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Friday, 17 July 1931


Mr LATHAM (Kooyong) .- This motion involves a novel and important proposal, affecting not only the relations of the self-governing parts of the British Empire, but also the procedure of this Parliament. Presumably a similar motion will be introduced in another place, though there is no requirement that such action shall be taken; that will depend upon the will of the Government. If this motion is passed, important legislation will be enacted, affecting the Commonwealth of Australia and its citizens. I intend to say later something about the procedure and form adopted, and I have certain amendments to propose which I hope will draw the attention of honorable members to the fundamental and vital importance of the whole matter. In our usual parliamentary procedure, a resolution is regarded as of relativelysmall importance, the important work of Parliament being done generally by legislation introduced in the form of bills.


Mr Crouch - The Attorney-General said that no amendments to this motion could be accepted.


Mr LATHAM - I did not hear the Attorney-General say that, and I do not think that his remark is recorded in Hansard. A resolution of this Parliament is, as a rule, regarded as the mere expression of an opinion; but this resolution will be an invitation to the Parliament at Westminster to pass very important legislation affecting the powers of this Parliament, and, so far as that can be done, the powers of the Imperial Parliament itself. The question, therefore, arises whether this procedure is appro.piate for a matter of such profound importance. The proposals have been described as being designed to bring the legal status of the dominions into accord with the actual constitutional position. The Attorney-General referred to the resolution of the Imperial Conference of 1926, which was in these terms -

They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.

That resolution is generally known as the Balfour Declaration. The report of the Imperial Conference of 1926, which I attended, went on to say that existing legislative and judicial forms admittedly did not wholly conform to the position so described, and that it was desirable to inquire how far changes should be made to alter the legal position in conformity with the constitutional position. Consequently, a committee was set up to inquire into, report upon, and make recommendations concerning various matters, including the competence of dominion parliaments to give their legislation extra-territorial operation, and the principles embodied in or underlying the Colonial Laws Validity Act.

The declaration of the Imperial Conference in 1926 was that the dominions were fully self-governing political entities. This was a recognition of the existing position. There was no doubt, in Australia at least, as to the reality and extent of our self-government, because we knew perfectly well that, whatever the legal position, the supreme legislative power of the Imperial Parliament would never be exercised contrary to our will. So far as Australia was concerned, nothing called for a legal change, because no real difficulty existed. In certain other parts of the Empire, particularly the Irish Free State, South Africa, and, to some extent, Canada, there was opposition to the maintenance of the existing formal legal position. The committee of experts was charged with the duty of reporting upon possible legal changes to bring about a closer correspondence between the legal and constitutional positions. As a result of the work of that committee - which was substantially a committee of lawyers - certain proposals were made which were approved by the Imperial Conference of 1930, and some of them are now before us in this motion.

The motion is divided into six clauses, which should be considered separately. Speaking generally, the object of the motion is to extend dominion legislative powers in certain directions, and to limit the power of the United Kingdom in relation to the matters as to which the powers of the dominion parliaments are extended. Of course, the Parliament of the United Kingdom is not able to limit or divest itself of its legislative powers. Whatever act it passes it can, technically, repeal or amend immediately; but the constitutional position is altered when the Imperial Parliament deliberately declares that it will not exercise certain powers which it possesses. A remarkable piece of legislation was passed by the Parliament at Westminster in the reign of George III., during the American revolution, wherein that Parliament declared that it would never tax the colonies. At that time there was a contest between Great Britain and her American colonies, largely over the principle that subjects should not be taxed unless represented in the taxing parliament. The British Parliament passed an act declaring that' it would never impose taxation on the colonists so long as they were not represented there. That act, of course, was not legally binding on succeeding parliaments, and the Parliament which passed it could have repealed it; but it had a profound constitutional significance, recognizing as it did, that a certain stage in the relations between the Mother Country and its colonies had been reached. As a matter of fact, that Parliament was making the best of a bad bargain ; it was retreating from an untenable position.

I propose to deal with these proposals under the separate heads under which they appear in the resolution. It must be remembered that, if agreed to by us, they will form the subject of legislation by the Imperial Parliament.


Mr Hughes - I wish the honorable member would call it the British Parliament, and not the Imperial Parliament.


Mr LATHAM - I have no objection to either term, but I have no apology to make for using the term " Imperial Parliament."


Mr Brennan - It is the nearest approach to an imperial parliament that there is.


Mr Crouch - In our Acts Interpretation Act it is termed the Imperial Parliament.


Mr LATHAM - I do not think it worth while to split straws over the matter. If the right honorable member wishes to be accurate, it is the Parliament of the United Kingdom of Great Britain and Northern Ireland. The people of Northern Ireland might object to the term " British Parliament ". I call it the Imperial Parliament because it is the Parliament of the British Empire, and has powers which no other parliament in the Empire can possess, even if this proposed legislation is passed.

The first proposal is that the Statute of Westminster shall include a clause in this form -

It is hereby declared and enacted that the parliament of a dominion has full power to make laws for extra-territorial operation.

I think that this extension of legislative power ought to be conferred on dominion parliaments; but, as a lawyer, I do not approve of the language which has been used. It suggests, for example, that a law of Canada may have effect outside Canada, or that a law of Australia may operate outside Australia. That is not intended, and the report of the committee of experts expressly sets out that it is not intended that the law of a dominion shall have operation outside that dominion. Sir Harrison Moore, who most ably represented Australia on the committee of experts, states in paragraph 8 of his report -

Much consideration was given to the question whether the grant of extra-territorial power should contain a clause of limitation making it clear that extra-territorial laws enacted by a dominion were not enforceable as law in other parts of the King's dominions.

It was not desired or intended that .a New Zealand law of extra-territorial operation should form part of the law of Australia, and be enforceable here, whether the matter arose in Australia or elsewhere. The final opinion was that such an expression of opinion was superfluous.

The only object that is intended to be secured is that in Australian courts Australian laws should not be held to be invalid or inapplicable because they apply extra- territorially - but only in Australian courts. This clause does not mean that because it is proposed that the Commonwealth Parliament shall have power to make laws having extra-territorial operation it should be able to pass laws which will be enforced in any other part of the world, and by courts other than Australian courts. What is proposed is to prevent any legislation being declared invalid here, which it is otherwise within the power of this Parliament to pass, because it deals with facts, matters, circumstances, or things outside the territory of Australia. I agree that the change ought to be made; but the phrase is vague and loose, and may cause trouble in interpretation, as indeed appears from the report of the experts. It is shown that there may be real doubt as to whether the use of this particular phraseology was safe. Obviously it was concluded that it was safe, and with some dubiety I am prepared to accept it.


Mr Brennan - It may be vague from ' the point of view of outsiders, but not from the point of view of our own courts.


Mr LATHAM - It is probable that it will work, because the courts will not act as strictly as they should in the process of interpretation, but will take cognizance of the real object of the proposal.

The second clause deals with the Colonial Laws Validity Act. It reads: - (1.) The Colonial Laws Validity Act shall not apply to any law made by the Parliament of a dominion after the commencement of this act. (2.) No law and no provision of any law made after the commencement of this act (the Statute of Westminster) by the Parliament of a dominion, shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such act, and the powers of the Parliament of a dominion shall include the power to repeal or amend any such act, order, rule, or regulation, insofar as the same is part of the law of the dominion.

The substance of the Colonial Laws Validity Act sufficiently appears from the second paragraph iu this part of the resolution. That act provides that laws passed by the parliament of a dominion, or a colony shall e vo void or inoperative if repugnant to a statute of the Imperial Parliament applying to that dominion or colony. This provision, therefore, declares that the Colonial Laws Validity Act shall not apply to the legislation of any dominion. I approve of these proposals. They confer complete legislative power upon this Parliament with respect to matters upon which it has power to legislate. I can see no reason for maintaining the rule of the Colonial Laws Validity Act in relation to matters within the power of the Commonwealth Parliament, but, of course, such a removal of limitations should not extend the powers of this Parliament in any respect beyond the powers already conferred upon it by the Constitution, and accordingly, in clause 4 of this resolution, it is expressly provided that the removal of the restrictions at present imposed on our legislative powers under the Colonial Laws Validity Act shall not extend the legislative powers of this Parliament beyond the powers which it already possesses under the Constitution.

Clause 3 of the resolution is important indeed, and appears to me to stand on an entirely different footing from the other clauses to which I have referred. This clause contains a suggested section of the proposed Statute of Westminster in the following terms: -

No act of Parliament of the United Kingdom passed after the commencement of this act shall extend, or be deemed to extend, to

Mr. Latham.a dominion as part of the law of that dominion, unless it is expressly declared in that act that that dominion has requested and consented to the enactment thereof.

I intend to propose an amendment to this clause, to omit the words " that dominion has requested " and to insert in lieu thereof the words " the Parliament and Government of that dominion have requested ". The present position is that, as the Imperial Parliament can legislate for the whole Empire, any act passed by it which, in its terms, applies- to any part of a dominion, is law there and must be administered according to its provisions, and applied by the courts in that part of -.the Empire. It has not been the practice for the Parliament at Westminster to legislate for the selfgoverning dominions, except in accordance with the desires of those parts of the Empire. That has been generally recognized. It is now universally held that it is not for the Imperial Parliament to legislate on the many matters which are dealt with in this Parliament, though that Parliament has full power to do so. This clause of the resolution represents an effort to crystallize into a legal formula this political convention and understanding. I believe entirely in. the principle which is here represented. Speaking generally, the Imperial Parliament should not legislate in relation to Australia or Australian matters at all, unless at the request of Australia; and I would not be prepared, as an Australian and a loyal member of the British Empire, to recognize that it was part of the ordinary function of the Imperial Parliament to legislate on Australian matters. But when I am asked to express that principle in a statute, I must examine carefully aud precisely the wording which is suggested. I regard the relations of the selfgoverning parts of the Empire, inter se, as corresponding closely in the political world to the relations of the members of a family in the personal world. I do not want the relations of myself and my children to be determined by rules written in a book, to which each of us must refer to discover who is right and who is wrong. I do not desire such things to be made rigid by legal rules and enactments. On many political and constitutional matters, the British Constitution, as applied, not only to Great Britain, but throughout the Empire, has been a success largely because it has been loose and elastic, and has left things to be determined by the common sense of statesmen as emergencies arise, instead of being decided with the precision of lawyers in the interpretation of written documents. We are now asked to make a departure from that practice, and to endeavour to express in a rigid legal formula what is perfectly well understood as a practical, political convention, a convention which causes no difficulty or trouble in working. I should, therefore, prefer very much to leave things as they are.


Mr Coleman - This provision must inevitably become the subject of legal interpretation.


Mr LATHAM - Undoubtedly. I ask honorable members to follow me in an analysis of these very important words. First, it must be remembered that we are living under a federal constitution, and that the Commonwealth and the States each has a place in a federal system which depends upon a division of legislative powers between the Commonwealth and the States. This resolution does not affect, is not intended to affect, and certainly should not affect, the position of the States in relation to the Commonwealth or to the United Kingdom. The States have not been represented at any of the conferences from which this resolution has ultimately emerged, and they cannot be compromised or affected in any way by this legislation. I am sure that all honorable members will accept that proposition. I now ask them to examine the words of the proposed clause. It appears to me that these words have been drafted without -a sufficiently acute and active realization of the legal and constitutional position under a federal system. The words are -

No act of Parliament of the United Kingdom passed after the commencement of this act shall extend or be deemed to extend to a dominion as part of the law of that dominion unless, &c.

What is the meaning of " dominion " ? In relation to Australia it means the Commonwealth of Australia. What is the meaning of " the Commonwealth of Australia"? The Commonwealth of Australia is an ambiguous term. For example, in our Constitution, covering clause 3 provides that " the Queen may declare or proclaim " that the people of certain colonies have united, or shall be united in a federal commonwealth under the name of the Commonwealth of Australia. " Commonwealth of Australia " there means a political entity, a political organization, for discharging legislative, executive and judicial powers. Covering clause 6 contains another example of the use of this word. There we find the phrase that certain of the colonies are " part of the Commonwealth." The States are part of the Commonwealth; that is, in the territorial sense. In that clause " Commonwealth " means a territorial area, namely, Australia, in the geographical sense. When we come to clause 3 of this resolution what is meant by saying that " no act of Parliament of the United Kingdom passed after the commencement of this act shall extend or be deemed to extend to the Commonwealth of Australia, as part of the law of that Commonwealth unless, &c." ? The States, as I have said, are unaffected by this legislation. They are entitled to preserve such relations as they like with the British Parliament. We do not control the relations between the States and the rest of the Empire. They have independent relations.


Mr Crouch - That is no longer accepted.


Mr Coleman - It still remains a subject of conjecture.


Mr LATHAM - Let me give an example. Take, for instance, the criminal la%v of the Commonwealth as applied to Australia as a whole. Very little of the Australian criminal law is federal law; practically all of it is State law. This Parliament has not the power to legislate, speaking generally, with respect to crime. Our criminal law is chiefly State legislation. Certain Imperial statutes, such as the Fugitive Offenders Act and the Jurisdiction in Territorial Waters Act, apply to the geographical area known as Australia, and are important in relation to the effective administration of State laws. This Parliament can, under its ' immigration power, deal with the influx of criminals, but is not able to legislate upon the subjects affected by the Fugitive Offenders Act and the Jurisdiction in Territorial Waters Act. Those matters concern the States, and any alteration of the law in relation to them does not come within the legislative powers of the Commonwealth. Therefore, we have no right to ask the Imperial Parliament to pass an act stating that it will never legislate in relation to these matters unless this Parliament, which has nothing to do with them, asks it so to do.


Mr Crouch - Have not extraterritorial decisions been almost confined to criminal matters?


Mr LATHAM - No; extraterritorial legislation is important in relation to taxation also. The conferring of extraterritorial legislative power upon this Parliament would not confer upon it any power which it does not already possess to legislate in respect of crime.


Mr Hughes - The legislative ambit of the Commonwealth is determined by the Constitution. By an amendment of the Constitution that legislative ambit might be widened. If we pass this statute and do not limit the Imperial Parliament in regard to State legislation, we shall possibly expose to Imperial legislation the wider sphere created by any amendment of the Constitution.


Mr LATHAM - These proposals would not be affected by any future amendment of the Constitution. Clause 4 of the proposed Statute of Westminster leaves our constitutional powers as' they are, and prevents any extension of them, by reason of this statute beyond the matters referred to in the Constitution.

Clause 3 imposes a limitation upon the possibility of Imperial acts extending to Australia. Does an Imperial act extend to Australia when it applies in any part of Australia? I say that it does. The Fugitive Offenders Act is an example but that deals with a subject which, though of first importance to the States, is of very little importance to the Commonwealth. Accordingly, why should the proposed statute require that an, amendment of legislation dealing with matters within the realm of the States, shall not be passed by the Imperial Parliament unless this Parliament so requests?


Mr Brennan - Is it "part of the law" of this dominion?


Mr LATHAM - That is the question that arises, and it appears to me that it has not been sufficiently considered. What is part of the law of the Dominion of Australia? The Fugitive Offenders Act is in force in every State of the Commonwealth; is it part of the law of Australia? Honorable members will see that there is obviously room for argument, and I suggest that we should not unnecessarily invade the doubtful realm of legal controversy.[Leave to continue given.]


Mr Crouch - Could we not overcome all difficulties by omitting clause 4?


Mr LATHAM - I doubt that, butI shall deal with that clause later. Clause 3 proposes that no Imperial act shall extend to a dominion "unless that dominion has requested and consented to the enactment thereof ". I have always been troubled by those words " requested and consented ". Either word would be sufficient; why employ both? A request for certain legislation surely implies consent to it.


Mr Paterson - But does consent necessarily imply a request?


Mr Maxwell - The dominion may have changed its mind after making a request.


Mr LATHAM - There can be consent independently of a prior request. A request can be made before the legislation is enacted, and' if there is a difference between " requested "' and " consented ", as applied in this statute, one would expect the consent to be subsequent to the enactment. But Obviously that is not intended.


Mr Hughes - A government may initiate legislation by request and consent to it after it has been enacted.


Mr LATHAM - One would imagine that to be the intention until one reads in clause 3, "unless it is expressly declared in that act that that dominion has requested and consented to the enactment thereof ". Therefore, both request and consent must precede enactment.


Mr Maxwell - An act might not be in strict accord with the request.


Mr LATHAM - I think the declaration in the act that the dominion concerned had requested and consented to it would be taken as conclusive evidence that a request had been made for and consent given to legislation in the terms embodied; in the act.

What is meant !by " that dominion " ? Generally it means, in practice, the executive government of the dominion. I propose to ask the House to amend that provision by requiring that the request and consent shall be made and given by the Parliament and by the Government. We are asked to do something very remarkable. The proposal is that no legislation shall be enacted for a dominion by the Imperial Parliament unless " that dominion " has requested and consented to it. When a request is received from the government of a dominion for the enactment of certain legislation, is the British Government to go behind that request to ascertain what degree of support it commands? It appears to me that the British Government would be in a very difficult position if it were to cross-examine on a request made by a dominion government pursuant to this statute. I am afraid that if the Statute of Westminster, which purports to define and settle inter-governmental practice, is passed in its present form, the practice of the British Government will be to accept, without examination, any request from the government of a dominion, and to legislate accordingly. That will mean a marked change from the existing procedure. At present, there is a general understanding that the supreme legislative power of the British Parliament will not be used unless that is .substantially desired by the people of the dominion concerned. That is a loose power, to be applied according to circumstances. I say, with hesitation, but with a sense of responsibility, that in the unsettled economic and financial condition of the world at the present time, and in view of what may happen in the next few years, recourse to the supreme legislature of the British Empire may be a valuable privilege, especially having regard to the legal complications of the Australian federal system. If, however, this statute is passed as drafted, a request by the government of a dominion will be final.


Mr Gregory - The request should come from the Parliament.


Mr LATHAM - That is my contention. The Government of the day might bona fide regard a certain matter of policy as vital to the well-being of the Commonwealth. In regard to monetary policy, for instance, widely divergent views are held by members in this chamber, whilst the Senate is directly opposed to certain government proposals. If the statute were passed, the Government could request the Imperial Parliament to legislate as the Government wished, and so override both the Opposition in this chamber and the Senate. I do not pay that the Government would do that, but no government should be able to do it. In extreme circumstances, there might be a strong temptation to a government to resort to this power. Unless the statute is amended, I am afraid that the British Government will often be embarrassed, because it will practically have to legislate in accordance with every request made by the government of a dominion. I prefer to leave things as they are. This clause is not required, and the

Statute would be better without it.


Mr Brennan - It is perfectly obvious that we have no authority to insist upon the British Parliament passing any act; in the last resort it must exercise its own discretion. I agree that it probably would act at the request of the executive government of the dominion; and I should hope so.


Mr LATHAM -Exactly. I am not prepared to entrust any government with the power of obtaining legislation by a mere request to the British Parliament.


Mr Hughes - We are discussing projected legislation arising out of the declaration of the equality of the. status of the Mother Country and the dominions. One thing is" obvious: if a foreign government makes a proposal to Great Britain, the British Government accepts it without question as a proposal by the. nation for whj.cn the government speaks.


Mr LATHAM - And the same rule would apply to a request from a dominion government if this statute were accepted in its present form. If that rule were accepted absolutely, this Government could put any legislation it liked through the Imperial Parliament. I am not prepared to accept that position.


Mr Lazzarini - If a government submitted a piece of legislation to this Parliament and it was rejected, does -the honorable member- contend that, 'under this clause, the Government could appeal to the Imperial Parliament to pass that legislation ?


Mr LATHAM - Yes.


Mr Lazzarini - That would be surrendering our right of self-government.


Mr Brennan - Surely the Deputy Leader of the Opposition (Mr. Latham) is under a misapprehension. The honorable member for Werriwa (Mr. Lazzarini) suggested that a measure which had been rejected by this Parliament might be passed by the British Parliament.


Mr LATHAM - A government that was a party to such an action would run the risk of passing out of existence. At the present time there is no possibility of that happening; but, if this statute is passed, it appears to me that the only practice that could be adopted in Great Britain would be to refuse to look behind the request of the government of the day. As the right honorable member for North Sydney (Mr. Hughes) has indicated, to deal with dominions in the same way as foreign countries, and to regard the government as representing the people, without looking behind the request, would be too dangerous, and I am not prepared to accept such a proposal.


Mr Brennan - I think that the honorable member for Werriwa has been left under the impression that there may be a motion of appeal to the British Parliament against a decision of this Parliament, whereas, in truth and in fact, the general scheme of this proposal is that no legislation of the British Parliament shall operate in Australia without the consent of its people.


Mr LATHAM - For the word "dominion " I am proposing to insert the words " parliament and government ". The object of my amendment is that, instead of the request being from a dominion, it should be from the parliament and the government of a dominion.


Mr Crouch - Strike clause 3 out altogether.


Mr LATHAM - I am prepared to do that.


Mr Crouch - The clause admits perpetual inferiority.


Mr Brennan - That is not so.


Mr LATHAM - These proposals are brought forward in the form of a reso lution, and there is a discussion upon it. There are no first reading, second reading, committee and third reading -stages. I suggest that the proposals should be put to the House in the form of a legislative request, instead of merely by means of a resolution. We should have the fullest opportunity for consideration and amendment, such as is afforded with respect to all important legislation.


Mr Coleman - May this resolution be amended ?


Mr LATHAM - It may, but the effect of an amendment upon action by the British Parliament would have to be considered. If requests were received in different forms from the various dominions, the statute would have to be more complicated than would otherwise be the case.


Mr Gregory - Is not the Canadian Parliament holding this matter over for further information?


Mr LATHAM - I am not acquainted with the Canadian position.


Mr Brennan - The measure has been passed in Canada, and, probably, in South Africa, too.


Mr LATHAM - There was a general idea that these proposals would go through the dominion parliaments as a matter of course, but I do not agree that they should.

There is another important matter to which I shall refer. If this clause is passed, Australia should request the inclusion of a provision identical in terms with that asked for by New Zealand. Should this clause be accepted, there should be a method of obtaining the concurrence of a dominion parliament in any Imperial legislation applying to the dominion. New Zealand has accepted these proposals, subject to the provision that the Statute of Westminster shall subsequently be placed before the Parliament of New Zealand, and shall not come into operation until it has been adopted by that Parliament. {Further leave to continue given.'] The proposal of New Zealand to deal with this position will be found in the report of the Imperial Conference, 1930, at page 13, and it is in these terms -

No provision of this act shall extend to the Dominion of New Zealand as part of the law thereof unless that provision is adopted by the Parliament of that dominion, and any act of the said Parliament adopting any provision of this act may provide that the adoption shall have effect either as from the commencement of thisact oras from such later date as may he specified by the adopting act.

I have circulated an amendment that a similar provision should he included, so that the statute shall not come into operation in the Commonwealth until, and then only in so far as, this Parliament has adopted its provisions.

Let me refer to another aspect of the matter, with a view to further extending the powers of this Parliament. On looking at clause 2, it will be seen that it is proposed that the Colonial Laws Validity Act shall no longer extend to a dominion, as distinct from the states or provinces constituting part of a dominion ; and it is provided that the powers of the parliament of a dominion shall include the power to repeal or amend any act, rule, or regulation of the British Parliament extending to that dominion. But there is no power, so far as I can see, conferred upon this Parliament to amend the Statute of Westminster itself, if passed, or to repeal it. If the statute is passed by the Imperial Parliament, it provides that a dominion parliament is to have full power to repeal or amend other Imperial legislation extending to it. This Parliament should have power, at least, to repeal the Statute of Westminster itself so far as it relates to Australia. Other wise, the statute, while conferringpower to repeal any British legislation apply ing to Australia, will have the unique characteristic of being itself unrepealable. Therefore, I propose to add to the clause the following provision: - and the Parliament of the Commonwealth may. at any time, repeal any provision of this act which has been adopted by the said Parliament.

I think that we ought to have that right, although we may never desire to exercise it. Why should such a clause as this be riveted upon us indefinitely?


Mr Hughes - Quite so. To the extent that it applies to us, why should we not have the right to repeal it?

Mr.Brennan. - We have the right to exercise our enlarged powers, in our discretion.


Mr LATHAM - The. first paragraph of clause 4 is essential, and unobjectionable. It reads -

Nothing in this act shall be deemed to confer any power to repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia otherwise than in accordance with the law existing before the commencement of this act.

The second paragraph is as follows : -

Nothing in this act shall be deemed to authorize the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Governmentof the Commonwealth of Australia.

The object is apparent; but I suggest that there should be an addition in these terms -

Nothing in the Statute of Westminster shall be deemed to authorize the Parliament or the Government of the Commonwealth to request or consent to the enactment of any act by the Parliament of the United Kingdom on any matter which is within the authority of the States of Australia, not being a matter within the authority of the Parliament or the Government of the Commonwealth of Australia.

In other words, this Parliament should have no licence or right to invite the British Parliament to legislate on matters which are exclusively within the State sphere. That ought to be stated plainly.

Mr.Brennan. - We have no such rights, and do not lay claim to them.


Mr LATHAM - It is desirable to place the matter beyond doubt, on account of the generality of the phraseology used in clause 3, which refers to laws which " extend to a dominion ". Clause 5 provides -

Notwithstanding anything in the Interpretation Act 1889, the expression "Colony" shall not, in any act of the Parliament of the United Kingdom passed after the commencement of this act, include a dominion or any province or state forming part of a. dominion.

I am unable to see why we should concern ourselves whether the " colony " includes " state ". So far as Australia is concerned, the words " or state " ought to be omitted. We are concerned only with matters in the federal sphere falling within the powers of the Government and the Parliament of the Commonwealth.


Mr Hughes - Yes; but this provision comes into conflict with clause 3, after all, because a dominion, geographically, includes states. The Imperial Parliament may amend the law relating to a state.


Mr LATHAM - Undoubtedly, it may. Clause 6 deals with sections 735 and 736 of the Merchant Shipping Act, and provides that those sections shall be construed " as though reference therein to the legislature of a British possession did not include reference to the parliament of a dominion ".- I spoke on this matter in this chamber in August last. I think that this is a desirable removal of an unnecessary limitation on our powers. Nothing is gained by the provisions in those sections. They can easily be avoided - I will not say evaded - by any draftsman of reasonable competence, as has been done in Australia, where we have enacted legislation dealing with coastal vessels which, in effect, secures to our own ships the whole of the coastal trade, although British ships appear to be treated similarly.


Mr Bell - That power is being challenged.


Mr LATHAM - I cannot see any objection to this provision, for the reasons which I gave in August last, and which I shall not now repeat.

I approve also of the proposal with respect to Colonial Courts of Admiralty, although I regret that the opportunity was not taken to clear up the dubious and ambiguous position in Australia in relation to admiralty jurisdiction, as disclosed by the decision of the High Court in the case of John Sharp & Sons v. The Ship Katherine Mackall reported at 34, C.L.R. 420. All the States are exercising admiralty jurisdiction. The judges of the States have for many years heard admiralty matters; but, in view of the decision of the High Court, I doubt whether a State has any real authority in admiralty matters. It was held by the High Court that the Commonwealth is a British possession for the purposes of the Colonial Courts of Admiralty Act, and that, therefore, it may hold- Colonial Courts of Admiralty; but surely it necessarily follows that the States cannot hold such courts, although they have certainly been exercising this jurisdiction for many years. Some day a serious position will arise in this connexion. As this Parliament is unable to cure the matter by legislation, I am sorry it was not discussed at the Imperial Conference with a view to clarifying the position.

The remainder of the motion is in the form of recitals. The first paragraph of the recitals is practically a repetition of clause 3 of the schedule. I consider that both clause 3 of the schedule and paragraph 1 of the recitals should be omitted.

The final paragraph in the recitals, which is also the final paragraph of the motion, relates to the succession to the throne, and the royal style and titles, and provides that -

Any alteration in the law touching the succession to the throne or the royal style and titles shall hereafter require the assent unwell of the parliaments of all the dominions as of the Parliament of the United Kingdom.

I deplore the fact that this precise legalistic examination of the relations between the various parts of the Empire has been made, and that such an issue has been raised. It would have been better had it not been raised. I have no objection to the inclusion of this recital in the statute, although I believe that in a time of acute controversy its presence theremay do a great deal of harm. However, that is a question 'that one oan hardly discuss under existing circumstances.

Although I am opposed to the provisions of paragraph 3 of the schedule, I do not intend at the moment to move that they be deleted. I shall, however, move -

That the words " that Dominion hn.p requested", clause 3 of the. schedule, be omitted with a view to insert in lieu thereof the follow, ing words " the Parliament and Government of that Dominion have requested".







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