should not be deprived of the suffrage and various rights of citizenship in the Southern States. It provides who should be citizens, not of the states, but of the United States. I will read the words of the amendment:-
All persons born or naturalized in the United States, and subject to the jurisdiction thereof-
The words "and subject to the jurisdiction thereof" were put in so as to exempt the Ministers of State of foreign countries, and their children, and so on.
are citizens of the United States, and of the state wherein they reside.
It started by defining who a citizen was.
Mr. KINGSTON.-What is the definition?
Mr. ISAACS.-It is as follows:-
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.
Sir EDWARD BRADDON.-That is the Tasmanian amendment.
Mr. ISAACS.-Yes, it has been adapted by than Tasmanian Assembly to suit our altered circumstances but I want to point out that it only became necessary to pass that 14th amendment in the United States in order to provide in the Constitution for the change that was wrought by the Civil War. The rights of citizenship for the blacks and the abolition of slavery had been won by hard fighting, and this Article 14 had to be rammed down the throats of the Southern States by the military
provision which I referred, to in Sydney. This, together with the 15th article, which goes with it, had to be passed. The object of it was as I have stated, and that was recognised by the United States courts in the case of Strauder v. West Virginia, 100 United States Reports, page 303. We can understand that a Constitution should say who shall be citizens of the United States or citizens of the Commonwealth. We can also understand that having constituted a citizenship of the nation, no state should be permitted to abridge that citizenship, and take away any of the privileges or immunities pertaining to citizens. What are these privileges and immunities? That very question was dealt with in what are known as the Slaughter House cases in 1872,16 Wallace, 36, and in certain other cases. This is what the court said-
The right of a citizen of this great country, protected by the implied guarantees of its Constitution, to come to the seat of government to assert any claim he may have upon the Government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions, free access to its sea ports through which all operations of foreign commerce are conducted, also to the sub-treasuries, land offices, and courts of justice of the several states. Another privilege of a citizen of the United States is to demand the care and protection of the Federal Government for his life, liberty, and property when on the high seas, or within the jurisdiction of a foreign country; the right to peaceably assemble and petition for redress of grievances; the privilege of the writ of habeas corpus; the right to use the navigable waters of the United States, however they may penetrate the territory of the several states, and all rights secured to our citizens by treaties with foreign nations; and the right of a citizen of the United States of his own volition to become a citizen of any state of the Union by bona fide residence therein.
[start page 669] Mr. GORDON.-That covers a great deal more than the question of the coloured races.
Mr. ISAACS.-It was intended to protect the blacks. Nobody denied these rights to the whites.
Mr. GORDON.-A large number of decisions which do not touch the question of the coloured races have arisen under that clause.
Mr. ISAACS.-For 70 or 80 years, as long as the whites only were concerned, nobody found the necessity of such a clause, but, when the blacks were concerned, the Southern States refused to allow them to vote. They do that at the present time to a large extent contrary to the law, and this provision was made to secure to the blacks the rights of citizenship. While they were about it they put it in language quite large enough to cover a great deal more, than the African citizens of America. Mr. Hare, in his volume on Constitutional Law, says, on page 517, in dealing with the question of the blacks:-
The main object of this amendment is clear. It was to render all persons born or naturalized in the United States, and especially the recently emancipated negroes, citizens of the United States and of the state wherein they reside, endowed with the rights incident to that two-fold relation, including those conferred by the second section of the Fourth Article, and also to afford the possessors of such citizenship an effectual guaranty against arbitrary or unequal legislation on the part of the several states.
That has operated no doubt, as Mr. Gordon has said, in several cases in a way quite unexpected. There is no power on the part of any of the states of the United States of America to draw any distinction such as we have drawn with regard to factory legislation, and the question was decided in a case, the name of which is significant, Yick Wo against Hopkins, 118 United States Reports, where a Chinese established his right in spite of the state legislation to have the same laundry licence as the Caucasians have. You can draw no distinction whatever, and it is as well that we should understand the full purport of the clause. In regard to that part of it which says that all citizens shall have equal protection it was held that no distinction could be drawn. You could not make any distinction between these people and ordinary Europeans. You could lay down all the conditions you liked to apply all
round, but you could not impose conditions that would in effect, no matter how the language was guarded, draw a distinction between them and ordinary citizens.
Mr. GLYNN.-We have not got Article 4 of section 2 of the American Constitution under which the decision you have referred to was given.
Mr. ISAACS.-This decision was given under the amendment I have spoken of.
Mr. GLYNN.-That amendment must be read with Article 4, Section 2.
Mr. ISAACS.-That article is as follows:-
The citizens of each state shall be entitled to all the privileges and immunities of the citizens of the several states.
Mr. GLYNN.-That is not in our Bill.
Mr. ISAACS.-It really is there, because our Bill provides that the state shall not make or enforce any law abridging any of the privileges or immunities of the citizens of the other states. At all events, the 14th amendment is the one under which these decisions were given.
Mr. HOLDER.-We have no definition of citizen.
Mr. ISAACS.-No, not of the Federation. The question of the citizenship of a state is one that will have to be worked out. It might be held to be an ordinary member of the state, and it might not be confined to naturalized persons.
Mr. GORDON.-It might be a question of domicile.
Mr. ISAACS.-Yes. It is not wise to use the word "citizen" without any definition. They took care to define it in the United States. We might use a term that would be found to be of wider import than was intended, but, however that may be, it seems to me that it is illogical to [start page 670] provide that a state should not make or enforce any law abridging any privilege or immunity of citizens of other states. We ought to take out the words "other states," and say that no state should abridge any privilege or immunity of any citizen of the whole Commonwealth.
Mr. WISE.-That is not the object. This clause has no connexion whatever with the amendment of the United States Constitution.
Mr. REID.-Will you tell us the object?
Mr. ISAACS.-I will wait to hear what the honorable member has to say.
Mr. REID.-Can the state laws affect any one not in the jurisdiction of the state?
Mr. ISAACS.-It is puzzling to me why a restriction has been made in this way, that the state is not to be at liberty to abridge the privileges or immunities of the citizens of other states.
Mr. SYMON.-It is the essence of the Constitution that the state shall have that power within its legislative jurisdiction. Every state can do that.
Mr. ISAACS.-Yes, within its legislative jurisdiction, and that consideration gives immense force to what I said at starting, and what Mr. Trenwith said. We are giving to the Federation certain powers of legislation, and we are reserving all others to the states. If the Federation chooses to exercise its legislative powers within its sphere, it can over-ride anything a state does.
Mr. SYMON.-There is no object in the limitation of the federal jurisdiction.
Mr. ISAACS.-None whatever; and if the state is to have reserved to itself all other powers, I cannot understand the bearing of it. I thought it my duty, therefore, to bring under the notice of the Convention the reason why it was introduced into the American Constitution. It was to cut down the powers of the state as exercised by refusing citizenship to the blacks. There have been quite a number of decisions on the subject, but it would be profitless to refer to them further. I have endeavoured to point out as briefly as I can how this matter stands, and I think it will be found in the end, subject to anything that Mr. Wise may have to say, that the basis of it all is the 14th amendment of the United States Constitution.
Mr. WISE (New South Wales).-I do not like to speak with any confidence after such a strong expression of opinion from one so well qualified to give an opinion as the Attorney-General of Victoria, but my recollection of the reasons which led to the first part of the clause being inserted in the Draft Bill of 1891 leads me to say that the words were intended to limit the legislative jurisdiction of the states by such necessary restrictions as were thought desirable to give the Federation power to settle disputes between states arising from the exercise of the legislative authority within each state. I very much regret that Mr. Clark's memorandum, a portion of which I read yesterday, has not been returned. In the concluding part of that memorandum he draws special attention to these words, and points out that they were a necessary complement to the implied surrender of the right to claim redress by diplomatic or other means which was made by every state when it entered into an equal federation with other states. He lays down in express terms the principle which Judge Shipman used as the basis of his judgment in the case I cited yesterday from 22 Blatchford, 131, that is to say, if a state passes a law the effect of which is to injure the territory or property of persons outside the state-that may not be the intention, but if the direct effect is to inflict injury upon the territory or property of citizens in another state-then that law, although in so far as it only affects citizens within the state that passes it, it is intra vires of the Constitution, it becomes ultra vires in so far as it inflicts injury on the inhabitants of another state. That, I believe, was the intention, although I feel some diffidence in insisting upon it. This was the view which formed the basis of the judgment of Mr. Justice Shipman.
[start page 671] The state of Connecticut had authorized certain works which injured property in the adjoining state of Massachusetts, and it was held that that was a matter in which the Federal Court, in the interests of the Federation, was entitled to exercise jurisdiction.
Mr. ISAACS.-Every text-book writer ignores that case; I cannot find it anywhere.
Mr. WISE.-The object of this was by no means to deal with a set of circumstances such as have arisen in the United States, which could not have arisen here, but to deal with other matters; and it seems to me that the clause as it stands would be a powerful instrument to prevent an abuse of powers by a state, not for the purpose of injuring the citizens of that state, but for the purpose of injuring the citizens of other states.
Mr. ISAACS.-Can you give a concrete case?
Mr. WISE.-Well, take the case of imposing a poll tax on citizens passing from one state to another. Such a law as that would at present be within the competency of the legislation of any colony.
Mr. SYMON.-Not if this Constitution becomes law.
Mr. WISE.-It might be dealt with by another clause, and would also be dealt with by this clause 110. I am not dealing now with the latter part of the clause, because I admit that that is open to other objections. I am confining my attention to the first portion. The instance I have given is of course an
extreme one, but it is such cases as that which, according to my recollection, it was intended should be dealt with by the first portion of this clause. I very much regret that Mr. Clark's memorandum is not in the hands of honorable members, because it deals with the first part of this clause and shows what importance Mr. Clark attaches to it as one of the draftsmen of the Bill of 1891.
Mr. ISAACS.-How would the entry into one state by a citizen of another state be an immunity or a privilege of that citizen?
Mr. WISE.-Let me give another illustration. Suppose an extra probate duty were imposed on Victorians who had property in New South Wales, or vice versa.
Mr. REID.-Or an absentee tax.
Mr. WISE.-Yes, or an absentee tax.
Mr. SYMON.-It would be competent for the states to do that.
Mr. WISE.-No; I mean an absentee tax making those who reside in one part of the Union pay higher-say pay a higher probate duty or legacy duty-than those who reside within the state imposing the tax.
Mr. ISAACS.-How could that be a privilege or immunity of the citizens of the other states?
Mr. WISE.-It would be putting an exceptional disability upon the citizens of another state, to which the citizens of the state imposing the tax were not subject.
Mr. ISAACS.-But how is it a privilege or immunity of the citizens of another state that they should not be taxed as absentees by a particular state?
Mr. WISE.-It is an immunity at present.
Mr. ISAACS.-Then you can never tax a man living in another state?
Mr. WISE.-You cannot impose exceptional treatment upon the citizens of another state; that applies to everything. It is difficult to contemplate a concrete case, but that the words themselves have a definite and clear meaning any one can see; and whether that clear power should be taken away or not is a matter of very serious consideration. It does appear to me that this clause is a powerful instrument in the hands of the federal authority to prevent any state acting in an overt manner, permitting overt acts of hostility against citizens outside its jurisdiction. For that reason I hope that the clause will be allowed to stand.
Mr. O’CONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs) is I think correct in the history of this clause that he has given, and this is [start page 672] one of those instances which should make us very careful of following too slavishly the provisions of the United States Constitution, or any other Constitution. No doubt in putting together the draft of this Bill, those who were responsible for doing so used the material they found in every Constitution before it, and probably they felt that they would be incurring a great deal of responsibility in leaving out provisions which might be in the least degree applicable. But it is for us to consider, looking at the history and reasons for these provisions in the Constitution of the United States, whether they are in any way applicable; and I quite agree with my honorable and learned friend (Mr. Carruthers) that we should be very careful of every word that we put in this Constitution, and that we should have no word in it which we do not see some reason for. Because there can be no question that in time to come, when this Constitution has to be interpreted, every word will be weighed and an interpretation given to it; and by the use now of what I may describe as idle words which we have no use for, we may be giving a direction to the Constitution which none of us now contemplate. Therefore, it is incumbent upon us
to see that there is some reason for every clause and every word that goes into this Constitution. Now, I agree with Mr. Isaacs, that the 14th amendment of the United States Constitution was directed entirely to the question of the citizenship of negroes who were freed men, and it was necessary to implant something of that kind in the American Constitution, because of the fever heat which had been excited, and which was then subsiding, over the war which had convulsed the country. But how can that condition of things, or that necessity which arose then, have any hearing on our position? I take it that the best way to look on this matter is to try and forget all about the 14th amendment of the United States Constitution, and regard it as though we were framing this Constitution without any knowledge of any such provision. It seems to me that the first portion of the amendment of the United States Constitution, which deals with citizenship, is not in any way necessary. Surely every person who has the suffrage-the right to vote within the Commonwealth-and who lives within the Commonwealth, is a citizen of the Commonwealth, and entitled to all its privileges, including the right to take part as the Commonwealth provides in the framing of the laws.
Mr. HIGGINS.-They have declared that in the amendment of the Constitution of the United States; but we have not got it here.
Mr. ISAACS.-That shows the history of it.
Mr. O’CONNOR.-That shows the history of it, as Mr. Isaacs suggests. I am pointing out that there is no necessity for it in our Constitution-no necessity to point out that every person in the states is a citizen of the Commonwealth. There is no necessity for it, because citizenship follows from the rights you give every person in every portion of the Commonwealth under the Constitution. Now, is there any right which it is necessary to state that you give? I see that this provision that we are discussing now makes some reference to privileges or immunities of citizens. Quite sufficient has been pointed out to show that that might work in an exceedingly complicated way-in a way we have no conception of at the present time-if it is inserted in its present form. The only possible differences or disabilities in the states now, as affecting different classes of citizens, are those which exist in regard to aliens and coloured races. But already in clause 52 we have agreed to the insertion of a sub-section which enables the Commonwealth to deal with that matter, and there can be no question about it that in course of time the different laws that exist in the states dealing with such coloured races will be similar, and that such races will be dealt with uniformly, so that whatever privileges [start page 673] or disabilities exist in one state with regard to these people will exist in another state. There is only one portion of the Tasmanian amendment which I think should be preserved, and I prefer it in the form in which it stands as submitted by the Legislative Assembly of Tasmania. I think that the only portion of it which it is necessary to preserve is this-altering the wording slightly so as to make it read as I think it should read-
A state shall not deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of its laws.
So that any citizen of any portion of the Commonwealth would have the guarantee of liberty and safety in regard to the processes of law, and also would have a guarantee of the equal administration of the law as it exists. I think Mr. Isaacs will bear me out, that in the United States it has been decided that the title to equal treatment under the law does not mean that you cannot make a law which differentiates one class of the community from another; but, as has been decided, it means that in the administration of the laws you have made, all the citizens shall be treated equally. And that should be so. Whatever privilege we give to our citizens, the administration of the law should be equal to all, whatever their colour. The case I refer to is one of the Chinese cases-I forget the name of it.
Mr. ISAACS.-The case of Yick Wo v. Hopkins.
Mr. O’CONNOR.-It may be that case, or it may be another, but, at any rate, the case I mean bears out the position I have stated. There are two provisions which, it seems to me, are clearly necessary for the protection of the whole of the citizens of the Commonwealth in regard to the legislation of the
states. These two are-first, that the "state shall not deprive any person of life, liberty, or property without due process of law"; and the next is that the state shall not "deny to any person within its jurisdiction the equal protection of its laws." I suggest that the best way of dealing with this question would be to strike out the clause as it stands now, and substitute for it the latter part of the Tasmanian clause which I have read. The former portion of that clause I do not think it is necessary to insert. It says-
The citizens of each state, and all other persons owing allegiance to the Queen, and residing in any territory of the Commonwealth, shall be citizens of the Commonwealth.-
I do not think that is necessary.
and shall be entitled to all the privileges and immunities of citizens of the Commonwealth in the several states;-
I think that that might lead to difficulties, and it is not necessary.
and a state shall not make or enforce any law abridging any privilege or immunity of citizens of the Commonwealth.
I think all that might be left out, but I am of opinion that the latter portion of the clause, which I have previously quoted, should be substituted in place of clause 110 as it now stands.
Mr. BARTON (New South Wales).-The suggestion just made by my honorable and learned friend (Mr. O'Connor) amounts to an adoption of the New South Wales amendment first, and then the adoption of a certain number of the words of the Tasmanian amendment. So that the provision which would be adopted if the suggestion of my honorable and learned friend were carried would be this: The words proposed to be struck out by the Legislative Assembly of New South Wales would be struck out, and in their place would be inserted the words-
"deprive any person of life, liberty, or property without due process of law, or."
It does seem to me, after the discussion we have had, that the object we have in view will be sufficiently attained by the adoption of this amendment. I do not think that the first portion of the clause-which has stood since 1891 without comment-is necessary in the peculiar condition of these colonies. Nor do I think that any such [start page 674] circumstances have arisen as would justify these colonies in inserting in the Constitution such words as were inserted in the American Constitution to meet the case of the freed men, of which words the early part of this clause is an application, and to some extent a constriction. So that I don't think we need put ourselves in any trouble about these earlier words. My position has been, from the beginning, that there is a necessity for some provision or other which would prevent citizens of the Commonwealth from being under any undue restriction or inequality. But taking the amendment my honorable friend (Mr. O'Connor) has suggested, I think that object is sufficiently provided for; and I agree with him that it is an absolute necessity that we should see that in this Constitution we do not insert any words about the meaning of which we are not quite sure, for they may receive a construction from a court hereafter which we never intended should be applied to them. I accept the amendment for striking out the words that have been mentioned, and, if it is agreed to, I shall move a subsequent amendment.
Mr. WISE (New South Wales).-I would ask the leader of the Convention to consider one further point. Take a concrete instance, such as I was asked to give just now: Suppose the Legislature in one state passed a law to say that citizens residing in another state should not own real property within the legislating state. That is an instance that may occur, and which has occurred in the United States. For example, say the New South Wales Parliament-to take my own colony-passes a law that no Victorian shall hold real estate in New South Wales. We have that power now. It is not at all likely to be
exercised, but it has been exercised in the United States, as between several states. Now, I ask, do we wish to preserve that right to the different provinces after federation? For my own part, I do not.
Mr. ISAACS.-Do you say that an individual qua citizen of New South Wales is entitled to hold property in Victoria? Is it a privilege or an immunity?
Mr. WISE.-I do not say that the words carry out what is suggested, but I do say that the words of the Tasmanian amendment make the matter perfectly clear, and I should prefer the whole of the amendment as suggested by Tasmania. They cover all the cases that may arise, and put a full and, in my opinion, necessary limitation on the powers of the provinces to exercise their legislative authority to the injury of any citizen of the Federation. I would ask the leader of the Convention whether his amendment, as it stands now, does anything more than protect the person of a citizen of another state, and secure that he shall be dealt with according to the due process of law, as regards any offence he has committed or any punishment to which he is likely to be subjected? We want to go further than that, and to secure that the property of citizens of the Commonwealth is to be as free from any invidious or hostile act levelled against it by the Legislatures of the several states as their persons. The amendment of the Parliament of Tasmania puts that in a perfectly clear way. It provides that citizens of the Commonwealth, by virtue of their citizenship, shall be entitled to the privileges and immunities of citizens in the several states, and that no state shall have power to abridge by its legislation these privileges or immunities. In other words, there is to be an equal citizenship. That is a necessity for federation, if federation is to be a reality and not a sham. I am not at all wedded to the clause as it stands. There is immense force in the suggestion of the Attorney-General of Victoria (Mr. Isaacs) just now, that the words "privilege and immunity" are not sufficient.
An HONORABLE MEMBER.-How would that affect a tax on absentees?
Mr. WISE.-It would give full power to impose a tax on absentees outside the Commonwealth, but not within it. There [start page 675] should be no absentees within the Commonwealth after federation. I do not see, how, after federation, a man can be regarded as an absentee at Sydney when he lives in Melbourne. If we are to have federation, the idea that when a man moves from one part of the Commonwealth into another he becomes an absentee, or ceases to be an Australian, is one that must vanish, and we ought, as far as our Constitution will permit us, to do everything to make it vanish quickly. It is a survival of the old idea that there is a distinctive citizenship in a Victorian, and a distinctive citizenship in a New South Wales man. That is the idea which I am endeavouring to destroy by supporting the amendment of Tasmania, that Australian citizenship, and that alone, shall be recognised in every part of the Federation. The way to secure that is to provide in the clearest terms, as Tasmania suggests, that no local Parliament can have any authority to, in any way, abridge the citizenship of an Australian.
Mr. REID (New South Wales).-I really think that the constant attempts which are being made to interfere with the rights of the states, in matters which are left to them expressly, is becoming quite alarming. There are a number of general words already in this Constitution which, I fear, may be used so as to almost destroy the independent powers of legislation of the states, with reference to every conceivable subject that they have left to them. I will deal with that later on, but, at present, look at the illustration which my honorable and learned friend (Mr. Wise) has just given. The states are supposed to be left in absolute independence of the Commonwealth as to their many powers of internal taxation. Now, my honorable friend wants, by vague words in this Constitution, to bridle the powers of the states in connexion with that matter. Why stop where he does? Why should any subject of the empire be treated as an absentee, simply because he is out of New South Wales?
Mr. WISE.-He does not happen to be under one Government, as he would be after federation.
Mr. REID.-That is the fallacy. As to all matters of internal taxation he will be under the local Government, not under the Commonwealth Government. I, personally, would not mind unification at all, but this is an attempt to affect to give independence to the states, while, at the same time, over-
riding them in every point of the jurisdiction that is left to them. I really do not think that anything is likely to occur in the Commonwealth of an obnoxious character, for instance, as to aliens. In New South Wales we allow aliens to hold real property-we have a law of an extremely liberal character there, and I do not think that it is likely that in any state in the Commonwealth there will be any extreme laws on the subject. But really, if we go on as we are doing, I shall have to employ some antiquarian to discover where the rights of the states are. They certainly won't be in this Constitution. The power of local taxation for local purposes is left absolutely within the jurisdiction and discretion of each state, and the illustration of the honorable member (Mr. Wise) shows how dangerous it is to leave in words which were put in for one purpose, and which would be used for another purpose. I hope the very wise suggestion of the honorable member (Mr. O'Connor) will be followed in this matter.
Mr. SYMON (South Australia).-I think the honorable member (Mr. Wise) has expanded the spirit of federation far beyond anything any of us has hitherto contemplated. He has enlarged, with great emphasis, on the necessity of establishing and securing one citizenship. Now, the whole purpose of this Constitution is to secure a dual citizenship. That is the very essence of a federal system. We have debated that matter again and again. We are not here for unification, but for federation, and the dual citizenship must be recognised as lying at the very basis of this Constitution.
[start page 676] I quite agree with my honorable friend (Mr. Wise) that we must secure equal rights of citizenship, but what citizenship? The federal citizenship of the Commonwealth. That is what has got to be protected, and that is what, I venture to think, was really in contemplation when this clause was originally introduced. It was to protect the citizenship of the Commonwealth, but, at the same time, we are not to interfere with the control on the part of each state of its own citizens.
Mr. WISE.-Would you give each state power to discriminate against the property of citizens in other states by taxation?
Mr. SYMON.-The honorable member, I presume, is referring to the absentee question. Let us take that question. Of course, there is power of direct taxation under this Constitution, but we contemplate that the exchequer of the Commonwealth will be filled for a very long time from the Customs, and the power of direct taxation of the states is not interfered with. Surely they have as much right, then, to have a progressive system of taxation on one basis as upon another-to say that taxation shall increase with the extent of property or wealth, or to say that it shall increase if a man does not live in the colony. Take the rating, for instance. The local rating varies according to the value of property, and so on. Why should it be considered, if the absentee principle is a valid one in connexion with taxation, that a man is not to be an absentee in New South Wales because he resides in Victoria, when you are dealing with a matter of local taxation in New South Wales? Why should he not be considered as much an absentee if he resides in Victoria as he would be if he resided in England? I do not see any difference between the two cases when you remember the Constitution that we are framing. If we introduce this amendment we are depriving the states of what we wish to confer upon them. Each state is entitled, at least I have always so understood, within its own legislative jurisdiction, to legislate as it pleases, and to deal with its own citizens, or any one who comes within its boundaries, in the same way as if this Constitution was never established. That is the freedom of each particular state, and that is the freedom which we desire to preserve. We do not interfere with the citizenship of the Commonwealth in any degree whatever.
Mr. MCMILLAN.-Take the case of the land, for example.
Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a case which is extremely unlikely to occur-prohibit a citizen of the neighbouring colony from acquiring property in the legislating colony, or only allow him to acquire it under adverse conditions? But why not? The whole control of the lands of the state is left in that state. The state can impose what conditions it pleases-conditions of residence, or anything else-and I am not aware that a state has
surrendered the control of the particular administration of its own lands, or of anything that is left to it for the exercise of its power and the administration of its affairs. I would much prefer, if there is to be a clause introduced, to have the amendment suggested by Tasmania, subject to one modification, omitting the words-"and all other persons owing allegiance to the Queen." That would re-open the whole question as to whether an alien, not admitted to the citizenship here-a person who, under the provisions with regard to immigration, is prohibited from entering our territory, or is only allowed to enter it under certain conditions-would be given the same privileges and immunities as a citizen of the Commonwealth. Those words, it seems to me, should come out, and we should confine the operation of this amendment so as to secure the rights of citizenship to the citizens of the Commonwealth. I think, therefore, that with some modification the amendment suggested by Tasmania would be a proper one to adopt.
[start page 677] Mr. KINGSTON (South Australia).-I confess my sympathies are altogether with the remarks of my friend (Mr. Wise), and I think that the suggestion that it would be improper to interfere with such a tax as an absentee tax applied in one state to the citizens of other states is not well founded.
Mr. REID.-Does that state right exist at present?
Mr. KINGSTON.-Undoubtedly it does.
Mr. REID.-Then what right have you to take it away?
Mr. KINGSTON.-Because we are creating a Commonwealth in which I hope there will be a federal citizenship.
Mr. REID.-Then take the responsibility of it.
Mr. KINGSTON.-I say we are creating a Commonwealth in which I hope there will be a federal citizenship, and I shall be glad indeed to see the powers of the Federal Parliament enlarged to enable that body to legislate, not only with reference to naturalization and aliens, but also with reference to the rights and privileges of federal citizenship.
An HONORABLE: MEMBER.-What is the meaning of citizenship?
Mr. KINGSTON.-It is not defined here, but it ought to be defined in the Constitution, or else we ought to give power to the Federal Parliament to define it. And, after having defined what shall constitute Australian citizenship for the purposes of the Commonwealth, we ought to carefully prevent any state legislating in such a way as to deprive any citizen of the Commonwealth of any privileges which citizenship of the Commonwealth confers within its borders. I have the honour to come from a state which has already adopted a system of absentee taxation, but I do not hesitate to say, speaking on my own individual account, that I think the continuance of that system, applied to citizens of the Commonwealth resident in other states of the Commonwealth, would be a great mistake and an unfederal act.
Mr. HIGGINS.-If a rich South Australian went to live in Tasmania, on account of the cool climate, would you allow the imposition of the absentee tax on him?
Mr. KINGSTON.-I do not think it ought to be imposed on him.
Mr. ISAACS.-Then you think that your state should not have the right to impose an absentee tax on a South Australian residing in Tasmania if it chose?
Mr. KINGSTON.-I think that for the fostering of the federal spirit we ought to abolish, once and for all, these distinctions between the citizens of the different states, and I know of nothing more
likely to strike at the root of that good feeling on which alone the Commonwealth can securely rest than the imposition of special taxation by South Australia against citizens of New South Wales who happen to own property in South Australia, or vice versa.
Mr. REID.-We have no absentee tax in New South Wales.
Mr. KINGSTON.-No; but from the remarks the Premier of New South Wales has made I am inclined to the opinion that he favours the state having the right to put on such taxation if it pleases. I do not think that, after we have adopted federation, the state should have such a right any more than it should have the right of passing a law disqualifying the citizen of another state from holding land within its own borders, simply because he happens to be resident outside the boundaries of that province, although residing within the confines of the Commonwealth.
Mr. O’CONNOR.-Then you will have to specifically give him the right to hold land in any state.
Mr. ISAACS.-Yes; this clause would not touch that case.
Mr. KINGSTON.-What I understand those who are contending for the amendment of this clause to say is that a state should have the right to select the citizens of some other state within the Federation for special disqualification if it pleases.
[start page 678] Mr. ISAACS.-Oh, no, this does not touch that.
Mr. KINGSTON.-I have listened with a considerable amount of care to what has fallen from other speakers, and I understand that they contend that any state has a legal right to impose an absentee tax.
Mr. REID.-Yes; but not that that right will be exercised.
Mr. KINGSTON.-Then what do you want it for?
Mr. REID.-That is a matter you must talk to me about in the local Parliament; it is rubbish to talk about it here.
Mr. KINGSTON.-Really, Mr. Chairman-
Mr. REID.-I beg your pardon, Mr. President.
Mr. KINGSTON.-Well, after that apology, I do not think I ought to proceed to say what I was going to say; but I do trust that the right honorable gentleman will bring forth "fruits meet for repentance," and that we shall not have any more of these little ebullitions, which might be expected outside, but not here. As to these matters, I am prepared to do what I can for the purpose of establishing a common citizenship within the Federation, and giving to each citizen throughout the Commonwealth, irrespective of provincial boundaries, common rights, taking away from the states the power which it is suggested should be retained by each state of singling out the citizens of other states of the Commonwealth for special legislation or special disqualification. I go further, and I say that a matter of that sort is a fair subject to introduce into this Constitution-this federal compact. The terms of our arrangement are that we are not to do anything of that sort, but that we are to lay it down that no state shall deprive citizens of the Commonwealth of life or property, "except by due process of law." That is the term proposed to be employed.
Mr. ISAACS.-Well, what is the meaning of it?
Mr. KINGSTON.-First and foremost of all, I too ask, as the Attorney-General of Victoria asks, what is the meaning of it? But I go further and say-what right have you to provide in this Federal Constitution for a thing of that sort as affecting the states any more than you have in the original Constitutions of the states? There is no state Constitution, under which any state exists at present, in which we find any such provision. And there is no necessity for it. It seems to me to be a matter of purely state concern, and which, at this period of the nineteenth century, it is seriously suggested may be necessary, in order to prevent some high-handed and monstrous action on the part of the states, for which our past history gives no grounds for expectation.
Mr. ISAACS.-The object of that provision in the American Constitution was only to protect the blacks.
Sir JOHN DOWNER.-The argument is the same in this case as on the religious question-there is no necessity for such a provision.
Mr. KINGSTON.-Quite so; we should leave it alone. It is a fair thing in this federal compact to provide a common citizenship, and I am prepared to assist honorable members to do that, but as to making this clause declaratory of the intention of the framers of this Constitution that the states shall not be allowed to act in that way as regards their own citizens, when there is no ground whatever for suggesting that they will do anything of the sort-a provision of that character is in no way necessary. By taking that step, we shall adopt a course, in framing the Federal Constitution, which is in no way justified, and which ought to be abandoned.
Mr. DOUGLAS (Tasmania).-As I understand, the clause now before us is as. follows:-
A state shall not make or enforce any law abridging any privilege or immunity of citizens of other states of the Commonwealth. [start page 679] That is the first portion. Now, I ask, if you impose on the citizens of one Estate a law not applicable to the citizens of another state, is not that interfering with the privileges of the citizens of that part of the Commonwealth? The second part of this clause provides-
nor shall a state deny to any person within its jurisdiction the equal protection of the laws.
If Victoria imposes on me a special tax because I happen to reside in Tasmania, owning property in this colony, am I properly protected under this clause? Surely the meaning of the clause as it now stands is that the protection of the Commonwealth shall extend to all citizens of the Commonwealth, in whatever province they may own property, and in whatever province they may reside. I submit that the word citizens "here ought to be properly defined. I am at a loss to understand whether it means citizens of a particular state or citizens of the Commonwealth.
Mr. SYMON.-Citizens of the Commonwealth.
Mr. DOUGLAS.-Then, how can a state impose a special tax on a citizen of the Commonwealth because he happens to reside in another portion of the Commonwealth? The thing is absurd on the face of it. If we are to federate, let us federate in a proper spirit. What is the use of talking about the Federation if a citizen in one part of the Commonwealth may be treated differently from a citizen in another part of the Commonwealth? Unless the true spirit of federation is infused into this Constitution, we had better have no federation at all, and the sooner we depart to our respective homes the better.
Mr. REID.-Hear, hear.
Mr. DOUGLAS.-Yes, and then New South Wales will have all she wants. Let us have something straightforward. If we are to have a federal community, do not restrict us in this sort of way. I beg to
move, as an amendment, that this clause be omitted, with a view to the insertion, in lieu thereof, of the following clause, suggested by the Legislative Assembly of Tasmania:-
The citizens of each state, and all other persons owing allegiance to the Queen and residing in any territory of the Commonwealth, shall be citizens of the Commonwealth, and shall be entitled to all the privileges and immunities of citizens of the Commonwealth in the several states, and a state shall not make or enforce any law abridging any privilege or immunity of citizens of the Commonwealth, nor shall a state deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of its laws.
The CHAIRMAN.-So that honorable members may consider all the amendments, I think the best course would be to withdraw the amendment now before the Chair, and allow the Tasmanian Assembly's suggestion to be considered, seeing that it involves the insertion of words from the very beginning of the clause.
Mr. WISE (New South Wales).-In order to bring the matter to a point, I beg to move that leave be given for the present amendment to be withdrawn, with a view to the insertion, at the commencement of the clause, of the words "The citizens of each state," from the amendment suggested by the Legislative Assembly of Tasmania. On that a test vote can be taken. Then the proposal to strike out the three lines of the Tasmanian suggestion, to which Mr. Symon has taken objection, may be dealt with. If the mover of the amendment will withdraw his proposal, that course can then be taken.
The CHAIRMAN.-There is no mover of the amendment from Tasmania; it is a suggestion from the Legislative Assembly of that colony.
Mr. WISE.-Then I beg to move the insertion, at the commencement of clause 110, of the words "The citizens of each state," on the understanding that if those words are carried we can then further amend the Tasmanian suggestion by striking out those three lines to which Mr. Symon objected.
Sir JOHN FORREST.-Do we want this clause at all?
[start page 680] Mr. ISAACS.-No.
Mr. REID.-No; we do not want the clause at all; strike it out.
Mr. GLYNN (South Australia).-I desire also to move the insertion, after "citizens of the Commonwealth," of the words "and of the states." The Tasmanian amendment is directed almost altogether to the preservation of the Commonwealth citizenship within the states, and for that purpose it scarcely seems necessary, as the states cannot, under the Federation, abrogate the federal citizenship. But there is no protection to citizens of one state having the same right as regards citizenship as the residents in another state.
An HONORABLE MEMBER.-That would never do. It would prevent an absentee tax being imposed by a State.
Mr. GLYNN.-Why not? Why should we not prevent an absentee tax being imposed by a state?
Mr. REID.-You are interfering in local politics with a vengeance.
Mr. GLYNN.-The Federal Parliament can legislate to prevent the imposition of an absentee tax by a state.
Mr. REID.-Can it?
Mr. GLYNN.-As soon as direct taxation is imposed by the Federal Legislature, taxation must be uniform throughout the Commonwealth. That legislation must prevail. There cannot be a conflict between direct taxation imposed by the Commonwealth and direct taxation imposed by the states, after the Commonwealth has imposed direct taxation.
Mr. ISAACS.-No, that does not meet the point. The Federation will impose taxation for its purposes, and the state will levy taxation for its purposes.
Mr. GLYNN.-If the Tasmanian amendment was amended to provide for the inclusion of the effect of the Fourth Article of section 2 of the American Constitution-that is, a declaration that citizenship in one state shall apply right through the Commonwealth to citizenship in the other states, well and good, but otherwise you could really treat the citizens of one state as aliens and foreigners in another state, or, even while resident in that state, as aliens with regard to the ownership of property in that state. Section 2 of Article 4 of the American Constitution provides that-
The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.
Mr. HIGGINS.-That was in the original Constitution of the United States.
Mr. GLYNN.-And also in the articles of federation, but there was no provision in the articles as regards naturalization, and the result was that they had different terms of naturalization in one state as compared with another. For instance, a year's residence in one state entitled an alien to naturalization, whereas in another state fourteen years residence was required, but a citizen in the state in which only one year's residence was required to obtain naturalization could become a citizen in the other state in which fourteen years residence was required, although he had been only one year in America. The question must be federally determined. Still, it would be open, without the American clause, which is not in our Constitution at present, for this Constitution to land us in the position in which they were landed in America, as described in the following quotation:-
In a Union composed of many states, great difficulties would arise if the citizens of one state were treated as aliens or foreigners in all the other states. Commercial transactions, the right to make contracts, or to hold lands, and travel, intercourse, and traffic between the several states, would be seriously embarrassed and obstructed. It was to prevent the occurrence of such evils that the Constitution wisely extends to the citizens of each state the privileges and immunities of citizens in the other states.
I think the best thing to do is to state that there will be a universal citizenship both as regards the Commonwealth and as regards the states.
[start page 681] Mr. GORDON (South Australia).-If the contention of the honorable member (Mr. Glynn) were carried into effect it would lead us very much further than the American decisions ever went. It was decided in the Slaughter House cases, which have been referred to by the Attorney-General of Victoria, that the word "citizen" applies only to a citizen of the United States. Suppose the citizens of one state had the right to sell liquor freely, while prohibition was in force in another state, if effect were given to the contention of the honorable member, a citizen who had the right to sell liquor freely in his own state would carry that right with him if he went into the state in which there was prohibition.
Mr. WISE.-That is expressly dealt with by a special amendment.
Mr. GORDON.-I will give another illustration which occurs to me. Suppose in one state a whole class had an absolute exemption from service upon juries, would a member of such a class, if he went
into another state, carry that immunity from service with him? Would not such a provision upset the whole policy of any state?
Mr. REID.-Still it would be very federal.
Mr. GORDON.-I think the two illustrations I have given put the matter in a concrete state, and prove how undesirable it is to give effect to the contention of the honorable and learned member (Mr. Glynn). I think that the words of the Tasmanian amendment should be adopted, if the whole clause is not struck out.
Mr. HOWE (South Australia).-I understand that the Premier of South Australia contends that there should be no absentee taxation upon residents within the Commonwealth; while the honorable and learned member (Mr. Symon) contends that each state should have the right to impose such taxation.
Mr. SYMON.-That each state should exercise its own judgment in the matter.
Mr. HOWE.-Well, I prefer to be guided by the broad views of the Premier of South Australia. In South Australia we have a tax on absentees, but that tax has not proved a success. I believe that we are the only state in Australia which has such a tax. It was considered that persons residing out of the colony, who drew large sums of money in the shape of rents and in other ways from properties within the colony should contribute a little more to the revenue than is paid by the ordinary taxpayer. Such a proposal looked very fair upon the face, but when an absentee tax was imposed it was found that its only result was to increase the rentals of the occupiers of premises owned by the absentees. Consequently, the burden of this increased taxation falls upon consumers and wage-earners residing within the colony.
The CHAIRMAN.-The committee is not now discussing the question of absentee taxation.
Mr. HOWE.-Well, I thought this a very opportune time to get in these re-marks. I congratulate the Premier of South Australia upon his broad views as to what will constitute citizenship in Federated Australia, and I prefer to follow him rather than to follow that eminent legal luminary (Mr. Symon).
Mr. REID (New South Wales).-This matter has now assumed a very serious aspect. My honorable friend (Mr. Howe) has thrown quite a flood of light upon the patriotism of the Premier of South Australia. We all know that a large number of South Australians are interested in mines which are situated in other colonies. For instance, we in New South Wales-and it generally comes round to some little federal enterprise of this kind-happen to have a very wealthy mine at Broken Hill, but the register of shares is not kept in the colony, and, according to the decisions, the property is therefore not in the colony.
Mr. KINGSTON.-That was discovered by a South Australian.
[start page 682] Mr. REID.-Probably; one could rely upon a South Australian to discover anything of that sort. The result of these decisions was that persons drawing wealth from this mine, from which the New South Wales Government receive, I think, 5s. per acre per annum, found themselves out of the reach of taxation, and their estates after their death were absolutely beyond probate duties. Now, under a system of direct taxation, the New South Wales Government gets something like £15,000 a year from the Broken Hill mines. This, no doubt, is a very fine federal enterprise, to create distinctions and to abridge our jurisdiction in dealing with the wealth produced in our own colony. Personally, I am not at all in favour of an absentee tax. It cannot be said that the New South Wales income tax is such a tax. I wish, however, to direct the attention of honorable members to the very dangerous track we are going upon in not being satisfied to leave to the states that which we profess to leave to them. We profess to leave to the states their powers of local management in certain respects, but we are
constantly trying to meddle with concerns which do not belong to us, and which will not belong to the Federal Commonwealth. I am afraid that this action will create a very unhappy impression in the various colonies. We are all in favour of giving equal citizenship and the equal protection of the laws to all the members of the Commonwealth. It is quite novel in Australia to hear any talk upon this point, because I think this has been universally conceded here. I am prepared to vote upon the lines laid down by the honorable and learned member (Mr. O'Connor) in guaranteeing equality to all the citizens of the Commonwealth; but do not let us, by side devices, interfere with matters that we should leave to the management of the states.
Mr. SYMON (South Australia).-The honorable member (Mr. Howe) is under a very grave misapprehension, not only as to my views, but also as to the real issue before the committee. The issue before the committee is not whether we should impose a tax upon absentees.
Mr. HOWE.-I understand that.
Mr. SYMON.-Nor is it whether we should repeal the inefficient absentee tax. existing in South Australia. The issue is whether we are to destroy the autonomy of the states in certain respects. I am, and always have been, utterly opposed to absentee taxation, and the views which I expressed were brought out by an illustration which was used to show the effect of the clause. The honorable and learned member (Mr. Wise) made use of two illustrations, in dealing with which I merely pointed out that there was no earthly reason why the states should not have power to deal with these matters. I never suggested any divergence from the views of my honorable friend (Mr. Howe), and I am glad that he is with me in thinking that this useless absentee tax should be swept away.
Mr. O’CONNOR (New South Wales).-I rise for the purpose of pointing out the position in which we stand, and to express the hope that, having discussed this matter so fully, we may soon come to a division. The honorable and learned member (Mr. Wise) has proposed an amendment which, if carried, will involve the declaration that the citizens of each state are citizens of the Commonwealth. I have already dealt with the general aspect of this provision, but I should like to ask the committee what is meant by the term "citizen"? What rights shall we give to a man as a citizen? If we do not give any definite rights, what is the use of placing in the Constitution a provision which will be a fruitful source of litigation?
Mr. ISAACS.-You must also define "citizen of the state."
Mr. O’CONNOR.-Yes. In regard to what the right honorable member (Mr. Kingston) has said, I should like to say that the citizenship which is aimed at in this amendment is not to be attained by a provision of this kind, but [start page 683] by the comity and friendship which must ensue when we are all one people. Any declaration of the rights of the citizens, and any interference with the local rights of the states in regard to the questions referred to, would be very mischievous. I therefore intend to vote against the amendment of the honorable and learned member, and then to move the amendment which I have already indicated. One word as to the first part of my amendment, which is to the effect that a state shall not deprive any person of life, liberty, or property without due process of law. In the ordinary course of things such a provision at this time of day would be unnecessary; but we all know that laws are passed by majorities and that communities are liable to sudden and very often to unjust impulses-as much so now as ever. The amendment is simply a declaration that no impulse of this kind which might lead to the passing of an unjust law shall deprive a citizen of his right to a fair trial.
Mr. ISAACS.-That is a very dangerous proposal-that the Supreme Court should control the Legislatures of the states within their own jurisdiction.
Mr. O’CONNOR.-It only provides that each citizen of the Commonwealth shall be tried by due process of law. Why should a state be allowed to pass a law depriving a citizen of this right?
Mr. KINGSTON.-What does the honorable and learned member mean by the term "due process of law"?
Mr. O’CONNOR.-The amendment will insure proper administration of the laws, and afford their protection to every citizen.
Mr. SYMON.-That is insured already.
Mr. O’CONNOR.-In what way?
Mr. SYMON.-Under the various state Constitutions.
Mr. O’CONNOR.-Yes. We are now dealing with the prohibition against the alteration of these Constitutions. We are dealing with a provision which will prevent the alteration of these Constitutions in the direction of depriving any citizen of his life, liberty, or property without due process of law. Because if this provision in the Constitution is carried it will not be in the power of any state to pass a law to amend its Constitution to do that. It is a declaration of liberty and freedom in our dealing with citizens of the Commonwealth. Not only can there be no harm in placing it in the Constitution, but it is also necessary for the protection of the liberty of everybody who lives within the limits of any State.
Mr. SYMON.-Have we not that under-Magna Charta.
Mr. O’CONNOR.-There is nothing that would prevent a repeal of Magna Charta by any state if it chose to do so. Let us suppose that there were any particular class of offences, or particular class of persons who, at any time, happened to be the subjects of some wild impulse on the part of a majority of the community, and unjust laws were passed-
Mr. SYMON.-Has anything ever happened that would Justify such a proposition?
Mr. O’CONNOR.-Yes, they are matters of history in these colonies which it is not necessary to refer to.
Mr. SYMON.-Would it not require an amendment of the Constitution to repeal Magna Charta?
Mr. O’CONNOR.-What Constitution?
Mr. SYMON.-This Constitution. Do you think Magna Charta would be repealed by an Act of the Federal Parliament?
Mr. O’CONNOR.-I do not think so, and I did not say so. But I say that, under the Constitution of the states, as we are dealing with the Constitution, a State might enact any laws which it thought fit, and even if those laws amounted to a repeal of Magna Charta they could be carried. I admit we are only dealing with a possibility, but at the same time it is a possibility which if it eventuated, as it might, would be very disastrous, and there is no reason why we should not prevent it.
[start page 684] Mr. FRASER.-We might provide a safe-guard, at any rate.
Mr. O’CONNOR.-Yes; therefore I intend to support both branches of the amendment to the extent I have stated.
Mr. ISAACS (Victoria).-I understand the only question before the Chair now is practically the adoption of the Tasmanian amendment?
Mr. HIGGINS (Victoria).-I am sorry there was not a clear intimation given of the intention to practically wipe out this clause altogether, because then we might have gone fully into it. I feel that if a division is taken at the present stage there will be a great deal of cross voting. I have been trying to consider the effect of clause 110; and having listened to the debate, and remembering what I read a year or two ago upon the subject, I think we ought to hesitate before we strike out the clause. Looking at the Tasmanian amendment, which seems to be the one actually before the Chair, I think that it has been most thoughtfully framed, I think that it instils a broad federal spirit, and I do not think it will have the evil consequences that have been referred to by some speakers. For instance, the honorable member (Mr. Gordon) made a most impressive speech in the interests of his liquor-drinking friends. He said if a man is allowed to drink liquor in one state he must be allowed to drink liquor in any other state.
Mr. GORDON.-I said that was what I thought would be the effect of Mr. Glynn's amendment.
Mr. HIGGINS.-I apprehend you would apply that to the Tasmanian amendment.
Mr. GORDON.-If the honorable member had been attending to what I said he would know that I did not refer to that.
Mr. HIGGINS.-We have so many propositions before us that I think it would be better to keep to the Tasmanian amendment. There is no possible danger under the Tasmanian amendment of any such right being given to a man going to another state.
Mr. GORDON.-I quite agree with that.
Mr. HIGGINS.-Then, in regard to an absentee tax, I hold, with great submission, that these Tasmanian amendments will not prevent the imposition of an absentee tax. I say that, although I think it would be most lamentable if there were an absentee tax inflicted by one colony upon the residents of any other colony. Still, apart from the merits of the question altogether, this clause does not prevent that. As I understand the question now with regard to the Tasmanian amendment, it would not prevent an absentee tax being imposed by the residents of one colony upon the residents of another. It refers to the privileges and immunities of the citizens of the Commonwealth. There is a double citizenship, and citizens of the Commonwealth have certain privileges and immunities; but there is no privilege or immunity from taxation conferred on a citizen of any state. Judge Cooley, one of the chief inspirers of Mr. Bryce, says
Mr. GORDON.-We had that very quotation before.
Mr. HIGGINS.-I was not aware of that, and, therefore, it is not necessary for me to give the quotation.
Mr. ISAACS.-The difference there is that a citizen of the United States is not defined as a citizen, but as being a person having a certain qualification.
Mr. HIGGINS.-My learned friend and myself are at one on that point, but there are two citizenships. I think the Tasmanian amendments have been drafted most carefully, but what they have been addressed to is that your privileges as a citizen of the Commonwealth as distinguished from your privileges as a citizen of the state are not to be abridged. I would, therefore, suggest that as this proposal to alter the clause has been sprung upon us suddenly, we ought not, at this stage, to strike it out, but proper notice I should be given.
[start page 685] Mr. ISAACS.-We can recommit the clause.
Mr. HIGGINS.-It might be recommitted, but I think that the burden ought to lie upon those who want to strike it out. According to Mr. Bryce, the 14th amendment of the American Constitution is treated as declaring finally the privileges of citizens as between the several states. It was no doubt enacted with a view to the then recent slavery disputes, but now it has a much wider purview. I appeal to the House not to strike out this clause, because we have not had sufficient notice, and if need be we should recommit it.
Question-That the words "The citizens of each state" be inserted at the beginning of the clause-put.
The committee divided-
Ayes ... ... ... ... 17
Noes ... ... ... ... 24
Majority against the amendment 7
Clarke, M.J. Higgins, H.B.
Deakin, A. Howe, J.H.
Dobson, H. Kingston, C.C.
Douglas, A. Lewis, N.E.
Downer, Sir J.W. Moore, W.
Fysh, Sir P.0. Symon, J.H.
Glynn, P.M. Walker, J.T.
Grant, C.H. Teller.
Henry, J. Wise, B.R.
Abbott, Sir J.P. Lee Steere, Sir J.G.
Barton, E. Lyne, W.J.
Berry, Sir G. McMillan, W.
Briggs, H. O'Connor, R.E.
Carruthers, J.H. Quick, Dr. J.
Cockburn, Dr. J.A. Reid, G.H.
Crowder, F.T. Solomon, V.L.
Forrest, Sir. J. Trenwith, W.A.
Fraser, S. Turner, Sir G.
Gordon, J.H. Venn, H.W.
Holder, F.W. Teller.
Isaacs, I.A. Peacock, A.J.
Question so resolved in the negative.
[The Chairman left the chair at three minutes to one o'clock p.m. The committee resumed at six minutes past two p.m.]
The CHAIRMAN.-It is proposed to omit from clause 110 the words-
Make or enforce any law abridging any privilege or immunity of citizens of other states of the Commonwealth.
Dr. COCKBURN (South Australia).-I do not think that these words are required. The words owe their introduction into the Constitution of the United States to circumstances of a purely adventitious character, which can never be expected to occur in Australia. The words form no part of the original American Constitution. They were introduced, as an amendment, simply as a punishment to the Southern States for their attitude during the Civil War.
Mr. ISAACS.-No; to effectuate the results of the war.
Dr. COCKBURN.-To inflict the grossest outrage which could be inflicted upon the Southern planters, by saying-"You shall not forbid the negro inhabitants to vote. We insist on their being placed on an equal footing in regard to the exercise of the franchise with yourselves." I do not believe that this amendment was ever legally carried. I believe it was only carried by force of arms, by placing the voting places practically under martial law.
Mr. ISAACS.-I explained how that was done.
Dr. COCKBURN.-That is correct, is it not?
Dr. COCKBURN.-It was no part of the original United States Constitution, and it never has legally become a part of that Constitution; it was simply forced on a recalcitrant people as a punishment for the part they took in the Civil War. We are not going to have a civil war here over a racial question.
Mr. ISAACS.-That was one mode of amending the Constitution.
Dr. COCKBURN.-By martial law?
Dr. COCKBURN.-We do not want to imitate that example. We do not want a clause in our Constitution which could only be carried in America by force [start page 686] of arms. We cannot imagine a condition of things in which we would wish to make such an amendment of our Constitution. I do not believe we shall ever have such a condition of things here as will necessitate
such a clause in the Constitution. As it formed no part of the original Constitution of America, as it was only introduced by force of arms and not according to the legal limits of the Constitution, I do not think we should pay it the compliment of imitating it here.
Mr. ISAACS.-The honorable member can vote for the present amendment to strike out certain words.
Dr. COCKBURN.-I am going to vote for an amendment to strike out words whenever I get the opportunity.
Mr. WISE (New South Wales).-I would like to make a suggestion in order to facilitate business. It is that we should temporarily pass the amendment suggested by my learned friend (Mr. O'Connor), which I understand has the approval of the leader of the Convention, if the latter will give an assurance that the matter will be thoroughly looked into by the Drafting Committee.
Mr. WISE.-It seems to me to be a matter of very great importance. It has not received the attention it deserves, and it is not quite possible for us in committee to go into the whole matter fully.
My. KINGSTON.-We may temporarily strike out the clause with the view to the insertion of a new one.
Mr. WISE.-I do not advocate that course, because to my mind the retention of the clause is of very great importance. I look upon the clause as necessary to prevent the state Parliaments from being used as instruments of nullification. Some assertion of that principle is desirable in the Constitution, though the precise words of it are a matter of doubt and a matter of drafting. I would suggest that we should pass the amendment of Mr. O'Connor on the committee undertaking to bring it up again for further consideration if they think fit on the recommittal of the Bill.
Mr. ISAACS (Victoria).-I hope we will not do that. I think it is far more than a question of drafting. I think, whatever course we take, we ought to try to have the matter explained as much as possible at the present moment. If we pass the words which my learned friend (Mr. O'Connor) has suggested, we shall be raising up adversaries of the Constitution on all hands. The phrase-"the equal protection of the laws" looks very well, but what does it mean? It was part and parcel of the 14th amendment of the American Constitution; it was introduced on account of the negro difficulty. It is not something separate from the other portion, and of this Dr. Burgess says, at page 217 of the first volume of his work:-
The phrase "equal protection of the laws" has been defined by the court to mean exemption from legal discrimination on account of race or colour. This provision would probably, therefore, not be held to cover discriminations in legal standing made for other reasons; as, for example, on account of age or sex, or mental, or even property qualifications. The court distinctly affirms that the history of the provision shows it to have been made to meet only the unnatural discriminations springing from race and colour. If a discrimination should arise from any previous condition of servitude, I think the court would regard this as falling under the inhibition. The language of the provision implies this certainly, if it does not exactly express it.
And the case itself, which was decided in 1879, shows perfectly clearly that it has no application to our Australian circumstances. The head-note is-
1. The 14th amendment of the Constitution of the United States, considered and held to be one of a series of constitutional provisions having a common purpose, namely, to secure to a recently emancipated race, which had been held in slavery through many generations, all the civil rights that the superior race enjoy, and to give to it the protection of the general government, in the enjoyment of
such rights, whenever they should be denied by the states. Whether the amendment had other, and if so what, purposes, not decided.
[start page 687] 2. The amendment not only gave citizenship, and the privileges of citizenship, to persons of colour, but denied to any state the power to withhold from them the equal protection of the laws, and invested Congress with power, by appropriate legislation, to enforce its provisions.
3. The amendment, although prohibitory in terms, confers by necessary implication a positive immunity, or right, most valuable to persons of the coloured race-the right to exemption from unfriendly legislation against them distinctively as coloured-exemption from discriminations, imposed by public authority, which imply legal inferiority in civil society, lessen the security of their rights, and are steps towards reducing them to the condition of a subject race.
Mr. HIGGINS.-It protects Chinamen too, I suppose, as well as negroes?
Mr. ISAACS.-It would protect Chinamen in the same way. As I said before, it prevents discriminations on account of race or colour, whether those discriminations be by Parliament or by administration. And in the case I referred to, Yick Wo v. Hopkins, it was held by the Supreme Court that the ordinance of the San Francisco Legislature was void, and they went on to say further, even if a legislative provision is fair and apparently equal on the face of it, if it is so administered as to introduce this discrimination, it will be declared void.
Mr. HIGGINS.-The Act itself.
Mr. ISAACS.-Yes; if it admits of that infringement, and if it is so interpreted by the Supreme Court of the state as to mean that such a discrimination may be introduced, though not necessarily, it will be held to be void. That will be found on page 220 of Baker's Annotated Notes on the Constitution of the United States. If that is so, to put it in plain language, our factory legislation must be void. I put that one simple statement before honorable members, and I would ask them how they can expect to get for this Constitution the support of the workers of this colony or of any other colony, if they are told that all our factory legislation is to be null and void, and that no such legislation is to be possible in the future?
Mr. KINGSTON.-That is the special clause relating to Chinese.
Mr. GLYNN.-Cannot there be special legislation on the subject under clause 53?
Mr. ISAACS.-I forget what was done with that clause.
Mr. O’CONNOR.-Some portion of it now appears under clause 52.
Mr. ISAACS.-If it is so, the question of whether we are going to prevent factory legislation of the kind I referred to will demand very serious consideration. Clause 52, by the transposition that has been made, will afford an opportunity for discriminating legislation if the Federal Parliament choose to take advantage of it.
Mr. GLYNN.-If the Federal Parliament does interfere, why preserve state legislation?
Mr. ISAACS.-If we retain this clause as it stands, we shall have done no good by transferring a part of clause 53 to clause 52.
Mr. GLYNN.-It is inconsistent.
Mr. ISAACS.-Yes, because we decided in transferring the provision in clause 53 to clause 52 to leave the states full power to legislate until overborne by federal legislation. If we retain this provision that no state is to be permitted under any circumstances to pass such a law, then what we have decided to be concurrent legislation becomes exclusive legislation on the part of the Federal Parliament. On that ground, and for the reasons I have stated, I say that we ought not to insert this provision as to the equal protection of the laws. That is a phrase that at once commands approbation, but when it comes to be practically applied it raises up almost insuperable difficulties. With regard to the other part of the clause, about due process of the law, there is an equal difficulty. I understand that Mr. O'Connor proposes to introduce that portion. What necessity is there for it? Under our state Constitutions no attempt has ever been made to subject persons to penalties without due process of law.
[start page 688] That provision was likewise introduced into the American Constitutions to protect the negroes from persecution, and dozens of cases have been brought in the United States courts to ascertain what was meant by due process of law. At one time it was contended that no crime could be made punishable in a summary way, but that in every case there would have to be an indictment and a trial by jury. That was overruled, and it was held that you might have process by information. If we insert the words "due process of law," they can only mean the process provided by the state law. If they mean anything else they seriously impugn and weaken the present provisions of our Constitution. I say that there is no necessity for these words at all. If anybody could point to anything that any colony had ever done in the way of attempting to persecute a citizen without due process of law there would be some reason for this proposal. If we agree to it we shall simply be raising up obstacles unnecessarily to the scheme of federation. I hope, therefore, that Mr. O'Connor will not press his amendment.
The amendment was agreed to.
Mr. O’CONNOR (New South Wales). I beg now to move-
That the following words be inserted after the word "not"-"deprive any person of life, liberty, or property without due process of law."
Dr. COCKBURN (South Australia).-Why should these words be inserted? They would be a reflection on our civilization. Have any of the colonies of Australia ever attempted to deprive any person of life, liberty, or property without due process of law? I repeat that the insertion of these words would be a reflection on our civilization. People would say-"Pretty things these states of Australia; they have to be prevented by a provision in the Constitution from doing the grossest injustice."
Mr. O’CONNOR (New South Wales).-I have mentioned before the reasons, and they appear to me to be very strong, why these words should be retained. The honorable member will not deny that there should be a guarantee in the Constitution that no person should be deprived of life, liberty, or property without due process of law. The simple object of this proposal is to insure that no state shall violate what is one of the first principles of citizenship.
Mr. KINGSTON.-Is there not that guarantee now?
Mr. O’CONNOR.-I do not think so. We are making a Constitution which is to endure, practically speaking, for all time. We do not know when some wave of popular feeling may lead a majority in the Parliament of a state to commit an injustice by passing a law that would deprive citizens of life, liberty, or property without due process of law. If no state does anything of the kind there will be no harm in this provision, but it is only right that this protection should be given to every citizen of the Commonwealth.
Sir JOHN FORREST.-Would not the Royal assent be withheld?
Mr. O’CONNOR.-I do not know that it would. The Royal assent is practically never refused to any Bill that deals with our own affairs, and it is highly improbable that it would be refused under any circumstances.
Mr. ISAACS.-Suppose a state wanted land for railway purposes, and took it compulsorily, there being a provision in one of the statutes that the amount to be paid should be determined by arbitration, would not that be taking the land without due process of law?
Mr. O’CONNOR.-No, it would not; and, as an honorable member reminds me, there is a decision on the point. All that is intended is that there shall be some process of law by which the parties accused must be heard.
Mr. HIGGINS.-Both sides heard.
Mr. O’CONNOR.-Yes; and the process of law within that principle may be [start page 689] anything the state thinks fit. This provision simply assures that there shall be some form by which a person accused will have an opportunity of stating his case before being deprived of his liberty. Is not that a first principle in criminal law now? I cannot understand any one objecting to this proposal.
Dr. COCKBURN-Very necessary in a savage race.
Mr. O’CONNOR.-With reference to the meaning of the term due process of law, there is in Baker's Annotated Notes on the Constitution of the United States, page 215, this statement-
Due process of law does not imply that all trials in the state courts affecting the property of persons must be by jury. The requirement is met if the trial be in accordance with the settled course of judicial proceedings, and this is regulated by the law of the state.
If the state law provides that there shall be a due hearing given to the rights of the parties-
Mr. BARTON.-And a judicial determination.
Mr. O’CONNOR.-Yes, and a judicial determination-that is all that is necessary.
Mr. ISAACS.-What is the good of it? It is an admission that it is necessary.
Mr. O’CONNOR.-Surely we are not to be prevented from enacting a guarantee of freedom in our Constitution simply because imputations may be cast upon us that it is necessary. We do not say that it is necessary. All we say is that no state shall be allowed to pass these laws.
Mr. ISAACS.-Who asks for the guarantee?
Dr. COCKBURN.-The only country in which the guarantee exists is that in which its provisions are most frequently violated.
Mr. O’CONNOR.-I think that the reason of the proposal is obvious. So long as each state has to do only with its own citizens it may make what laws it thinks fit, but we are creating now a new and a larger citizenship. We are giving new rights of citizenship to the whole of the citizens of the Commonwealth, and we should take care that no man is deprived of life, liberty, or property, except by due process of law.
Mr. GORDON.-Might you not as well say that the states should not legalize murder?
Mr. O’CONNOR-That is one of those suppositions that are against the first instincts of humanity.
Mr. GORDON.-So is this.
Mr. O’CONNOR.-No, it is not. We need not go far back in history to find cases in which the community, seized with a sort of madness with regard to particular offences, have set aside all principles of justice. If a state did behave itself in that way, why should not the citizens of the Commonwealth who did not belong to that state be protected? Dr. Cockburn suggested in so contemptuous a way that there could be no reason for this amendment, that I got up to state again what had been stated before.
Dr. COCKBURN.-Not contemptuous.
Mr. O’CONNOR.-I know the honorable member meant nothing personal, but I thought it necessary to state the reasons of what, had it not been for the honorable member's statement, would have seemed to be a perfectly obvious proposition. Mr. Clark, of Tasmania, thought the amendment of importance, and pointed out that it had been put in the United States Constitution. It should also be put in this Constitution, not necessarily as an imputation on any state or any body of states, but as a guarantee for all time for the citizens of the Commonwealth that they shall be treated according to what we recognise to be the principles of justice and of equality.
Sir EDWARD BRADDON (Tasmania).-The amendment suggested by the Parliament of Tasmania would have modified this clause so as to, perhaps, make it acceptable. That amendment having been rejected, I cannot but think that it would be advisable to strike the whole clause out. I think the clause as it stands is calculated to do harm rather than good. It will cause friction between the states and the [start page 690] Commonwealth, and also involve considerable interference with the rights of the several states. If it is to be decided that a state shall not enforce any law abridging the liberties of other citizens of the Commonwealth, and it be understood that those citizens are to have this indulgence while within the state, that will involve some danger. The latter part of the clause, which says that the state shall not "deny to any person within its jurisdiction the equal protection of the laws," must involve confusion, and may involve serious disagreement. That is the way it strikes me.
Question-That the words "deprive any person of life, liberty, or property without due process of law" proposed to be inserted be so inserted-put.
The committee divided-
Ayes ... ... ... ... 19
Noes ... ... ... ... 23
Majority against the amendment 4
Barton, E. Lewis, N.E.
Briggs, H. Lyne, W.J.
Brown, N.J. McMillan, W.
Carruthers, J.H. Moore, W.
Dobson, H. Reid, G.H.
Douglas, A. Symon, J.H.
Fraser, S. Walker, J.T.
Grant, C.H. Wise, B.R.
Henry, J. Teller.
James, W.H. O'Connor, R.E.
Berry, Sir G. Higgins, H.B.
Braddon, Sir E.N.C. Howe, J.H.
Cockburn, Dr. J.A. Kingston, C.C.
Crowder, F.T. Leake, G.
Deakin, A. Lee Steere, Sir J.G.
Downer, Sir J.W. Quick, Dr. J.
Forrest, Sir J. Solomon, V.L.
Fysh, Sir P.0. Trenwith, W.A.
Glynn, P.M. Turner, Sir G.
Gordon, J.H. Venn, H.W.
Hackett, J.W. Teller.
Henning, A.H. Isaacs, I.A.
Question so resolved in the negative.
Mr. GLYNN (South Australia).-I now intend to move-
That after the word "deny" the following words be inserted, "to the citizens of other states the privileges and immunities of its own citizens.
The CHAIRMAN.-If the clause were left in that form it would be simply non-sense, because the words "nor shall a state" are left in.
Mr. GLYNN.-Then I beg to move, first of all-
That the words "nor shall a state" be struck out.
If this be carried, I shall move the insertion, after the word "deny," of the words "to the citizens of other states the privileges and immunities of its own citizens."
Mr. ISAACS.-That is the substance of what we have struck out.
Mr. GLYNN.-The clause is really a one-legged one as it stands now. There is no substance in it. My amendment raises the question which was discussed this morning, and on which Mr. Isaacs took up a strong stand on the one side, and Mr. Kingston on the other-namely, that no state should be allowed to give privileges to its own citizens if it was not prepared to extend them to the citizens of other states. If some such amendment as I now propose is not made, it would be competent for New South Wales to declare that a citizen of Victoria on going to Broken Hill shall not have the same privilege of taking out a miner's right as a citizen of New South Wales has. In might induce a sort of back-handed protection.
Mr. SYMON.-That would be prohibited under the trade and commerce provision.
Mr. GLYNN.-I do not think so. That provision exists in America also, and, notwithstanding that, it has been decided that special laws may be passed by a state affecting the citizens of other states, as to entering into contracts, thus imposing a general limitation on the citizens of other states not applicable to the state's own citizens.
Mr. ISAACS.-Suppose a Chinaman went from South Australia to Western Australia, would he be entitled to a miner's right?
Mr. GLYNN.-It depends upon the state law. We have decided that state laws are to hold good until federal [start page 691] legislation applicable to these special races is passed.
Mr. TRENWITH.-You want to put a restriction in the Constitution.
Mr. GLYNN.-There is no question of putting a restriction in the Constitution.
Mr. TRENWITH.-Leave the Federal Parliament to deal with the matter.
Mr. GLYNN.-Races have been provided for already. Honorable members have races too much in their heads, I think. They are provided for under clause 53. I am dealing with the case of individuals apart from races altogether, and I say that, as regards individuals, it is inconsistent with the theory of citizenship that we are establishing, that a state should put all sorts of penalties on the citizens of other states. I think that, in this matter, we should make citizenship as wide and as basic as we possibly can under the fundamental principles of the Constitution.
Mr. TRENWITH.-For that reason, support the striking out of the clause altogether.
Mr. GLYNN.-But we should put something else in. I think we should insert the amendment I have proposed. If we do not put these words in, Western Australia can pass a law saying that a Victorian in Western Australia shall not be able to obtain a miner's right; and that is the sort of back-handed protection we should not permit under the Constitution, because if it be permitted we shall defeat the trade and commerce clause by enabling a state to impose special disabilities upon the men who carry on commerce.
The amendment to strike out the words "nor shall a state" was agreed to.
The CHAIRMAN.-It is proposed to further amend the clause by inserting, after the word "deny," the words-
"to the citizens of other states the privileges and immunities of its own citizens."
Sir JOHN FORREST (Western Australia).-It seems to me that we do not altogether understand-at any rate I do not-the effect of this proposed provision. It has just been pointed out to me that under it many things might occur that we do not at the present time anticipate. For instance, there is a
regulation in regard to professions in existence now in the various colonies. Solicitors cannot practise in one colony unless they conform to the laws of that colony. Other professions are in the same position.
Mr. GLYNN.-This amendment would not affect that position at all.
Mr. GORDON.-That has been decided.
Mr. REID.-I think we had better agree to strike the clause out.
The amendment was negatived.
The clause was struck out.
Clause 111 was agreed to.
Clause 112-The Commonwealth shall protect every state against invasion, and, on the application of the Executive Government of a state, against domestic violence.
Mr. GORDON (South Australia).-I beg to move-
That the word "invasion" (line 2) be struck out, and the word "attack" substituted.
Why should the protection of the Commonwealth be confined only to invasion? We are not likely ever to be invaded, but we are exceedingly likely to be attacked.
Mr. BARTON.-Any attack is an invasion in the sense in which the word is used in this clause.
Mr. GORDON.-The gunning by a cruiser standing off a city is not an invasion, but it is an attack.
Mr. BARTON.-It is an attack which is part of an invasion; if the attack succeeds invasion follows.
Mr. GORDON.-I think "attack" is very much better. Of course, if the word "invasion" covers the ground, well and good; but while "attack" covers "invasion," does "invasion" cover "attack"? Originally, the amendment I intended to move used both the words "attack" and "invasion."
Mr. REID.-You can repel an invasion 100 miles from the coast.
Mr. GORDON.-But how does the honorable member know that an invasion is intended?
[start page 692] Mr. REID.-If there was a war between two countries, and a cruiser from the one country was approaching the other, you would know that it was not on a visit of brotherly love.
Mr. GORDON.-They may not intend to invade the chances are that they do not intend to invade, but to attack.
Mr. BARTON.-Do you think that the Commonwealth, if a hostile fleet appeared for the purpose of attacking, and not invading, would keep the batteries silent and the Australian fleet at anchor?
Mr. GORDON.-Something may turn upon this. By this clause the Common-wealth is only bound to protect every state against invasion. If the Commonwealth neglected its duty, and South Australia was invaded, South Australia would have a claim against the Commonwealth. But, it appears to me, that it should have an equal claim against the Commonwealth if it was simply attacked, and not
invaded. However, if the leader of the Convention thinks that "invasion" covers "attack," I am willing to leave the matter to the Drafting Committee, but I have some doubt on the point.
Mr. BARTON (New South Wales).-I am perfectly satisfied that when the guns are booming there will be no discussion about the meaning of the two words.
Mr. GORDON.-Ought the construction of this Act to be left until the guns are booming? I thought the object was to prevent the guns booming at all.
Mr. HOLDER (South Australia).-I think there is something in the point raised by my honorable friend (Mr. Gordon). We have previously used separately the terms "naval" and "military." Now, an attack would be naval, while an invasion would be military.
The CHAIRMAN.-Does the honorable member (Mr. Gordon) press his amendment?
Mr. GORDON.-No. If the leader of the Convention relies on his booming guns I am content.
The amendment was withdrawn.
Amendment suggested by the Legislative Council of Victoria-
After "state" insert "or where in the opinion of the Governor-General it is necessary for the preservation of the public peace."
Mr. GORDON.-I object most strongly to this interference with the state. The state is the proper party to ask for protection, and not the Governor-General, who is not a resident of the state, and may be badly advised.
Mr. BARTON.-The state should be entitled to demand protection.
The amendment was negatived.
Clause 112 was agreed to.
Clause 113.-Every state shall make provision for the detention and punishment in its prisons of persons accused or convicted of offences against the laws of the Commonwealth and the Parliament of the Commonwealth, may make laws to give effect to this provision.
Mr. GLYNN (South Australia).-I think the words "or detention" should be inserted after "the detention." At present the clause reads-"The state shall make-provision for the detention and punishment in its prisons of persons accused or convicted," &c. We do not want to punish "persons accused." I beg to move-
That the words "or detention" be inserted after "detention."
The clause will then read-"For the detention or detention and punishment," &c.
Mr. BARTON (New South Wales).-I do not think that amendment would quite do. I could understand the clause being amended so as to make it read-"detention or punishment of persons accused or convicted." The object of the clause, as it stands, is to keep together the terms "accused or convicted," so, that the relation, both of accusation and conviction, to the laws of the Commonwealth may be made clear. The clause only applies to accusations or convictions in respect of laws of the Commonwealth, and, therefore, these words "accused or convicted" are kept together just before the words "offences against the laws of the Commonwealth." I think that if my honorable [start page 693]
friend (Mr. Glynn) would alter his amendment so as to make it read "detention or punishment," there can be no misreading of the clause.
Sir JOHN DOWNER (South Australia).-I think the words should stand as they are. You have to make provision for both things.
Mr. GLYNN.-Not for the punishment of accused persons.
Sir JOHN DOWNER.-Provision has to be made both for detention and punishment. I think the clause is clear enough as it stands at present.
Mr. SYMON (South Australia).-I believe that my honorable friend's (Mr. Glynn's) feeling is that, by leaving the words as they are, the clause might be interpreted to enable the federal authorities to demand from the state the detention and punishment of persons who were not convicted, but I do not apprehend that there is the slightest difficulty on that score. I do not think any court would interpret the words to mean the punishment of a person accused and not convicted.
Mr. GLYNN (South Australia).-My contention is that, as the clause stands, the words are to be read conjunctively in relation to the word "accused." The clause says that each state shall make provision for the detention and punishment of persons accused or convicted. You must read the word "punishment" in relation to "accused," as well as to "convicted." The clause should read-"For the detention, or detention and punishment, as the case may be, of persons accused or convicted," &c.
Sir EDWARD BRADDON (Tasmania).-I think the clause might be amended to get out of the difficulty which has been pointed out. As it stands at present, it provides that the state shall make provision for the detention and punishment in its prisons of persons accused or convicted. Now, evidently, the detention is for those who have not yet been convicted, and the punishment is for those who have been convicted, and I think that those two classes ought to be separated.
Mr. BARTON (New South Wales).-I have an amendment which I think will meet the case, and enable us to get on. I beg to move-
That the clause be amended by striking out the words after "detention" down to "Commonwealth," and substituting in lieu thereof the words "in its prisons of persons accused of offences against the laws of the Commonwealth, and the punishment of persons convicted of such offences."
Mr. GLYNN (South Australia).-I would point out that, under the clause as now proposed to be amended, a state might make provision for whipping persons convicted, but not for detaining them in prison.
Mr. ISAACS.-Detention may be part of the punishment.
Mr. GLYNN.-But the punishment may not be detention, it may be flagellation. Are you going to allow a state to make provision for the character of the punishment for an offence against the Commonwealth?
Mr. Barton's amendment was agreed to.
Clause 113, as amended, was adopted.
The CHAIRMAN.-We will now go back to Chapter IV., dealing with finance, which was postponed.
Mr. BARTON (New South Wales).-I beg to move-
That the consideration of Chapter IV. be further postponed until after the consideration of Chapter VI.
Mr. HIGGINS.-When are we to have the finance statement?
Mr. BARTON.-The Finance Committee are now considering the drafting of the clauses, and they meet today, I believe. I need hardly remind the honorable member (Mr. Higgins), that this is a matter which requires the greatest deliberation, and I think every necessary time must be allowed to the Finance Committee.
The motion for the postponement of Chapter IV. was agreed to.
[start page 694]
CHAPTER VI.-NEW STATES.
Clause 114-The Parliament may, from time to time, admit to the Commonwealth any of the existing colonies of [name the existing colonies which have not adopted the Constitution], and may from time to time establish new states, and may, upon such admission or establishment, make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.
The CHAIRMAN.-On this clause a great many amendments have been suggested, which it is somewhat difficult to put so that they can all be considered and voted upon, The Council and Assembly of Western Australia have suggested to omit the words "The Parliament may from time to time admit to the Commonwealth." The Council and Assembly of Tasmania have suggested to omit after "Parliament" the word "may," and insert "shall." Now, in order that both these amendments may be voted on, I will put as a test of the amendment suggested by Western Australia, the omission of the words "The Parliament." I can subsequently put the question whether the word "may" or the word "shall" shall be used.
Sir JOHN FORREST.-Does not the Parliament of Western Australia propose the omission of these words with the view of substituting other words?
Mr. BARTON (New South Wales).-I may point out that the object is to make the clause read in this way:-
Any of the existing colonies may, on adopting this Constitution, be admitted to the Commonwealth, and shall thereupon become and be a state of the Commonwealth.
The amendment is in two parts, and this is the first part. I myself do not see any reason for changing the drafting of the Bill.
The amendment to strike out the words "The Parliament" was negatived.
The amendment to omit the word "may," with the view of substituting "shall," was also negatived.
The CHAIRMAN.-The next amendment is one suggested by the Legislative Council and the Legislative Assembly of Tasmania, for the insertion after the word "Commonwealth" (line 2) of the words "in accordance with the provisions of this Constitution."
The amendment was negatived.
The CHAIRMAN.-The Legislative Councils and Legislative Assemblies of New South Wales and Western Australia have suggested that we should omit all the rest of the clause after "new states."
I shall now put, as a test question, as to whether the rest of the clause be left out or not, that the words "may from time to time establish new states," stand part of the clause.
Mr. GLYNN (South Australia).-Before considering that question, I desire to ask the leader of the Convention whether Queensland, if it subdivides, can come in? The right of admission of existing colonies seems to be confined to colonies as they now stand. If Queensland is divided into three colonies, can those three colonies come in?
Mr. ISAACS.-The clause provides that new states may be established from time to time.
Mr. GLYNN.-Does that not apply to new states within the territorial jurisdiction of the Commonwealth?
Sir JOHN FORREST.-No; you can take in New Guinea if you like.
Mr. GLYNN.-I would like the opinion of the leader of the Convention on the point.
Mr. BARTON (New South Wales).-This matter has not escaped the attention of the Drafting Committee, but so far they do not see that it is necessary to make any-alteration in this particular. The clause provides that the Parliament may, from time to time, admit to the Commonwealth any of the "existing colonies." That is, any of the colonies in their existing condition, and it also provides that the Parliament may, from time to time, establish new States. If an existing colony is sub-divided and becomes, say, instead of the colony of Queensland, three other colonies, [start page 695] although embracing the same territorial area as Queensland, they can be admitted to the Federation under the provision allowing the Parliament to establish new states. The admission phrase is designedly used so as to enable it to apply only to those colonies which might at first enter the Federation, and with their existing autonomy, and the remainder of the clause is intended to apply to the other colonies. However, I will give the matter reconsideration, although I think it is probable that the present wording will suffice.
Sir JOHN FORREST (Western Australia).-Do I understand correctly that any of the existing colonies of Australia can come in upon the terms of this Constitution, but that any new states constituted hereafter will come in under the latter portion of this clause? I take it that an existing colony coming in afterwards would not come in perhaps on the same terms as a colony that came in in the first instance. Is that the intention?
Mr. BARTON (New South Wales).-The intention is to allow to the Common-wealth, and to the state which has not at first joined the Federation, an opportunity of considering the terms of the admission of that state. Of course, it is very probable that, on the early admission of such a state as Queensland, no terms whatever would be proposed. On the other hand, if new interests grow up, and new states sought admission to the Commonwealth, these terms and conditions would become very important. It is absolutely necessary to repose power in the Commonwealth to prescribe terms and conditions to meet cases which none of us can foresee.
Sir JOHN FORREST.-Every one will agree to that, because it cuts both ways. A colony which does not enter in the first instance, however, may be able to enter on more favorable terms.
Mr. BARTON.-Or on less favorable terms, as the Parliament of the Common-wealth may prescribe.
Mr. HOLDER (South Australia).-Am I correct in assuming that, even though Queensland is not represented in this Convention, it will be competent for that colony to come in as one of the original states, if her Parliament passes addresses to the Imperial Parliament at the same time as the Parliaments of the other colonies?
Mr. BARTON (New South Wales).-I think there can be no doubt as to the competency of the Imperial Parliament, which is a sovereign Parliament, to include Queensland in the blank space where the colonies joining in the Federation have to be enumerated. Of course before that is done, it is very probable that some means will be taken to see whether the other colonies, through their respective Governments, are anxious for the admission of Queensland. It might be that some official inquiry of that kind would be made, or that inquiry might not be made. The Imperial Parliament could admit Queensland without making any such inquiry, but all precedents teach us that such an inquiry would be made, and upon the satisfactory answer to that inquiry, the petition of Queensland would be acceded to, I take it, so long as it was presented before the time when the Bill was submitted to the Imperial Parliament.
Mr. SYMON (South Australia).-The point which Mr. Holder raised is a very important one, and if there is any doubt about it the clause ought to be made clear. In the preamble of the Bill there is no limitation.
Mr. BARTON.-No, it is left to the Imperial Parliament to enumerate in the Bill the colonies which are to form the Federation, according to the addresses adopted by their respective Parliaments.
Mr. SYMON.-But there is no barrier to prevent Queensland adopting this Constitution any more than there is to prevent any of the colonies represented here from doing so.
Mr. BARTON.-Quite so; that is involved in what I previously said.
[start page 696] Mr. HIGGINS (Victoria).-The only question before the Chair is as to whether the words "may from time to time establish new states" are to remain in the clause.
The CHAIRMAN.-Yes, and that is put as a test question as to whether we are to strike out the rest of the clause.
Mr. HIGGINS.-As attention is riveted on those words, I will do what I have not done as yet throughout the Convention, namely, direct the notice of the Drafting Committee to the way in which this clause is drawn. I cannot see why the word "establish" is used there, and I would suggest to the Drafting Committee, very respectfully, that if Queensland were divided into three colonies before the people of that part of Australia applied for admission to the Federation, it would be quite a false statement to say that the Federal Commonwealth establishes those three colonies.
Mr. ISAACS.-No, the clause speaks of establishing them as new states, not as colonies.
Mr. HIGGINS.-I only want to take care that there shall be no mystical distinction urged hereafter as between "establish" and "admit." Those three colonies would be established by the Imperial Parliament. I think that the true wording of the clause is that the Federal Parliament may admit any existing colonies or any new states hereafter created.
Mr. SYMON.-Why not say "establish or admit"?
Mr. HIGGINS.-Yes; I cannot see the force of the distinction that is drawn between "establish" and "admit" in this connexion. There is a force in our ordinary parlance. However, I will not move an amendment, because the drafting of the Bill is in the hands of very competent persons, and but for the fact that these words are being specially dealt with, I would not have risen to say that the word "establish" here is not the correct word to use.
The question that the words "may from time to time establish new states" stand part of the clause was resolved in the affirmative.
Amendment suggested by the House of Assembly of South Australia-
Omit "including the extent of representation in either House of the Parliament."
Mr. BARTON (New South Wales).-I think these words might safely be retained. Looking at the provisions in the Bill for the preservation of representation, I think it just as well that in a clause of this kind, which gives power to the Commonwealth to make terms for the admission of new states, power should also be given to deal with the question of their representation. I think this is one of the safeguards which should speak to the Parliament of the Commonwealth, as well as to us who are framing the Constitution. The principle that the Commonwealth when once established, in making terms with those who seek admission, should have the power to deal also with representation may wisely be implanted in the Constitution.
Dr. COCKBURN (South Australia).-I think that the Commonwealth should be able to make terms with new states seeking admission, but I do not think that it should be able to deal with a matter of such vital importance as their representation in the Senate or the House of Representatives. I look upon the principle of equal representation in the Senate as one of the cardinal features of the Constitution. There is no such power given to the American Congress as is proposed to be given here, and if we, who claim equal representation in the Senate as our dearest right, allow it to be surrendered in the case of others we must look to our own position. This is a question of principle. I say that if Queensland enters the Federation as a whole, or as more than one state, each new state should enter upon the same terms in respect of representation. I look upon this as an essential feature of the great example of federation afforded by the United States, which has stood the [start page 697] test of time, and which excites the admiration of the civilized world.
Mr. ISAACS.-It has caused a great deal of dissatisfaction.
Dr. COCKBURN.-I have never heard of it. The dissatisfaction which exists in regard to the United States Senate is as to the mode of appointing the Senate, not because of the equal state representation there. I have searched into the matter very carefully, and I have spoken to representatives of American thought upon this point, and I find that there is no strong body of public opinion opposed to the principle of equal state representation.
Mr. ISAACS.-There is a strong objection to giving Nevada one representative to every 21,000 of her population, while New York has only one representative for millions of her population.
Dr. COCKBURN.-Remarks may be made about an anomaly of that kind, but the fact that such an anomaly is necessary to maintain the principle only shows how strongly the people of the United States are attached to the principle. Unless we strike out these words we who plead for equal representation in the Senate endanger our own position.
Mr. HOWE (South Australia).-Do I understand that if Queensland were divided into three states each of these states would have six representatives in the Senate?
Dr. COCKBURN.-If the Parliament of the Commonwealth admitted them.
Mr. HOWE.-That looks very well on the face of it; but I think the power of dealing with representation should be left to the Federal Parliament.
Dr. COCKBURN.-It is left to the Federal Parliament, because if Queensland chose to split herself up into homeopathic parts the Federal Parliament could refuse to admit those parts as states.
Mr. KINGSTON (South Australia).-Is it intended under this clause to allow the Parliament of the Commonwealth to carve new states out of existing states?
Mr. BARTON.-It seems to me that that must be the intention.
Mr. KINGSTON.-I would suggest that this power should be exercised only with the consent of the Parliaments of the states.
Mr. BARTON (New South Wales).-If the right honorable member will look at clause 117, he will see that no state can alienate any part of its territory without the consent of the state Parliament. While the Federal Parliament is empowered to establish new states, there is a condition imposed which prevents territory from being available for a new state until it has been conceded by the Parliament of the state to which it belongs.
Mr. WALKER (New South Wales).-As the leader of the Convention has referred to clause 117, I would draw attention to the fact that the great obstacle which prevents Queensland from joining the Federation is that at the present time the colony may be sub-divided upon petition to Her Majesty the Queen, and a large proportion of the people there are afraid to come under a Constitution which might take away Her Majesty's prerogative in this respect, and prevent any division of the colony without the consent of the state Parliament. That was really the reason why the Queensland Federal Bill was not passed.
The CHAIRMAN.-These remarks will be more in order when we are dealing with clause 117.
Mr. WALKER.-Yes; but the leader of the Convention having referred to the clause I took the liberty of mentioning the matter.
Mr. KINGSTON (South Australia).-I am obliged to the leader of the Convention for this direction to clause 117; but I suggest that it might be preferable if in clause 114 we made it additionally clear that the power of establishing new states should not be exercised without the consent of the Parliament of the state affected. I only ask the honorable and learned member to consider the matter [start page 698] further. I have looked at the provisions of the clause to which he has called attention, but this is such a large power that I think its real extent should be placed beyond doubt.
Mr. LYNE.-Does not the right honorable member think that it is placed beyond doubt by clause 117?
Mr. KINGSTON.-I do not.
Mr. LYNE (New South Wales).-To be consistent upon this matter, I intend to vote in such a way as will allow new states to join the Commonwealth upon the same terms as existing states, though at the same time I am altogether opposed to the principle of equal state representation. If, however, equal state representation is allowed to Tasmania, South Australia, and Western Australia, I cannot see why new states should not be given the same privilege. This only shows to what a great extent the principle of equal representation can be carried.
The amendment was negatived.
The CHAIRMAN.-The amendment having been negatived, I shall not put the consequent amendment suggested by the House of Assembly of South Australia.
The clause was agreed to.
Clause 115.-(Provisional government of territories.)
Mr. BARTON (New South Wales).-There is a question as to whether the word "provisional" should remain. Where the territory is not part of an existing state, of course the Parliament might raise that territory into a state after a certain term of government; but when the territory is part of an
existing state that can only be done by the consent of the state or its Parliament. As to these territories the word "provisional" is probably not an incorrect description, but the question arises whether it is a necessary word. The administration and government of a territory, are words quite sufficient to describe the process as it goes on. It might not be wise to use this word "Provisional," implying an entirely temporary government, because there might be territories which, after they became part of the Commonwealth, might not for many years, if at all, become states.
Mr. HIGGINS.-The word is not used in the Constitution of the United States.
Mr. BARTON.-I fancy it is not. I think it was only introduced in the Bill of 1891. I beg to move that the word "provisional" be struck out.
The amendment was agreed to.
Amendment suggested by the Legislative Council of New South Wales-
Omit the words "any territory surrendered by any state to and accepted by the Commonwealth, or."
The amendment was negatived.
The CHAIRMAN.-There is another amendment suggested by the House of Assembly of South Australia, to add at the end of the clause the following words:-
No federal territory shall be alienated in fee simple, nor shall it be leased for a longer period than 50 years, except upon payment of a perpetual rent, which shall be subject to periodical appraisement at intervals of not more than ten years.
Mr. GLYNN (South Australia).-I promised the honorable member who moved this amendment in the South Australian Assembly to amend it in a direction that he agreed would be desirable. As it stands, I believe it is in substance the amendment moved in Adelaide by the honorable member (Mr. Wise); but it would prevent an exchange of land. It also introduces two forms of leases-one for 50 years, and the other in perpetuity. I beg to move-
That the amendment be amended by leaving out all the words after "fee simple," with the view to insert the following words:-"except by way of exchange for other territory, nor leased, except in perpetuity at its fair annual rent, subject to periodic appraisement at intervals of not more than fourteen years, in a manner to be determined by Parliament."
The amendment will amount to this: That there is to be no alienation in fee simple, and any alienation must be in the form of a lease in perpetuity, at a rent to [start page 699] be periodically appraised, in a manner to be determined by Parliament.
Mr. HIGGINS.-Suppose it is not Crown land at all?
Mr. GLYNN.-It applies to federal territory.
Mr. HIGGINS.-It might be federal territory, and yet part of it might be owned by private individuals.
Mr. GLYNN.-That is a question affecting the original amendment, which I merely wish to amend. After the federal capital is decided upon, the Federal Parliament might have a large quantity of land which might not be used for building, the leasing of which might in the future yield an enormous amount of rent, which could be applied in diminution of taxation.
An HONORABLE MEMBER.-Let the Federal Parliament deal with that.
Mr. GLYNN.-Unless we put in this provision, goodness knows when the Federal Parliament might adopt the principle. I am not speaking on the principle at present; I believe in it, but I am not going to re-argue the question.
Mr. BROWN (Tasmania).-This is one of the numerous questions which might very well be left to the Federal Parliament. It opens up the whole question of perpetual leasing, which might be discussed for months. This is clearly a question for the Federal Parliament to decide. The various colonies will be represented in the Federal Parliament on this question, as on others which have been discussed here at very great length. The representatives of the different colonies will have an opportunity of airing their theories about the occupation of land, and it would be a waste of time to discuss the question now. I have not taken part in past discussions, for the very reason that I am now giving why we should not discuss this question. It seems to me that we have spent a great deal of time in deliberating upon questions which might very well have been left for the decision of the Federal Parliament. It seems to me to be specially appropriate that we should leave this subject to the Federal Parliament. No doubt the honorable member (Mr. Glynn) is quite earnest in his desire to establish the theory which he holds as to the occupation of land, but I hope that he will be content to leave it to be dealt with hereafter, and that he will not ask us to enter upon such a very wide discussion.
Mr. Glynn's amendment was negatived.
The amendment suggested by the House of Assembly of South Australia was negatived.
The clause, as amended, was agreed to.
Clause 116 (Alteration of limits of states) was agreed to.
Clause 117-A new state shall not be formed by separation of territory from a state without the consent of the Parliament thereof, nor shall a state be formed by the union of two or more states or parts of states, or the limits of a state be altered, without the consent of the Parliament or Parliaments of the state or states affected.
Mr. WALKER (New South Wales).-As I have already remarked, I hope that the leader of the Convention and the Drafting Committee will see their way to alter this clause so as to provide for a contingency which I should be sorry to see arise. The event of Queensland coming into the Federation will depend upon Her Majesty's prerogative being maintained with regard to the division or separation of that colony. At present Her Majesty can sub-divide that colony upon a requisition from the inhabitants. We should, if possible, continue that power, so that if Queensland should come into the Federation, Northern and Central Queensland could, by petition to Her Majesty, have that portion of the colony, if they so desire, separated into another colony, and at the same time remain within the Commonwealth. I will not detain the committee, because, on this matter, I am only putting forward a suggestion. I do not propose to move an amendment. I think I am not equal to framing an amendment in legal phraseology, but I believe the leader of the [start page 700] Convention is perfectly competent to speak on this subject, having been interviewed, to my knowledge, by the chairman of the Separation Committee in Rockhampton, from which committee, by-the-bye, the Convention received a petition in Adelaide setting out the peculiar position of Central and Northern Queensland. I, therefore, ask Mr. Barton if he will kindly see whether it is possible to draft a clause by which Queensland may more readily come into the Commonwealth than I fear she otherwise would do?
Mr. BARTON (New South Wales).-This is a very prickly subject, because if you endeavour to keep alive the present power of delimiting and subdividing Queensland without the consent of its Parliament, and import this into the Constitution, the danger arises whether, if you secure the assent of either Northern and Central Queensland to the Constitution, you may not alienate a large majority in Southern Queensland. Again, the difficulty would arise, and I confess it is still a difficulty, that if you keep in this Constitution a provision which necessitates the assent of the Parliament of a colony
before that colony can be subdivided, that gives the majority in Southern Queensland powers over the minority in Central and Northern Queensland which they do not wish to be denied, and it might make the Constitution distasteful to them. As far as I am concerned, I do not like to handle the subject. It may be that before much time has elapsed Queensland will have got rid of this difficulty and will have agreed to some form of separation.
Mr. FRASER.-They are getting rid of it now.
Mr. BARTON.-The way of dealing with this question that my honorable friend (Mr. Walker) proposes is, I am afraid, not a way of getting rid of the difficulty. I will make him this promise: I will draft for him some such provision as will meet his views in reference to this matter. I will not move the amendment myself, but if it is the wish of the Convention to recommit the clause later on there will then be an opportunity for him to move its insertion.
Mr. WALKER.-I thank the honorable member.
The clause was agreed to.
Chapter IV. was further postponed until after the consideration of Chapter VII.
Clause 118-The seat of government of the Commonwealth shall be determined by the Parliament.
Until such determination the Parliament shall be summoned to meet at such place within the Commonwealth as a majority of the Governors of the states, or, in the event of an equal division of opinion amongst the Governors, as the Governor-General shall direct.
Amendment suggested by the Legislative Council of New South Wales-
After "shall be," in line 2, omit remainder of clause, insert "in Sydney, in the colony of New South Wales."
Dr. COCKBURN (South Australia).-Before that amendment is put, I should like to move a prior amendment, namely, to substitute for the word "Common-wealth" the word "Australia." I want the seat of government of the Commonwealth to be known as the capital of Australia, not that I have any objection to the word "Commonwealth"-I believe in the word "Commonwealth," which I wish to see retained-but because I want to see the word "Australia" used as coterminous with the word "Commonwealth." I want to see every inducement given to every state to come into the Commonwealth, in order that they may become and remain a component part of Australia. I do not want to offer any inducement to any state that she will gain prestige or increased status by standing out. I do not want, when the Commonwealth is established, to see Australia divided into two parts-the Commonwealth of Australia and a colony.
An HONORABLE MEMBER.-You will never hear of a colony.
Dr. COCKBURN.-I do not know. We do not want Australia known as being [start page 701] divided into two parts. We want the word "Australia" to convey the highest expression of Australian life, that is to say, the Commonwealth. I want everybody who is a citizen of the Commonwealth to be able to say-"I am a citizen of Australia," without any ambiguity whatever. I do not want anybody who hails from Australia to be asked-"What part of Australia do you come from? Do you come from the Commonwealth, or from such-and-such a colony?" I want the two words to be identical in meaning and synonymous. At the same time I do not want to eliminate the word "Commonwealth," or say anything derogatory of the word "Commonwealth," because I believe that word has a meaning which carries out our wishes.
Sir JOHN FORREST.-You cannot legislate against other people. Suppose Queensland remains out, it will still be entitled to call its part of the territory Australia.
Dr. COCKBURN.-She will still remain Queensland, and we will remain Australia. I am not speaking in reference to Queensland or to any particular state. I am speaking in reference to any state which chooses to stand out from the general understanding and to remain a distinct and separate state.
Sir JOHN FORREST.-You want to collar the name.
Dr. COCKBURN.-I do not want to collar the name-it is our right.
An HONORABLE MEMBER.-Look at clause 4.
Dr. COCKBURN.-Probably clause 4 will be the better clause in which to move the amendment. It is a matter which I think we will have to consider. I would like to see the amendment made here, because, I think, it is a matter which very closely concerns our national life. Of course an alteration will have to be made in clause 4, and the alteration I would suggest, if I am permitted to say what the result of making the alteration will be-
The CHAIRMAN.-We must not discuss over again what we are going to call the Constitution. The question before the committee now is what we are going to call the capital.
Dr. COCKBURN.-I do not want to reverse the vote which has been arrived at, and with which I am absolutely in sympathy. I simply want to make Australia and the Commonwealth synonymous terms. And if clause 4 is the correct place in which to move an amendment, I would suggest that instead of the words "the seat of government of the Commonwealth" we should use the words "the seat of government of Australia."
An HONORABLE MEMBER.-How are you going to enforce it?
The CHAIRMAN.-I do not think we ought to go back to clause 4.
Dr. COCKBURN.-I will not go back to that clause; I will move the amendment here, and it is not antagonistic to any vote which has been arrived at, because I think it is the proper place to make the amendment. All I am asking is that our seat of government-our capital city-shall be known, not as the seat of government of the "Commonwealth," but as the seat of government of "Australia." I do not mean to speak at any length, not because I do not want honorable members to agree with me, but because I think, when they look at the matter, they will themselves see that it is the correct thing for us to do, that we have a right to do it, and that this clause is the proper place in the Bill to do it. I only want honorable members to take the matter into their consideration. I do not want to spring a surprise on the committee, or to ask honorable members to vote on the matter, of which perhaps they have not considered the bearings. I believe that when the committee takes the whole matter into its consideration, it will agree with me that the words "Commonwealth" and "Australia" should be synonymous terms, and that we should leave no loophole or ambiguity with regard to what the meaning [start page 702] of Australia is to be in the future. We mean Australia to be our Commonwealth-our Federation of States.
Mr. MCMILLAN.-Would it not do to use the words "and shall be the capital of Australia"?
Dr. COCKBURN.-I am not wedded to any form of words. I am only anxious to give expression to what I think will be the general feeling, and the legitimate aspiration of the people of the Commonwealth.
Mr. SYMON (South Australia).-The honorable member may rely very strongly on my support, but the amendment should be made in clause 3 or clause 4.
Mr. BARTON.-Clause 4 is only a definition, and I propose to strike that definition out. There will be an opportunity of moving the amendment on clause 3.
Mr. SYMON.-That would be the proper place for the amendment, and I would ask the honorable member not to press it now. If we were to put it in here, it would be a contradiction in terms, because if clause 3 remains, the name of the Federation we are creating is not Australia, but the Commonwealth of Australia. If there were three or four colonies standing out, each of those colonies would have a right to object to our arrogating the name of Australia. If the name of Australia is to be adopted-and I give my strongest adhesion to that proposal-the amendment should be inserted in clause 3.
The CHAIRMAN.-It seems to me that we are discussing a question that has been already settled by the committee. If clause 3 is the proper place for the amendment, it can be dealt with on that clause.
Dr. COCKBURN.-I shall be quite willing to move the amendment then. I thought that this was the proper place for it.
The CHAIRMAN.-The question before the Chair is the amendment suggested by the Legislative Council of New South Wales, to insert the words "in Sydney, in the colony of New South Wales."
Mr. LYNE (New South Wales).-I do not intend at this stage to speak at length on this question. It will be understood that if there was any prospect of the amendment being carried I would support it very strongly. Many objections have been raised to the federal capital being at any spot close to the seashore, or in a position where it could easily be attacked. Before discussing the question of Sydney being the capital, I should like to hear what other honorable members have to say. If this proposal is negatived, I intend to submit a further amendment, of which I have given the Chairman notice, to the effect that the capital shall be in the state of New South Wales.
Sir EDWARD BRADDON (Tasmania).-I desire to move an amendment on the amendment.
Sir JOHN FORREST.-Hobart.
Sir EDWARD BRADDON.-That is it. It is no better joke than the suggestion that Sydney should be the capital of the Commonwealth. Nature has fixed upon Hobart as the capital. Everything points to it or some other place in Tasmania as the capital.
Sir JOHN FORREST.-You must build a bridge across.
Sir EDWARD BRADDON.-All that would be done by the Commonwealth.
An HONORABLE MEMBER.-Would not Launceston do as well?
Sir EDWARD BRADDON.-I will not say anything against Launceston. I desire simply to move that the capital be at some suitable place in the state of Tasmania, and I am sure that honorable members who aspire to seats in the Federal Parliament will support me. They will know that in going to perform their duties at the centre of government they will be making no sacrifice of health or personal comfort.
Mr. HIGGINS.-It may be 105 in the shade in Hobart.
Sir EDWARD BRADDON.-No, it cannot reach that. I beg to move-
That the amendment be amended by striking out "Sydney," with a view to inserting in lieu thereof "some suitable place in Tasmania."
[start page 703] Sir GEORGE TURNER (Victoria).-I have an amendment which will, I think, come before this amendment. I propose to insert a word before "Sydney." We undoubtedly have in this colony of Victoria a place which is well suited, by nature and by what has been done for it, for the federal capital. We possess buildings well adapted to the purpose, and we have a climate unrivalled for changes in any part of the Australian colonies. I have the honour of representing in the local Parliament a portion of this great colony of Victoria, and I should be wanting in my duty, having regard to other proposals submitted by honorable members who were just as serious probably as I am, if I failed to put forward the claims of Victoria or some part of it to be the federal capital. I propose to insert before the words "in Sydney" the words "St. Kilda."
The CHAIRMAN.-I am afraid I cannot put that amendment, unless the Right Hon. the Premier of Tasmania withdraws his proposal.
Mr. SYMON (South Australia).-There is one colony which, in this discussion, has been overlooked, and it has greater claims, I think, in some parts of it than any other which has been mentioned. There is a place in South Australia that is ideally fitted-and in this I am perfectly serious-for the federal capital, and that is Mount Gambier. It is unequalled for climate, for beauty of scenery, for everything that would tend to make life pleasant and agreeable.
Mr. DEAKIN.-"Where every prospect pleases."
Mr. SYMON.-And where we hope-when the Federal Parliament sits there-the latter part of the quotation will not apply. I shall therefore move at the proper time that Mount Gambier be selected as the federal capital.
Sir WILLIAM ZEAL.-What about the earthquake at Mount Gambier?
Mr. SYMON.-Well, a recurrence of that event would be a pleasant variety at any rate, it would not be so alarming as the earthquakes my honorable friend sometimes creates in this chamber.
Dr. COCKBURN (South Australia).-I suppose that the whole discussion on this question is more or less of a jest, and I think I must take a turn when there is a joke going on. But seriously, sir, this matter will have to be left to the Federal Parliament. If, however, we are going to argue it seriously now-if the Convention were-in a state of mind in which it could be argued seriously-I should like to point out that, from the geographical point of view, the centre of gravity of Australia lies at one definite point.
Mr. FRASER.-Where is that?
Dr. COCKBURN.-Adelaide, which is situated on the water-way that is the most important water-way of access to the centre of the continent. Whereas there would be great difficulty in regard to the federal capital being situated either at Sydney or Melbourne, I do not think the same objection would hold good with regard to Adelaide. I think, speaking off-hand, that although Sydney and Melbourne would resent the necessary conditions of the federal capital being located at either place, Adelaide would consent to them. But there is another point to be taken into consideration. Judging from our debates, what has proved to be the most important part of Australia? Undoubtedly the River Murray. The Murray has proved itself to be as it were the thread which has held our discussions together. I would also like to point out, by way of analogy, that all the capitals that have for any lengthened period occupied an important place upon the page of history have been cities situated on important
rivers. On these grounds, I should like to put in a claim first of all on behalf of Adelaide, and failing that for some city situated on the River Murray.
The amendment to strike out the word "Sydney" was agreed to.
The amendment for the insertion of the words "in some suitable place in Tasmania" was negatived.
[start page 704] The CHAIRMAN.-The amendment now before the Chair is Mr. Lyne's amendment for the insertion of the words "in the colony of New South Wales."
Mr. LYNE (New South Wales).-Honorable members seem to be in a rather laughing mood in regard to this question. Now, I am not in a laughing mood.
Mr. PEACOCK.-Are you ever in a laughing mood?
Mr. LYNE.-I am as serious in regard to this question as I have been in regard to any other, and I venture to think that the whole of the arguments are in favour of having the federal capital in New South Wales. I would not press just now a proposal that the capital should be in Sydney, because I believe that there is a great deal in the argument I have heard that Sydney is a likely place of attack. The same objection operates against the selection of Melbourne, and to an even greater extent against Hobart. All these places would be easily open to attack in case of war. But the colony of New South Wales would be satisfied to leave the selection of the federal capital to the Commonwealth, if it were determined that the place should be within the territory of New South Wales. We have, as every one knows, many sites where the climate is good, which are suitable in regard to position, and which possess all the qualities that are requisite to make any one of them an ideal spot for the federal capital. I venture also to think that the position of New South Wales, if at any future time Queensland comes into the Federation, makes her the more suitable colony to contain the federal capital. There can be no complete federation without Queensland, with the possibilities before that great country, and even if we frame a Constitution which will be acceptable to the other states, the time will not be far distant when Queensland will come into it. That being so, in selecting the position of the capital for Australia we should choose a site which will be suitable to Queensland, as well as to the other colonies, and for that purpose there can be no colony more fitted than the colony of New South Wales. We have been invited to visit Ballarat on Friday, and some one has whispered to me that this is to give the representatives a good opinion of Ballarat, with a view to its being selected as the site for the federal capital. I only hope that the climate of Ballarat is better than the climate of Melbourne has been for the last few days. If not, it will have a very poor show of being selected as the federal capital; and I should also think that the heat we have had here will place Melbourne out of the running altogether. I do not wish to debate the question at any length, because the suggestion I have made must, I think, commend itself to every member of this Convention. Albury has been mentioned as a suitable place. The climate there is not so good as it is at other places in New South Wales, but for many reasons it is a good spot. There are also many other suitable localities in New South Wales. There is a wise provision in this Bill, that there should be an area of territory around the federal capital, where-ever it may be, which shall be federal territory. It would be most difficult that that should be provided either in Sydney or in Melbourne, or in any other large city of Australia. I am also of opinion that it would not be a wise thing to select a spot where there is at present no settlement, as was done in the United States of America. We could easily select a spot where we have a settled population at present. Holding these ideas, I hope that this Convention will not treat the matter lightly, because it is an important matter for us to consider. I trust that honorable members will consent to some spot in New South Wales being selected. I have heard many honorable members say that they will agree to that. Let us now see by their votes whether they will do so.
Sir WILLIAM ZEAL.-Will you name the place?
[start page 705]
Mr. LYNE.-No; I should not like to name the place at the present time.
Sir JOSEPH ABBOTT (New South Wales).-I hope the clause will be left exactly as it stands. If my vote could establish the capital of the Commonwealth in New South Wales, I certainly would not give my vote to that effect. I hope that the time will come when New South Wales will be selected as the place for the capital of the Federation, but from the point of view of the Convention, it matters very little to New South Wales whether the capital is there or in Western Australia. In this respect, I think that the position of New South Wales is exactly the same as the position of the state of New York, the capital of which is Albany. The capital of the state of New York contains 91,000 inhabitants-that is, the legal capital of the state of New York-but the city of New York, with Brooklyn, which forms part of the same city, contains 2,500,000 inhabitants. Wherever you fix the capital of Federated Australia, I feel sure that the facilities of trade will fix the capital where those facilities are the greatest, and I am not at all concerned as to where the capital will be fixed as a matter of law, because I know where it will be as a matter of fact.
Mr. LYNE.-You do?
Sir JOSEPH ABBOTT.-Yes; inasmuch as there is no other city with the facilities of Sydney, the capital will, de facto, be Sydney, although it may, de jure, be in Western Australia. I think it is a small thing to quarrel about, or devote our attention to at present. Representing New South Wales, I am perfectly prepared to leave it to the Federal Parliament to determine where the capital of the Commonwealth shall be.
Mr. REID (New South Wales).-I confess that I cannot follow the observations of the honorable member who has just said that he represents New South Wales, and, at the same time, I think this is not a subject upon which there should be any prolonged debate. I put it to the Convention that the colony of New South Wales is entitled to the passage of this amendment. At the same time, I do not wish to press my view upon any honorable member of this Convention. It is a matter which each member must decide for himself. I cannot conceal from myself my own belief that the great burden, the chief burden, of this future Federation will be upon the colony of New South Wales. I cannot conceal from myself the fact that the main object of this federation is to bring New South Wales within the reach of the other colonies for the purposes of intercourse and trade-very proper purposes-and, from her position in the group of the Australasian colonies, I believe that she is entitled to the passage of this amendment. I think that all those members of the Convention who are of the same opinion as myself ought to help Mr. Lyne to remove this matter from the region of doubt; but, I say again that it is not a matter on which I will presume in the slightest degree to expect any member of this Convention to be guided by me. I simply ask for a conscientious vote on this question.
Mr. MCMILLAN (New South Wales).-I hope that there will be no vote on this question. I hope that the amendment will be negatived. I quite agree with Sir Joseph Abbott that this is entirely a matter for the Federal Parliament to determine. That has always been agreed upon, and certainly whatever hope New South Wales has in the future of having the federal capital within her borders, I do not think her chances will be improved by a discussion of the question at the present time. There is no doubt that to us this question of the capital of the Commonwealth is involved very greatly in the coming in of Queensland to this Federation. To my mind-I only give my own view-there is no doubt that if Queensland comes in, the federal capital, if we have regard to convenience and everything, will find its natural position somewhere in New South [start page 706] Wales, and I hope also that the capital of the Commonwealth will be located on one of the tablelands of one of the colonies, whichever may be chosen, so that it may have a healthy situation. I think, however, that it would be lamentable for us to divide on a question like this, on which we are sure to be in a minority.
Mr. HOWE (South Australia).-I should like to know whether the mover of the amendment intends to press it to a division?
Mr. LYNE.-Most decidedly I will.
Mr. HOWE.-Then I feel that it behoves me, as a representative of South Australia, to say a few words on the question. I am sorry that the mover of the amendment did not listen to the words of wisdom which fell from Sir Joseph Abbott. I consider that at this juncture it would be highly inadvisable to try to get a vote on the amendment, because it would place those who are in sympathy with New South Wales in this matter in a false position. My sympathies are entirely with the mother colony.
Mr. LYNE.-Then vote for the amendment.
Mr. PEACOCK.-This is not the place to determine the question.
Mr. HOWE.-I say that the mother colony-
Mr. KINGSTON.-The senior colony.
Mr. HOWE.-I choose to designate New South Wales as the mother colony, and I hope I will not offend my right honorable colleague by doing so. I have always done so. I say that we should consider the position of the mother colony. She has natural resources, I believe, far and away, according to her area, beyond those of any of the other colonies existing at the present time.
Mr. FRASER-Queensland is running her a very tight race.
Mr. HOWE.-She has beautiful up-lands, a grand river system, and there are many places within her borders eminently suited for the federal capital; but while I say all this, and while my feelings are favorable towards the mover of the amendment and the amendment itself, I feel that this is one of those questions which, unless we are going to cause greater dissension in this camp than has ever existed before, should be left entirely to, the Federal Parliament. Consequently, I ask the honorable member, if it is not yet too late, to reconsider the matter, and not put his friends in a false position, but withdraw the amendment, and leave it to an even higher tribunal than this to deal with the matter.
Mr. REID (New South Wales).-I really feel, from the tone of the Convention, that this amendment is going to be negatived.
Mr. FRASER.-That is so.
Mr. HOWE.-You should not press it to a vote.
Mr. REID.-Yes, I feel that now; and the main object with me in supporting my friend-and I will support him to the finish, if necessary; it is a matter for his decision-my object in asking this Convention, at this time, to carry Mr. Lyne's amendment is, I can assure honorable members, although it may seem to have rather a provincial complexion, entirely in the interests, from our point of view, of the success of this movement. I, therefore, did not press my views upon any other honorable member, because I could not press on honorable members the fact that the settlement of this question now would, in my opinion, give an immense help to us in New South Wales in securing their forgetfulness of many points in this Constitution which we and they have a strong objection to. But, now that we have brought the matter before the Convention, and now that I feel that the Convention does practically refuse to insert these words, I think that my friend (Mr. Lyne) may well save the members of the Convention from a vote which, in many cases, might be a most invidious one to give; and which might cause those who will eventually support, perhaps, the claims of the mother colony if this matter is not [start page 707] pressed now, not to appear in that light. At the same time, I confess my disappointment that the matter has not been received in a more favorable spirit.
Mr. HOWE.-What about St. Kilda?
Mr. REID.-Now I am quite prepared, under the circumstances, since I see that the feeling of the Convention is what it is, to say that I think my friend (Mr. Lyne), feeling that we have no chance of carrying this amendment, might, to that extent, save members of the Convention from going to a division on this matter, as we have practically got our answer without a division. At the same time, I very much regret that the amendment is not going to be successful, but if my honorable friend presses the matter to a division, I shall be compelled to vote with him, on the grounds which were alleged by so many members in a recent debate, with so much earnestness, that we ought to vote according to our conscientious convictions.
Mr. BARTON (New South Wales).-There are several reasons why my honorable friend (Mr. Lyne) should withdraw his amendment. Of course, in a body like this, it is a strong reason for withdrawing an amendment if one finds that a proposition involving a matter, not of principle, but of expediency, is sure to be defeated. I wish to put another consideration to my honorable friend, which I am sure he will think a strong one. It is this: If he persists in forcing his amendment to a division, it will assuredly be taken that honorable members who represent the other colonies, and who vote against the proposal, are against the establishment of the federal capital in New South Wales.
Mr. LYNE.-I believe that they are.
Mr. BARTON.-Whatever their honest opinions may be-however strongly they may hold that, while the situation of the federal capital should be determined by the Federal Parliament, it would be just and right that it should be in New South Wales-out-of-doors they will be accounted to have voted against having the federal capital in New South Wales. While honorable members will be voting against the amendment upon the ground that this is not the place to determine the matter, it will be considered that they are voting against the claims of New South Wales. The effect of this will be very serious hereafter, when the claims of New South Wales come to be debated, because it will be argued that those who have voted against the amendment, many of whom may be in the Federal Parliament, have already expressed a disinclination to see the capital established in New South Wales, and they will be taunted with inconsistency if they afterwards give another vote.
Sir GEORGE TURNER.-They will have a record put up against them.
Mr. BARTON.-Yes, and that so far from helping my honorable friend will be most mischievous. I am strongly of opinion that when the proper time comes for the settlement of this matter it should be decided that the federal capital shall be in New South Wales, and I may even vote for the amendment; but I ask the honorable member not to press it to a division, because a defeat will not only be mischievous at the present time, but will also diminish the chance of the success of his proposal in the future. If the motion is rejected, I think it ought to be explained everywhere that the bringing of it forward was a serious handicap upon the chance of New South Wales, and I am sure my honorable friend would not like to take the responsibility of having imposed this handicap.
Mr. LYNE.-The honorable and learned member throws that out as a threat, but I am prepared to take all the responsibility which attaches to my action.
Mr. BARTON.-It is not a threat, but I wish the honorable member to recollect how tremendously the defeat of this proposal may be used, not only against him, but what is worse, against the object he [start page 708] has in view. I take it that I shall be supported in this advice by nearly every member of the Convention, including the majority of the New South Wales representatives. The Premier of New South Wales has tendered the same advice as I am giving, and other representatives of New South Wales have done the same. I am sure that other honorable members think that, when the proper time comes, the honorable member's view will be carried into effect, and, in my opinion, those who hold that view-and I am sure they are not few-will concur with me in the suggestion that the object the honorable member wishes to attain will have far more chance of success if be withdraws the
amendment, and trusts to the sense of equity which will prevail with the Federal Parliament to grant absolute justice to New South Wales, than if he forces the amendment to a division.
Sir JOHN FORREST (Western Australia).-I, too, would like the honorable member to withdraw the amendment. If he persists in forcing it to a division I shall vote against it. At the same time, I should not like it to be thought that I am opposed to the claims of New South Wales. The matter, however, is one which in my opinion should be left to the Federal Parliament. No doubt a great many honorable members hold strong views in regard to the position which the federal capital should occupy, but since 1891 they have always been content to suppress them and to leave the matter to the Federal Parliament. We have met four times to consider the drafting of the Constitution, but until now no motion of this kind has been made.
Mr. LYNE.-Yes, a similar motion was moved at the Convention of 1891.
Sir JOHN FORREST.-Well, it was not much listened to, and I think that we should leave the matter to the Federal Parliament. Everyone knows that I have no feeling against the great colony of New South Wales. On the contrary, I should like to help those who are representing that colony as much as possible, because I recognise that they have an arduous task before them. At the same time, we must not forget that we are here specially at the invitation of New South Wales, and it ill becomes that colony to urge to the furthest extent a claim of this kind. I think she should be content, seeing that she will have the largest representation there, to leave the matter to the Federal Parliament. If the amendment is forced to a division, I shall vote against it; but I wish it to be distinctly understood that my vote will in no way indicate my view as to what should be the position of the federal capital.
Mr. LYNE.-If the right honorable member is in the Federal Parliament, will he vote for the establishment of the federal capital in New South Wales?
Mr. CARRUTHERS (New South Wales).-I join with the leader of the Convention and the Premier of New South Wales in urging the honorable member to withdraw the amendment. No one feels more strongly than I do that if a test vote could be taken upon the merits of the proposal it should be taken now; but I fear, with the leader of the Convention, that the votes which are given will not be given for or against the claims of New South Wales, but will be given upon the question whether we should in any way tie the hands of the Federal Parliament in the choice of its own capital. I do not believe with those who think that this is a matter which should be left to the Federal Parliament, but, at the same time, I do not think that the claims of New South Wales should be jeopardized by any unwise proceeding at this juncture. So far as New South Wales is concerned there is a very strong feeling upon this point. Without again importing into the discussion the possibility of risking the federation, because I hope there will be no risk after the explanation which will be given to the people of New South Wales by the leader of the Convention and by the Premier, I would point out that the treatment which [start page 709] that colony has for many years received from the people of the neighbouring colonies has bred the feeling, though it has not been expressed by retaliation at the borders, that the people of the other colonies are unfriendly towards New South Wales. That feeling largely predominates in the public mind, and it has not been created by New South Welshmen. It has been created by our fellow colonists in the other colonies.
Mr. HOWE.-The feeling does not exist in our colony.
Mr. BARTON.-We should not do anything here to increase that feeling.
Mr. CARRUTHERS.-I quite agree with my honorable friend, but I wish to point out that that feeling does exist, and that we ought to be careful to avoid doing anything to intensify it. Therefore, it should be made manifest at this juncture, if the motion is withdrawn, or if a division is taken, that in no way what-ever is the result to be taken as prejudicing the fair claims of the mother colony hereafter, and I say she has fair claims-
Mr. HOWE.-We all admit that.
Mr. CARRUTHERS.-To have this question decided in her favour in the Federal Parliament. Another motive which, no doubt, has actuated my honorable friend in moving this amendment is the probability that, if federation is accomplished at an early date, Queensland, which is our natural ally on this question, will not be represented. We shall have to face this question, which is one of the greatest points of federation, in the absence of our naturally. You may ignore it as you like, and you may be as sentimental as you like, but it will be a distinct advantage to any colony to have the federal capital situated within its limits.
Mr. REID.-No one denies that.
Mr. CARRUTHERS.-When this question is decided, in the absence of Queensland we shall be in the position of being the most distant of any of the colonies. If Sydney is proposed as the capital, it will be the most distant place for the members from all the other colonies to attend. Naturally we can see that, under such circumstances, it will be a distinct gain to federation, as far as its prospects in New South Wales are concerned, if we have this obstacle in the path removed. But, if we cannot get it removed, we must only act as sensible men, and not increase the difficulties by any injudicious action on our part at the present time. I would therefore urge the honorable member (Mr. Lyne) not to prejudice the claim of our colony by pressing the question to a division, and to accept the advice so ably given to him by the honorable member (Mr. Barton) to withdraw the motion, it being made manifest that the question is to be an open one, free from any prejudice which might be excited by action at this juncture.
Mr. O’CONNOR (New South Wales).-I am entirely in sympathy with the object of the honorable member (Mr. Lyne), and I can well see that a settlement of this question now would make our work much easier than is likely to be the case in New South Wales, and no doubt it would aid Queensland in deciding whether or not she should enter the Federation by-and-by. At the same time, it is because I have that feeling on the question, that I agree with the advice now tendered to Mr. Lyne, not to put an issue before us which at present cannot be decided on its merits. It is quite evident that a decision now will not be upon the merits of the question, and the result of a division would do infinite harm to the cause which Mr. Lyne has at heart, and which we all have at heart.
Mr. SYMON.-It would increase your difficulties.
Mr. O’CONNOR.-For that reason, believing as I do that Mr. Lyne has the cause of federation at heart, I say he can do no greater service to it than by recognising the present position and withdrawing his amendment.
Mr. SYMON (South Australia).-May I also add an earnest appeal to the [start page 710] honorable member (Mr. Lyne) to withdraw his amendment. I join with the honorable member (Mr. O'Connor) in saying that we all recognise the anxiety which Mr. Lyne has displayed in relation to the cause of federation in the interests of his own colony, while at the same time seeing that justice was done to the states. We all know the great interest he has taken in the question of equal representation, and that no member of the Convention has given greater attention to the subject than he has. On that very account I appeal to him to recognise, feeling as he does the difficulties standing in the way, and which no one has been more anxious to point out than himself, that he, by pressing this motion to a division, is creating another difficulty which does not now exist-a difficulty which arises from the fact that the amendment is that the federal capital shall be in New South Wales territory. If that is negatived, it will be in terms a declaration that the federal capital shall not be in New South Wales territory, whereas, if we leave the matter as it stands, it will be left to the Federal Parliament to decide.
Mr. BARTON.-Any similar motion made by a member from any other state would be similarly defeated.
Mr. SYMON.-That is the case. I was sorry to hear the honorable member (Mr. Carruthers) say that a feeling exists in New South Wales that she has been treated in a hostile manner by the other colonies.
Mr. LYNE.-That feeling does exist.
Mr. SYMON.-I am bound to accept the statements of those honorable members, but the very fact that such a feeling does exist leads one to the conclusion, which I think Mr. Lyne will also come to, that it is well to avoid everything which would irritate or increase that undesirable state of feeling.
Mr. LYNE (New South Wales).-When I moved this motion I was fully prepared to take all the consequences. I recognise that there is a great deal of truth in what has been stated by the honorable member (Mr. Carruthers) as to the feeling in New South Wales. Instead of my position being such as the honorable member (Mr. Barton) describes it, that I would have to take all the onus of moving this amendment-
Mr. BARTON.-I did not say you would have to take all the onus. I said it would be a heavy onus to undertake when such objections are made.
Mr. LYNE.-You can put it in that way if you like, but if I wanted to gain any little fleeting popularity in New South Wales, I recognise that it would be a most popular thing to press this question to a vote, and I would not have to defend myself at all. In addition to that, whether it is pressed to a vote or not, the manner in which it has been received by this Convention will have precisely the same effect. It has been received in an antagonistic spirit.
HONORABLE MEMBERS.-No, no.
Mr. LYNE.-What chance would New South Wales have of securing that the federal capital shall be within her borders if Queensland is not in the Federation, especially after what we have seen during the last ten days in this Convention?
HONORABLE MEMBERS.-Oh, oh!
Mr. LYNE.-Will any honorable member tell me that New South Wales has the slightest chance with Queensland not in the Federation of having the federal capital within her borders? As far as I can judge, there will be but very little chance.
An HONORABLE MEMBER.-You have had things all your own way for the last ten days.
Mr. LYNE.-I must say that I like to see members of the Convention go to a vote. I do not like them to say that they will hereafter vote for having the capital in New South Wales, when there is an opportunity of providing for that in the Bill so that it cannot be altered.
Mr. SOLOMON.-Let us stipulate for the first Premier, and let it be Mr. Reid.
[start page 711] Mr. LYNE.-And we shall stipulate that the first Treasurer shall be the honorable member (Mr. Solomon). However, that is quite a different matter. My object was to assist, if I possibly could, the cause of federation in New South Wales. I tell honorable members that the difficult fight which we shall have there would be very much lessened if the proposal I have made were placed in this Bill.
Mr. REID.-There is no doubt about that.
Mr. LYNE.-I know that whatever the result may be it will be a very difficult fight. Therefore, I do not think that honorable members should accuse me of moving this amendment with the intention of having a deterrent effect on federation.
Mr. BARTON.-No one said that.
Mr. LYNE.-My object was, and is, to make the path a little smoother to the representatives of New South Wales than it will be; and I venture to think that unless New South Wales, which has the key to the whole position, is in the Federation, there is not likely to be a Commonwealth. It is well for other colonies to talk about federation, but they will not have federation, I feel sure, unless the mother colony, which has the key, is a member of that Federation. I thought that in asking honorable members to insert this provision in the Bill I was giving very great assistance to obtaining that key which would open the door to the federation of all the Australian colonies. I understand that I shall be defeated by a large majority, that I will have about five votes with me on this question. I do not desire to place the representatives of New South Wales in an awkward position, although I dislike, when I have moved an amendment of this kind, to withdraw it; but I recognise that perhaps it is judicious on an occasion of this kind to withdraw it. I have said what I desire to say; I have tested the feeling of the Convention as well as though a division had been taken. I do not think the expressions made use of here to-day will help us. If honorable members who have spoken to-day had said that when they were in the Federal Parliament, as some of them will be, they would support a proposal to have the capital in New South Wales, that would have been an entirely different thing.
Dr. COCKBURN.-That would be a bit previous.
Mr. BARTON.-No one said a word to the contrary.
Mr. LYNE.-I recognise what the words which have been uttered to-day mean; they mean nothing. I do not want them to mean nothing. I want them to mean, that when their authors enter the Federal Parliament, they will support New South Wales in her effort to have the federal capital located in that colony. I cannot conceive what induced the remarks of the honorable member (Sir Joseph Abbott). I cannot conceive why he should turn on the colony in the manner in which he did as to the capital. It is well to say that the capital of any country is that capital which is made by trade. I recognise that, but I also recognise that in the nominal capital-the parliamentary capital-we are likely to have a very strong city if not the strongest city in the colony, of any other colony where it may be fixed. As I have been so pressed by the leader of the Convention-and I do not wish to place him in a more awkward position than I can avoid-and by others who desire not to vote on the question, and, recognising that I should be in a very small minority, I do what I seldom do-I ask leave to withdraw the amendment.
Mr. HOLDER (South Australia).-Before the amendment is withdrawn, I should like in two or three words to thank the honorable member (Mr. Lyne) for agreeing to withdraw it. I should have felt myself to be in a very false position indeed if he had at this juncture forced a division on the question. I may tell him, as he seems somewhat down-hearted at the reception of his amendment, that had an amendment been moved to fix on Adelaide, [start page 712] or any place in South Australia, for the federal capital, I should have opposed the proposal as I opposed his proposal, and I think every representative of every colony will be able to say precisely the same. The honorable member may rest content that the reception of this proposition now is not in any sense an unfavorable reception of any position in New South Wales as the site of the capital, but simply a pronouncement of the opinion, which is generally held, that this is not the proper time to decide the question.
Mr. BARTON (New South Wales).-Before the amendment is withdrawn, I should like to endeavour to remove an impression from the mind of my honorable friend (Mr. Lyne). He said that what had taken place during the last few days convinced him that the interests of New South Wales were scantily attended to, or considered, in this Convention. I think I have been as interested and as careful an observer as any one has been, and I must say that, so far as matters have gone, I cannot find that the material interests of New South Wales have been received with any less sense of justice than
the material interests of any other colony. I think it is my duty to this Convention to make that statement. I do not know what may happen; but, if what happens in the future is in accordance with what has taken place during this Convention, then I have no fear that the material interests of New South Wales will be treated in any way differently from those of any other colony I have to offer my best congratulations to my honorable friend for having agreed to withdraw his amendment, the effect of which, I think, might have been much more pernicious to the object we have in view in carrying federation than the withdrawal of it can possibly be. I am quite sure, also, that any amendment for the specification of any place or colony for the location of the capital would have been treated with a direct negative, precisely the same as this amendment would have been.
The amendment was withdrawn.
Mr. REID (New South Wales).-I hope that the leader of the Convention-in fact, I think he is considering the matter-will consider whether it is necessary, I cannot say at present I think it is, to make any provision for a temporary seat for the Executive.
Mr. BARTON.-Yes, I am considering that.
Mr. REID.-It is a matter which will require a little consideration. Of course, the Parliament cannot meet for some considerable time after the Executive has come into existence.
The clause was agreed to.
Clause 119-The Queen may authorize the Governor-General from time to time to appoint any person or any persons jointly or severally to be his deputy or deputies within any part or parts of the Commonwealth, and in that capacity to exercise during the pleasure of the Governor-General such of the powers and functions of the Governor-General as he deems it necessary or expedient to assign to such deputy or deputies, subject to any limitations or directions expressed or given by the Queen; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function.
Amendment suggested by the House of Assembly of South Australia-
Omit "or any persons jointly or severally."
The CHAIRMAN.-There are several other suggestions from the House of Assembly of South Australia which are consequent on the acceptance of this suggestion.
Mr. BARTON.-I think we had better leave the clause as it stands.
Sir JOHN FORREST.-What is meant by the expression "jointly or severally"?
Mr. BARTON.-It does not amount to much.
Sir GEORGE TURNER (Victoria).-I want to ask my honorable friend (Mr. Barton) to consider whether this clause will allow the appointment of deputies while the Governor is in the colony.
Mr. BARTON.-I think it does.
Sir GEORGE TURNER.-I have some doubt on the point. I hope my honorable [start page 713] friend will consider it when he is considering the question of drafting.
Mr. BARTON.-I will take it into consideration with the Drafting Committee.
The amendment was negatived.
Amendment suggested by the House of Assembly of South Australia-
Omit all words after "Queen" (line 11) to end of clause.
Sir JOHN FORREST (Western Australia).-I should like to ask the leader of the Convention what is the meaning of the expression "jointly or severally"? It seems so absurd-to me that several persons should act for the Governor-General, that I really cannot understand what the term means. Surely the commission must be issued to some person, and in rotation-perhaps to several, but not to all at once.
Mr. BARTON (New South Wales).-I think the whole clause is really intended to operate more particularly when the Governor-General is within the Commonwealth, and that it relates to the appointment of a deputy or deputies, for instance, in relation to places which may be at a distance from the seat of government, or in which particular functions may be required to be carried out at a particular time.
Sir JOHN FORREST.-Legal duties?
Mr. BARTON.-These are the words:-
such of the powers and functions of the Governor-General as he deems it necessary or expedient to assign to such deputy or deputies.
It does not mean the handing over of his whole powers and functions, but only of particular ones to be performed in a particular part of the Commonwealth. That will generally be a commission issued to some person, or a deputation, as it is called, to several persons, empowering them to act for a limited time and for limited purposes. It is simply a clause of convenience, and it is similar to one which exists in the instructions to the Governors of several colonies.
The amendment was negatived.
The clause was agreed to.
Clause 120.-In reckoning the numbers of the people of a state or other part of the Commonwealth, aboriginal natives shall not be, counted.
Amendment suggested by the Legislative Council of New South Wales-
After "natives" insert "and aliens not naturalized."
The CHAIRMAN.-An identical amendment is suggested by the Legislative Council of Tasmania.
Mr. BARTON (New South Wales).-This is not like the clause which comes under the provision relating to both Houses dealing with the reckoning of the number of electors. This has reference to the reckoning of the number of people of the states or other parts of the Commonwealth. There are various other clauses, dealing with finance and other questions, under which it becomes necessary to count the people of the states. This clause is, not the same as the clause to which the people of New South Wales probably thought it had some relation.
Mr. ISAACS.-Clause 24.
Mr. BARTON.-No, I think it is a later clause, and it related to matters connected with elections. This has reference solely to the reckoning of the number of people of a state when the whole population has to be counted, and where it would not be considered fair to include the aborigines.
Mr. ISAACS (Victoria).-The honorable member may be right, but, if so, the clause should be made clear. Clause 24, which deals with the House of Representatives, sets out that, until Parliament otherwise provides for the method of determining the number of members, there shall be one member for each quota of the people of the state.
Mr. BARTON.-There is a qualification for electors.
Mr. ISAACS.-Yes, and the clause goes on to say that the quota shall be ascertained when necessary by dividing the population of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of members of the Senate.
An HONORABLE MEMBER.-Then there is clause 25.
[start page 714] Mr. ISAACS.-Clause 25 refers to the whole number of the people of the states.
Mr. BARTON.-It relates to determining the number of members.
Mr. ISAACS.-Yes, the number is to be determined by the number of people of the state.
Mr. BARTON (New South Wales).-It was intended all along that the number of representatives should be determined by the number of people in the state. The quota is a matter that of course will be a subject of discussion. I understand that Sir George Turner desires to have clause 24 recommitted, and I shall certainly not oppose the recommittal. All the provisions relating to the quota are, and are intended to be, distinct from the provision that we now have before us. Under clause 25, in ascertaining the number of the people of the states, so as to determine the number of members to which the state is entitled, there is to be deducted from the whole number of the people of the state the number of the people of any race not entitled to vote. In other parts of the Bill, where the provision is merely for statistical purposes, it is only considered necessary to leave out of count the aboriginal races. The two provisions are for different purposes, and I think the thing is tolerably clear. After hearing Mr. Isaacs' suggestion, I shall go through the clauses again and see if there is any ambiguity.
Sir EDWARD BRADDON.-What do the words "or other part of the Common-wealth" mean?
Sir EDWARD BRADDON.-Would it not be as well to insert "territory"?
Mr. BARTON.-There would be no harm in inserting "territory" but the words used are more comprehensive. This clause would apply perhaps to the reckoning of the number of people in the capital city, which would be a district rather than a territory.
The amendment was negatived.
The clause was agreed to.
ORDER OF BUSINESS.
Mr. BARTON (New South Wales).-I beg to move, Mr. Chairman, that you report progress, and ask leave to sit again. I will ask honorable members to adopt a suggestion I have to make. The finance clauses will certainly not be ready for discussion to-morrow. They may be in the hands of honorable members tomorrow, and it may be possible to open the discussion on them on Thursday. We have still to deal with the finance clauses, clause 121 relating to amendments of the Constitution, and the schedule, but I shall move for the reconsideration of several clauses. I would ask honorable members to make up their minds this evening as to the clauses they desire to have reconsidered. There will
afterwards be the recommittal stage, but reconsideration is possible at the present stage. If I am in order, I propose to further postpone the finance clauses, so as to permit of the reconsideration of clauses as soon as we have dealt with clause 121. I would make a further suggestion to honorable members, that the discussion should only be re-opened on clauses involving matters of principle.
Mr. GORDON.-Will new clauses come in their order?
Mr. BARTON.-I think the new clauses will probably be taken after clause 121.
The CHAIRMAN.-The new clauses will be dealt with after we have gone through the Bill.
Mr. BARTON.-They will probably occupy to-morrow. I would ask honorable members to consider the suggestion I have made, so that we may know in time what clauses are to be reconsidered. I do not think there will be any difficulty about the reconsideration of the dead-lock clause, and I shall not ask any honorable member to put this in his list, because I shall take it to be the desire of the Convention to reconsider it.
The motion was agreed to.
The Convention adjourned at eleven minutes to five o'clock.