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Friday, 17 July 1931

Mr HUGHES (North Sydney) . -This motion, as the Deputy Leader of the Opposition (Mr. Latham) has stated, marks the arrival of a new era in the history of the constitutional relations of the dominions and Britain, and is of immense importance to Australia and ro the Empire. I disagree entirely with the principles underlying the motion. To attempt to crystallize Empire relations in a legal formula is an act of supreme folly. They rest upon two principles which are antagonistic: the complete autonomy of the parts, and the unity of the whole. That this mighty Empire coheres, that this constitution - illogical and unique in the history of mankind - works at all, is due to the genius of the British people for self-government. In the hands of any other race it would have certainly failed.

We are considering an attempt to give legislative sanction to resolutions of cabinets and conferences made during and since the war. These set out in terms leaving no room for doubt, that the old order of things has passed away, that the overlordship of Britain has now been replaced by equality of status - not of stature - of every dominion with Britain. The dominions, or most of them, still regard Britain as their mother, and freely and gladly acknowledge her pre-eminence. This equality of status, which has been freely granted by Britain, carries with it implications of immense importance. If the powers now vested in the dominions arc exercised unwisely, the disruption of the Empire is inevitable. I have opposed every attempt to reduce to writing the constitutional relations of Britain and the dominions. It has been stated freely in this debate that this motion springs out of the resolutions of the 1926 conference; but that statement is misleading. The 1926 conference added nothing to the constitutional position as it then stood. Different opinions were expressed as to what had been done, and it is not without interest to quote some of them. On his return to Australia, Mr. Bruce said -

There is really nothing new in the status of the British dominions as a result of the recent conference.

Mr. MackenzieKing said

I believe that the work of the conference will take its place in history beside those charters which have stood in one form or another for a larger freedom.

While General Hertzog was of the opinion that -

The British Empire now exists as a name only.

When opinions so divergent can be expressed in regard to a set of circumstances which, it is now generally admitted, did not in substance add one tittle to the powers of the dominions, or widen the ambit of their legislative or general jurisdiction, it is evident that the attempt to reduce to n formula the conventions and other instruments that govern the constitutional relations between Britain and . the dominions is, to say the least, an experiment of doubtful value. The 1926 conference, as I have said, added nothing to the constitutional powers of the dominions.

At the 1921 conference an attempt was made to summon a constitutional conference for the purpose of setting out in written form the constitutional relations as they then stood. A number of drafts were submitted to Cabinet, and I shall quote from my work on Empire relations, The Splendid Adventure, page 145, my opinions in that matter.I laid it down that -

These drafts are in the main Declarations of Bights recognized by existing practice. Unless it is contended that these rights or any of them are in danger, such declarations are unnecessary, and serve no useful purpose. On the contrary, they may do much harm. They relate to the distribution of powers vested in the dominions. . . . Originally all the powers now vested in the dominions were exercised by Britain. The present distribution is the result of voluntary surrender to the dominions by Britain of some of the powers inherent in her as a sovereign power.

This surrender has heretofore been made by -

(a)   Statutes of the British Parliament creating dominion parliaments and governments, and defining the ambit of their legislative and executive powers.

(b)   In despatches and communications passing between the British and Colonial and Dominion Governments.

(c)   By conferences of the representatives of Britain and of the dominions.

The distribution of powers had been gradual, extending over a long period of time. During the last few years the distribution has proceeded more rapidly.

It has never been the practice to attempt to set out in writing the precise limits of the powers surrendered by Britain to the dominions or those retained by her. The reasons against any attempt to delimit the respective spheres of power and define the constitutional relatione between Britain and the dominions are obvious and overwhelming. The great merit of the constitutional relationship existing between Britain and the dominions is, and always has been, its elasticity. To this is due its wonderful adaption to changing circumstances arising from the growth and development of the dominions. To attempt to substitute for this a rigid constitution or to define or set out in writing the relationship between the dominions is most undesirable. ... As things now stand, it is impossible in practice to reconcile that complete autonomy which the dominions possess - which they exercise by virtue of British statutes and waivers by British governments - with the sovereign rights of the Parliament of the United Kingdom and the unity of the Empire.

Speaking before representatives of the Dominions of Canada and South Africa, who were pressing for this so-called reform, I asked them what power could be added to those they then possessed, if to-morrow their dominions declared themselves to be independent? What thing of substance could be given to any dominion, if it were an independent power, that it does not now enjoy under this wonderfully elastic Constitution of ours? That the dominions would lose the substance in attempting to grasp at the shadow, is evident.

This motion, and all that preceded it at the 1926 conference, arises from the inability of some of the dominions to understand the nature of the Imperial pact. They think that membership of the British Commonwealth of nations limits their sovereignty. They are anxious to strut the world's stage in the toga of complete independence. In 1926, to satisfy the demands of their partisans, they foolishly insisted upon putting into writing what can never be reduced to writing, the constitutional relations between Britain and the dominions. The result was to be expected, for you cannot imprison a living organism in a formula.

Our Constitution to-day is very different from that of even twenty years ago. What it will be in twenty years to come no man can say. Its outstanding excellency is its elasticity. Its adaptability to change and to progress has been strikingly demonstrated. The circumstances of the Empire have radically changed ; but so smoothly has the mechanism worked that these changes have passed almost unnoticed. It may be contended that while the equality of status is only set forth in a resolution, it lacks that completeness which would be given , to it by a statute. The Deputy Leader of the Opposition (Mr. Latham) pointed out. what is obvious, that no statute of the British Parliament is to be regarded as the final settlement of anything. It is, of course, owing to that common sense and genius of self-government that mark the British that the Parliament of the United Kingdom does not exercise its undoubted power, but it cannot strip itself of it, and therefore a statutory declaration that, South Africa, for instance, was an independent nation, or that i't had the right in the preamble to its legislation to omit reference to His Majesty the King, could be altered by a subsequent, or by the same, parliament.

Let us consider the practical application of this motion and of the resolutions of the 1926 conference which are responsible for its introduction into this Parliament. The folly of attempting to reduce the Empire Constitution to writing has been sufficiently revealed by events subsequent to 1926, and by the motion now before the House. No sooner were the resolutions of the 1926 conference - themselves sufficiently vague - committed to writing, than doubt, uncertainty and anxiety arose in many quarters. When the Prime Minister of Canada attended the Imperial Conference of 1926, he came hot from an election in which he had won a signal victory. The appeal to the Canadian people arose out of circumstances not without interest to members of this Parliament. Mr. Mackenzie King had advised the GovernorGeneral of Canada, Lord Byng, to dissolve the Canadian Parliament. His Excellency refused to accept the advice, and sent for Mr. Meighen, and asked him to form a government. He did so, but met with a hostile reception in the new parliament, and was compelled after a few months to appeal to the people. As a result Mr. Mackenzie King was returned with an overwhelming majority. After such a triumphant vindication of himself and his policy, Mr. Mackenzie King very naturally asked that something should be done to define the position of dominion prime ministers in relation to the representative of the King. He pointed out that if the status of Canada was equal to that of Great Britain in regard to affairs within her jurisdiction, then the advice of the Canadian Prime Minister ought to be 1 followed by the representative of the King in the same way as the advice of the British Prime Minister was in fact followed by His Majesty himself. As is well known, His Majesty has, for many years past, always accepted the advice of his Ministers in respect to dissolutions of parliament.

The attempt of the 1926 Imperial Conference to define these matters in writing was in part an effort to give the assurance to Canada that she really did enjoy in substance that equality of status which had been freely granted to her, and that her Prime Minister occupied the same position in relation to the GovernorGeneral as the Prime Minister of "Great Britain occupied towards His Majesty in person. No sooner were these resolutions shaped into the newest charter of liberty tardily granted to a downtrodden people than the Canadian legislature became like an ant heap on which hot water had been poured. Members became alarmingly aware that in getting what they had asked for they had involved themselves in unforeseen difficulties. If the status of Canada was equal in all respects to that of Britain, then she could do everything that Britain could do in regard to her internal affairs, and, among other things, could amend her own constitution. The British. Parliament has power to do anything and everything; even to amend the Act of Succession, or to remove the King from the throne. The constitution of Canada is based on the federation of two races differing in language, historical background, religion and general outlook. The French, who were in the minority, joined with the British with reluctance and misgiving, and only on the distinct understanding that the bases of the constitution were to be so firmly fixed that no chance majority in the Canadian Parliament could undermine it. Otherwise the French would have been at the mercy of the Anglo-Saxon section of the community. When this issue was raised after the framing of the Balfour Declaration, the Canadian Parliament was in a quandary. If parliament declared that Canada was not mistress in her own house, it was to expose the Balfour Declaration of equality as a hollow sham; if, on the other hand, it said that Canada could amend the Constitution, stable government and the Confederation itself were in grave danger. And so one of those admirable explanations was made by the French Minister, Mr. Le Binte, in which ambiguity trod on the heels of ambiguity, and men who, when they rose up, saw some glimmer of light, sat down in Cimmerian darkness. In South Africa, too, the position was hardly less unsatisfactory. General Hertzog returned to South Africa from the Imperial Conference declaring that the overlordship of Britain had passed away. South Africa, he said, was no longer in any way subordinate to the King of England. There was a king, it was true, but he was King of South Africa. That he also happened to be King of England was one of those unfortunate facts on which Mr. Hertzog did not dwell. In every direction, the attempts to crystallize the status of the dominion in a formula, to resolve doubts by setting out constitutional relations in writing, resulted in the creation of a veritable legion of doubts. Where there had been certainty, there arose not only doubt but fear. The resolutions, in the very nature of things, left some matters undeclared, and it is a maxim of law that those things which are not covered are omitted ; those rights which are not set down in the bond, do not exist, or, at any rate, are not firmly founded. And so in South Africa, Ireland and Canada, men began to ask for fuller information regarding the powers they were supposed to have obtained. In short, these resolutions defining the powers of the dominion settled nothing and disturbed everything.

One cannot define Empire relation in other than general terms, and I declare the terms to be these: That whatever power is necessary for the well-being of this Commonwealth, or of any dominion, that is compatible with the unity upon which every dominion depends for its safety and existence, is vested in the dominions by virtue of their equality of status with Britain, and can be exercised. Beyond that one cannot safely go. This motion proposes to give legislative sanction to the declaration of the last Imperial Conference, and to crystallize in a formula the constitutional relations of the various unit,." of the Empire. Is it possible to achieve this? Has it not been shown during the course of this debate, that the attempt to define Empire relations has given rise to a hundred difficulties for every one it has removed. I do not hesitate to say that since the 1926 Imperial Conference, and indeed since the end of the war, all power has been vested in this Commonwealth Parliament to deal with matters within its jurisdiction, and that jurisdiction was not limited to the terms of the Common- -wealth Constitution, but was as wide as was considered to be necessary by this Parliament to safeguard and promote the national welfare.

Mr Coleman - There is no agreement on that point.

Mr HUGHES - I do not say thai there is, but it is because of the grave doubts which have been raised by the Balfour Declaration, that this motion has been placed before us with a view to defining our legislative powers by limiting them.

The Deputy Leader of the Opposition (Mr. Latham) stated that it was desirable to amend clause 3 of the motion in order to make the intention of the clause clear. As the clause now stands, it is sufficient for the Government of the Commonwealth to request the British Government to legislate in a certain direction for the British Government to do so. The Deputy Leader of the Opposition said that if this were done it would make it possible for the Commonwealth to be ruled by the Government and not by Parliament. He had in mind conditions similar to those which exist now and have existed on other occasions, when a government has a majority in one House and a minority in the other. The honorable member said that any request for legislation by the British Government should come from this Parliament, not from the Government. As things now are there is much force in his argument, but I have known instances in which the reverse of that would have appealed to the great majority of the people. The public changes its mind very rapidly, and the party which has a majority to-day may be in the minority to-morrow. I am not going to express any opinion on the matter now, other than to say that I shall, in the circumstances, support this amendment. But how infinitely better it would be to leave things as they were.

Mr Latham - I propose to move to omit clause 3 altogether. The amendment I have foreshadowed is to meet the situation if the clause is not omitted.

Mr HUGHES - I agree with the Deputy Leader of the Opposition that we ought to take power to amend any legislation to apply to Australia under this statute. If we have not that power, where is our equality of status. In regard to the Colonial Laws Validity Act no objection whatever can be raised. Only very rarely does the act apply to our circumstances. It applied once to Canada in 1929, and has on occasion applied to Australia. All these are relatively minor matters, and I desire only to say that what the British Parliament is now proposing to do should have been done long ago. In 1917, Mr. Lloyd George declared, the constitutional status as between Britain and the dominions. The wholeground was covered by the terms of his declaration. We were equal in every respect in status, and to all intents and purposes independent nations. We had, as honorable members know, equal rights with Britain in signing the Treaty of Peace. Our representatives sat at the Versailles conference, and exerted considerable influence- on its deliberations. We had equal rights with Britain or France, and exercised power equal to that of the smaller independent nations that were gathered round the table. What more could we wish? To do anything more than to repeal the Colonial Laws Validity Act and the Merchant Shipping Act, so far as they limit our powers, is quite unnecessary, and I deprecate the attempts by the resolutions of 1926 and by this motion in some instances to placate the implacable, and in other instances to satisfy a childish desire to see how the machine will work, to convince sceptics who want to put their fingers in the wounds, and will not be satisfied until they have all in black and white. These things are likely to work incalculable harm. I am opposed to any attempt to reduce our constitutional rights. I am in favour of amending the Colonial Laws Validity Act and the Merchant Shipping Act; but I am not in favour of any other part of this resolution. I deplore the fact that the British Government listened to these tempters - these men who, in some instances, were new-comers to the table of the Empire - and acceded to their demand that there should be such a modification of the existing relations between Great Britain and the countries they represented as would permit those countries to pose before the world as independent nations. We have all the constitutional rights of an independent nation. We have unfettered control of our own affairs. We can make treaties. We and other dominions have made treaties. This Constitution has worked, and still works. It is capable of almost indefinite expansion ; but it behoves us, in our relations with the rest of the Empire, to exercise the great powers that have been bestowed upon us all with wise restraint. Unless that is done, the British Empire, like every other instrumentality of human design, must inevitably decline and fall.

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