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Monday, 18 December 1905

Mr ISAACS (Indi) (Attorney-General) .. - It is a little unfortunate for the right honorable member for East Sydney that nearly the whole of his speech has been anapology for his own previous action. I submit that the position of this question of the Federal Capital is clear beyond dispute. In August, 1904, the Commonwealth Parliament, after three years of urging by the representatives of New South Wales/ and' indirectly by the Parliament and Government of that State, took it upon itself redetermine the future Seat of Government. It did so at a great expenditure of time and trouble. The Act which was then passed, partly at the request of the right honorable member for East Sydney himself, did not proceed to determine finally and precisely certain matters which might well have been decided, and which we wish to have determined now. It was urged that the Bill should not be couched in mandatory terms, but that the word " should " should be substituted for " shall " in section 3. Section 2 says that the Seat of Government " shall " be within seventeen miles of Dalgety, and the following section declared that the territory to be granted to or acquired by the Commonwealth "should" contain an area of not less than 900 square miles, and have access to the sea. Honorable members will, therefore, see that there was nothing precisely determined in that Act, except that Dalgety must be the locality, and that it was the wish of this Parliament that the Federal territory should contain an area of 900 square miles, and have access to the sea. At that time there was no talk whatever of this newly- found argument in reference to the Premiers' Conference.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Excuse me, there was. I brought it forward when the selection of a site was under consideration.

Mr ISAACS - If there were any weight whatever in the present contention of the right honorable member for East Sydney, how was it that, as the chief representative of New South Wales, he entirely overlooked it for years ? Is it to be suggested that a matter which is so vital to the spirit of the compact arrived at by the Premiers' Conference that, according to his view, it should override the legal interpretation of the Constitution, was forgotten by him? That suggestion is absolutely contrary to what was stated, and done by the Premiers themselves, by New South Wales itself, by this Parliament itself, and by members of the Opposition. I will accept the challenge of the right honorable member, and deal with this matter, not from a legal stand-point, but from the stand-point of common sense. I will invite honorable members to recollect the progress of the negotiations which led up to the final shaping of section 125 of the Constitution. When the Federal Convention adopted the Constitution, the clause relating to this matter read -

The Seat of Government of the Commonwealth shall be determined by theParliament, and shall be within territory vested in the Commonwealth. Until such determination, the Parliament shall be summoned to meet at such place within the Commonwealth as a majority of the Governments of the States, or in the event of an equal division of opinion amongst the Governments, as the GovernorGeneral may direct.

That left it absolutely open to this Parliament to establish the Seat of Government anywhere in Australia. After the failure in New South Wales to get the Constitution adopted by 80,000 affirmative votes, the Parliament of that State passed certain resolutions. The Legislative Assembly included amongst them a resolution which was taken to the Premiers' Conference by the right honorable member for East Sydney, and which is of the highest' importance. The resolutions to which I refer, were submitted to the New South Wales Parliament in August, 1898. The Legislative Assembly of that State adopted the resolution which I am about to read, but the Legislative Council, by a majority of one, affirmed that the Seat of Government should be in Sydney. The decision of that body was, however, ignored by the right honorable member for East Sydney, and he rested his case upon the resolution adopted by the Legislative Assembly, which read -

The Capital of the Commonwealth : -

That clause 124 should be amended, and provision made in the Bill for the establishment of the Federal Capital in such place within the boundaries of New South Wales as the Federal Parliament may determine.

That left it open to this Parliament to have established the Seat of Government at Dalgety, Albury, Broken Hill, Orange, Sydney, or anywhere else. There was no limit imposed upon our action.

Mr Reid - The Attorney-General cannot rub out an agreement.

Mr ISAACS - Nobody wishes to rub anything out of the agreement. At the same time we do not desire anything to be rubbed into it which is not there. When the right honorable member for East Sydney submitted his proposal at the Premiers' Conference the right honorable member for Balaclava said " No. We will not agree to that. We wish to exclude from that portion of New South Wales within which the Seat of Government will be located an area of 100 miles from Sydney." What I wish to ask is whether that excision of the area of100 miles from Sydney in any way altered the provision with regard to the rest of New South Wales?

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Yes, it is expressed in the resolution.

Mr ISAACS - Of course it is. But for that bargain having been made, the Federal Parliament could have fixed the Capital anywhere in New South Wales, but because the right honorable member for Balaclava obtained the excision of the area of 100 miles from Sydney, it is argued that that makes an alteration in regard to the rest of the area. With all respect to the right honorable member for East Sydney, I would say that such an argument is nonsensical.

Mr Reid - That settles it.

Mr ISAACS - It ought to do. I am going to show that, when he returned from the Conference of Premiers, the right honorable member took the view that I am adopting. I find that in the New South Wales Hansard, Vol. 97, page 37, the right honorable gentleman is reported, in the course of the debate on the AddressinReply, to have made the following statement on 2 1 st February, 1899 -

The only desire which our Parliament -

That is the New South Wales Parliament. I may say, in passing, that I do not propose to read the whole speech made by the honorable gentleman - at any rate, which this Assembly expressed, was that the Capital should be fixed somewhere within the boundaries of New South Wales, and when an honorable member of this House definitely tested the question whether I should not go into that Conference with a commission to urge the claims of Sydney to the Capital, the House by a majority of 78 votes to 12 negatived that proposition. So that I was not sent into the conference to advocate the claims of Sydney alone.

The right honorable member is now getting very close to such an advocacy. I find nothing throughout the whole of that speech to suggest that there is any alteration, either in the spirit or in the letter, of the power of the Federal Parliament. On the contrary, I find words as to the power of the Federal Parliament - if it wishes to exercise it - which lead in the opposite direction. There is an expression of opinion that the Federal Parliament will, in fact, establish the Capital somewhere, as near as possible, to the 100-mile limit, but there is no suggestion that good faith would be broken, or that the course would be illegal, if the Federal Parliament should otherwise determine. The right honorable gentleman acquiesced in the observations of the then leader of the Opposition, Mr. Barton, saying -

As the leader of the Opposition pointed out, Melbourne is barred to the extent of 186 miles.

Showing that Melbourne was barred to a greater extent than was Sydney.

Mr Reid - That meant that all Victoria was barred.

Mr ISAACS - All Victoria. What did Sir Edmund - then Mr. - Barton say on that occasion? I think that his observations are worth reading. At pages 28 and 29 of the volume of Hansard from which I have just quoted, the right honorable gentleman is reported to have given utterance to his own view of the position. I shall be permitted, perhaps, to quote, first of all, a sentence at the end of the passage that I wish to read, because it sums up the position. At page 29, Sir Edmund Barton is reported to have said -

There is only one place for the Seat of Government, and that is the place determined on by the Federal Parliament in New South Wales.

There was no suggestion of a limit at that time. Going back a few lines, I find that Mr. Barton said -

Now for the question of the Capital-

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Was that anterior to the Premiers' Conference?

Mr ISAACS - No, it took place in February, 1899, after the resolution had been passed at the Conference of Premiers. It was almost immediately prior to the introduction of the Federal Enabling Bill in the Legislature, of New South Wales.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - What bearing has it upon the question?

Mr ISAACS - It has a most distinct bearing upon it, and I am sorry that the honorable and learned member does not follow me. It shows that at that time the meaning now sought to be placed upon the words in the report of the Premiers' Conference, to which reference has been made, was never dreamt of.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - What does it matter? Supposing we had only discovered the meaning to-day ?

Mr ISAACS - We find that for years New South Wales, and the distinguished men of that State, never dreamt of suggesting any such breach of faith as that to which they now desire to give prominence. After years have elapsed, something has been unearthed of which the Premier of New South Wales says he was not aware, and it is quite contrary to all the acts, words, and suggestions that New South Wales has been placing before the rest of the Commonwealth during this time.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I quoted Sir Edmund Barton much more explicitly on Saturday last.

Mr ISAACS - I did not hear the honorable member's observation.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The honorable and learned gentleman asked me for the reference to the speech that I was quoting.

Mr Reid - Sir Edmund Barton said that Sydney would be the port through which the export trade of the Federal territory would flow.

Mr ISAACS - What does it matter?

Mr Reid - That would not be the position if the Capital were established, as the Attorney-General would like it to be, at Tooma.

Mr ISAACS - Sir Edmund Barton went on to say, on the occasion in question -

It was a very strong desire on the part of many of my fellow citizens - a desire which I did not share, but to which I felt it right to give way - that it should be placed in black and white in the Bill that the Capital should be somewhere in New South Wales ; and to get that concession, which is a concession, it became necessary for the right honorable member at the head of the Government to give a concession in return, and to grant that the Capital should not be placed within 100 miles of Sydney.

What does that mean? Clearly that the Capital should be established anywhere in New South Wales, except within 100 miles of Sydney. Sir Edmund Barton continued -

Let us consider this matter, and see whether it is quite so serious as they suggest. I would rather that it had been the other way, but let us see whether it is quite so serious as some persons outside, notablysundry writers of numerous letters to the newspapers, would seem to make out. If the Capital is a little more, than 100 miles from Sydney, it would still be within a three hours' rail journey, and I take it that it will be the endeavour - however Federal, and however patriotic minded they may be - of a large number of the representatives of New South Wales, and most of them, so long as considerations of position and climate are faithfully observed, to see that that Capital is not placed too remotely from either Sydney or Melbourne. If considerationsof climate are observed, it will not be very near Melbourne if it is in New South Wales.

Further on he said -

I am not going to point out any place as a suitable site for the Federal Capital. But if we once recognise this position, that it will be a probable necessity agreed upon throughout Australia that the Federal Capital should be placed in some position which has distinct climatic advantages, it will be easy for honorable members to see that the choice to that extent will be narrowed down, and that this distance of 100 miles from Sydney does not work so much against Sydney as it works against Melbourne, for the distance from Melbourne to Albury is 186 miles.

I should mention that, in a few lines which I did not think it necessary to read, Mr. Barton pointed out that the Federal Parliament would probably sit in summer, because there would be six legislatures sitting in the winter, and that, therefore, they would require to select some place with a moderate summer climate. He went on -

Let us recollect that the decision that the Capital shall not be within 100 miles of Sydney is at the same time a decision that if it is placed on that line of railway at all, it shall not be within 186 miles of Melbourne. And when we see that Sydney is giving up a great deal in this matter, we must also recollect that Victoria is giving up a little more, because her distance limit is nearly twice that which you impose upon New South Wales. I think these are considerations which are worth recollecting. They are worth taking into consideration impartially ; and while we may have our regrets on a subject of this kind, it is only fair to recollect that we are placing other people under a much more severe handicap than we are placing the city of Sydney.

Under what more severe handicap is it desired to place Melbourne ? This is a very distinct piece of evidence, that the construction placed by the leader of the Opposition upon the report of the Premiers' Conference is not borne out by the facts. Let us see what is the next point. On the 9th August, 1904, the right honorable member for East Sydney, after the vote had taken place on the Seat of Government Bill, and after the Bombala, or South-Eastern district, had been accepted--

Mr Reid - Not Bombala. I voted against the selection of that site.

Mr ISAACS - I am speaking, not of the town, but of the South-Eastern district, comprising an area of land within a radius of fifty miles of Bombala.

Mr Reid - I voted for the; Western district.

Mr ISAACS - That is so. The right honorable gentleman, speaking on that occasion, is reported in Hansard, Vol. 21, page 3939, to have said : -

I am prepared, so far as I am concerned, as a member of this House, to accept the decision which has been honestly arrived at, without any manipulation of votes - which expresses a preference as between Lyndhurst and Dalgety.

Did the right honorable member then say that that decision was contrary to the compact made at the Conference of Premiers? He said it had been honestly arrived at.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - It was said during the debate that the decision was contrary to the compact.

Mr ISAACS - But if that were so, it Could not have been honestly arrived at.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - The modus operandi might have been honest, but it might have been adopted on a wrong interpretation

Mr ISAACS - Is it not reasonable to assume that in that event the right honorable member for East Sydney would have said : " In the name of New South Wales I object to this. It is entirely contrary to the arrangement arrived at at the Conference of Premiers." Let us take one step further. I think that I can prove that the Parliament of New South Wales has given an answer to this allegation,, because in December, 1904, it passed the following resolution, which Mr. Carruthers forwarded to the late Government on the nth April last:-

In order to assist in a Constitutional determination of the seat of the Government of the Commonwealth, the Government of this State is authorized to formally offer a grant to the Federal Government of an area of 100 or 200 square miles at or near the following : Tumut, Lyndhurst, and Yass.

Tumut is thirty miles further than is Dalgety from Sydney.

Sir William Lyne - No; as the crow flies it is twenty-six miles nearer.

Mr ISAACS - I am not personally familiar with the distances, but I am told that Dalgety is 290 miles from Sydney.

Sir William Lyne - That is the difference if one goes round by way of Cootamundra and Gundagai; but the direct line is shorter.

Mr ISAACS - That is the distance by the route which people take to get there. Tumut is .310 or 320 miles from Sydney.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Does the AttorneyGeneral think that people would always go round by road to get to the Federal Capital ?

Mr ISAACS - Practically, and for all substantial purposes, there is very little difference in distance from Sydney between Dalgety and Tumut, and, as the New South' Wales Parliament has said to us, " We are willing to give you Tumut," which is practically 300 miles from Sydney, what breach of the compact shall we make if we choose another place which is practically the same distance from the capital. After the resolutions of the New South Wales Parliament were passed, the right honorable member for East Sydney, speaking in this Chamber on the 14th December,. 1904, said -

I understand that the Government of New South Wales submitted to the Legislative Assembly of that State a list containing the names of foul places which might be offered by the Parliament of New South Wales to the Federal Parliament. The Parliament of New South Wales would be absolutely within its rights in any offer that they might make to us. The proposal submitted to the Legislative Assembly of that State was that one of four sites should be offered, and that body, I understand, decided to omit from the list of sites the name of Dalgety. In other words, it determined not to offer Dalgety as a- site for the Federal Capital. If that has happened, it does not in the slightest degree alter the decision arrived at by us, and embodied in an Act of Parliament' It may amount to an expression of a desire to ask this Parliament to reconsider the decision at which, it has arrived, but the omission of the name from a proposed offer does not alter the decision of thi* Parliament. If it should turn out thai, a majority of the members of this Parliament a-re prepared to repeal the Act which we passed, and choose some site other than Dalgety, the object which I suppose the Legislative Assembly of New South; Wales had in view in omitting the name of that place from its list might be secured. So far as I am concerned - and I think that T may speak for my colleagues - we are satisfied to act upon the choice which has been arrived at by this Parliament. If it be impossible to arrange any voluntary understanding between the State and the Commonwealth, another situation may arise, but it will be time enough to deal with that situation when it arises.

A little later he said -

Although I represent a New South Wales constituency, and will always loyally respect the just rights of that State in every way, I am not likely to forget the duties which I owe to this Parliament in regard to a matter about which 1 think we have the largest share of choice ; because it seems to me that the selection of the Federal Site belongs more properly to the Federal Parliament than to a Parliament which is not to occupy the Federal Capital.

Yet he talks now about our action in flouting the New South Wales Parliament, and about a breach of contract. What is it we hear to-day ? That this Parliament isto be controlled by the Parliament of New South Wales.

Mr Reid - No.

Mr ISAACS - That is substantially what we have been told, because it is said that we cannot have any land that has not been granted to us by the Parliament of New South Wales.

Mr Reid - The Bill only asks for a grant.

Mr ISAACS - The right honorable gentleman concluded his speech by saying -

I hope that those who have this matter at heart will rest satisfied that the Government will loyally regard the decision of this Parliament, unless it is rescinded, and, so far as I am concerned, any attempt to rescind it will meet with my strongest opposition.

Where is that opposition now? I should like the right honorable gentleman to reconcile that statement with his statement that it is contrary to the spirit of the bond to place the Capital at Dalgety. Does he now intend to resist any attempt to alter the determination of the Parliament?

Mr Reid - An alteration at the time when I was speaking would have made things worse, because Tooma would have been accepted.

Mr Austin Chapman - If Dalgety is put aside now, Tooma will be selected.

Mr Reid - I thought so then; but I do not think so now.

Mr ISAACS - So late as the 8th of this month, the Premier of New South Wales, speaking in the Legislative Assembly of that State - I quote from page 4810 of the New South Wales Parliamentary Debates for the session just concluded - said -

I believe there would have been some result achieved if the Federal Parliament had had the opportunity to consider the deliberate expression of opinion of the State Parliament in regard to the offer of three sites and the rejection of Dalgety. After the resolution had been communicated to the Federal Government, interviews took place between Mr. Reid, Mr. Dugald Thomson, and myself. The result was that Mr. Reid and Mr. Dugald Thomson stated that the Seat of Government Act 1904, passed by the Federal Parliament, was, in regard to the selection of Dalgety as a site, mandatory, final, and binding on the State of New South Wales, thatthe terms of that Act fixing the area at goo square miles, with access to the sea, were open to discussion, but that the location of the territory at Dalgety was mandatory, final, and binding on New South Wales as well as on the Commonwealth.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - My views on the matter were put into writing.

Mr ISAACS - To one who reviews the history of the provision in the Constitution - the resolution of the New South Wales Parliament in August, 1898, the modification of it made by the Premiers' Conference, banning Sydney, as the right honorable member for East Sydney said in the State Parliament; the statements which I have read, made by him when Premier of the State, and the then leader of the Opposition. Sir Edmund Barton ; and the attitude of the right honorable gentleman when Prime Minister of the Commonwealth, towards the resolutions of the New South Wales Parliament - it is obvious that it did not occur to these honorable gentlemen that there had been any breach of faith. I think that there should be an end to such charges, which have been brought forward in the despairing attempt to prevent the solution of the question.

Mr Reid - What interpretation does the honorable and learned member put on the words ?

Mr ISAACS - The interpretation which the right honorable member placed on them until almost the present moment - that the Capital could be placed anywhere in New South Wales so long as it was kept at a reasonable distance from Sydney.

Mr Reid - Then 100 miles would be a reasonable distance,and 900 miles would be equally reasonable.

Mr ISAACS - I do not think that any place within New South Wales is 900 miles from Sydney.

Mr Reid - Wentworth is over 800 miles from the metropolis.

Mr ISAACS - If, in the view of the New South Wales Parliament, Tumut is a reasonable site, surely Dalgety, which is not so far away, is also reasonable.

Mr Austin Chapman - Dalgety is thirty miles nearer to Sydney than is Tumut.

Mr ISAACS - Does the Constitution say that the Federal Capital should be exactly 100 miles from Sydney, or not more than 100 miles ? The words " not less than 100 miles " mean that the Federal Parliament can choose a site where it likes in New South Wales, so long as it is not nearer than 100 miles from the metropolis.

Mr Kelly - The Attorney-General has not read the resolution on which the provision in the Constitution is framed, in conjunction with that provision.

Mr ISAACS - I cannot repeat what I have said more than three times. I have tried to make my meaning clear, and if the honorable member cannot follow me I cannot hold myself responsible for that. It seems to me that the leader of the Opposition has misconceived the object of the Bill. The Seat of Government Act of 1904 puts no compulsion on New South Wales, and was not intended to do so. What it provides is that the Seat of Government shall be in the vicinity or locality of Dalgety.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Does the AttorneyGeneral mean to say that it was not intended to fix the Seat of Government, but merely to indicate where the Commonwealth would like to locate it?

Mr ISAACS - The honorable and learned member must not put words into my mouth. The Act does not delimit the actual territory. It does not declare it to be marked out by certain metes and bounds. All we could do under the circumstances was to provide that the Federal Capital should be within seventeen miles of Dalgety. The superficial area in acres or in miles to be chosen was left an open question, and at the present moment no one can say exactly what area will be taken, or on what site the Capital will be built.

Mr Kelly - The Federal Parliament did not mind where the Capital was to be ; it wanted a big fat slice of land.

Mr ISAACS - The honorable member's observation has the weight and merit characteristic of his contributions to the debates. The object of the Bill- is to define the area that is to be included in the Federal territory.

Mr Reid - Then the Government assert their right to that territory.

Mr Maloney - Keep quiet.

Mr ISAACS - I do not propose to answer my right honorable friend's observations now. He lias made his speech.

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