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1898 Australasian Federation Conference

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[Continue page 1632]


Commonwealth of Australia Bill.

The PRESIDENT took the chair at twenty-six minutes to eleven o'clock a.m.


The Convention 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 98 (see page 1540), and on Sir George Turner's amendment on the amendment proposed by Mr. Holder, for Mr. McMillan (see page 1577), as amended by the substitution of "shall" for "may," to insert after the word "shall" the words "be liable for the public debts of the states existing at the time of the Commonwealth."

Mr. BARTON (New South Wales).-The difficulty in connexion with this amendment is that it does not appear clear in what way the matter is really to be adjusted. Is the Commonwealth to be liable to the states as a guarantor, or is it to become the transferee of the debts? Some words should be added to the amendment to make the intention clear.

Mr. ISAACS.-It follows the Canadian Act.

Mr. BARTON.-I am not quite sure how that Act has been read, but this seems to be a rather doubtful way in which to express the matter. There might be in case of any question coming before the courts a serious difficulty with regard to it.

Mr. SYMON (South Australia).-I understood that Sir George Turner did not intend to press the amendment in this form, but that he would adopt clause 98 with a slight alteration.

Mr. DEAKIN (Victoria).-In the absence of Sir George Turner, I may state that I have in my hand a copy of the Bill which he used yesterday when discussing this clause with me. The word "shall" is there substituted for "may" in the existing clause 98, and there are other notes which show that he did intend to adopt clause 98, with certain modifications.

Mr. BARTON.-He wished to make his proposal like clause 98, excepting that it should be compulsory, and that the words relating to rateable proportion should be omitted.

Sir JOHN DOWNER (South Australia).-I understood that the amendment was moved by the Hon. Mr. Holder for the Hon. Mr. McMillan, and that Sir George Turner's proposal was an amendment upon it. I voted for that amendment, intending to vote against the proposal as amended. I desire to adhere to the clause in the Bill as it stands now.

The CHAIRMAN.-If the committee desire it they can either negative or pass Sir George Turner's amendment, and then they can either negative or pass Mr. McMillan's amendment as amended.

Mr. REID (New South Wales).-It will be understood that if the word "shall," or any words containing the word "shall," is struck out, that is not a mere formal striking out with a view to the

same thing being proposed again. If we negative the amendment with the word "shall," it will not be competent for the Right Hon. Sir George Turner or any other honorable member to propose a similar amendment until the recommittal stage.

[start page 1633] The CHAIRMAN.-Nothing has been inserted in the clause yet, still less has the clause been inserted in the Bill. The committee have not, therefore, come to any final conclusion whatever. The Legislature of Western Australia has suggested that we should strike out the word "may," and that is the next amendment I shall put.

Sir GEORGE TURNER (Victoria).-I mentioned yesterday that my desire really was to adopt clause 98 of the Bill with modifications. There is only one alteration that I wish to make in the clause. It would then read-

Parliament shall take over the whole-

I would leave out the words "or rateable proportion."

of the public debts of the states.

Then the clause would go on down to the last four lines, which have reference to the rateable proportion of the debts of the several states. Those words I would propose to omit as a consequential amendment. To simplify matters, I think it would be wise now to withdraw the amendment I moved yesterday. I only submitted it tentatively, in order that the subject might be discussed. With the permission of the committee, I will withdraw it, and I will move the omission of all the words in the Hon. Mr. McMillan's amendment after the word "all," with a view to the insertion of other words.

The amendment of Sir George Turner was, by leave, withdrawn.

Sir GEORGE TURNER (Victoria).-I beg to move-

That Mr. McMillan's proposed amendment be amended by the omission of all the words after the word "over."

Mr. HOLDER (South Australia).-I would ask is this a convenient way of dealing with the question? In my opinion, the simplest plan would be to at once dispose of the amendment of the honorable member (Mr. McMillan). We may either carry it or reject it, or accept a part of it.

The CHAIRMAN.-The amendment of the right honorable member (Sir George Turner) is perfectly in order, but it would perhaps be more convenient to withdraw the amendment upon and the amendment of the honorable member (Mr. McMillan) and go on with the clause.

Mr. HOLDER.-I would ask if I can withdraw the amendment of the honorable member (Mr. McMillan)?

The CHAIRMAN.-The amendment has not yet been inserted in the clause. It is no part of the clause, and therefore can be withdrawn.

Mr. HOLDER.-Do I understand you to say that the amendment can be withdrawn?


Mr. HOLDER.-Then I would like to withdraw it.

Mr. GLYNN.-Will that necessitate another division upon the substitution of the word "shall" for the word "may"? If so, certain honorable members will gain a point.

The CHAIRMAN.-I think the simplest way would be to withdraw all these amendments and to go on with the clause as it stands, taking a division as to whether the word "shall" should be substituted for the word "may" in the clause.

Sir GEORGE TURNER (Victoria).-I am not afraid to take any vote upon that question, and so that there may be no imputation of any false work being done, I am willing to withdraw my amendment.

Mr. VENN (Western Australia).-The procedure seems to me most confusing. Are we being asked to swallow our previous votes? I have watched our proceedings most carefully, but I cannot understand our present position. Yesterday we divided upon the question of the substitution of the word "shall" for the word "may." Are we now to understand that that division is to go for nothing, and that we are to start from where we were yesterday morning?

Mr. GLYNN.-It is very good tactics.

[start page 1634] Mr. REID.-Nonsense! A division would have to be taken in any case upon the amendment of the honorable member (Mr. McMillan).

Mr. VENN.-It seems to me most extraordinary that we should be asked to go back to the position in which we were yesterday morning, and without rhyme or reason.

The CHAIRMAN.-If the right honorable member (Sir George Turner) insists upon moving his amendment, I shall have to put it.

Mr. BRUNKER (New South Wales).-I think it is necessary that the members of the Convention should really understand our true position, after the vote which was taken yesterday. Before giving any vote or expressing any opinion myself, I should like to know in what position we should stand, whatever the treatment of the amendment of the honorable member (Mr. McMillan) may be?

The CHAIRMAN.-I may explain that the word "shall" has not been inserted in the clause. Nothing has been inserted in the clause. The honorable member (Mr. Holder) moved, for the honorable member (Mr. McMillan), that certain words be inserted in the clause. Then an amendment was moved upon that amendment, and the word "shall" was substituted for the word "may." Now the position is that the word "shall" stands in an amendment which may or may not be inserted in the clause. We have come to no conclusion whatever in regard to the clause itself. We cannot take the word "shall" out of the amendment of the honorable member (Mr. McMillan), but we need not put his amendment in the clause.

Mr. BARTON.-The amendment of the honorable member (Mr. McMillan) can be negatived.


Mr. HOLDER.-I will ask the right honorable member (Sir George Turner) if he is prepared to withdraw his amendment?

Sir GEORGE TURNER (Victoria).-My only object is to prevent confusion. I am willing to withdraw the amendment, but some honorable members seem to be opposed to that course. If I withdraw my amendment, and the amendment of the honorable member (Mr. McMillan) is withdrawn, I shall have to move the substitution of the word "shall" for the word "may" in the clause. The question as to which word should stand should be tested now or later on. However, as many

honorable members who yesterday voted for the substitution of the word "shall" for the word "may" in the amendment of the honorable member (Mr. McMillan) appear to object to the withdrawal of my amendment, I do not care now to ask leave to withdraw it.

Mr. BARTON (New South Wales).-I will explain that the amendment of the honorable member (Mr. McMillan) is a proposition which has not yet been inserted in the Bill. A word in it, the word "may," has been omitted, and another word, the word "shall," inserted. In no other way has the amendment been altered. If the amendment of the Right Hon. Sir George Turner, providing for the insertion after the word "shall" of the words "be liable for the public debts of the states" and so on, is withdrawn-

Sir GEORGE TURNER.-That amendment has been withdrawn.

Mr. BARTON.-Then the substance of the amendment can be proposed as an amendment of the clause itself. As to the doubt of the honorable member (Mr. Venn) as to our position, I would point out that we have yet to vote upon the question whether the word "may" in the clause shall be substituted for the word "shall." The propriety of that alteration must be debated again in any case.

Dr. COCKBURN (South Australia).-If we go on with the amendment of the honorable member (Mr. McMillan) the right honorable member (Sir George Turner) keeps the advantage which he gained yesterday, but if that amendment is [start page 1635] withdrawn, and we go back to the clause, he loses his advantage. The rule of the Convention seems to be that when the right honorable member (Mr. Reid) finds himself in a minority, we must go back upon our decision.

Mr. REID.-What is the good of saying that? Surely when I am present I have the right to discuss any proposal before the Convention.

Dr. COCKBURN.-You have all the right, and a great deal of power.

Mr. REID.-I have only the same right as any other man.

Dr. COCKBURN.-As a matter of fact, when a division is taken in which the right honorable member is in a minority, it is afterwards found necessary to reconsider the matter. I generally protest against this procedure, but as yesterday I happened to be in a minority with him, I will not protest against it now, because it may allow yesterday's minority to be converted into a majority. Therefore, I think that we had better stand by the ordinary rule, and give the right honorable member credit for the excellency of this tactical proposal.

Sir JOHN FORREST.-It will save time in the end.

Dr. COCKBURN.-Perhaps so. At any rate, I am not averse to an arrangement which may turn a minority, of whom I am one, into a majority.

Sir JOHN DOWNER (South Australia).-What it is proposed to do is, not to depart from the rule, but to strictly observe it. The proposed clause of the honorable member (Mr. McMillan)-

The CHAIRMAN.-The honorable member (Mr. McMillan) did not move his proposal as a clause. He wished to insert certain words in a clause of the Bill.

Mr. O’CONNOR.-Mr. McMillan's amendment was given notice of as a clause, but it was moved as an amendment.

Sir JOHN DOWNER-If the amendment and the amendments upon it are withdrawn, the clause will be open for discussion, and the right honorable member (Sir George Turner) will be at liberty to move that the word "shall" be substituted for the word "may."

Mr. REID (New South Wales).-I think that the remarks of the honorable member (Dr. Cockburn) were quite uncalled for. I have made no proposition or suggestion. When I arrived here yesterday afternoon there was a certain proposition before the Convention to which I addressed myself, and I do not think I should be singled out as though I had taken a course which no other honorable member takes. Every honorable member has a right to address himself to every proposition before the Chair. I do not claim any rights other than those possessed by every other honorable member, and I do not think that remarks such as those of the honorable member (Dr. Cockburn) should be made. The object of them is apparent.

The CHAIRMAN.-I suggest that we now go on with the business. The question before the Chair is-

That the amendment of the honorable member (Mr. McMillan) be amended by the omission of all the words after the word "over."

Mr. HIGGINS (Victoria).-I am glad that at last we understand the proposal of the right honorable member (Sir George Turner). He practically desires to retain the provisions of clause 98, except that he wishes it to be obligatory upon the Commonwealth to take over all the debts of the states.

Sir GEORGE TURNER.-Yes, upon the terms laid down in clause 98.

Mr. HIGGINS.-Clause 98 provides for the taking over of the debts of the states, subject to a right upon the part of the Commonwealth to be afterwards indemnified by the states. Yesterday I voted against the amendment of Sir George Turner with great misgiving, because I knew that his intention was right; but the more I have thought over the matter, the more I am convinced that the minority were right in opposing him. Still one important advance was made by the large vote which was [start page 1636] taken yesterday. It made it apparent that the members of the Convention are determined that some guarantee shall be given to the state Treasurers. But what is equally apparent is that the proposal of the right honorable member will not give such a guarantee. The desire is to give a guarantee, and there must be some process evolved which will not leave the state Treasurers absolutely helpless after the establishment of the Federation. But, at the same time, this proposal will not do it. If the idea were that the debts were to be taken over by the Commonwealth, and the Commonwealth were to have no recourse against the states, it would be a guarantee.

Sir GEORGE TURNER.-But an unfair one.

Mr. HIGGINS.-That might be, but it would be a guarantee.

Mr. ISAACS.-More than a guarantee.

Mr. HIGGINS.-If that were the idea-that the Commonwealth were to be responsible for these debts, and were to have no recourse as against the states-that would be something like a guarantee, and, perhaps, it might be a wrong thing; but what are we to say about a guarantee of this class when we find the Commonwealth can come back on the states for any difference? Where is the guarantee there? It is an instance of what I referred to the other day, as keeping the promise to the ear and breaking it to the hope in a remarkable degree. If the Commonwealth feels that it can come upon the states for any deficiency, where is the motive to the Commonwealth to impose the requisite taxation to obtain a sufficient amount to meet the necessities of the state Treasurer? Although I voted in the minority, I am very glad that the committee has so strong a sense of the importance of giving some guarantee to the states Treasurers, but this is not the way to do it. It has been said that we must trust the Federal Parliament, and the influences upon the Federal Parliament, to secure that there shall be a sufficient guarantee to the states-a sufficient surplus to the states. I would go as far as any one in trusting the Federal Parliament, but I want to see that there is a sufficient motive in the Federal Parliament to provide the necessary surplus to, the state Treasurers, and I cannot find it. The Federal

Parliament may be trusted to do its best for its taxpayers-its constituents-but then the Federal Parliament has no sufficient motive to see that a state Treasurer is not embarrassed. The Federal Parliament will know that if it does not provide a sufficient surplus to the state Treasurers, the latter will have to tax the people but it is a very different thing for the Federal Treasurer to feel that he must tax the people, and to feel that he must leave the taxation to the state Treasurers. When you have to deal with a cantankerous dog, I would far rather not tread on his tail myself-I would let the next fellow do it; and it is the taxpayers' tail that has to be trodden upon. There are occasions which I can conceive when the Federal Treasurer might say: I should like to put state Treasurers, or some state Treasurer, under the obligation of treading upon the taxpayers' tail.

Mr. REID.-Some taxpayers think that taxes are the readiest method of getting rich.

Mr. HIGGINS.-The point I am addressing myself to is that this does not give security to the state Treasurers, and I think it is only justice that security should be given to the state Treasurers when we are taking away from them the chief means and the most flexible device for meeting the interest on the debts. If I have £10,000 worth of property, and I have £8,000 worth of debts, I ought not to give away £5,000 worth of that property without making some provision to meet my debts. What I fear is this: That if there be no guarantee given, our state stocks will in a sensible degree be depreciated. If the outside creditor finds that the Customs and Excise are going over to the Federal Parliament, [start page 1637] and if there is no guarantee given of any amount coming back, it is only reasonable to suppose that there will be a great dislocation in the money market as regards the state bonds. It is only fair that when we have entered into obligations for the various states with the English creditor we should see that no reason is given for supposing that we may make any default or deficiency. There is another point I wish to refer to. To my mind, no one has yet answered Mr. Holder's argument in the slightest degree, and he urged a great objection to making this clause obligatory. No one has answered Mr. Holder's argument that you are giving a premium to the bond-holders by the system proposed of making this obligatory.

Sir JOHN DOWNER.-Sir George Turner admits that by saying you could not convert until the expiration of the loan.

Mr. HIGGINS.-Exactly; may I indicate the position in this way? It is quite true that under ordinary circumstances you cannot convert until the end of a loan, but let us consider this. Suppose you have got a state bond carrying 3 percent. at 96 in the market, and suppose the holder of the state bond finds the Federal Parliament has backed that bill, it is not unreasonable to suppose that he will regard it as more valuable than the state bond, and I think Mr. Holder's suggestion of a 96 bond going up to 104 is not unreasonable.

Mr. HENRY.-But the holder of the bond would take a lower rate of interest.

Mr. HIGGINS.-No; I am assuming that there is a 3 per cent. bond in existence which has only the backing of Tasmania, and the price of that bond is at 96; if, however, you get in addition the backing of the whole Federal Commonwealth, do you mean. to say that bond will not rise in value?

Mr. REID.-Of course it will.

Mr. HIGGINS.-That is so, and a present will be made to the bond-holder, but I admit that present will not be at the expense of the Federal Commonwealth or of the state.

Mr. HOLDER.-But it will be the gift of a valuable security.

Mr. HIGGINS.-Yes, that is the case.

Mr. SYMON.-The same present will be made, but not to the same extent, by the mere fact of federation taking place.

Mr. HIGGINS.-I must follow out my point. I quite agree that it is not a present made at the expense of the state or the Commonwealth, but it is a present if the bond should rise suddenly, by reason of the backing of the Federation, from 96 to 104. I am assuming that there is to be no conversion at all, but that the Federal Parliament has come under the obligation of paying the debt. If we can devise means by which the bond-holder is not to get that present without some equivalent being given for it, surely we ought to accept that expedient. It is quite possible that even those who hold long-dated bonds, say twenty or thirty years, from the states might be induced to make a conversion. It is there I understand Mr. Holder's position comes in. That is unanswerable. Supposing, for example, that in a great financial operation the Federal Commonwealth wants to induce the holders of bonds payable in the future to come in and accept the bonds of the Federation, the Federal Treasurer will have something to give them; but if he has nothing to give, then they will be under no inducement to agree to the conversion. If you back your bonds before you make your bargain, there would be no bargain to be made.

Mr. HOLDER.-Hear, hear; you give it away.

Mr. HIGGINS.-At the same time, I quite well see that more can be made of this point than is needful. I have considered it very carefully, and I am quite assured of Mr. Holder's argument being unanswered. Therefore, we ought to try to keep the credit of the Federal Commonwealth, and not give it away without some equivalent.

[start page 1638] Mr. GLYNN.-Are you not assuming that by dividing your assets you are doubling your security?

Mr. HIGGINS.-That is a conundrum which I will not attempt to answer. The position is that, strongly as I am in favour of giving some strong guarantee to the states Treasurers, I do not think we can do it by making it obligatory on the Federal Treasurer to take over the debts, but, above all, it will be no guarantee to the states if the obligation is coincident with a provision that the state Treasurer is to indemnify the Federal Treasurer against any deficiency. I am not at all impressed with the other argument used with such effect by the Premier of New South Wales, namely, that by that means you absolutely compel the Federal Parliament to impose high import duties. I think it is hardly worthy to press that argument in the way it has been. The Premier of New South Wales says to us practically-"You know I believe that there must be high import duties, but I do not want my people in New South Wales to know that is the case." I do not think that is worthy of the people of New South Wales. The people of New South Wales will understand the thing as perfectly as we do, and they know thoroughly well that there must be high import duties in order that we may be able to prevent the insolvency of certain states. It may be all very well for New South Wales, where only a comparatively small proportion of the revenue is derived from Customs and Excise, and where they sell their capital assets and treat them as revenue.

Mr. REID.-Will not those assets be come all the more valuable when enterprise and settlement are attached to them?

Mr. HIGGINS.-I quite admit that, but I wish to go on with my argument. I would not even so far reflect upon the security of New South Wales by even saying that I believe it to be good. The evil which we have in this matter is that we have not imagination enough to look at the position from the other point of view. Because the Premier of New South Wales does not want to go to, the people of New South Wales and say frankly that after federation there must be considerable import duties, because there are considerable debts and large interest payments to be made-because he does not want to go to the people with that in his election speeches, we are to be put to all this terrible embarrassment. So far as we are concerned, that is not our business. The people of New South Wales know perfectly well that to meet the large interest on our debts there must be large customs and excise duties, and we may as well face the position frankly at once. I am sure the people of New South Wales will be willing to reciprocate any frankness which may be displayed.

Mr. WALKER.-Would not the hypothecation of the railway income make up the deficiency?

Mr. HIGGINS.-I think so, but that is not proposed yet. I must deal with the proposal as it stands. I do not think it is a question of protection and free-trade, because you can get far more money out of revenue duties than you can out of protective duties, but the point is undeniable that you must have a large income by way of Customs and Excise. Why cannot we admit that frankly in our Bill? There was a suggestion which was made yesterday by Sir George Turner, to which I find I made allusion in Adelaide, and I am surprised it has not been followed up this. morning. I watched closely this morning to see if Sir George Turner would follow up that idea, which is very fruitful. It is this: Why not amalgamate the Tasmanian amendment with the provision that the Federal Commonwealth is to, be the hand to pay the interest upon the, lowest scale of borrowing? There is a very suggestive and thoughtful amendment put by Tasmania, but which I think goes too far. It is in effect that each state is to have paid for it so much [start page 1639] principal and interest as will correspond with the debt which is, having regard to the number of people in each state, the lowest debt of each of the colonies. I would suggest that all that should be done by the Federal Parliament is to leave the principal of the debt still an obligation on the state, but to insert a provision to the effect that the Federal Parliament shall pay the interest upon each state's debt up to a certain limit, and that that limit shall be the lowest scale of borrowing. For instance, if Western Australia has only borrowed £40 a head, there shall be interest on £40 a head paid by the Federal Parliament for each of the states.

Mr. HENRY.-That is the Tasmanian proposal.

Mr. HIGGINS.-Very much the same. I think the Tasmanian proposal has not had sufficient attention paid to it yet-I am very glad Mr. Henry referred to it-and I think the reason of that is because my honorable friend (Mr. Glynn) was the first to propose in this committee to take over the whole of the debts. That, I believe, is the reason why the Tasmanian amendment has not got due attention.

Mr. HENRY.-It deserves more consideration.

Mr. HIGGINS.-I was surprised that Sir George Turner allowed Mr. Glynn's amendment to go without any division or debate, and then proposed it himself. I did not understand it, because Mr. Glynn's amendment raised the very question at issue.

Mr. GLYNN.-My amendment provided for some amalgamation, for some wiping out of debts, but Sir George Turner's does not.

Mr. HIGGINS.-Quite so. I think that Mr. Glynn's amendment, if I may say so with all respect, was better considered than Sir George Turner's amendment, and, therefore, it ought not to have been negatived, and then the same proposal, but in a cruder form, put before the committee. I think it was rather hard on Mr. Glynn, who deserves every credit there is for having raised this point. In my opinion, we might achieve the two objects in view. We might avoid the backing of the principal by the Federal Parliament, and, at the same time, secure to the states Treasurers a certainty that, without recourse to them for indemnity, there shall be a certain proportion of the interest paid. I know that any suggestion made by a private member will not have, and ought not to have, that attention which it would receive if it came from a responsible Minister of the Crown.

Sir GEORGE TURNER.-We are all equal here.

Mr. HIGGINS.-We are all equal here; but I am speaking practically. I say it is quite right that a proposal coming from my right honorable friend very justly gets more attention than a proposal coming from a private member, and I do not at all complain of it. But I throw out this suggestion that the guarantee shall be limited to the interest-the interest on the lowest scale of borrowing-and that there shall not be an obligation on the Federal Parliament to back the bill for the principal. You may have in that direction a reasonable compromise which will give the state Treasurers the certainty that

at least they will have so much of the interest paid, and enable them to tell their people that there will not be any obligation on the Federal Parliament to back the principal of the debt.

Sir GEORGE TURNER.-How are they going to get that money? Must not they borrow it?

Mr. HIGGINS.-I think we must admit and confess the fact that we must get, through the Customs, a large amount, by means of taxation, to meet our interest. We at present get through our Customs the means of paying our interest, and we shall have to do it here-after. The only objection to this course is that taken by the Premier of New South Wales, who practically says-"I [start page 1640] do not want to tell my people (what every person knows) that there must be a large amount of revenue raised through the Customs." I say that this Convention ought not to accept that position. We are going to be frank with the people of Australia; we know that they are now paying large amounts through the Customs to meet the interest on their debts, and we know that they will have to do it for many years to come. In that spirit, therefore, I would suggest that there should be another alteration of the amendment. I think the Premier of Victoria has already altered his amendment three times.

Sir GEORGE TURNER.-And I will alter it three times more if that will facilitate the decision of the question.

Mr. HIGGINS.-I am quite sure that the Premier of Victoria will-

Sir WILLIAM ZEAL.-You seem to have a great down on the Premier of Victoria.

Mr. HIGGINS.-The honorable member, as usual, has made a statement which is absolutely unjustifiable. I am not going to withhold any criticism from Sir George Turner, or anybody else, if I believe it to be true. Sir George Turner knows I will say to his face what I would not say behind his back, where I would say far better things. I have no hesitation in pointing out that the same gentleman who spoke about all the portfolios or offices in the Judiciary being already filled by allocation among the members here, is the very same gentleman who has stated that I have unjustly attacked the Premier of Victoria.

Sir GEORGE TURNER.-What is the difference between taking the lowest rate of interest, as you suggest, and what we are now paying?

Mr. HIGGINS.-I do not quite follow the right honorable gentleman.

Sir GEORGE TURNER.-As I understand it, you say that the guarantee is to be at the lowest rate of interest paid by any of the states.

Mr. HIGGINS.-No; you find what has been the lowest borrowing per capita, and guarantee the interest on that. For instance, Victoria or Western Australia has had the lowest scale of borrowing per capita hitherto.

Sir GEORGE TURNER.-Yes, about £40 per head.

Mr. HIGGINS.-Well, the suggestion is that you should guarantee the interest on that lowest rate of borrowing per head.

Sir GEORGE TURNER.-If you fix £40 per head all round, and use the surplus for paying the interest on that portion of the state debts, that will be a distribution of the surplus on that basis, and the Convention has refused to sanction that.

Mr. HIGGINS.-For the first five years the amount of the surplus is to be ascertained by the amount received in each state from Customs revenue. After that time, I hope it will be a per capita distribution. All I say here is that, having regard to the figures, there can be no serious injustice done

to any state under the arrangement suggested if the interest be apportioned per capita, according to the number of people in each state. The right honorable gentleman's idea evidently is that as the rates of interest vary, and as the terms of the loans vary, there will be difficulty in carrying out such a scheme, but I say that all the different debts can be reduced to a common denominator in very much the way that Mr. Glynn proposes. There is a grave difficulty owing to the terms of the loans and the rates of interest being different, but the first suggestion I have found in the course of these debates to meet that difficulty has been made by Mr. Glynn, and I am assured that there is no practical difficulty in those varying terms and rates of interest.

Mr. HOLDER.-That is so.

Mr. HIGGINS.-It is possible to reduce all the debts of the states to one common denominator, and have them expressed in one average debt, bearing one average interest, and having arrived at that, you can then say-"We will make the Federal Parliament take over [start page 1641] the liability to pay the interest on a certain proportion of the states' debts"-that is the lowest proportion-and the surplus will eventually be distributed per capita. I have to submit this, therefore, and I only hope it will be taken up by our leaders, because I think it will to a large extent meet the difficulty that confronts us.

Mr. BARTON (New South Wales).-I will ask the Convention, Mr. Chairman, to adopt the suggestion you made a little while ago as to the manner of putting the various proposals to the committee. It is perfectly competent for us now to negative Mr. McMillan's amendment, and then it will be competent for Sir George Turner to propose the omission of the word "may," from the original clause of the Bill, and, that being carried, to move the insertion ,of the word "shall," and afterwards the remainder of his amendment. By this means we shall take a step forward in the way of getting on with our work. And I think it is time to do that. We have had a long discussion on the matter, and I believe that each of us. knows pretty well what the opinions of the others are on the question.

The amendment of Sir George Turner was agreed to.

Sir GEORGE TURNER (Victoria).-I now beg to move-

That the word "may" be omitted from the words "Parliament may" in clause 98.

Sir George Turner's amendment was negatived.

The CHAIRMAN.-The question now is, that the words "shall take over," proposed to be inserted in clause 98, in lieu of the word "may," which we have just struck out, be so inserted.

Mr. HOLDER (South Australia).-I do not make any apology for spending a little more time on the very important question we discussed all day yesterday. I spent several hours last evening in making a few calculations which I thought would be useful to the Convention, and I am going to give them to the Convention in a few minutes. I want to speak chiefly because of certain remarks that were made by Sir George Turner last evening, and to dispose, if I can, of certain criticisms that he levelled at statements which, early in the day, I had made in respect of the conversion of public debts. I repeat that I do not make any apology for dealing with this question, because whatever sentimental advantages there may be about federation, whatever advantages-and there are many-to trade and commerce there will be connected with federation, all through the sittings of our Convention, in the three places where we have sat, there has been running frequently this note-"What can we tell the electors whom we represent they will receive as actual profit from the proposed federation? "Now, to my mind, the only cash dividend which federation can pay is the cash dividend to which I am going to direct attention. There will be commercial dividends, dividends of finance, dividends of sentiment-all these things will accrue-but the only one cash dividend which federation can pay, the only one cash argument we can use to our constituents in recommending them to adopt federation will be the profit arising from any possible conversion of our loans. That is taken for granted by practically all those who, in the press, have written on federation with any financial knowledge and experience; that is the

only argument I have heard used, even in this Convention, in favour, from that point of view, of the federation we are striving to frame. In order that I may clear away some misunderstandings which surround this question, I want to say that if I were dealing, as a state Treasurer, with state loans, I should say that a state Treasurer could not profitably convert any state loan except as it was becoming due. And the reason I say that is because no state Treasurer has anything he can give to the bond-holders in the way of better security or advantage, unless he gives an extravagant extension of the term of the loan, to induce [start page 1642] them to accept any conversion scheme. If I were a state Treasurer, dealing with state bonds, I should be hopeless about effecting any profitable conversion of loans excepting as the bonds approached the due dates. But in this case the position is entirely different. Here we contemplate a Federal Treasurer, who will have at his back a federal security, which, I think, without argument, would be taken by everybody to be a better security than the security of any individual state. However, as I have heard even that questioned, I must spend a moment or two on the point, but only a moment or two, and discuss whether the security which the Federal Treasurer will have at his disposal is likely to be a better security than that which any state Treasurer has to offer. I will put it this way: The security which the different states offer to-day is evidently a varying quantity. That is proved by the fact that on the London market the stocks of the various colonies of even date and even interest-bearing capacity are at different prices, and the differences in those prices measure the different estimates which the London bond-holders, speculators, and stock-brokers put upon the difference in the security of the various colonies.

Mr. DOUGLAS.-That is not the only difference.

Mr. HOLDER.-I do not want to go into details; those are the main reasons. Now, it must, I think, be apparent to everyone who looks into the facts that if these colonies federate, and the debts are taken over by the Commonwealth, the least that can happen will be that the cheapest stock among the five colonies there represented must be raised to the level of the dearest stock of the five colonies; because the security behind the federal stocks-whether they be issued to take up the present South Australian, or Tasmanian, or Victorian, or Western Australian, or New South Wales stocks-will be one and the same throughout. Therefore, as it is inconceivable that the value of the lowest stocks at the present time can be less under federalization than the value of the highest of our stocks at the present time, we must come to the conclusion that the value of federal stock must be at least as high as the best stock of the five colonies. Take, for instance, to illustrate that point, the case of five commercial men, all of excellent standing, but one of whom is of rather better standing than the other four. Good as his paper may be in itself, the paper of the five, of whom he is one, must be better than that of the best of the five singly, because you have the security of the best of the five and of the other four as additional security.

Mr. DOBSON.-You are forgetting altogether the liabilities of the other four colonies.

Mr. HOLDER.-I am not contemplating an increase of the total indebtedness of the colonies here represented. If the indebtedness were increased my assumption would be affected accordingly. I am contemplating simply the transfer of the existing amount of debts of each colony throughout the group. Now, I think I may go further, and say that while New South Wales 3 per cent. stocks are worth to-day £101 per cent., the federal security will make them worth at least £104 per cent. I am within the mark exceedingly well within the mark-in supposing that after the inauguration of the federation of these colonies the value of our stocks will rise by more than 3 per cent. above the present value of the stocks of New South Wales and of Victoria. Anything less than that cannot be considered likely for a moment. I assume, then, the very low price of £104 per cent. for federal stock. What is the next point? New South Wales stock to-day being £101, if the federal stock be at £104, there is a profit of 3 per cent. to be made on the stock of New South Wales. Victorian 3 per cents. to-day are at £101, and there will, therefore, be a profit of 3 per cent. to be made for the Commonwealth on Victorian stock. South Australian 3 per cents. [start page 1643] stand at £100. There is, therefore, £4 per cent. to be made with regard to those stocks. Tasmania has no 3 per cent. stock, and I have, consequently, had to take her 31/2 per cents., and make a calculation as to what the corresponding price of Tasmanian stocks would be if they were 3 per cents., and I find that the price would be £99.

So that there is 5 per cent. to be made upon Tasmanian stocks. The price of Western Australian 3 per cents. is quoted at under £97, so that there is actually 7 per cent. to be made on Western Australian stocks by making them not local, but federal, stocks.

Mr. GLYNN.-What do you calculate would be the price of Tasmanian 3 per cents.?

Mr. HOLDER.-£99. Honorable members will see that I have not been able to spend sufficient time to make these calculations actuarially correct down to the odd shillings and pence. To have done that would have occupied many days, whilst I only had last night in which to make my calculations. But, for all practical purposes, as being sufficient for what we are doing, these figures which I am giving are a very close approximation to the truth, without going into a most extensive actuarial calculation; and I may add that I have been guided to a large extent in making these calculations by the suggestions contained in the amendment of my honorable and learned friend (Mr. Glynn), and also by the suggestions embodied in the Tasmanian amendment.

Sir PHILIP FYSH.-How is the Federation going to lose these sums you have mentioned?

Mr. HOLDER.-I thought that that was by this time so clear that I need not go over the point again. But I will do it again in order to make the matter clear to the mind of the honorable member. The question I am asked is: How the Federation can possibly lose the amounts I have mentioned by a compulsory and immediate conversion of local into federal stocks? Really, I should have thought that that was such a very elementary point that it was the mere ABC of the question, and that it was not necessary to say any more about it to honorable members of this Convention, who are assumed to have gone into the question. However, I must answer the interjection. If we do anything under this Constitution which will have the effect of raising the price of some of these stocks from £97 up to £104, it must be apparent to the most superficial thinker that we shall make a present of £4,500,000 to the bond-holders. How is it a present to them? Because we are giving to them what would have enabled us to make a bargain with the bond-holders-would have enabled us to make better terms than we could possibly make, by handing over to them for nothing this enormous advantage of federal security, which would actually increase the value of Western Australian stock by the amount of £7 per cent. The Federal Treasurer would thus be giving to the bond-holders an advantage to the value of £4,500,000, which advantage otherwise employed would have enabled him to make immensely better terms for the Commonwealth. If the Federal Treasurer were worth his salt he would go to the bond-holders and say-"If you like to stay where you are I have no power, if I had the will, to compel you to change your position. But, if you like, I am willing to share with you the sum of £4,500,000 which we can make by turning the stocks of the colonies of Australia into Commonwealth stocks. I am willing to give you a Commonwealth stock in exchange for the stock you now hold if you will make it worth my while to do so." And the probabilities are that the bond-holders would be glad to come to terms with the Federal Treasurer in return for the bonus of 1 per cent. and the Commonwealth stock which he would give to them.

Sir GEORGE TURNER.-Do you contemplate giving Commonwealth stock at existing rates of interest?

Mr. HOLDER.-That does not matter for the purpose of my argument. I am now giving to the Convention in a few [start page 1644] minutes the result of many hours of work. If I were to follow up the pathways by which I have come to these conclusions, I should be occupied in addressing the Convention for a much longer time than I wish to speak. I ask honorable members to give me credit for having arrived at these results by direct methods, without going over the steps of the pathways by which I have come to my conclusions. Taking round figures, the debt of New South Wales at the present time is £57,000,000. Now, I contemplate that the Federal Treasurer would give the holders of New South Wales bonds a bonus of 1 per cent. to induce them to convert their stock to a Commonwealth stock. That leaves 2 per cent. profit on the conversion. If New South Wales chose to take it in cash, she would receive £l,140,000 in money, or if she chose-following the suggestion of Sir George Turner, which I have no doubt expresses what is more likely to be done-to take it in a

reduction of interest, she would save the sum of about £57,000 a year for all time. Now, we come to the case of Victoria. She has a debt of £47,000,000. She would save on the conversion a capital sum of £940,000, or, if she chose to take it in reduction of interest, she would save £47,000 a year for all time on her present debt.

Sir GEORGE TURNER.-You are forgetting that the loans mature at different periods.

Mr. HOLDER.-I have taken the period of maturity at an average of 30 years.

Sir GEORGE TURNER.-A lot of our loans have more than that time to run.

Mr. HOLDER.-As I have explained before, for the purpose of calculations of this kind you have to adopt a common denominator, and I have taken the suggestion of Mr. Glynn as a means of arriving at my conclusions. Taking all the factors of the case into consideration, I adopt 30 years as the common denominator. Now, in the case of South Australian stocks there would be a profit which would result in £705,000 capital gain, or an annual saving in interest of £35,000 a year. The debt of Tasmania amounts to £8,000,000. The market price being assumed to be on an average £99, the capital gain on these stocks would be £323,000, or a saving of interest of £16,000 a year. Western Australian stocks are only at £97, so that there would be a much larger gain.

Sir JOHN FORREST.-They are higher than that ordinarily.

Mr. HOLDER.-Then the right honorable gentleman has unintentionally misled me. I asked him this morning for the current price of 3 per cents. He told me £96 5s., and I said that I would give Western Australia credit for £97.

Sir JOHN FORREST.-They are at nearly £100.

Sir PHILLIP FYSH.-You take currency into account?

Mr. HOLDER.-I have said so before. The lowest quotation have seen for Western Australian 3 per cent. stock was £98, and if I had not asked Sir John Forrest, I should have based my calculations on £98 but when the right honorable gentleman told me that the lowest quotation was £96 5s., I gave his colony credit for £97, so as to leave a sufficient margin. However, the difference is very small, because the whole debt of Western Australia is only £8,000,000. That gives on the basis I have mentioned a profit of £480,000 capitalized, or an annual saving of interest of £24,000. The total, worked out for the whole Commonwealth, with a slight alteration for Western Australia-which alteration would not be a material one-would give us this result: That there would be a capital advantage gained amounting to £3,588,000; or if that capital advantage be utilized in the way of reduction of interest, then we have a total annual saving of £179,000 a year. If that be so-and I defy successful criticism-

Sir GEORGE TURNER.-The assumption is that in order to get Commonwealth security the bond-holders are willing to give up nearly £180,000 a year?

[start page 1645] Mr. REID.-On £140,000,000 of debt.

Mr. HOLDER.-In return for receiving at the hands of the Commonwealth a bonus of £1,400,000. That is a very large bonus, a very considerable temptation. Without it they would not come in, but with it I feel certain that they would. There is not only an advantage to the bond-holders under this scheme, but there is an advantage to be held out to those whom we represent of a large saving to their states, which would go a long way towards paying the original cost of entering into federation.

Mr. ISAACS.-Has the honorable member calculated the probable amount of depreciation of state stock in consequence of the Commonwealth taking over the revenue which is the fund for its payment, and yet not being bound to pay the obligations?

Mr. REID.-That will increase the profit of the transaction.

Mr. HOLDER.-I am much obliged to the Attorney-General of Victoria for his interjection, because I should probably have forgotten to answer the point, and as it is so immensely in my favour, I should have regretted passing it over. My honorable friend (Mr. Glynn) holds to the view, I believe, that federation may possibly result in decreasing the value of state stock. He takes it that federation may decrease that value, because it takes from the states some of the income out of which they have been accustomed to pay their interest. Now, I do not think federation will do so. That result has not followed in other parts of the world under federation. I should be sorry if I thought it might be so, because I hold the view that the state should have the power to borrow for the purpose of developing their territory and resources, and if we diminish the value of the state stocks we might very seriously limit the power of the states to properly develop their territory. I do not think so; but if it did come about, if even temporarily on the formation of the Commonwealth state stocks fell 2 per cent. less than these rates here, it would add to the profit I have just mentioned a, a little over £2,000,000.

Mr. ISAACS.-Do you call a loss to our creditors a part of the profits?

Mr. REID.-Creditors! It is their own doing to disparage their securities.

Mr. HOLDER.-I am going to say the next thing I wish to say, not in the heat of debate, not on the spur of the moment, but with the utmost deliberation and knowledge of what I am saying. I do, not care one bit what happens to the stock-holders through this federation scheme. No one would be more bitterly opposed to repudiation than I. But stock-holders when they buy their stock take all the chances of the market, and this federation is among the chances of the market. Just as I would not grudge to the stockholders any advantage which comes to them from a rise in prices, so I do not feel responsible to them for any disadvantage which comes to them from any fall in prices.

Mr. REID.-Owing to their want of confidence in their own securities.

Mr. HOLDER.-It would simply be through some loss of confidence on their part. It is something worth learning to learn that one of the great things to be thought of by the Convention is that we must protect the interest of the bond-holders. I did not know before that one of our duties is to protect most carefully the interests of the British bond-holders.

Mr. ISAACS.-It is the duty of every debtor not to deprive himself of the means to pay his creditor.

Mr. REID.-Rothschilds must be about somewhere.

Mr. HOLDER.-Is that what you think federation means?

Mr. ISAACS.-Common honesty.

Mr. HOLDER.-Common honesty means that we should not ruin these states, and thus render them unable to pay their debts. Nothing we do looks in that direction. All we do looks in quite the other direction. I believe it will come to this in the very early days of [start page 1646] the Federation if the Federal Treasurer is worth having: We will give to the bond-holders for any security they have to-day a very much better and more valuable security, and we will give it to them on terms advantageous to them, but still more advantageous to ourselves. If honorable members, when they go back to their respective colonies, want a good argument with which to recommend federation, here is one, and take away this one and we have no financial argument left.

Mr. DEAKIN.-No one proposes to take it away.

Mr. HOLDER.-No one proposes to take it away.

Mr. DEAKIN.-No; it is just as possible under the one provision as under the other.

Mr. REID.-Then you can leave the "may" in.

Mr. HOLDER.-I have to go back to elementary finance again.

Mr. FRASER.-Hammer it in.

Mr. HOLDER.-It does seem necessary in some cases to repeat over and over again before you can get the truth in, but I am going to repeat it once more, in the hope that it will be understood. It is suggested that all these advantages of which I spoke may be gained if we give a guarantee in the Constitution, by waiting till the bonds fall due. Let us look at this position. It is suggested by my honorable friend (Mr. Deakin)-

Mr. DEAKIN.-I did not suggest that.

Mr. HOLDER.-I cannot see what else was in the interjection. However, I will answer what I thought was in the interjection, and what I know is the idea prevailing in some cases. The idea prevailing in some minds is that we can secure all we ought to secure, whether we give the Commonwealth guarantee now or not, by simply waiting till the stocks fall in. What does that mean? Some of the stocks will be falling in shortly.

Mr. FRASER.-£l8,000,000 of Victoria stocks will fall in in ten years.

Mr. HOLDER.-£18,000,000 of Victorian stocks out of £140,000,000 will fall in in ten years. All these stocks will not fall in for many years, and if we are to wait calmly on our oars till those stocks fall in, it means that this sum of £179,000 a year, which we may save in the way of interest, is not to be saved till years have passed, and as they have passed have gradually enabled us to retrieve the initial error we made in giving bond-holders for nothing a very valuable security. If it is proposed by any one inside or outside of this Convention to give this guarantee now, even to give it by implication in such a way as to raise the market value of the stocks, and then because we had made a blunder, wait twenty, thirty, or perhaps more years till we can retrieve that error, surely that is not a position which will be taken up by men with their eyes open. It might be taken up by us if we were not awake to the facts of the case. Here is an opportunity, without injuring our right to reconvert these stocks, as, I said, may fall in 30 or 40 years hence; here is an opportunity right away, if we give the Federal Parliament large enough powers, to secure an annual gain of £179,000, or, if it pleases to take it in cash, a gain of over £3,585,000. I do hope that the committee will not insist on the word "shall" remaining in any part of the clause, but, while it gives full and ample power to the Federal Government to convert, in the interests of the colonies, the stock as it may become payable, it will not compel them to do so at the outset.

Mr. DEAKIN.-The word "shall" does not compel them to do it at the outset

Mr. HOLDER.-It looks like it I it is meant to make people believe it does.

Mr. REID.-It is equivalent to an endorsement on the bond.

Mr. HOLDER.-If anybody ought to insist on avoiding any shadow of doubt on the possibility of this scheme, it is the small states. It does not matter much to New South Wales that she would save £57,000 a year she can do without it. It does not matter supremely to Victoria that [start page 1647] she should save £47,000 a year, although it is a very nice little sum for her to have. It does matter a

good deal to South Australia that she should save £35,000 a year; it will about pay her way into the Commonwealth. It is a matter of very great importance to Tasmania that she should save £16,000 a year, and to Western Australia that she should save £24,000 a year.

Sir JOHN FORREST.-We do not care for £24,000.

Mr. HOLDER.-If £24,000 is nothing to Western Australia, I regret the time we spent a few days ago in trying to make special terms for that colony; but if it is nothing to her I am quite sure that there are some sources of expenditure to which £24,000 can be fairly applied greatly to the advantage of the Commonwealth. However, I will conclude by repeating the hope that we will take care to guard against all possible breath of doubt on the possibility of such a scheme as this, and to leave the Federal Treasurer's hands entirely untrammelled, so that he may do whatever at the time may seem best. It may seem best to him to follow the suggestion of Mr. Glynn; it may seem best to him to follow the suggestion of Tasmania; but do not let us tie him down to either or both of the suggestions or to any scheme. Let us give him a free hand, and, doubtless, he will use it well.

Mr. DEAKIN (Victoria).-I wish to say a few words in reply to the very impressive address of my honorable friend (Mr. Holder). The word "shall" does not require that any particular scheme of taking over these debts shall be adopted. The word "shall" does not imply that they shall be taken over at once, or at any price, or at any cost. The word "shall" simply imposes an obligation upon the Federal Treasurer to give effect to this provision at the earliest date at which it will be profitable to the Commonwealth, and a desirable thing to do. The only difference between "shall" and "may" is that while the word "may" carries with it the possible implication that the Commonwealth may take an entirely independent stand, and disregard state loans altogether, the word "shall" is intended to carry with it the implication that under proper business conditions, and in a proper business way, the best means of federalizing the debts shall be adopted, in order to gain the advantages which Mr. Holder has dwelt upon to-day, and which, however speculative, those of us who vote for the word are no more blind to than he is himself.

Mr. REID (New South Wales).-It is astonishing how these legal disquisitions on the meaning of "shall" and "may" become inapplicable when applied to financial transactions. If an Act of the Imperial Parliament were passed prescribing that the Rothschilds shall take over the debts of a South American republic, and shall pay the interest every year, I think the legal "shall" and "may" argument would disappear, and the bond-holder would be delighted to find himself in possession of a South American bond for which he would get interest at Rothschilds every half-year; and with a provision that the debt shall be taken over by Rothschilds for all time, and the interest paid for all time by the Rothschilds.

Mr. DEAKIN.-The honorable member mistakes-

Mr. REID.-Will the honorable member allow me to finish what I am about to say, and then perhaps an interruption will be unnecessary?

Mr. DEAKIN.-I hope so.

Mr. REID.-The mere appearance in this Constitution of the word "shalt" according to the honorable member's meaning of the word "may," shows the absolute want of a necessity to put it in. If you may do a thing it gives you the absolute power of converting it into shall whenever you like, according to the wisdom of the existing situation, and the Federal Treasurer, who can read the shall into may, can deal with the bond-holders; but the Commonwealth [start page 1648] Treasurer who has branded on him the word "shall" cannot, because there is an absolute necessity to do it, and if there is not an absolute necessity to do it why put in the word? Is it not an attempt to make it an absolute necessity, and where is the guarantee to the states if it only means "may"? What was the object of my right honorable friend's proposal? It was to guarantee on the establishment of the Commonwealth that the interest on the debts shall be paid at once. The right honorable gentleman does not deceive himself

with the legal disquisitions of my learned friend. He does not mean what my learned friend has said. He means it as a genuine business transaction to relieve the states of a certain given sum for interest on a certain given event happening. Therefore, since "may" has all the force of "shall," in the wisdom of the Commonwealth, the Commonwealth, retaining the discretion, can negotiate with the bond-holders, but if it has no discretion it cannot, I cannot understand what all this discussion is about. May I mention another strong point? We know that in the money market of the world all sorts of vicissitudes take place. Clouds come over the financial sky, and sometimes state bonds go down with a run, as our bonds went down in 1893. I suppose our bonds now are worth £20 or £15 in every £100 more this year than they were worth in 1893. Under the word "shall," if any such disturbance in the London market came about, we could get no benefit from it, because the bond-holders of the states would be protected by the "shall" in the Constitution Bill, and the duty of paying the interest which the Commonwealth had taken over-because if he gets his interest every half-year, and there is a liability behind it to pay the principal when it is due, what more does a bond-holder want? The Commonwealth under some cataclysm in the money market may step in and save an enormous sum on the colonial debts by substituting the Commonwealth security.

Mr. FRASER.-Our 31/2 per cents. went down to £82 at a very critical time, and our 4 per cents. went down to below par.

Mr. REID.-That is so, and now 4 per cents. are about £118, I think. These vicissitudes in finance show what a magnificent opportunity the Federal Treasurer may have.

Mr. SOLOMON.-If he had the cash to do it with.

Mr. REID.-Does my honorable friend mean that the Commonwealth will not be a stronger body financially in credit than a state?

Mr. SOLOMON.-Perhaps comparatively.

Mr. REID.-If the states are as strong as the Commonwealth will be, what is all this fuss about these strong solvent states? What does all this fuss and fear about insolvency and embarrassment mean?

Mr. ISAACS.-If you leave us our revenue we are perfectly satisfied with our position.

Mr. REID.-Does not the honorable gentleman see that under the word "may" the Federal Treasurer can do all he wants to do? I frankly say that I am absolutely opposed to the word "may," and that I consider the consent of the states should be necessary; but as I can see there is a large majority against me on that point, I wish to go for the next best thing, from my point of view. The next best thing from my point of view is that if it is to be handed over to the Commonwealth it should be handed over so that the Commonwealth can do its best for the states and the Commonwealth, whereas if you hand it over under the "shall" it amounts to a financial indorsement of the securities of the states, and all the possible gains of the conversion disappear. I do not wish to be understood by Sir Philip Fysh as saying that there can be no operation of that sort possible. I think if you are simply exchanging one state bond for practically another, the advantages would be so small that, probably, you had better wait till the bonds run out. But if you can exchange, as we believe we would, a stronger security, then [start page 1649] the chances of a conversion become infinitely greater. For instance, if we could get a British guarantee behind our state loans, we could go into the market to-morrow and save millions. So, in a much smaller degree, we could gain a great advantage by getting the Commonwealth endorsement and letting the endorsement be in the hands of the Treasurer, so that he could put it on when it was an advantage to the states and the Commonwealth to put it on. The use of the word "may" will leave that position, while the use of the word "shall" will take all the advantage of that position away. Let me point out to those who say that the security of the Commonwealth would not be much better than the security of the states that they destroy their own argument, on the faith of which they asked this to be done. Because they say the Commonwealth is taking over the

Customs revenue, and the Customs revenue being taken over, the financial position of the states becomes much weaker.

Sir GEORGE TURNER.-Because the states do not know what their revenue will be.

Mr. REID.-But does not the right honorable member see that, while he is aiming at a thing which he has consistently aimed at all through the Convention, he is in this case aiming at it by means of a circuitous process, which is disastrous to the Commonwealth in the case of conversion or possible conversion of the public debts? The right honorable member's object is one which we cannot quarrel with, because he has put it fairly and clearly from the first; but the right honorable member is not on the same ground when he wishes to secure his object in this way. It is the wrong place in which to secure his object.

Sir GEORGE TURNER.-Will you help me to secure it in another place?

Mr. REID.-The right honorable member must not expect me to give up my convictions in order to help him against my judgment. I would like here to draw attention to a remark made by Mr. Higgins, which I emphatically repudiate. I do not mind what some of the Melbourne papers may say of me-it does not matter a straw to me; but I do object to a member of the Convention stating that any course of mine in this matter is influenced by a coming election.

Mr. HIGGINS.-I did not mean to say that.

Mr. REID.-I am very glad to hear the honorable member's statement, because I wish to point out that my attitude on this question is exactly the same as it was in Adelaide. My honorable friends know that my ground on this matter, as on nearly every matter, is precisely the ground that I fought for in Adelaide when we were not thinking of elections.

Sir EDWARD BRADDON.-Did not you say the other day that no profit was to be made by conversion?

Mr. REID.-By conversion of a state's loan, unless you offer better security-certainly.

Sir EDWARD BRADDON.-The better security was an admitted fact.

Mr. REID.-I think my honorable friend will see that it is not necessary to argue that if you offer a better security to a man you have, at any rate, a chance of making a better deal.

Sir EDWARD BRADDON.-Yet you said there was no such chance.

Mr. REID.-Only with reference to the ordinary conversions which states have attempted. I have mentioned the case of New South Wales. We had an inquiry made in London from the best financial authorities, and we found that in the case of our securities we could not convert them to any decided advantage. But the case is essentially different if the whole strength of the colonies is united in a Federation. The situation becomes different; the security becomes stronger, and that makes all the difference. I only add these words to what has been said by Mr. Holder, because I wish to assure the Convention that what I am saying now is simply the result of all my inquiries [start page 1650] before the Convention met at Adelaide, and I am now taking up exactly the same position as I did then.

Sir JOHN DOWNER (South Australia).-I understand from Mr. Deakin, who is not here just now, that he looks upon the word "shall" as directory, and not mandatory, and that the effect will be-"You may do it, and you ought to do it; we give you our advice, we think you ought to do it, but you may please yourself." Now, I don't think it is well to put words in the Constitution which will be differently interpreted by different people. Lawyers may say that under certain circumstances "shall" and "may" have identically, or almost identically, the same meaning; but this Constitution is not to be adopted

merely by the legal profession. It is to be adopted by the great public of Australia; and will every member of this Convention pledge himself to tell his colony that it makes no difference whether you say "shall" or it "may"? Will not the effect be, if you substitute "shall" for "may," that there will be a certainty of difference, or, at any rate, a doubt on the subject sufficiently strong to make ever elector whose views are against the compulsory taking over of debts the opponent of federation?

Sir EDWARD BRADDON.-How many of them are there?

Mr. REID.-A great many in some parts of Australia.

Sir JOHN DOWNER.-That is a matter as to which Mr. Reid will say one thing and Sir Edward Braddon will say another.

Mr. REID.-I can speak better for my own colony than he can, at all events.

Sir JOHN DOWNER.-And, as I was about to say, each will, probably be absolutely accurate within the limits of his own experience. This discussion has taken a long while. We have not had any new argument that was not used at an earlier stage of the Convention. It appears to me that many think that a constant repetition of identically the same arguments will in time alter the opinions of those whose opinions are already formed. I can only say, for my own part, that I came to the Convention at its first meeting with a strong disposition to support the compulsory taking over of all the debts. As the matter developed and was discussed-not here, because I cannot say that any fresh light has dawned upon me here-I saw all the difficulties which have been pointed out with infinite repetition here, and I saw clearly that the result would be no benefit at all to the Commonwealth or to any state, but a benefit to persons whom we had no disposition to unnecessarily assist. Having come to that conclusion, I thought that if any conversion were to be done in respect to these loans, it should be done by the state, and could not be done very well by the Commonwealth. If the Commonwealth-no, I won't repeat the argument; it has been repeated so often that I think it is almost time we realized that we have exhausted the subject, and that the time has come for taking a vote on it, yes or no, and getting on to some other business. For my own part, the conclusion to which I was forced, and which no argument has shaken me in, is that it will be no benefit, either to the Commonwealth or a state, but a great advantage to other people, if this taking over of debts were made compulsory, and that conviction remains unshaken. I think the clause is well considered-certainly it was carefully considered. The conclusion embodied in that clause was arrived at after an immensity of argument, though no light has been thrown upon it in this discussion. So, without going over that ground of argument again, I shall simply content myself by saying, with reference to the argument of Mr. Deakin, that it would be a pity to insert a word which lawyers may construe one way and the general public another, and that generally the clause, as it stands at present, is substantially that which should be adopted.

[start page 1651] Mr. DOUGLAS (Tasmania).-I think the honorable gentleman (Sir John Downer) voted for the word "shall" being inserted.


Mr. DOUGLAS.-But now he appears to have come to a different conclusion.

Sir JOHN DOWNER.-Not at all.

Mr. DOUGLAS.-Then I would like to know what he meant by voting recently for the word "shall"? It appears to me that "shall" is better than "may," and I quite agree with the honorable member (Mr. Deakin) that the use of this word does not insist on the Federal Government proceeding at once or at any particular period to take over the whole of the debts. I would like to draw the attention of honorable members to the position of the finances of the several colonies.

Sir JOHN DOWNER.-"Shall" and "may" in the amendment meant the same thing.

Mr. DOUGLAS.-"Shall," it appears to me, has a different meaning from "may." "May" is always understood by lawyers as being indefinite, and in regard to state finance it is surely better to have words that are explicit, clear, and cannot be misconstrued. Now, sir, according to the return which has been submitted to us, the total debts of the several colonies amount to something like £170,000,000 altogether. But we find this, that between the present date and 1900, Victoria has to borrow a considerable sum of money. This return, I may mention, was made up in 1895, and therefore I presume the figures are not exactly what they are at the present time. Between 1895 and 1900, Victoria would have to raise £3,517,722; New South Wales, £5,036,350; South Australia, £1,930,000; Western Australia, £14,435; and Tasmania. £92,770; making a total of £10,591,277. Between 1901 and 1905-that is, during the next seven years-the sum of £11,970,050 has to be raised, making over £22,000,000 between the present time and 1905. Now, how is that money to be dealt with? Will it not be for the benefit of the states as well as the Federation that the debentures to replace those moneys should be guaranteed by the Federal Government instead of by the local Governments? In the first clause of this Bill it is stated that we are to be a community bound together for ever and ever-amem. That appears in the first clause. Now, if we are to be so bound what does it mean? Does it not mean that one and the other shall help and assist each other, supposition there may be a deficiency at any particular moment? But where is the probability of a deficiency arising? New South Wales takes upon itself to say this: Unless you do exactly as we wish you to do we shall pack up and be off; we won't join the Federation. New South Wales took the same course with respect to the Federal Council, and has continued to take it up to the present day, although the Federal Council Bill, when before the British Parliament, was actually altered in order to suit the views of Sir Henry Parkes, and to induce New South Wales to come into that Union. If she had done so, and we had gone on with the Federal Council, we should have gradually worked into the position which we are now trying to achieve, but which, as things are, we are not very likely to reach. In fact, I think we are further off from federation at this moment than we were in 1891. It is to be hoped that this system of threatening one another is not to be continued. Sir, I cannot understand the arguments which Mr. Holder used with respect to the position the colonies would be placed in by federalizing the debts. He puts it in this light, that the value of the debentures would be so much raised; but would not the same argument apply to paying off the debts? I am not alluding to conversion at all. I am alluding now simply to the consolidation of the debts. As we required to borrow to pay off the debentures that from time to time became due, instead of getting the loans at a discount, we should get them at a premium, and as the value of the federal [start page 1652] bonds rose in the market, so would the value of the particular borrowings rise in the same proportion. There are two classes of investors in the market. One is the jobber, and the other is the person who simply desires to make a profitable investment. The longer the term the better they like it. All such persons as trustees go in for investment, and do not care about buying and selling. The jobber, however, wishes to buy and sell. What does it matter to the colony if the value of the bonds go up 50 per cent.? The colony only pays £100 per £100, and if it gets a premium so much the better for the community at large. I cannot understand the position that is taken up by the Hon. Mr. Holder. He has certainly gone much more elaborately into figures than I have done. I am simply stating my view of the matter. Even supposing that the debentures fell in value, what effect would that have? The Federal Parliament would simply make a saving. Some honorable members appear to imagine that the colony they represent is to be called upon to pay for the other colonies, but I think that those other colonies would repudiate any such idea. New South Wales happens at this moment to be in a flourishing condition, but are not the other colonies also in the same position? It is said that the population of Victoria is not increasing, but the men who have left Victoria have gone to Western Australia, and Western Australia is making good use of them. The community at large gets the benefit of their labour. Why should we not take the position put by Mr. Higgins, and, assuming the lowest amount of debt of any of the colonies, consolidate on that principle? The state Treasurers would then know exactly what they would have to do. Under the Bill as it stands they would not know what their position would be until the Federal Parliament had agreed to a Tariff, determined upon its expenditure, and made up an account. We could get rid of these difficulties in the manner that has been proposed, and the state Treasurers could then impose whatever taxation was necessary to meet

their requirements. It is absurd to talk about insolvency. The word "insolvency" has come into our discussions from New South Wales, but I do not think any honorable member would use the expression with regard to his own colony. Mr. Coghlan's statistics were issued by the Government of New South Wales, and I think we have a right to assume that the Right Hon. the Premier of New South Wales is more or less responsible for them. Those statistics convey some very wrong impressions as regards the condition of affairs. We find that Tasmania has, during the years 1895 and 1896, increased the return from her revenue by some £70,000, and it appears that for 1897 the improvement will be even greater. There is, therefore, no doubt about that colony, particularly when we consider the present position of her mines. It appears to me that we cannot do better than adhere to the former amendment substituting the word "shall" for "may." It is an extraordinary thing that, after we have had a division and agreed to an amendment by a majority of nearly twenty, we should be asked to retract simply because of some statements that are made by the representatives of New South Wales. I hope that honorable members will give an independent vote on this subject, and re-affirm their former decision.

Mr. WALKER (New South Wales).-As a layman, I must admit that I have been surprised to find that some lawyers seem to think that the words "shall" and "may" have a somewhat similar significance. It seems to me that "may" is a better word for our purposes, because it leaves a discretion to the Federal Treasurer, whereas "shall" would be mandatory.

Mr. ISAACS.-It is not the Federal Treasurer, but the Federal Parliament.

Mr. WALKER.-It is within my own recollection that British 3 per cent. consols have been as low as £89. To day the 23/4 [start page 1653] per cent. consol-a stand at £112 10s. That shows how important it is that the Treasurer of the Commonwealth should be at liberty to choose his own time for a large financial operation of this kind. I cannot follow the remarks of those who oppose the Hon. Mr. Holder's views. He has put his views in a very succinct and clear manner, and I indorse everything he has said. It would be a great mistake to insert the word "shall," as it would at once raise the market value of all the state stocks. Some people think that that would be so much the better. So it would for the bond-holders, but I fail to see that it would be better for the Federal Parliament, whose duty it would be to convert with the greatest advantage to the community. I do not wish to take up more time, but I could not refrain from offering these few remarks.

Question-That after the word "Parliament" in clause 98 the words "shall take over" be inserted-put.

The committee divided-

Ayes ... ... ... ... 18

Noes ... ... ... ... 19

Majority against the amendment 1


Berry, Sir G. Kingston, C.C.

Braddon, Sir E.N.C. Peacock, A.J.

Brown, N.J. Quick, Dr. J.

Deakin, A. Solomon, V.L.

Douglas, A. Trenwith, W.A.

Fysh, Sir P.O. Turner, Sir G.

Glynn, P.M. Venn, H.W.

Gordon, J.H.

Grant, C.H. Teller.

Henry, J. Isaacs, I.A.


Barton, E. Hassell, A.Y.

Briggs, H. Henning, A.H.

Brunker, J.N. Higgins, H.B.

Carruthers, J.H. Lee Steere, Sir J.G.

Cockburn, Dr. J.A. O'Connor, R.E.

Crowder, F.T. Reid, G.H.

Dobson, H. Symon, J.H.

Forrest, Sir J. Walker, J.T.

Fraser, S. Teller.

Hackett, J.W. Holder, F.W.


Aye. No.

Clarke, M.J. Downer, Sir J.W.

Question so resolved in the negative.

The CHAIRMAN.-Inasmuch as the last vote decided the questions raised by the amendments suggested by the Western Australian Legislature, I shall not put those amendments.

Clause 98 was then agreed to.

The CHAIRMAN.-There are some new clauses proposed by Tasmania, but they seem to me to have been already decided. I shall therefore not put them, with the exception of one which has not been the subject of discussion.

Amendment suggested by the Parliament of Tasmania-

That the following new clause be inserted after clause 93:-

93A. The Commonwealth may from time to time lend to any state, on such terms and conditions as the Parliament may prescribe, any sum or sums of money borrowed on the public credit of the Commonwealth.

The amendment was negatived.

Mr. GLYNN (South Australia).-Honorable members will see, by referring to page 5 of the list of amendments, that I originally proposed to insert the following provision in the Bill:-

A petition of right may, in such manner as Parliament may prescribe, be presented and maintained by a subject against the Crown in all cases in which were the claim against a subject damages might be recovered or relief granted. The leader of the Convention is willing to accept the spirit of that proposition, but he has asked me to change the wording of the amendment. He has given notice of a new clause, which is marked 73A, and I now beg to move-

That the following new clause stand part of the Bill:-

73A. Proceedings may be taken against the Commonwealth or a state in all cases, within the limits of the judicial power, in which a claim against a subject might be maintained.

I might mention, for the information of the non-legal members of the Convention, what the general law is as regards remedies against the Crown. There is a right of action against the Crown upon a petition of right presented by a subject, in all cases where there has been a breach of contract by the Crown, or where moneys, and, I believe, latterly, lands which belong [start page 1654] to a subject have got into the possession of the Crown. But there is no claim by way of petition of right for damages for a tort or injury not arising out of contract.

Mr. HIGGINS.-"The Queen can do no wrong."

Mr. GLYNN.-Yes, upon the principle that the Queen can do no wrong; and, inasmuch as she can do no wrong herself, she cannot appoint an agent to do wrong. The position is very clearly laid down in the case of Feather v. The Queen.

Mr. HIGGINS.-There is an action against an agent of the Queen, who professes to act with her authority.

Mr. GLYNN.-Yes. You cannot sue the Queen, but you can sue her agent, because it is assumed that if he has done wrong he has acted outside the scope of his authority. But there is no right of action against the Crown for what is technically known as a tort.

Sir JOHN FORREST.-There is no right of action in England.

Mr. GLYNN.-I am now speaking of the English law. It has been somewhat modified in the Straits Settlements, and in one or two other parts of the empire, I believe, by giving a right of action for tort in certain cases, but I do not think that this extended right of action has ever been given in any of the colonies. Conditions justifying actions for damages against the Crown, however, are almost as frequent as actions for breach of contract. In Canada a man sued the Crown for damages received in connexion with a railway accident, but he was debarred of remedy there, although he suffered serious injury, because of some defect in the railway laws not conceding this right. The position has been laid down in regard to the Queen in the case I have already mentioned, that-

Where the land, or goods, or money, of a subject have found their way into the possession of the Crown, and the purpose of the petition is to obtain restitution, or if restitution cannot be obtained, compensation in money; or when a claim arises out of a contract, as for goods supplied to the Crown or to the public service-

the Crown is bound to refer a petition of right to the courts for decision, because it is provided by Magna Charta that justice cannot be denied, sold, or delayed. By this action, similar rights of action are given to the subject against the Crown in cases in which the subject can maintain a claim against another subject. The proposed new clause extends this right of the subject against the Crown by enabling a state or citizen to sue the Commonwealth or a state, not only for breaches of contract, but also for torts. I fail to see why, under our modern system, this right of action against the Crown should not be given in cases of tort. The matter is referred to in Burgess's Political Science and Constitutional Law. In that work the writer, in speaking about the American Constitution, states that the eleventh amendment, which in its terms is restrictive, is merely a declaration of the sovereignty of the states as against citizens of other states; and he says that whenever the courts have an opportunity of putting in as defendant the agent they do so, because it is considered that this abnegation of a remedy is impolitic. Not only does my proposal give a slight extension in the region of torts to the remedy of the subject against the Crown, but I believe that it is absolutely necessary to preserve the, existing remedy. It is exceedingly questionable whether, under clause 73 of the Bill, we have not taken away the remedy now given by petition of right against the Crown. It may be said that this matter might be left to the Federal Parliament, but the powers of Parliament to, give a remedy subject to the consent of the Crown for tort against the Crown are limited by the delegation. The Federal Parliament, as the Bill stands at present, could not give a right of action against the Crown, assuming, of course, that the Crown in its prerogative capacity consented. Clause 73 deals merely with procedure; it does not extend the existing law. I mention this matter because it has been said by some honorable members that this provision should not be put into [start page 1655] the Constitution, and that an Act of Parliament could deal with the extension; but I do not think that it could. If honorable members look at sub-sections (6) and (7) of clause 73 they will see that they contain provisions for the extension of the judicial power to all cases in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth, or where a matter arises between the states, but it is plain that the limitation upon procedure by prerogative or injunction against the Crown is continued. Therefore, unless this provision is inserted, the Federal Parliament will have no power to extend the right of action against the Crown by any Act. I would further add that the German Constitution, in three or four of its final clauses, practically gives the rights that I seek to give against the Crown.

Mr. HIGGINS.-Does the honorable member intend to provide that an action for assault and battery may be brought against Her Majesty?

Mr. GLYNN-Yes. Of course an action is never taken against the Queen in persona, it is always taken against an agent. Under the Railway Acts, we sue the Commissioners of Railways, because the Crown has, to some extent, given up a portion of its prerogative.

Mr. SYMON.-The Federal Parliament could provide for this extension.

Mr. GLYNN.-I doubt it. By clause 73 you are not extending the existing law.

Mr. ISAACS.-Why is this provision more necessary in this Constitution than in any other?

Mr. O’CONNOR.-You cannot take away the prerogative by implication, you must take it away expressly.

Mr. GLYNN.-Of course. That is one of the objects of the amendment.

Mr. BARTON.-If you had not some clause of this kind in the Constitution, believe that the best part of clause 73 would be nugatory.

Mr. GLYNN.-Yes. That is why I moved the amendment in its original form. The honorable member (Mr. Isaacs) says it is not in any other Constitution, but he will find it in the German Constitution.

Mr. ISAACS.-I am speaking of British Constitutions, where the Royal prerogative is behind.

Mr. GLYNN.-There is no British Constitution that we can make a comparison with. The American Constitution is a close analogue, and that Constitution continues the old English law. Although there is no Royal prerogative there is a sovereign Commonwealth and a sovereign State. The distinction is not between a monarch and a republic, but the sovereignty of the state itself. For the same reason it has been decided in America that you cannot bring an action against the Commonwealth for tort, though you may in contract. According to an Act passed in 1855, if the Court of Claims decides that a right lies, and what the remedy ought to be, an Act of Parliament is introduced to give effect to it. The German Constitution practically embodies the same procedure, and gives a right against the State.

Mr. HIGGINS.-But the German Emperor has a "mailed fist."

Mr. GLYNN.-I do not think that affects the judicial power of the courts within the Federation itself. I would ask honorable members to consider that if you do not put this in you have not in the Constitution such a surrender of prerogative by the Crown as would justify the Federal Parliament in passing an Act. I believe the Act would be ultra vires unless that was put in. That is why I suggested my amendment. I think Mr. Barton and Mr. O'Connor will support the position I am endeavouring to lay down.

Mr. SYMON (South Australia).-I sincerely hope this new clause will not be introduced into the Constitution. Honorable members have only to read it to see what an extensive ground it covers, and what a very dangerous clause it may be to put into the Constitution. At present, as the honorable member very properly [start page 1656] points out, of course there are certain limitations in regard to proceedings against the Crown, that is, against the Government of the state, and these limitations are always dealt with when they require to be amplified or further restricted by means of legislation in the ordinary way. But this provision would insert in the Constitution a power enabling anybody to bring an action for any purpose or subject whatever against the Commonwealth or the state, unrestricted in any way or fashion.

Mr. BARTON.-Then what is the meaning of the words "within the limits of the judicial power"?

Mr. SYMON.-It means, as far as the Commonwealth is concerned, these subject-matters referred to in clause 73. The judicial powers of a state are absolutely unlimited.

Mr. BARTON.-I beg pardon. The clause expressly limits that.

Mr. SYMON.-No. This is wide enough to enable actions of all sorts and descriptions to be brought against the state without any restriction or limitation.

Sir EDWARD BRADDON.-Does this go further than the Crown Redress Act of Tasmania?

Mr. BARTON.-There will be practically the same results as regards the Commonwealth.

Mr SYMON.-I cannot answer that question in detail, but this is putting in the Constitution what you may find to be a very serious embarrassment in relation to the conduct of business, which may involve the Commonwealth or state in litigation. After all, it is a very large order to put in the Constitution. We may be all agreed that there ought to be great facilities for proceeding against the Crown; that the prerogative ought not to be invoked in many cases as a defence in which it could be invoked. But that is a matter for legislation and procedure. I call attention to the fact that if this is procedure, as I think it is, very clearly it ought not to be in this Constitution at all. At present we know what the prerogative is. I recollect very well that in the Bill as it came from the Convention of 1891 there was a clause introduced that no proceedings could be brought against the Commonwealth or the

state unless with the consent of the Commonwealth or the state. That was eliminated in the Judiciary Committee. That was confirmed at the session in Adelaide, because it was thought inadvisable to introduce what was really procedure, and that the state should declare whether the particular suit should be brought with its consent or not, or under what limitations. Therefore, this clause is just as much a matter of procedure as the clause proposed by Mr. Glynn originally, and in substitution for which he has moved this clause.

Mr. KINGSTON.-Is it any more necessary here than in a provincial Constitution?

Mr. SYMON.-Not a bit.

Mr. BARTON.-The provincial Constitutions are plenary in their powers. This is a strictly limited Constitution.

Mr. SYMON.-It is only limited in a certain way. Of course, I attach much weight to Mr. Barton's view. He says that clause 73 will be entirely nugatory. I dissent from that. Clause 73 defines the limitation of the judicial power, but it is inoperative until the Commonwealth Parliament passes its Judiciary Act. If the Federal Parliament chooses to say that petitions of right shall be abolished, or that petitions of right shall extend to cases of wrong as well as to cases of ordinary contract, the Federal Parliament can do so; but if you put this in the Constitution it changes its character-if it is intended to have any effect-from a matter of procedure to a matter of absolute substance and right, and it enables, no matter what embarrassment it may cause to the Government, any person whomsoever to bring an action in respect of any matter free from all restrictions.

[start page 1657] Mr. FRASER.-Might the safety of the Commonwealth be put in danger?

Mr. SYMON.-It might be subjected to the very greatest embarrassment. I am strongly in favour of removing some of the restrictions that now exist. I think the Act of New South Wales with regard to proceedings against the Commonwealth is much wider than in our colony. We have enlarged the proceedings in railway matters by enabling actions to be brought against the commissioner for damages. I should like to see the other existing restrictions removed, and to see facilities given, but these can all be dealt with as they arise; but that is a very different matter from inserting in the Constitution a provision, the far-reaching consequences of which we cannot foresee.

Mr. DOBSON.-But if the Federal Parliament takes a narrow view of the matter there will be no redress.

Mr. SYMON.-The Federal Parliament will be just as able to take a wide view as we are. My honorable friend, who is a great advocate of strengthening the Royal prerogative, should remember that this is interfering with it, when we are unable to deal with it in detail, and unable to specify the particular consequences that will flow from the insertion of this clause. This is a very wide and large question indeed. It is one that, I venture to say, it is impossible to deal with satisfactorily now, because each question in respect to the removal of restrictions must, I venture to think be dealt with on its own merits, and in relation to the concession that ought to be made in that particular case. Mr Reid asks if the clause were omitted, would the Federal Parliament not have power to deal with the whole subject? Mr. Barton thinks not, but I venture to think, with great diffidence, that it will.

Mr. HIGGINS.-Is not this more than mere procedure? I am with you to a large extent, but if you give the subject the right to sue in an action at law, which he had not power to do before, is not that a matter of substantial right?

Mr. REID.-Might it not be a power incidental to the other powers to make this provision.

Mr. SYMON.-Yes. I want to point out this to Mr. Higgins. In a certain sense of course this is a matter of substance. It is a matter of substance if you insert in the Constitution the absolute right of anybody to bring an action against the Crown, free from all possible restrictions, but it is procedure, and can be affected by procedure through the instrumentality of an Act of the Federal Parliament.

Mr. REID.-It must be a matter affecting the prerogative.

Mr. SYMON.-Specially mentioned in the Act. I do not say we might not do it in this Act. What I say is this: It is a matter affecting the prerogative. We are still under the Crown. When this union is consummated every suit brought, though nominally against the Commonwealth or state, is against the Crown. It is competent for the Federal Parliament, with the assent of Her Majesty, to declare that a petition of right shall lie for wrong as well as contract.

Mr. FRASER.-Then we need not put it in this Act.

Mr. SYMON.-Yes; but if we do put it in this Act, I warn honorable members of the impossibility of determining the consequences. It may be infinitely better for us to leave it to the Federal Parliament. Is it competent for the Federal Parliament to deal with it? Mr. Barton thinks not; I think it is. It is just as competent for the Federal Legislature, of which the Queen is a part, to deal with it, as it is for us to deal with it in this Constitution, which is to be enacted by the Imperial Parliament.

Mr. GLYNN.-The Federal Parliament can affect the prerogative, but only within the limits prescribed by this Act.

Mr. SYMON.-This is entirely a matter of prerogative.

[start page 1658] Mr. GLYNN.-Yes.

Mr. SYMON.-Very well. I ask where is there anything in this Constitution which enlarges or restricts the prerogative of the Crown?

Mr. GLYNN.-Clause 2 of the Act. You have a limitation there.

Mr. SYMON.-The honorable member is playing a kind of practical joke upon me when he says that limits the prerogative of the Crown.

Mr. GLYNN.-It takes away the right of appeal.

Mr. SYMON.-That is not the point we are discussing. Clause 2 says that the Act shall bind the Crown. Of course it does; but where is there a word in the Act that says that a British subject, a citizen, shall be unable to bring any action against the Crown that he is entitled to bring now?

Mr. GLYNN.-That is not the point.

Mr. SYMON.-That is the point. Unless there is some limitation upon that right of a citizen of Australia, it is entirely at large; it is as extensive as it was before. Therefore, it is a matter which can be regulated by the Federal Parliament just as effectually as by any local Parliament. At any rate, that is my point. I warn honorable members that it is a very serious thing to put in a provision of this kind, sweeping away this prerogative entirely in matters in which it may be most important to preserve it, subject to some limitations.

[The Chairman left the chair at one o'clock p.m. The committee resumed at five minutes past two o'clock p.m.]

Mr. SYMON.-I do not intend to add much to what I have already said. Before adding anything, I should like to say that I rather misunderstood Mr. Glynn's interjection referring to clause 2. I understood him to mean that clause 2 practically took away the right of a citizen to sue the Crown, whereas what he meant, as I understand it, was that the existence of clause 2, of course, places under the control of this Constitution, when finally passed into law, and having Her Majesty's assent, the prerogative in respect of such matters as are effectively dealt with there. But I would like to point out to my honorable friend that whilst clause 2 undoubtedly places these restrictions on the prerogative, a much wider scope has been given to proceedings against the Crown in all these colonies and in England than at one time existed. At one time it was supposed that no proceeding could be taken against the Crown unless for money claimed. Then it was enlarged to meeting claims against the Crown, which was proceeded against under petition of right, in respect of damages for breach of contract. And then that has been still further extended, permitting proceedings to lie against the Crown in respect of inequity-claims in respect of injunction, or for specific performance. And in Australia it is necessary there should be a further extension, as has been the case in our own colony, because of the circumstance that the state is practically a common carrier in running the railways. Therefore, provision ought to be made to facilitate actions against the Crown in respect of breaches of contract or of damages resulting from the state carrying on that particular business. To that extent, of course, there has been a very great widening of the scope for proceedings against the Crown, but this new amendment, if it is to give effect to the intentions which Mr. Glynn has indicated, would practically have the effect, as a matter of principle, of repealing the maxim that "The Queen can do no wrong," because it would enable all actions which might be maintained against a private citizen-that is, according to my honorable friend's view-to be maintained free of all restrictions against the Crown. Now, I do not think that that is the scope that the leader of the Convention intended to give it. My honorable friend (Mr. Barton) confines it undoubtedly to the strict limits [start page 1659] of the judicial power fixed in the Commonwealth Bill.

Mr. BARTON.-Quite so.

Mr. SYMON.-And if that is the limitation, which I can appreciate, I ask my honorable friend to consider whether it is not merely procedure. If the amendment were intended to have the effect which I think Mr. Glynn was under the impression it would have, then undoubtedly it deals with the matter of principle. It extends to the principle that "The Queen can do no wrong." If, on the other hand, it is limited to the provisions of clause 73, which prescribes the scope of the judicial power, then it is procedure, and procedure pure and simple. We must have a Judiciary Act passed immediately after this Constitution comes into operation, and the Federal Parliament meets, or the whole of the Federal Government, so far as the administration of justice is concerned, would be at a perfect stand-still. Still, this mode of proceeding against the Crown, which is the Commonwealth in this case, would have to be prescribed under that Act; and so far as it affected the prerogative it would require to be specifically mentioned, and the Royal assent would be necessary to render the prerogative effective. Therefore it would be infinitely better to leave this matter to the Federal Parliament to deal with in the Judiciary Act, which will embrace everything that is essential to give effect to the judicial clauses of this Act, and to bring them into operation. Then, I think myself, some confusion may arise in consequence of the reference to the state in the words "Proceedings to be taken against the Commonwealth or a state in all cases within the limits of the judicial power." Now, it does not appear to me that we ought to interfere in any way with the functions of a state to regulate the proceedings which it, as a quasi-independent political entity, may prescribe for the regulation of its own legal proceedings. I think that, in any case, reference to the state ought to be removed from this provision; but my objection goes further and deeper, and seeks to prevent the insertion, first of all, of what seems to me to be an unnecessary provision, one which may have consequences that we can hardly foresee, and one which could be effectually dealt with in the procedure enactment of the Federal Parliament, giving all the necessary elements, and providing all the necessary conditions, under which the judicial power is to be exercised. But if Mr. Barton's view is correct, at any rate, it is doubtful whether the Federal Parliament will have the power to go to the length, if it desired, of such an amendment as this. Then the proper way would be to give it the power to say that the Federal Parliament shall have the

power of legislating with regard to the proceedings to be taken against the Commonwealth or the state in all cases there.

Mr. BARTON.-We come a good deal closer together there.

Mr. SYMON.-My honorable friend will quite understand that, although I do not entertain the doubt be has on the subject-in fact, I have no doubt whatever that the Federal Parliament have ample power to do this, and I rather deprecate inserting a matter of this kind in the Constitution, which, as I think, is unnecessary, and which must produce embarrassment-but if my honorable friend feels, at any rate, it is doubtful whether the power would exist in the Federal Parliament, then, I think, the proper way to accomplish it would be, not by direct act of legislation in the Constitution, which could not be altered except under the clause for the amendment of the Constitution, and which would enable any disagreeable or troublesome person to harass not only the Commonwealth but a state in any way he pretty well pleased. I have nothing to do with the government of the country, and I am not in Parliament, but if I were either in the one or the other, I should strongly resist any provision of this kind, much as I should wish to see some further enlargement of the powers of the [start page 1660] citizen to sue the Crown. And, although we use this expression-suing the Commonwealth and suing the state-we have made no alteration in the existing constitutional system, which is that it is the Crown we are dealing with, and, therefore, either you are seeking to introduce a mere matter of procedure in relation to actions against the Crown or else you are repealing a principle which ought not to be repealed, except in relation to particular instances and specific cases, which should be dealt with prudently and with care.

Mr. KINGSTON.-This interferes with the state legislation.

Mr. SYMON.-I have already pointed out why this does not interfere with the independent powers of the states relating to these proceedings.

Mr. GLYNN.-There would have to be an Act of Parliament to carry out clause 73.

Mr. O’CONNOR.-You must give a right for the Commonwealth to proceed against a state as well as for the state to proceed against the Commonwealth.

Mr. SYMON.-Is not that power procedure as clearly as anything can possibly be?

Mr. O’CONNOR.-No, there is no cause of action now.

Mr. SYMON.-There is a judicial power.

Mr. BARTON.-That gives power to the court.

Mr. SYMON.-The right of action arises under that judicial power. How you are to maintain that right of action is, however, procedure. There might be a right of action by the state against the Commonwealth, but that is an action by the Crown against the Crown. It is not here as in America, where the state of Georgia can proceed against the state of Massachusetts, and each state sues in its own name. That state of things cannot exist here, because these colonies are to form a union "under the Crown." Therefore, if one state sues another state, it will be a case of the Queen suing the Queen.

Mr. HIGGINS.-Is there not all the more need for a provision that the Crown may sue the Crown?

Mr. SYMON.-That is not what you are doing under this amendment.

Mr. HIGGINS.-That the Crown represented in the Commonwealth may sue the Crown represented in the state?

Mr. SYMON.-If a state sues a state now, it is the Crown suing the Crown. Necessarily there would have to be some provision to regulate that, but it is all a matter of procedure, and would be dealt with by the Judicature Act. If you want to provide for every possible circumstance in which difficulties of procedure may arise you would fill this Constitution with them. The danger of this clause, I again point out, is that it comes uncommonly near conferring an absolute right under colour of regulating procedure.

Mr. GLYNN.-Why shouldn't it?

Mr. SYMON.-I say that it should not. It would be flying in the face of all constitutional principle and of the right of the states to regulate their own procedure to put anything of the kind in this Constitution. If the Convention is prepared to say that a man may sue the state, it may be for assault and battery, arising perhaps out of some question mentioned in clause 73, all I can say is-let the Convention do it.

Mr. DOBSON.-How could a Commonwealth official commit an assault within the scope of his authority!

Mr. SYMON.-That is a matter which the High Court would decide, and decide most effectually, and my honorable friend would be perfectly satisfied with the decision of the High Court.

Mr. GLYNN.-There would be no remedy if this were not put in.

Mr. SYMON.-There would be no remedy if it were put in, because no one is liable for the unlawful acts of his own servant.

Mr. DOBSON.-No one could hold the Crown liable because a Crown officer did some act quite outside his functions.

[start page 1661] Mr. DOUGLAS.-If the Crown were so liable there might be an action against the Western Australian Government in regard to the case in which the Attorney-General of that colony was assaulted.

Mr. SYMON.-Yes, we might have a case of the Western Australian Attorney-General suing Sir John Forrest's Government in connexion with the assault mentioned by Mr. Douglas.

Mr. BARTON.-He would not get that right under clause 73.

Mr. SYMON.-I am aware of that. I am afraid that we are going beyond the matter of procedure, which Mr. Glynn desires and Mr. Barton does not. Mr. Glynn argues the question as though, in reference to the case of the Queen against Feather, this would enable actions of tort to be brought against the Crown. Mr. Barton does not wish that. He wishes the matter to be kept strictly within the limits of the judicial power.

Mr. BARTON.-I wish either to confer through the Constitution or through power under legislation, the right upon the subject to bring actions in all cases which are set forth in clause 73, because I think those rights should be conferred.

Mr. SYMON.-That is what I understand my honorable friend directed his attention to; and if the effect of this amendment were simply to empower the Parliament to deal with this subject, there would be comparatively little objection to it. But if it is introduced into this Constitution in this shape, it is necessarily dangerous, much too wide for the purpose intended, and of course-if it is wrong-and I venture to think it will be found to be wrong-it will be irremediable without an amendment of the Constitution.

Mr. BARTON.-Would this satisfy my honorable and learned friend?-

The Parliament may make laws conferring the right to proceed against the Commonwealth or a state within the limits of the judicial power.

That confers rights.

Mr. SYMON.-I think I may say from hearing that read that it obviates the objection I have to a large extent, although it does not seem to me to be necessary that we should introduce it into the Constitution. However, that is not a matter of very great consequence.

Sir JOHN DOWNER (South Australia).-I have always on this subject held that there is no earthly reason why the Crown should not be sued, wherever the subject may be. I have not taken this view because I hold what are considered generally to be too pronouncedly liberal views, but simply for the reason that there is no earthly reason that I can see why Government officials should be able to do wrong and a private person have no rights against him.

Mr. HIGGINS.-Do you think that "The Queen can do wrong"?

Sir JOHN DOWNER.-I do not want to have a mere verbal discussion. I think the Queen's officers can do wrong.

Mr. HIGGINS.-And that you should be able to sue the Queen's officers?

Sir JOHN DOWNER.-We have decided, with the consent of Her Majesty herself, that the Queen can do wrong. Let me take, first of all, the amendment which Mr. Barton has suggested to Mr. Symon. Suppose there is a power given to legislate. There has to be an interval between the conferring of the power and the exercising of it. Under the existing laws of all the colonies the Crown is liable in respect to certain wrongs. The Crown has taken over a lot of public functions and undertakings which the Crown does not hold in England, and as the result-in consequence of there being no remedy for accidents caused through negligence and other reasons-all the Legislatures of all the colonies have passed legislation by which they provide, not in words but in substance, that the Crown can be sued. Therefore, to raise the question now about wishing to interfere with the legal and constitutional maxim that "The Queen can do no wrong" would, I say, mean [start page 1662] interfering with the rights of citizens in a number of cases already.

Mr. BARTON.-That maxim is practically done away with in respect to actions against the Crown in New South Wales.

Sir JOHN DOWNER.-I understand that the maxim that "The Queen can do no wrong" is practically abolished in New South Wales, where actions can be brought in tort or contract. Therefore, so far as the mother colony is concerned, the maxim that "the Crown can do no wrong" has ceased to exist as regards actions against departments of that colony. Supposing we did not put this provision in. We should give the Commonwealth power to take over the railways on terms which might be agreed upon, but they would not take over the Acts of Parliament under which the citizen has a right to proceed against the Crown in regard to any wrong done to him by the state as owner of those railways. The Commonwealth would thus take physical possession of the railways and incur no liability.

Mr. ISAACS.-Under an Act of Parliament, of course.

Sir JOHN DOWNER.-Under an Act of Parliament, but it would incur no liability until it chose to create a liability by its own legislation. We are thus handing over a number of state powers which the citizens have, and have exercised more or less to their own satisfaction, to this new body. Is it

unreasonable for the subject to say-"I wish my present rights to be conserved in this handing over. I know what my state has done in the past, and what it has done satisfies me, but I do not know what the Commonwealth may do. I am handing myself over body and soul to the Commonwealth, but I do not want you to take from me those rights of action which for many years I have had and have exercised under the existing Constitution; and you are leaving me to be dependent upon the legislation of another body over which I shall have much less control than I have over my state legislation at the present time"? It appears to me to be manifestly inexpedient to leave it to the legislation of the Commonwealth. I do not care about the wording of the clause so much, but I am dealing with the substance of it. I contend that it is a right and proper provision to be embodied in this Constitution at its inception.

Sir JOHN FORREST.-I do not agree with you.

Sir JOHN DOWNER.-I can quite understand the objection of my right honorable friend (Sir John Forrest) who would like the maxim-"The Queen can do no wrong " to read "The King can do no wrong." He has said to me, in discussing this matter-"We might have all sorts of actions brought against us." Well, why not? Why, because you have the longer purse, and a greater power of fighting your opponent, should you be exempt from action if you do wrong as a state, when the humblest citizen is not exempt from any responsibility for any injury done by him to his fellows?

Mr. ISAACS.-Would the honorable member mind saying how this provision would cure any injustice?

Sir JOHN DOWNER.-This clause is intended-I am not sure about the wording of it myself-

Mr. ISAACS.-I do not speak of the wording of it.

Sir JOHN DOWNER.-What I understand it to mean is that one of the fundamental principles of the Commonwealth will be that within the limits of the judicial power the subject shall have a right of action against the Crown. That is really what it comes to.

Mr. ISAACS.-Not creating any right but giving a remedy.

Sir JOHN DOWNER.-It is both creating a right and giving a remedy. How can you say that it is merely giving a remedy when a man who wishes to bring an action is confronted by the legal maxim-"The Queen can do no wrong."

[start page 1663] Mr. HIGGINS.-He has a right against an officer, but you want to say that he shall have a right against the Crown.

Mr. BARTON.-He would have no right against an officer except in so far as the Constitution creates that right.

Sir JOHN DOWNER.-Let me deal with the principle and not with the wording of the clause. I say that the object of Mr Glynn in moving this amendment was to say that whenever a subject had a right of action against another citizen within the limits of the judicial power under this Constitution, he should, under the same conditions, have a right of action against the Commonwealth. That is the way I understand him, and so understanding him I entirely approve of the action he has taken. Surely the time ought to be nearly passed when the Government, on account of its long purse and great power, can set a subject at defiance when one subject cannot do the same with another?

Sir JOHN FORREST.-In the interests of the people.

Sir JOHN DOWNER.-It is in the interests of the Minister who wants to get out of a liability for his action.


Sir JOHN DOWNER.-What have these statutes been passed for in the different colonies? What was the statute of New South Wales passed for under which actions of wrong can be maintained? I understand my right honorable friend to say that a similar Act has been passed in his colony.

Sir JOHN FORREST.-Twenty years ago.

Sir JOHN DOWNER.-What was it passed for? It was passed because there were wrongs done by Governments for which the unhappy subject had no redress.

Sir JOHN FORREST.-Simply to facilitate things.

Mr. ISAACS.-Could not that be done by Parliament even if this were not in the Constitution?

Sir JOHN DOWNER.-I will come to that in a moment, if my learned friend will excuse me; I cannot deal with two things at one time. I am dealing now with a broad general principle in the way in which I wish to see it carried out, treating it as a fundamental principle which might well be inserted in the Constitution, that when we are handing over the right to take our railways, and the sole power to impose and collect customs duties, we at least might say to this new body we are creating: The humblest subject shall have as much remedy against you as if you were a subject instead of a representative of the Queen. That is a right and just thing, and it is being affirmed more strongly, year by year, in every British-speaking community. We have not advanced so far in South Australia as they have in New South Wales, but the march is strong and sure, and the time is not far distant when the petition of right and all these special provisions will be done away with, and the same remedy will be given to the subject against the Crown as the subject is liable to himself. I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say that there shall be embedded in the Constitution the righteous principle that the Ministers of the Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as any private person would be. We are not, in doing that, very much extending what has been done in New South Wales. We are extending what has been done in South Australia, although there we have passed an Act by which we make the Railways Commissioner liable for torts, and that Act was passed on account of a gross wrong which was done for which there was no remedy, and in which the Crown was about to set up the defence that the Queen can do no wrong. What is the use of our saying, can we interfere with this great constitutional principle? We have all interfered with [start page 1664] it; some have almost, if not quite, destroyed it, and with Her Majesty's assent, or will interfere with it, and ultimately quite destroy it. Why not do it now? Has my right honorable friend any fear that he will be worried with vexatious actions?

Sir JOHN FORREST.-In your Act you limit the liability in railway actions.

Sir JOHN DOWNER.-I know that our Act does not go far enough. I agree with my right honorable friend there, but he does not seem to appreciate it.

Sir JOHN FORREST.-I do appreciate it.

Sir JOHN DOWNER.-In South Australia we have remedied the disease a little, but not sufficiently. In New South Wales they have almost cured the disease, although, perhaps, even now there are some of the old clumsinesses remaining which make the procedure less convenient than it ought to be.

Sir JOHN FORREST.-Make it easy to fleece people.

Sir JOHN DOWNER.-My right honorable friend thinks that Governments are so much more liable to have verdicts given against them than are private individuals.


Sir JOHN DOWNER.-I do not think anything of the kind.

Sir EDWARD BRADDON.-Banks also.

Sir JOHN DOWNER.-I expect the banks deserve what they get, but so far as Governments are concerned, that is by no means my experience.

Sir JOHN FORREST.-It is mine, any way.

Sir JOHN DOWNER.-But if it be so, and if Governments are peculiarly victimized in legal proceedings it will be on account of that very difficulty of getting at them. Make the mode of procedure against the Government as easy as it is against anybody else, and a sense of fairness will come in which will prevent any injustice being done to the Government. But make it difficult to get at them, strew the path with thorns, and you will create a prejudice in the public mind which will probably cause the Government to be victimized in the exceptional cases.

Sir JOHN FORREST.-There is not the slightest difficulty in getting at the Government now. If you have a contract it is as easy as possible.

Sir JOHN DOWNER.-Of course it is. If you commit a wrong should it not be as easy as possible?

Sir JOHN FORREST.-You cannot do it in England, any way.

Sir JOHN DOWNER.-Of course they do not. We have many statutes here giving remedies to the subject which, although assented to by the Queen, are by no means in force in England. We are here establishing a Constitution truly under the Crown, but in many respects vastly different from the English Constitution. I think this principle is a very proper one. It ought to be affirmed, and put in the Constitution. It is not a matter of procedure. It is the establishment of a right which will not exist unless the words are put in. If you want to give the right, you have to put it in. If you leave it out, you negative the right. If you only give the Parliament the power to establish the right, then you are, to some extent, negativing the right. I do not know that it is worth while to have much discussion about the question-Can the Parliament do this without express words? I quite agree with Mr. Barton that it could not.

Mr. ISAACS.-You think Parliament could not?

Sir JOHN DOWNER.-I think it has not the power.

Mr. ISAACS.-How is it done in Canada? How is it done elsewhere?

Sir JOHN FORREST.-Put it in the powers of the Parliament.

Sir JOHN DOWNER.-We spend time enough in discussing things here, and when every one is agreed that this clause is not to be adopted in the form in which it is printed, but is only to be a power of the Parliament, it is not worth while to discuss the question of whether it is [start page 1665] absolutely necessary to put in the words. Where there is a wide difference of opinion, it would be safer to do it. I agree with Mr. Barton that there is no power, because sub-section (37) of clause 52 reads-

Any matters necessary for or incidental to the carrying into execution of the foregoing powers, or of any other powers vested by this Constitution in the Parliament or Executive Government of the Commonwealth, or in any department or officer thereof.

I venture to say that these are not necessary or incidental to the execution of any powers. The Commonwealth will come into existence under this Constitution plus English law, one of whose principles is that the Queen can do no wrong. That is the foundation on which the Constitution is established. Then, how can you so interpret sub-section (37) as to say that, incidental to the carrying out of the Constitution, the Parliament which is established on the basis that the Queen can do no wrong, may provide that the Queen can do wrong?

Mr. ISAACS.-How did you do it in South Australia under your Constitution?

Sir JOHN DOWNER.-I do not think there is the least analogy with state Governments. When we come to the Federal Judicature, we have a special code for them. They have immense powers, much greater than any Supreme Court has, but they have much more limited powers than any Supreme Court has as well. Within their ambit they are immense; in numbers, they are comparatively few. This is a code of their powers, and, in my opinion, construing sub-section (37) of clause 52 with clause 73, I do not think there would be power in the Parliament to create a right of action against itself which it was the very essence of its establishment should not be created without express words authorizing that to be done. I do hope that the committee will carefully consider whether they will not go further, whether there is any reason for a this timidity. Why should not the Government be liable at the suit of any one? I can see no principle in right and justice. We are gradually destroying it year by year, but in a properly careful way we only do it by degrees, but seeing that in the senior colony they have substantially done it altogether, and that none of that terrible mischief has been worked which is anticipated by Sir John Forrest, that there is no more multiplicity of actions against the Government in New South Wales than in other colonies, I want to know why we should not, in establishing this Constitution, interfere if you please with this prerogative, at all events, to the extent to which the senior colony has done, and establish in the subject at once and for ever in the Commonwealth of Australia the right to obtain a remedy when a wrong is done by the Government, in the same way as he would have if the wrong were done by a private citizen.

Mr. DOBSON (Tasmania).-I am in sympathy with the clause, because I think, if we are to keep pace with the march of the times, the Constitution Bill ought to contain a direct declaration that the Commonwealth may be sued by a subject for a breach of contract, or for a wrong done by any of its officials.

Mr. ISAACS.-Is not that so without any such clause?

Mr. DOBSON.-I do not think it is so.

Mr. ISAACS.-Then we want a great deal more than this in.

Mr. DOBSON.-It was argued in the Judiciary Committee, and it was argued in other places, that the moment the Commonwealth is established the Parliament will, as a matter of course, pass a Crown Redress Act, giving the subject the right to sue the Queen. But why should we not, in drafting the Constitution, insert these words if there is any doubt about the subject? My learned friend (Mr. Symon) says it is a question of procedure. My learned friend (Mr. Isaacs) says it is a question of so much importance that there is power to do it without stating it in the Bill.

[start page 1666] Mr. ISAACS.-I say it is a question of remedy.

Mr. DOBSON.-Mr. Symon says let Parliament go on to declare so-and-so as the mode in which it shall be done. Why not let the Constitution declare that there shall be the right, and let Parliament go on, if you like, to pass an Act saying within what limits and under what restrictions it shall be carried out?

Mr. SYMON.-Constitutionally that right exists now.

Mr. DOBSON.-If our leader, who has suggested this clause, will tell us that it is unnecessary there is an end of it, and as every moment of our time is precious we had better end the debate at once. I think it was put in by Mr. Barton on the ground that he and the Drafting Committee think most decidedly that it is necessary. If there is any doubt about the point, is it not a matter of such great importance that it ought to appear in the Constitution? I think I shall give my honorable colleagues an unanswerable argument why it should be there. We all have to preserve state rights, and we are here to enlarge the powers, privileges, and advantages of our citizens when we have created our Commonwealth, and not to take them away. You have given over your post and telegraph offices. Now, suppose by some gross neglect or delay on the part of an officer a letter or telegram is delayed, affecting a large commercial transaction, costing some unfortunate citizen £5,000, £500, or £100; if that officer had remained a state officer, the citizen would have had his remedy against the Crown in the state.

Sir PHILIP FYSH.-Would he?

Mr. DOBSON.-Certainly. At all events, under the Crown Redress Act of Tasmania, he would have. As you are transferring certain services of the states to the Commonwealth, you should also guard the rights which every citizen should have against the Commonwealth officers, and which, under similar circumstances, he would have against the state officers. Can it be imagined that, if there be a remedy against the state officers, there should be no remedy against the Commonwealth officers until the Commonwealth Parliament have passed an Act providing that the Commonwealth officers can be sued? I think the example given by Mr. Symon-

Mr. SYMON.-I did not intend that as an example in support of any contention.

Mr. DOBSON.-I think the example given by Mr. Symon. is hardly so appropriate as those we usually hear from him. I take it that if a post-office or telegraphic official punched my head-

Mr. SYMON.-That is impossible.

Mr. DOBSON.-You do not know what may happen in a democracy.

Mr. SYMON.-In Tasmania.

Mr. DOBSON.-I should sue the man in his personal capacity.

Mr. PEACOCK.-You would knock him down if you were a Britisher.

Mr. DOBSON.-It would all depend on the size of the official. In reference to the other important question raised by Mr. Symon as to whether the word "state" is properly used in the provision-"Proceedings may be taken against the Commonwealth or state," I spoke of that to Mr. Barton before lunch, and, although I was not then in favour of it, I believe Mr. Barton will be able to give very good reasons why "state" should be maintained. Does it at all follow under the Crown Redress Act that if a state officer does a wrong against the Commonwealth-deprives, it of revenue, for instance-does it follow that the Commonwealth Attorney-General shall sue the state Attorney-General? I therefore think that Mr. Barton has done wisely in putting in the word "state" as well as "Commonwealth," because the provision goes on to state "in all cases within the limits of the judicial power." I do not like the proposal that the Commonwealth "may" make the laws. That does not carry us any further

than at present, because the Commonwealth may make [start page 1667] laws if there is nothing expressly to pretent it making them. But what is to happen if a wrong is done, or a contract is broken, before such an Act be passed? I should prefer to leave the words as they stand, winding up, to suit Mr. Symon, with "in such a manner and subject to such restriction as Parliament may determine." That would leave it to the Federal Parliament to put on their own limitations and restrictions, and to declare the mode of procedure. But as the proposal at present stands, there would be engrafted in the Constitution the fact that every man has a right to sue if the Queen has broken any contract or committed any wrong.

Mr. O’CONNOR.-There would not be any right, even then, until the Parliament has legislated. Your proposal is the same as Mr. Barton's.

Mr. DOBSON.-If we engraft in the Constitution that every man has a right to sue, we can surely trust to Parliament to make proper and wise arrangements under which the Queen could be sued. I do not see that the objection raised by Mr. O'Connor has much weight. Although I mistrust the Parliament in matters where self-interest is concerned, I trust them in the matter of a Crown Redress Act. I am in sympathy with the clause as it stands.

Mr. O’CONNOR (New South Wales).-I have a proposal to make which I think ought to unite a good deal of the opinion that has been expressed. My proposal is that this power to deal with claims against the Crown should not be inserted in the Constitution, but should be given to the Federal Legislature. There can be no doubt, we all agree, that the prerogative right to prevent justice being done is simply a barbarism, and ought to be swept away in every country with responsible government. In New South Wales we have swept it away. It is true that in that colony it has been swept away under the guise of procedure, but the procedure there takes away the right of the Crown to refuse redress. Under our procedure any subject can bring an action, not only on contract, but in tort.

Mr. HIGGINS.-What year was your Act passed?

Mr. O’CONNOR.-I cannot say. The procedure now in our colony applies, not only to contracts, but also, by judicial decisions, to wrongs. In all the colonies there are provisions, wider or narrower, cutting down the prerogative right not to be sued. We must all agree that the Commonwealth should so proceed that in any case in which a man has a cause of action, whether on a wrong or a contract, his right should not be trampled upon by the state any more than by an individual. I quite admit that in dealing with this matter we are opening up a very large question indeed.

Mr. FRASER.-The state would very likely be fleeced by unscrupulous men.

Mr. O’CONNOR.-Does not the same remark apply to anybody who has the bigger purse-to corporations and banking institutions?

Sir JOHN FORREST.-The state is the biggest body.

Mr. O’CONNOR.-there can be no ground on which a state could have the right to do wrong or break a contract any more than an individual. I admit that the Crown has to employ an enormous number of persons in various transactions which bring them into contact with subjects. The Crown employs policemen and officers of various kinds. That is the case particularly in this country, where the Crown enters into business of many kinds. I can quite understand that in many of these cases it might he desirable not to give an unlimited right of action. Let us take, for instance, the case of the survey of a gold-field. A mistake made there as to places or boundaries might result in a wrong, which, if followed to the fullest extent, would require thousands of pounds of compensation. The Crown has always the risk of liability through the small neglect of duty on the part of any of the thousands of officials it employs.

[start page 1668]

In a technical sense it is right that the Crown should be sued, but, on the other hand, in the public interest it is right to restrict the power of action and the power of recovering damages, exactly on the same principle that the right of action and damages are restricted in the case of the railways, or in the case of ship-owners. The liability of the latter is on a certain percentage to the tonnage of the ship. There is a principle of public policy underlying all this. In such matters you have to deal with large numbers of persons. The state might be involved in claims for immense sums by reason of the failure to perform some duty on the part of any of the thousands of people engaged in the public service, and there should, therefore, be some restriction and limitation on actions of the kind. That is only one illustration. But another illustration may be given. Take the case of the large force of police in the city. Some constable might be guilty of small negligence in not keeping the crowd from behind a particular barrier, or in putting a barrier in such a way that a crush follows with destruction to property. It may be that would be negligence on the part of an agent of the Crown, but it is another matter to say that the Crown should be liable for all the damage. I give these illustrations in order to show that, although it may be a proper thing to give the right of action against the Crown, still there underlies all a principle of public policy which makes it necessary to safeguard the right in every instance. We cannot safeguard that in this Constitution. In giving this right, some regard must be had to all the circumstances.

Mr. SYMON.-And specific cases or classes of cases.

Mr. O’CONNOR.-And specific cases or classes of cases must be considered. That may be done by the Federal Parliament. My proposal gives power to the Federal Parliament to legislate on matters of this kind. The next question is as to whether it is necessary to give this power to the Federal Parliament. It has been interjected by Mr. Isaacs that in his opinion it is not necessary. This matter has been the subject of a great deal of consideration by the members of the Drafting Committee, including Mr. Barton, and the conclusion I have come to entirely corroborates what Mr. Barton has stated on the matter.

Mr. HIGGINS.-May I ask you one question? Is it your idea the remedy should remain against the officer if you get a remedy against the Crown?

Mr. O’CONNOR.-I was not dealing with detail of that kind. I only proposed to furnish another illustration of how the question ought to be dealt with in Parliament, where all the qualifications and conditions might be considered.

Mr. HIGGINS.-I understood you were a party to the amendment, as at first considered. Was it your idea if there was a wrong done by an officer, acting under the impression there was an Act of the Commonwealth giving him power, that the remedy should be taken away as against the officer, and only remain as against the Crown?

Mr. O’CONNOR.-No. In that case I apply the principle to its fullest extent. If two persons are concerned in a wrong they are both equally liable. In the case the honorable member mentions, the officer would be liable just as much as the Crown. I need not, however, enter into that matter now. Although my opinion at first was that the right should be given in this bare way, I have been impressed by the arguments used by Mr. Symon and others in regard to the immense importance of the questions that are involved in taking away the prerogative right. Coming back to the question as to whether it is necessary to give this power to the Parliament, I have no doubt whatever in my own mind it is necessary. The powers of the Parliament are limited entirely within the four corners of the Constitution. There [start page 1669] might be powers incidental to the carrying out of the powers given in the Constitution, but there is no power except such as are necessarily implied from the powers already given in so many words. There is no power here to take away that portion of the prerogative which enables the Government to resist any claim. The claim against the Government is not a matter of procedure: it is a matter of right. The reason a subject cannot sue the Crown is not because there is no procedure, but because no action by the subject will lie. Unless you give a right by the subject against the Crown, the prerogative right of the Crown to say that the Crown can do no

wrong is still continued. Therefore, I say that the right of the Crown not to be sued is not a matter of procedure, but one of prerogative right. You cannot take away the prerogative right except by express language, and that must be admitted by any one who has considered the subject. No right of the Crown can be taken away except by express language. I say there is no language here which will bear, even with the most strained construction, the interpretation of taking away this prerogative right of the Crown. I have heard some reference made to the last sub-section of clause 52, but that does not touch the matter. It only gives the right to exercise all powers which may be necessary for carrying into effect the powers which have already been given. That might give a right regarding procedure if there was power to take away the prerogative right of the Crown, but it does not go beyond that. Is there any such power given under the Judiciary? The power under the Judiciary is simply a power to entertain a question when brought before it, but the right to entertain a claim against the Crown when brought before it does not give a right of action against the Crown. Inasmuch as it does not appear anywhere, either expressly or impliedly, that this right of the Crown to defeat the claim of a subject is taken away, and as we all want to give power to the Federal Parliament to take away that right under such limitations as may be thought necessary, I think that power ought to be inserted in the Constitution. What objection can there be to inserting it in the Constitution? I think I gathered from what my honorable and learned friend (Mr. Symon) said, that he saw no objection to doing so, and I myself cannot understand what objection there can be.

Mr. ISAACS.-Are you speaking of the clause as printed-73A?

Mr. O’CONNOR.-No; I do not think the honorable member was here when I began my remarks. What I said was, that I can quite see there may be a good many objections to give the right in the Constitution in that bare way, and therefore I propose to ask Mr. Glynn to substitute for his clause the following:-

The Parliament may make laws conferring rights to proceed against the Commonwealth or a state in respect of matters within the limits of the judicial power.

Mr. KINGSTON.-Ought, not that to be put in clause 52 instead of clause 54?

Mr. O’CONNOR.-That is a matter of drafting. I have no particular objection to its being put in clause 52; but we may as well settle the principle now. This puts it beyond all question that the Parliament has a right to legislate in regard to these matters. I do not think any one denies that the Parliament should have that right, and the sole question is whether the right is given here in the Constitution already. I say it is not given. I am not aware of any portion of the Bill from which it can be inferred that it is given, and giving the right in this way enables the Parliament to take all care that the prerogative right is protected, so far as it is necessary to protect it consistently with justice to the subject.

Mr. FRASER.-Why bring in a state as well as the Commonwealth?

Mr. O’CONNOR.-I am glad the honorable member reminded me of that point.[start page 1670] It is done for this reason: You will observe that the power here to make laws giving a right to proceed against the Crown or a state is confined only to those subjects which are within the limits of the judicial power. Now, under clause 73, the judicial power extends to certain matters:-

(1) Arising under this Constitution or involving its interpretation.

Of course those are matters of law.

(2) Arising under any laws made by the Parliament: (3) Arising under any treaty: (4) Of admiralty and maritime jurisdiction: (5) Affecting public Ministers, consuls, or other representatives of other countries: (6) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party.

Mr. ISAACS.-That is utterly unlimited.

Mr. O’CONNOR.-Yes, that is unlimited.

Mr. ISAACS.-And you give this power conferring rights?

Mr. O’CONNOR.-I beg the honorable member's pardon. That sub-section cannot touch the question or limit the rights in any way; it is a mere matter of procedure.

(7) In which a writ of mandamus or prohibition is sought against an officer of the Commonwealth: (8) Between states.

In answer to Mr. Fraser's question, I would point, out that power is given here for proceeding by one state against another. Now, at, the present time, an individual could not proceed against a state for it wrong; an individual could not sue a state.

Mr. FRASER.-But could not a state Parliament grant that permission to sue which you now seek to put in the Commonwealth Bill?

Mr. O’CONNOR.-The state might grant the permission.

Mr. FRASER.-Then why interfere?

Mr. O’CONNOR.-For this reason: These subjects of jurisdiction are subjects which arise under this Constitution, and in giving this jurisdiction regarding subjects arising under the Constitution you must also provide for your remedies. It is an idle thing to say that there shall be certain jurisdiction to deal with disputes arising under the Constitution if a state cannot site another state. If you say here that one state may site another state, or that an individual may sue a state, in the courts of the Commonwealth, you must make some provision by which the right to sue is given to the state and against the state. Inasmuch as you deal with questions here which involve the settling of questions between state and state, or between the individual and the state, before the Commonwealth courts, you must give the right of action also, without which this right to sue is of no value whatever.

Mr. ISAACS.-You want to grant a substantive right which would not otherwise exist.

Mr. O’CONNOR.-No. I will give the honorable member an illustration. Suppose, for instance, some work, say of irrigation, is erected by a state in one of our rivers that injures some citizen of the Commonwealth, and he wants to bring an action against the state; we will say he is a citizen of another state, and, therefore, he must bring the action in the Federal Court. As the law is at present, he cannot bring an action against a state in the Federal Court, because the state would say-"It is all very well to put in the procedure of the Constitution that it deals with questions between states, or between individuals and states; but there is no right of action against the state, and you cannot confer a new right of action against the state by putting it in a matter of procedure." Therefore, it is necessary that you should give the right of action against a state in order that it may be efficacious; that is to say, in the case which I have put, although you say that disputes between states and disputes between citizens of one state and citizens of another state, or between a citizen of one state and another state, may be decided [start page 1671] before the Federal Court, the state which is sued, if its procedure do not allow it to be sued, may say-"That is all very well; as a matter of procedure, this right is given to you; but, inasmuch as the Crown call do no wrong in this particular state, there is no power to bring the Crown into court in this state, and therefore there is no cause of action." Therefore it is that, in order to give completeness to the rights which the procedure evidently intended to confer, you must give the right to sue a state in the same way as you give the right to an individual to sue the Commonwealth.

Mr. HIGGINS.-I thought you were speaking of actions by an individual against a state-not between states.

Mr. O’CONNOR.-So I was, but the honorable member will see that this clause is incomplete at present. It will be necessary to complete the clause by putting in the power which is given in America, and which necessarily exists here, that not only may actions between states be brought, but actions between a citizen of one state and a citizen of another state, or between a citizen of one state sued another state. That is an omission which must be remedied.

Mr. HIGGINS.-It was left out advisedly by our committee.

Mr. O’CONNOR.-That can be considered later, but in order to complete the circle of remedies with which we are dealing, and give vitality to some very important rights which have no doubt been given under our decisions here regarding subjects of legislation, something of this kind must be done. I would suggest to the committee that it is necessary we should give a right to proceed against a state as well as against the Commonwealth. After all, it is merely a permissive power. All these questions will be discussed by the Federal Parliament, with the opportunities and knowledge necessary to do justice to the Crown and to the public.

Mr. SYMON.-Would you preface your amendment by saying "Without limiting the power of the Parliament under the Constitution"? The object of that would be to prevent it operating as a limitation.

Mr. O’CONNOR.-I do not see how it could operate as a limitation. It deals with a specific question, and it seems to me to cover the whole ground.

Mr. ISAACS (Victoria).-This is a matter of extreme importance. I am not at all satisfied that we should be right in inserting this clause or anything like it. No doubt the views presented by Mr. O'Connor are worthy of our most careful consideration, but in the limited time afforded to us, I am not able to say that we should not be doing wrong by-agreeing to such a clause. If we assume that it is necessary, we must also assume that it is necessary in relation to many other subjects in the Bill. What are we doing? We are proposing to put in a clause which will supplement sub-section (37) of clause 52. That sub-section is in the widest possible terms.

Mr. O’CONNOR.-It is not proposed as a supplement to that.

Mr. ISAACS.-What I say is, that it is intended in effect as a supplement to that and to all other powers given to Parliament in the Bill.

Mr. O’CONNOR.-It is an express power.

Mr. ISAACS.-Yes, and that means that it is considered that the expressed and implied powers already given are not sufficient.

Mr. O’CONNOR.-Yes.

Mr. ISAACS.-The Parliament has by clause 52 full power and authority to make laws for the peace, order, and good government of the Commonwealth with respect to a large number of matters that are set out. This is a power that is without limitation. The Parliament may legislate, for example, with respect to the Federal Judicature and actions that may be brought, as well as on all the substantive matters mentioned in clause 52, and any Act passed is to bind the Crown. And yet we are told that the Parliament cannot legislate upon these [start page 1672] matters in one particular direction. It is said that it cannot, when passing an Act upon any of these subjects, say that if any wrong is done, the state or the Commonwealth shall be liable, out of the public purse. Why cannot it make such a law? Why cannot it say that an individual should have redress out of the Commonwealth or the state purse if the subject on which it is legislating is one of the various subjects committed to its

care? We are told that it is a matter of prerogative. Perhaps it is, but that does not except it from the powers of the Parliament. It is the Queen and the two Houses that are legislating, and when the Imperial Parliament passes this Constitution it will say-"You may affect the prerogative so long as when doing so you are within the limits of the powers conferred." In the Canadian Act there are no such words. As to a number of subjects, we are in exactly the same position as the Congress of the United States. The Federal Parliament is supreme within these limits.

Mr. O’CONNOR.-There is no prerogative to reckon with in the United States.

Mr. ISAACS.-No; but the principle is the same, and if there were a prerogative it would be within the powers. In Canada they have taken away the right of appeal to the Privy Council in certain instances, and that affects the prerogative. There can be no distinction drawn between the two cases, so far as this particular point is concerned. Now, let us consider how far it is necessary. Does the honorable member mean to tell me that it is a matter of substantive right to say that you shall have an action for a wrong-a tort, as it is called? You have to assume first of all that there has been a substantive right that has been violated before you get the tort, and you are now urging that power should be given to the Parliament to allow the remedy for a wrong to extend where it has not extended before. It is not creating rights except in the sense that every remedy is a right-a right of action, a right of going to one court, a right of appeal. You may talk of them all as rights, but they are only rights in a limited sense, and they are quite different from the substantive right which has been violated and which is the cause of complaint.

Mr. SYMON.-It is a right to proceed.

Mr. ISAACS.-Yes; and that, after all, is a question of remedy. I have misunderstood the Constitution altogether, and we shall have to recast it, if we are to be told that there is any direction in which the Federal Parliament cannot legislate within the limits of the powers committed to them. This proposal would possibly operate as an absolute limitations Take a matter like that of immigration and emigration. Is it to be said that the Federal Parliament must not affect the prerogative of the Crown by saying whether foreigners shall be admitted or not? There are a number of prerogatives that are put within the reach of the Federal Parliament, and if it is necessary to insert this clause in one case it must be equally necessary in others. I am sure that it would be a cause of very great trouble. My objection to new clause 73A as printed is as I have stated, but my objection to the words used by Mr. O'Connor goes much further. I will point out why. My honorable and learned friend (Mr. O'Connor) proposes that the Parliament shall make laws conferring upon the individual the right to proceed against the Commonwealth or against a state. But I am afraid that that will take us very much further than any of us anticipate. Suppose that the state of New South Wales were using the water of the Darling in a way to which the state of South Australia objected. Would not this provision allow the Federal Court to say that New South Wales must be stopped? We come back to the old question as to the meaning of the word "matters." At first it was sought to pass over that word lightly, but the right honorable member (Mr. Reid) afterwards found that there was a good deal in the point raised [start page 1673] by me in connexion with it. If the judicial power is to extend to all matters between states, the clause now submitted would enable the Federal Parliament to say that just as an individual riparian owner below stream may sue an individual riparian owner above stream for depriving him of a certain amount of water, so a riparian state below stream might sue a riparian state above stream.

Mr. HIGGINS.-Does not this provision simply confer the right to proceed?

Mr. ISAACS.-I think it goes much further.

Mr. GLYNN.-We want to obtain for the states the right of action which the honorable and learned member seems to fear.

Mr. DOBSON.-The proposal gives no right further than the right to proceed.

Mr. ISAACS.-The right to proceed includes everything.

Mr. DOUGLAS.-What does the honorable and learned member object to?

Mr. ISAACS.-I think that the proposal goes very much further than any of us wish.

Mr. DOUGLAS.-Does it give any more power to an individual in respect to this right to proceed against a state than he has now?

Mr. ISAACS.-It gives rights which do not exist now. All I think we should do in regard to this matter is to see that sufficient machinery is put into the Bill to carry out the substantive portions to which we have agreed. We have agreed by passing clause 52 that certain matters, and certain matters only, shall be referred to the Federal Parliament. With regard to these matters there is no limitation of the power of the Federal Parliament, and to make this perfectly certain we have put in a provision which gives the Federal Parliament the power to do anything necessary for the due exercise of this power. In the United States Constitution they use the word "proper" where we use the word "necessary," and it has been held there that this provision is unlimited in its operation. It is not treated as an ordinary deed conferring power on an agent, but is regarded as an intimation to the Federal Parliament to exercise its own discretion as to what is necessary or incidental to the attainment of the objects it has in view. I do not want to allow the Federal Parliament to be able to legislate upon other matters, but so far as these matters are concerned, its control should be practically unfettered. To put in a clause such as is now suggested would, in my opinion, very seriously limit this power. Why should we do this, simply when it may lead us in a direction that we are not sure of? I think we should be doing wrong to put in this provision. But after the strong expression of opinion we have had from the honorable and learned member (Mr. O'Connor), I do not hesitate to say that I may be in error in the view I take. I have not had sufficient time to thoroughly consider this matter. My honorable and learned friend has no doubt had more time to consider it than I have. I am merely expressing the thoughts that occur to me at the moment, but no doubt he feels more confident of his position, because he has given the matter the conscientious thought and attention which he gives to every subject with which he deals. Nevertheless, the provision seems to me to bear the construction which I have put upon it, and I think that it will not act so beneficially as the honorable member (Sir John Downer) wished us to believe it would act. He said that power was given in the Constitution to take over the railways. If any wrong was done by a state in regard to the railways, why should we not give the right to proceed against that state? If we look at the clause of the Bill relating to railways, we will see that the Commonwealth has no power to take over the railways without the consent of the states concerned, and then only upon such terms as may be agreed upon between any state and the Commonwealth. The judicial power, as we have created it, is merely [start page 1674] intended to give the Federal Court the right to adjudicate in certain classes of matters. These classes of matters are distinctly set out in clause 73, which tells us what matters the judicial power of the Federal Court shall extend to. These classes of matters being set out, there is a presupposition of rights, whether of tort or of contract. The Federal Legislature under the Constitution has the fullest power to legislate in regard to these matters, the fullest power to legislate substantively, and, therefore, also the power to legislate with regard to procedure. It seems to me that the measure is complete as it stands, and that we should be introducing an element of great doubt and danger by putting in this provision. I offer these remarks for consideration, because I think that the matter is one which concerns us all, more especially when we recollect that the judicial power extending between the states is not confined to matters confided to the Federal Parliament, but that there may be rights outside those matters. The states may have controversies outside the legislation of the Federal Parliament. When we say that the Federal Legislature should have power to legislate so as to confer rights to proceed, we may be getting outside the limits of the Constitution.

Mr. DOBSON.-If all these amendments are shut out, and the Federal Parliament passed a Crown Redress Act, would the Queen have to consent to it?

Mr. ISAACS.-No, not in person, because the Constitution says that the Queen shall have her representative here-the Governor-General.

Mr. DOBSON.-But a measure derogating from the Queen's prerogative would, to some extent, be an alteration of the Constitution.

Mr. ISAACS.-I cannot see that it would be an alteration of the Constitution any more than a similar measure passed by one of the colonies now would be an alteration of its Constitution. Constitutions have been given to each of the colonies. They give the local Parliaments no express power to derogate from that prerogative, but there is a power to legislate-a limited power-and within that limited power they can, if they choose, pass legislation derogating from the Queen's prerogative. For these reasons, I think that we should not adopt the proposal.

Mr. GLYNN (South Australia).-I think that the best answer to the speech of the honorable and learned member (Mr. Isaacs) is the fact that in Canada, in 1875, they attempted a limitation of the prerogative, in general words, to take away the right of appeal to the Privy Council; but that enactment was held to be bad, and an Act, 51 and 52 Vict., had to be passed.

Mr. ISAACS.-It was not held to be bad because there was no power in the Parliament, but because Parliament had not expressed its wishes.

Mr. GLYNN.-In a case in Canada, which occurred not very long ago, an action was brought against the Railways Commissioners there to obtain compensation for serious injury which was the result of a railway accident. But this absurd principle which fences in the prerogative, and which might have been all very well 150 years ago, stood in bar to prevent the plantiff from getting damages.

Mr. ISAACS.-That does not affect the question.

Mr. GLYNN.-It affects the policy of my proposal. My honorable and learned friend has pointed out that if we pass the clause as suggested by me, or the provision suggested by the honorable and learned member (Mr. O'Connor), we shall be giving certain rights of states against states under clause 73. That is what I want to do. I do not want federation to be merely a barren name so far as the colony of South Australia is concerned. As has been pointed out by the honorable and learned member (Mr. O'Connor), we are at the present time, as the Bill stands, only regulating procedure. The honorable and learned member (Mr. Isaacs) says that a question might arise in regard to the interference by New South Wales with South Australian [start page 1675] interests in the Darling. Under the Bill as it stands South Australia can go to 50 courts, and get no redress; but if my proposal is carried, it will be able to go into a federal court of justice and proceed against the offending state, just as one individual riparian owner can proceed against another.

Mr. ISAACS.-I do not think the New South Wales representatives wish that.

Mr. GLYNN.-They have plenty of wisdom in their heads, and they ought to see the effect of a particular amendment, but we are shifting about so much that it is almost impossible to understand when an honorable member know's what he is doing. I know perfectly well what I want to accomplish. I want to give all the provisions of clause 73 complete efficacy. I want to say whether you wish the Federal Judiciary to interfere between states. The Crown immunity applicable 100 years ago should not interfere with those rights. An honorable member says it can be done without amendment, but I very much question that. The eleventh amendment of the American Constitution was another side of this business. It was to take away a right granted by the Constitution, or impliedly granted by the Constitution, for a subject outside the state to sue the state. It was held that the state as well as the Commonwealth was sovereign, and there was an interference with the theory of the petition of right not by an Act of Congress, but by an amendment of the Constitution.

Mr. ISAACS.-Does the honorable member refer to the case of Chisholm v. Georgia, when the Supreme Court decided that a state could be sued under the Constitution? It required the eleventh amendment to reverse that.

Mr. GLYNN.-A man would have to live to the age of Methuselah to cultivate a memory equal to remembering all the eases which the honorable member is always referring to. Burgess, in referring to this anachronism of policy, says-

The Supreme Court has itself evidently felt the error of the limitation, and has rendered it nugatory wherever it has been possible to place the individual in the position of defendant instead of plaintiff in a suit in which the other party is a Commonwealth, and whenever it has been possible to make an officer of the Commonwealth in his personal character defendant in place of the Commonwealth itself.

There is a declaration by one of the first constitutional writers in America as to the advisability of removing these provisions from the Constitution. It was stated by Mr. Symon that this is a matter of procedure and ought not to be included in the Constitution. That does away with his pet idea of denying the right of appeal to the Privy Council in this Constitution. Why not leave that also to the Federal Parliament? One objection to relegating questions of this kind to the Parliament instead of settling them in the Constitution is the fact that in the Federal Parliament many of these vexed questions which have been discussed in this committee will turn up again. We shall hear objections in the Parliament that if you confer this right of a state to site another state you will be giving a right of action with regard to the riparian rights of, say, Victoria as against New South Wales. Even the very matter which we have fought out for weeks will be brought into the Federal Parliament and rediscussed with, perhaps, for some of the states, an absolute denial of rights. So far as the policy of the immunity of the Crown is concerned, it is monstrous that although £10,000 worth of damage was done to a subject in England by the Commissioner of Woods and Forests, the subject was absolutely debarred from exercising his right on this plea of the immunity of the Crown. Are we going to perpetuate such a stupid provision? The Crown is supposed to be the conservator of justice to the people, and is it to be allowed to stand in the way of justice? It is better to settle this question by the Convention itself now than to pass it onto the Federal Parliament. As a matter of policy, the sweeping away of these immunities of the Crown which place it in [start page 1676] an anomalous position in regard to the subject is quite justifiable.

Mr. FRASER.-Why should we settle what the Federal Parliament can equally, well settle?

Mr. GLYNN.-Supposing a Bill were introduced into Parliament the objection of Mr. Isaacs that you would be giving a recognition of the right of one state to sue another state on the rivers question would be urged, and you would then have the whole rivers question introduced into the Parliament. We ought not to be talking here for weeks on a subject, and then by rejection of a motion of this sort in the Convention prevent the carrying out of a policy which, in other respects, we are supposed to have formulated. It is generally conceded that some amendment such as this is necessary, whether it be done in the Convention or by the Federal Parliament. If Mr. O'Connor thinks that it should be relegated to the Federal Parliament, and if my motion is carried, that can be done afterwards, but I will risk a division on this point. Consequently I ask the committee to support me in voting for this clause, which has been drafted by Mr. Barton.

Mr. BARTON (New South Wales).-I wish to say a few words on this subject. At the outset I would say that I am not very particular whether this matter is dealt with by such a clause as drafted by the Drafting Committee or whether it is dealt with by a clause giving the Parliament power to deal with the subject. I can without much difficulty meet my honorable friend (Mr. Symon), but I do hold a strong opinion that it would be necessary to provide for this matter in the Constitution in the manner we have provided for it in this draft or else to take the power for Parliament to make laws upon the subject. The question has been asked whether the Parliament cannot make laws affecting the prerogative. The answer is-"Yes" and "No." The Parliament can make laws affecting the prerogative

in respect of any matter in which it has express power of legislation or a power necessarily implied. It cannot make laws affecting the prerogative in matters with respect to which it has no power to make laws.

Mr. FRASER.-Can it not get authority?

Mr. BARTON.-Not unless it gets the power in this Act.

Mr. FRASER.-Cannot the local Parliaments get the power from home?

Mr. BARTON.-They do not require to get authority from home, for this reason: That the local Constitutions empower the colonies separately to make laws for the peace, order, and good government of the community, and that is without restriction, except such small restrictions as are imposed by the Constitutions themselves, and, of course, the necessary restriction that they can only legislate for their own territory. The position with regard to this Constitution is that it has no legislative power, except that which is actually given to it in express terms or which is necessary or incidental to a power given. The result is that you might pass a clause giving judicial power to a court, but you cannot by the passage of that provision make the conferring of a right of action upon a subject something necessary or incidental to the exercise of that power, because jurisdiction simply means power to determine cases where a right of action exists. It certainly does not mean giving the right of action simply where jurisdiction is given. That is the starting point of difference in the argument between honorable members who have spoken and myself. Where there is a jurisdiction given, that is simply the right to try cases where there is shown a right of action. That jurisdiction does not confer a right of action upon anybody. Whether it is by the operation of the maxim that the king can do no wrong, or by any other cause, that a person has no right of action, he cannot have that right given to him under this Constitution unless there is a provision in the Constitution giving him that right, or a provision enabling Parliament to confer that [start page 1677] right upon him. That is really the difficulty of the position. That is where I seem to differ from Mr. Symon and Mr. Isaacs. This proposition is really made as a matter of safety. It will be a very awkward thing if it is discovered years after the Constitution is framed, instead of being discovered now, that where a subject has a valid right of action, except for the maxim that a king can do no wrong, he is precluded by the operation of that maxim under this Constitution. I grant that in respect of any matter in which the power of legislation is given, such as legislating about military defence and other matters, the plenary power of legislation gives legislative authority which includes more than the right of affecting the prerogative, but I dispute that any right to affect the prerogative is given, so as to confer a new right of action upon the subject under a limited Constitution of this, character, unless there is an express grant of the right or the necessary implication.

Mr. ISAACS.-Do you, mean in respect of matters outside?

Mr. BARTON.-Outside the powers granted.

Mr. ISAACS.-What right have we to interfere in those matters?

Mr. BARTON.-We have no right, so that the point is narrowed down to this: The question is whether any words in this Bill can be read to confer by themselves the right upon a subject to bring an action in the face of the maxim I have referred to, or whether apart from that there is any power conferred by the words of this Constitution-and by the words I mean the expression or necessary meaning of them-upon the legislative authority of the Commonwealth to confer these rights. Now, I have studied this matter considerably. The Drafting Committee have bestowed considerable attention upon it, and we are unable to see in any way that there is either a power given in the Constitution as it stands, or to the Commonwealth Parliament, to legislate so that these rights may be conferred, either by the Constitution in the former case, or by the statute to be passed by the Federal Parliament in the latter case, and that is our difficulty. I think it is better not to rely upon assurances that such a power is impliedly conveyed. I must say that, after all the attention we have bestowed upon the matter, we

three members of the Convention who constitute the Drafting Committee, and who have considered it so carefully, have not been able to find a vestige of that power. It is natural-and I think this is how the question has arisen so late-in comparing a Constitution of this kind with the American Constitution that one should first imagine, as most of us have imagined, that the granting of the judiciary power confers also either the right of action or the power to legislate with regard to the right of action. But the difficulty is this: The American Constitution has been framed in that way because it was an independent Constitution. It has been read always to express the grant of power by the people, independent of all statutory authority. It has been treated simply as a declaration of the people, and one can understand why rights of action should be taken to be inferred by words importing merely a judicial power, because those who framed the Constitution probably came to the conclusion that it would be only for them to do so that those words defining the judicial power would be, for many purposes, practically useless, unless the people meant to grant the right of action in the cases mentioned. But that implication does not arise in a Constitution of this kind, or in the canons of the construction of the English statutes, and there is no way in which we, as members of the Drafting Committee, can see that it does arise. Consequently, if this power is not put in the Constitution as the right of a citizen, or so that the Parliament can confer the right, we are of the distinct opinion that in respect of many matters specified in clause 73-matters which arise between citizens [start page 1678] and the Commonwealth or between citizens and the state-there would be not only no right of action conferred, but no power in the Parliament to confer that right.

Mr. HIGGINS.-You want to leave the Parliament free to make laws if it sees fit.

Mr. BARTON.-I am content with that. Where a claim is maintainable against a subject it should be maintainable also against the Commonwealth or a state. I can see that there may be some practical inconvenience arising out of that, but I am content to leave the matter in the hands of the Federal Parliament. Still I ask the Convention to go with me to that extent, lest we should arrive at a decision on matters which, after this Bill is passed, would prevent a subject from gaining any redress where his rights would have been in fringed if the other party had been a subject instead of a state or the Commonwealth, because, if that did happen, there would be no power to remedy that evil by statute. Now I come back to the beginning of my argument, to make the matter clear. You cannot, by arguing that there is power to limit the prerogative by a statute, argue in the Federal Constitution that you can limit the prerogative by a statute in cases where no power of legislation on extra-federal subjects is conferred.

Mr. ISAACS.-We can deal with those subjects now.

Mr. BARTON.-I do not think we should, but the difficulty that my honorable and learned friend is in is this: Where there is no express power in the Constitution, and where there is no legislative power conferred in respect of the subject, his argument is: That because you can limit the prerogative right by legislation, therefore you can limit it to the extent of that extra-federal subject. I think that is really the position. I must urge that, if not the clause of which the Drafting Committee gave notice, the clause I read in answer to Mr. Symon, should be adopted, because there is danger of a serious difficulty arising, which two or three words might remedy by taking the whole course into the hands of the Federal Parliament, who may apply it according to the rights of the people which they have in charge.

Mr. O’CONNOR (New South Wales).-As Mr. Glynn has not been able to accept the amendment I suggested in place of his, I beg to move the insertion, before the word "Proceedings" in his proposal, of the following words:-

The Parliament may make laws conferring rights to proceed against the Commonwealth or a state in respect of matters within the limits of the judicial power.

An amendment was suggested by Mr. Symon, but I do not think it is necessary.

Mr. ISAACS.-Will not that involve in implication that there is no power to make laws to proceed against any individual?

Mr. O’CONNOR.-Oh, no.

Mr. ISAACS.-I do not know.

Sir JOHN FORREST.-Mr. O'Connor's amendment would apply to a person.

Mr. O’CONNOR.-Either to a person or to a state.

Mr. SYMON (South Australia).-What Sir John Forrest said has some bearing on a suggestion I was going to make. I was going to ask Mr. O'Connor if he would not substitute for the very equivocal and doubtful expression "rights to proceed" the word "remedy."

Mr. BARTON.-Would "remedy" do?

Mr. SYMON.-I think so.

Mr. BARTON.-You want to include the right.

Mr. SYMON.-Well, that is a remedy. What I want to point out is that nobody intends, by this Constitution, to give a right of action. You cannot give a right of action. It depends on something quite different-on what has happened between the Commonwealth and a citizen, the state and a citizen, or between citizen and citizen? The right to proceed is merely a remedy. Therefore, I agree with Mr. Isaacs, who points out the confusion that may arise, and also what "rights to proceed" means. The Federal Parliament may have some [start page 1679] difficulty in determining what their legislation can be within the scope of this expression-"Rights to proceed." I was greatly impressed by what Mr. Barton said. It comes to what is a remedy. You want to give an individual a right of remedy against the Crown exactly as he has a right against an individual. It is all a pure question of remedy. If Her Majesty chose to answer a petition of right in a question of tort with the usual form of words-"Let right be done," right would be done.


Mr. SYMON.-I say it would.


Mr. SYMON.-I note the emphasis of my honorable friend, but his interjection is not an answer to my statement. We want to allow Parliament to do what it pleases with regard to the rights it has.

Mr. O’CONNOR (New South Wales).-I am sorry to say that I cannot accept the suggestion. What we want to deal with are rights. The reason why you cannot bring an action against the Crown is that the Crown can do no wrong in the eyes of the law. Therefore, we want to give Parliament the power to confer rights.

Mr. GLYNN (South Australia).-I should like to say that I will accept Mr. O'Connor's amendment, and to explain that as my clause was drafted it stated "in such manner as Parliament may prescribe"-really a reference to what was originally suggested.

Mr. O'Connor's amendment was agreed to.

Mr. Glynn's proposed new clause, as amended, was further amended by omitting the remainder of the clause.

The clause, as amended, was then agreed to.

Mr. GORDON (South Australia).-I beg to move the insertion, after clause 74, of the following new clause:-

74A. The plea that any law either of the Parliament of the Commonwealth or of any state Parliament is ultra vires of the Constitution shall not be raised in any court except as follows:-

1. As to a law of the Parliament of the Commonwealth by or on behalf of a, state.

2. As to a law of any state by or on behalf of the Commonwealth.

But nothing contained in this section shall prevent the plea being raised that there is a conflict between any law enacted by the Commonwealth and any law enacted by a state.

I shall move this new clause in as few words as possible. The first proposal contained in the clause is that, as to a law of the Parliament of the Commonwealth, the question of ultra vires shall not be raised by any private citizen, but, only by the Parliament of a state. Let us look at how this will work. A federal law, in the first place, has to be discussed by the House of Representatives, in which all the states are represented in proportion to their varying populations. Then it goes to the Senate, where the states are represented in equal numbers. It runs the gauntlet of criticism by the press and by the constituents both of the Federal Parliament and the states Parliament, and ultimately it reaches the solemnity of law. My contention is that no private individual should be allowed to contest that law in the courts. It may be said that the law will possibly abridge the liberty of some individual citizen or make some deduction from his rights. But it is so with nearly every law. There is scarcely any law which does not affect a citizen's material interests in some point or another, but the test of whether the law is legitimate is the interest of the majority of the people. If the law is passed after having run the gauntlet of criticism in the House of Representatives, by the Senate, and by the public, my contention is that it should only be impugned by a Parliament of a state. It is a question, after all, of the rights of a majority. The states Parliament would be the sentry along the line of the dividing power between the states Parliament and the Commonwealth. As [start page 1680] to a law passed by a state, at present every citizen of the state is bound by it within his own colony. Why should he be in a better position to test that law because it may inflict some injury upon him under the Federation than as at present in his own state?

Mr. SYMON.-Because the law of the state cannot be ultra vires, but the law of the Commonwealth may be.

Mr. GORDON.-It may be that the law of the state may infringe on the law of the Commonwealth, but both are laws.

Mr. SYMON.-But the law of a state now cannot be ultra vires.

Mr. GORDON.-But the proposition is this: At present the law of a state is passed by the majority of the representatives of the people of that state. The same proposition holds good in a Federation. A federal law is passed by a majority of the representatives of the people in Parliament assembled, and ought to have the same binding effect on the individual as it would without the Federation. As regards a federal law, I contend, with much respect, that the state Parliament Should be the sentry along the line of the dividing power, between the powers of the two bodies, to say whether or not there is any infringement of the power. As regards a state law, the Federal Parliament is the sentry along the line.

Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?

Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member of a state Parliament will be a sentry, and, every constituent of a state Parliament will be a sentry. As regards a law passed by a state, every man in the Federal Parliament will be a sentry, and the whole constituency behind the Federal Parliament will be a sentry.

Mr. REID.-They would not all be in the swim, to use Mr. Higgins' elegant phrase.

Mr. GORDON.-They could not.

Mr. HIGGINS.-You would have to get the state Parliament to move.

Mr. GORDON.-Yes. If this proposition is not carried, some individual will have to move, but the same reasons which would cause an individual to move would cause the Parliament to move if individual interests were to any serious extent affected. In the case of a federal law the state Parliament would be on the alert always to see that its sphere of action was not improperly infringed.

Mr. WISE.-How is the state Parliament going to raise the question?

Mr. GORDON.-By a process which can very easily be devised, by the intervention of the state Attorney-General-

Mr. WISE.-On fictitious suits.

Mr. GORDON.-Not necessarily. It may be raised on an abstract proposition.

Mr. WISE.-The essential virtue of our system is that the courts deal with concrete propositions.

Mr. GORDON.-That is the present system, but we are creating a new system. There is no scientific reason in law why an abstract proposition of law should not be submitted to the courts, or why the Attorney-General of a state on the one hand, or the Attorney-General of the Commonwealth on the other, should not intervene in the same fashion, probably on the same lines, as an Attorney-General now intervenes in a divorce suit. How this principle would have worked in the American Constitution is illustrated by the Treasury Notes Case. When the Congress of the United States issued Treasury-bills in 1862-a measure absolutely required to save the nation-none of the states having the honour of the nation at stake would have disputed the legality of that issue. It was left to a single individual to paralyze for a time the whole nation, by raising the question of the legality of the notes.

Mr. SYMON.-His individual rights were at stake.

Mr. GORDON.-Clearly; but surely my honorable friend sees that where we have [start page 1681] government by majority individual rights must give place to the interests of the majority? That is true as to the laws of God himself. The law of gravitation, which governs the spheres, makes the boy fall out of the apple tree. Nature, which is so seemingly careless of the individual life, is careful of the type. What are we doing here? We are binding by majorities minorities everywhere. The whole scheme of federation is the binding of a minority by a majority. In fact, every modern system of government is simply a scheme for effecting the will of the majority. This proposal will make the law valid until upset in the way proposed: It can only be impugned afterwards by the Federal Parliament, or, on the other hand, by the state. I think it is monstrous that after the Federal Parliament has passed a law expressing the will of the majority of the people, or after a state Parliament has passed a law expressing the will of the majority of the people, any individual should be allowed to impugn it. It is quite possible, it is highly probable, that many individuals will be affected by it, but why should one individual be allowed to upset a law which is carried in the interests of the majority? The test of whether or not a law is righteous is this-is it required in the interests of the whole?

Mr. WISE.-Suppose the majority decide that there shall be no equal representation in the Senate?

Mr. GORDON.-Those who are outvoted will be bound by it. Are we not binding, or attempting to bind, by this federal scheme a powerful minority in New South Wales and in other colonies who declare that they are being robbed of their rights?

Mr. WISE.-We are.

Mr. GORDON.-If the majority desire it the minority will be bound, and no matter how much they howl-no matter how much they cry out that they are being robbed of their rights-they will be bound by this scheme of federation if the majority say they are to be bound by it. Where is the argument of a right of the individual when in this very scheme of federation we are taking away what so many hundreds of thousands of persons conceive to be their precious rights?

Mr. SYMON.-It is not a law which is ultra vires.

Mr. GORDON.-The honorable member will see that I am not declaring that any law which is ultra vires is not ultra vires. I am simply limiting the area of attack.

Mr. SYMON.-The man who is ruined by it is not to take that point.

Mr. GORDON.-We must postulate of all our Parliaments that they will not pass laws which are ethically indefensible. We must also postulate that they will pass laws which may do injuries to individuals; but I contend if any serious individual injury is done, or any injury is done to a number of persons whose interests really require to be protected, the state will intervene and assist them, on the one hand, if it is an infringement by the Federal Parliament. On the other hand, the Federal Parliament will intervene and assist them if it is an infringement by the state Parliament. But once an Act of Parliament has reached the solemnity of the law expressing the will of the majority of the people, I contend that no individual should be allowed to bring it into court, but that it should be left in the case of a federal law to the state, and in the case of a state law to the Federal Parliament. If any one looks through the list of American decisions under the head of "Legislature," he will see that no injustice would have been done, but that a great deal of justice would have been done, and a great deal of litigation saved, if this principle had been the law there. In the Treasury-notes cases which I have mentioned, a single individual, in his own selfish interests, almost paralyzed the whole nation. They had to get over the difficulty [start page 1682] by the subterfuge of appointing to the Supreme Court Bench a Judge who was known to be favorable to the Government's view. But for that there would have been an absolute paralysis in America for the time being. If this provision had been in force that only the state could impugn a federal law it would never have been done, because the states, having the honour of the country at heart, would not have dared to interfere with the law. I know that I have against me a large number of the lawyers of the Convention, a timid and conservative class, as Herbert Spencer points out, who are fearful of change.

Mr. BARTON.-Then the real boldness is to be bold enough to muzzle the citizen.

Mr. GORDON.-I admit that there is this objection to the principle: That it does prevent an individual from bringing a law into dispute. But it is a question of the balance of convenience. I do not shut my eyes to the desirability of everything being perfect if we can make it perfect. But there is always a screw loose in mundane affairs, and we cannot have everything. The balance of convenience is in favour of allowing the state on the one hand, or the Commonwealth on the other, the sole right of impugning each other's laws. That would leave an interspace between the two for acquiescence, which would become a force in the Constitution. The acquiescence of the state in the law of the Federal Parliament, or the acquiescence of the Federal Parliament in the law of the state, even if the laws did cross a little the strict and rigid line of either of the powers, would become a force in the Constitution. There would be an interspace for the genius of legislation to play in. No workable Constitution should be without room for play. The genius of the British Constitution is based on acquiescence in

improvements. The inherent difficulty in all written Constitutions is the absolute rigidity or legality of the Constitution.

Mr. SYMON.-Do you think acquiescence would make a law if the law passed by the Commonwealth Parliament was ultra vires?

Mr. GORDON.-It would until the law was impugned. If the state did not impugn that law it would remain in force. It is a law, and it could be allowed to be valid by the force of acquiescence. And here is another point. The proposal which I am supporting, to some extent keeps a remnant of parliamentary sovereignty over the strict interpretation of the courts.

Mr. FRASER.-That is too abstruse for laymen altogether.

Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his mind to the subject he will see it is not abstruse. If a statute of either the Federal or the states Parliament be taken into court the court is bound to give an interpretation according to the strict hyper-refinements of the law. It may be a good law passed by "the sovereign will of the people," although that latter phrase is a common one which I do not care much about. The court may say-"It is a good law, but as it technically infringes on the Constitution we will have to wipe it out." As I have said, the proposal I support retains some remnant of parliamentary sovereignty, leaving it to the will of Parliament on either side to attack each other's laws.

Mr. BARTON.-How would they raise the question?

Mr. GORDON.-Suppose it were a federal law, the Attorney-General of any of the states could intervene in an actual suit, or place an abstract question before the High Court.

Mr. SYMON.-The state would not bother its head if the law only affected a few individuals.

Mr. GORDON.-If the law only affected a few individuals, the state might not intervene, but it is possible that a law referring to only a few individuals may involve the benefit of the whole of the community.

[start page 1683] Mr. SYMON.-It is not a law if it is ultra vires.

Mr. GORDON.-It would be law by acquiescence. It would remain a law until it was attacked. It might injure a few individuals, but that might be to the benefit of the whole. Or if it were not, the party whose area of power was infringed on would attack if. Another advantage the proposition has is that it will reduce an enormous body of litigation likely to spring up about the Constitution. Sir Julian Salomons, the leader of the largest Bar in Australia, expressed the opinion that such a mass of litigation would spring up in consequence of this Federal Constitution that he regretted he had not a large family of sons to train as lawyers.

Mr. BARTON.-Sir Julian Salomons, in making that speech, was trying to say everything possible against the Constitution, and was regardless of everything but attacking it.

Mr. GORDON.-On a point of this kind, Sir Julian Salomons is an authority worth quoting.

Mr. SYMON.-He is only an authority for the education of his own children.

Mr. GORDON.-Sir Julian Salomons, is an authority who says that this Constitution will lead to a great deal of litigation. If we can minimize that litigation it will be a good thing.

Sir JOHN FORREST.-That is a bad argument, I think.

Mr. GORDON.-At any rate, it is an unselfish argument.

Mr. FRASER.-The proposal would open many doors to litigation.

Mr. GORDON.-No; the proposition would shut doors, and not open them. If it were left to the states to attack a federal law, or to the Commonwealth to attack a state law, these would be the only possible litigants on this point of ultra vires. That would shut out millions of people amongst whom it would be possible to find litigants. It would not, however, shut out an individual from attacking the administration of the law once the law was passed. The idea is, that no citizen should be allowed to attack what is the express will of the people.

Mr. HIGGINS.-It is not the expressed will of the people if it be left to a Ministry or two Ministries without the assent of Parliament.

Mr. GORDON.-But if it be passed by Parliament it is the will of the Parliament.

Mr. HIGGINS.-But suppose they go beyond their power?

Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to enforce improperly any law the citizen has his right.

Mr. HIGGINS.-What I mean is: There may be an act done by the federal power which is illegal. Suppose it happens that the Ministry of the state concerned does not wish to enforce that right against the federal power, there is no remedy at all.

Mr. GORDON.-Then I say, if the Ministry of a state, controlled by the Parliament of that state, and controlled by public opinion, does not think it necessary to impugn the law, you may depend upon it that law is just and righteous.

Mr. HIGGINS.-What about other states?

Mr. GORDON.-It is open to all the other states to impugn the law.

Mr. HIGGINS.-That cannot be done.

Mr. GORDON.-I should say it is left open to the whole of the states to impugn any federal law. That, I think, is expressed in the clause. If the state does not impugn the law you may depend upon it, the law passed by the Federal Parliament is a righteous and proper law. If the Federal Parliament does not impugn a state law, it may be taken for granted that that law is a proper and legitimate one. It will be seen that it is impossible to draw a rigid line between the two authorities which are concurrently legislating.

[start page 1684] There must be some overlapping, and some little technical friction between the laws. But it would be monstrous for citizens to take advantage of that and to drag the state Parliament or the Federal Parliament into court simply because what might be to the benefit of the whole nation interferes with private and individual rights. I am not shutting my eyes to the objection that the proposal might possibly do injury to some individuals, but I say there is the advantage that no one individual could do serious injury to the state-that no one individual could possibly paralyze the whole action of the state.

Mr. TRENWITH.-And possibly he a "crank."

Mr. GORDON.-Possibly.

Mr. DEAKIN.-He could not paralyze the law unless it ought to be paralyzed.

Mr. GORDON.-That is a relative question, and I contend the law of the majority should rule, as expressed by the law of Parliament for the time being.

Mr. HIGGINS.-But you are expanding the Constitution without the formalities required for the amendment of the Constitution.

Mr. GORDON.-This is designed to make possible the expansion of the Constitution by allowing some relief to the extreme rigidity of a written Constitution. It has that object, and it also has the object of preserving, as far as possible, parliamentary sovereignty over the extreme and technical interpretations of the courts. It has further the object of reducing the expense of litigation, and it has the advantage also, as I think, of maintaining, to as large an extent as is practicable in a written Constitution, the will of the people, which in some measure must be subordinated, of course, to the contract, and has to be interpreted by the courts on the strict lines of legal refinement. The courts have only functions to perform, they have no discretion. It is possible, according to the strict reading of the Constitution, that one individual might paralyze the whole political desire of a state on the one hand, or of the Federal Parliament on the other hand. This subject has been dealt with by some exceedingly able writers. One series of articles appeared in the Weekly Herald, of Adelaide, by Mr. Heggaton, advocating a proposition of which Mr. Holder has given notice. The effect of it is that under certain conditions a law of a state Parliament or of the Federal Parliament should not be open to be attacked. I am prepared to support the honorable member, but this is a proposition which goes half-way, and which leaves either law to be attacked if it injures the Commonwealth or the state, or inflicts injury on any individual of the Commonwealth or of a state which calls for intervention. The machinery required is simple. It could be done by a reference to the court, or by the intervention of the Attorney-General of the state or of the Commonwealth. All our rights depend to some extent on the probity of the Attorney-General for the time being. In criminal matters, he has the right of presenting or of not presenting a bill, and in divorce cases he also has the right of intervening. The guardianship of our individual rights, I may say of all our rights and liberties, rests for the time being on the Government in power. That is no new proposition. I know that the objection may be raised that this would place the private citizen in the power, to some extent, of the Attorney-General of the day-an officer of a faction-but that is the system of government under which we live.

Mr. SYMON.-I do not think so.

Mr. GORDON.-If the Parliament of South Australia passed a law demanding. a contribution of £10,000 from the honorable member, he would have to pay it.

Mr. BARTON.-Our civil rights are not in the hands of any Government, but the rights of the Crown in prosecuting criminals are.

[start page 1685] Mr. GORDON.-Even that embraces a very large body of rights, and the principle is the same. We have to rely in many of our relations on the probity of the Attorney-General, on the probity of the Parliament, or, to go further down, on the probity of the community. Upon all these grounds I contend that the amendment is one that ought to be passed. It leaves the whole executive power open to attack. Once a law is passed anybody can say that it is being improperly administered, and it leaves open the whole judicial power once the question of ultra vires is raised. Under the clause, as I have amended it, it will not prevent the plea of ultra vires being raised where it is accompanied with the plea of a conflict of law. If there is a state law and a Commonwealth law on the same subject, every citizen is entitled to know which be should obey. If he joins a plea of ultra vires with a plea of conflict of law, that ought to be heard. The clause expresses only one limitation, and it is on the question of who shall raise this plea upon a subject which has been legislated on only by one of these great powers-the Commonwealth on the one hand, or the state on the other. Once either of these powers has passed a

law, my contention is that they are the guardians on the dividing line who are to watch each other and to see that that line is not improperly crossed.

Mr. TRENWITH.-In the event of injury being done by a law that they had not the right to challenge, although it was unconstitutional, how would they be compensated, supposing it had been in operation for some time before complaint was made?

Mr. GORDON.-My contention is that if the Commonwealth passed a law that caused injury to a number of citizens of a state, the Parliament of that state would be up in arms, and they would have their constituents and the press behind them.

Mr. SYMON.-What proportion of citizens would you suggest?

Mr. GORDON.-Such a proportion as would negative the proposition that the law was for the good of the majority. That is the test now. Every Tariff involves somebody in loss. It is not a question of loss to the individual, but of the legitimacy of the law, and the interests of the larger body of the people. We must make it a postulate that our Parliaments will not pass ethically bad laws. We are bound to suppose that these laws will be legitimately passed in the interests of the majority, and for the reasons I have given I hope that this clause will be agreed to.

Mr. WISE (New South Wales).-One of my honorable friend's most agreeable characteristics is the versatility with which he from time to time takes up positions that, to the ordinary mind, appear to be not only different, but mutually destructive. At one time we have him posing as the vehement champion of state rights, and insisting on the strictest line of demarcation between the powers of the Commonwealth and of the states. At another time we find him moving an amendment which, in its effect, would obliterate all distinction between the Federal Commonwealth and the states.

Mr. TRENWITH.-How does that appear?

Mr. WISE.-If the honorable member had only moved this amendment when we first met in Adelaide, and had carried it we should have been saved many months of discussion. All that would have been necessary then would have been to frame a Constitution in about six clauses, declaring that there should be a Commonwealth Parliament, that the states Parliaments should remain, that the powers of the Commonwealth Parliament should be whatever the states Parliaments allowed them to be, and that the powers of the states Parliaments should be whatever the Federal Parliament allowed them to be. That would have been our Constitution. The amendment, as it stands, provides that whatever law may be passed, taking the first branch [start page 1686] of it, by the Commonwealth, it is not to be declared ultra vires if the five Attorneys-General of the several states agree that for any reasons of state they will wink at any violation of the law, and allow any person affected injuriously by it to suffer.

Mr. TRENWITH.-That is not fair-the five Attorneys-General.

Mr. WISE.-Yes. We have been striving all through to erect an independent Commonwealth with certain clearly-defined subjects of legislation, and to provide very strictly that the rights of a state should not be impinged upon by the undue exercise of the powers of the Federal Parliament. In order to prevent that, we have constituted a Supreme Court to interpret the laws of the Parliament. But the honorable member now comes forward and says that the Parliament is to make the laws, and that the Ministers of the day are to interpret them. The Parliament may make what laws it pleases. It may make laws altogether outside the subject of the matters referred to it by clause 52, but unless in each state there is a majority sufficiently strong to sway the Ministers in power for the time being, those laws will not be declared to be ultra vires.

Mr. TRENWITH.-If there is a majority strong enough in any one state that will be sufficient.

Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each state might say-"We are favorable to this law, because we shall get £100,000 a year, or so much a year, from the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate provisions for the amendment of the Constitution? Why should we not say that the Constitution may be amended in any way that the Ministries of the several colonies may unanimously agree? Why have this provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to occupy a few minutes in discussing it. Not that I believe that it will be carried, but I think it is an echo of a widespread misapprehension which prevails outside as to the duties and functions of the Supreme Court. It very often seems hard to a layman that that which has been enacted by Parliament should be declared to be illegal by a Supreme Court when the statute is called into question during litigation between two citizens. It is hard, but like everything else in politics, it is a choice of evils. The question is: Whether it would not be of much greater disadvantage to the whole community to bring in the Supreme Court as an interpreter of the Constitution before any precise case was taken before it, than it is to leave the individual to suffer the hardship of finding that the Act upon which he relied was really invalid? I will not use my own language in explaining the position, but, to have it put upon record, I should like to quote a passage which occurs on pages 154 and 155 of Dicey's Law of the Constitution. After pointing out that the American Supreme Court exists to interpret the Constitution, and to see that effect is given to its provisions, the writer goes on to say that-

The power, moreover, of the courts, which maintains the Articles of the Constitution as the law of the land, and thereby keeps each authority within its proper sphere, is exerted with an ease and a regularity which has astonished and perplexed continental critics. The explanation is that the Judges of the United States control the action of the Constitution, but they perform merely judicial functions, since they never decide anything but the cases before them. It is natural to say that the Supreme Court pronounces Acts of Congress invalid, but in fact this is not so. The court never directly pronounces any opinion whatever upon an Act of Congress.

[start page 1687] What the court does do is simply to determine A. is or is not entitled to recover judgment against X.; but in determining that case the court may decide that any Act of Congress is not to be taken into account, since it is an Act beyond the constitutional powers of Congress.

If any one thinks this is a distinction without a difference he shows some ignorance of politics, and does not understand how much the authority of a court is increased by confining its action to purely judicial business.

In a book prepared by you, sir, entitled A Manual of Reference for the use of Members of the National Australasian Convention, to which frequent reference has been made, the matter is further dealt with. You say, at page 126, in words that I would like to adopt as part of my argument:-

No doubt the power given is very great, but it is exercised in a manner and by a body which affords the least possible chance of friction and quarrels between the central and the provincial governments. A veto by the central authority has to be exercised at a time when the public attention of the provincial electors is directed to the matter; at a time when, perhaps, party spirit runs high, when angry passions pervade both factions, and when the subject-matter is invested with an importance which is not intrinsic, whereas a declaration by a court that the statute is invalid is withdrawn from the sphere of politics. Each individual and each state looks upon it that such declaration is given only in pursuance of the Constitution. Public attention is probably directed to other matters, and the question has, in many cases, shrunk into its native insignificance; and "it is to the interest of every man who wishes the Federal Constitution to be observed that the judgments of the federal tribunals should be

respected, and they take it that the courts are the protectors of the federal compact, and that the federal compact is, in the long run, the guarantee of the rights of the separate state."

If the proposal of the honorable member (Mr. Gordon) was carried into effect-though of that, I think, there is not the slightest chance-it would follow that any person who was aggrieved by an unconstitutional enactment would have to persuade the Attorney-General of the state or of the Commonwealth, as the case might be, to in some way set the law in motion to ascertain the legality of the enactment, If the enactment was one which affected a matter exciting strong party feeling, the result would be that the abstract question of its validity would have to be argued before the court at a time when public feeling was excited, although it would be of the utmost importance that the decision of the court should be entirely free from all suspicion of political bias. Then, too, the enactment might be valid in parts and invalid in other parts, or it might be impossible to interpret it in the abstract. It is impossible to foresee the bearing of a statute upon all possible cases, and it is only when a case comes for determination before a court that the court is able to say that in that particular case the statute does or does not afford protection to the citizen who has relied upon it. The honorable member's proposal would remove at once the greatest of all safeguards to the impartiality and usefulness of the Federal Court, by taking away from it its right to deal with matters which are brought, as lawyers term it, to a distinct issue, and with precise and definite points, in regard to which the full bearing of every word of the judgment could be appreciated? Instead of the court being able to determine the legality of an enactment in its bearing upon any particular case, there would be considerations introduced which were utterly foreign to the atmosphere of the tribunal, and that would seriously impair the public confidence in a court which, with us, as in America, will, I believe, prove to be the ultimate protector of the liberties of the people. Then, too, the amendment is in its form so complicated that its practical working will be impossible. The honorable member said truly that the Attorney-General constantly intervenes now. But he intervenes at the expense of the individual. The individual presents his case, and gives a guarantee for costs. Under this proposal all that would happen would be that the individual who wanted to assert [start page 1688] his right would have a barrier placed between him and the obtaining of justice. He would have to satisfy the Attorney-General for the time being that he would be able to pay the costs of any action, and he would have to bring sufficient political pressure to bear upon that officer to get him to move in the case, and finally he would be left to contest the matter in his own interests and in his own name. The result would be that the rights and liberties of every citizen in the community would be placed at the mercy of a chance parliamentary majority.

Mr. GORDON.-That is the position now-the rights and liberties of every individual are at the mercy of a parliamentary majority.

Mr. WISE.-The honorable member is now speaking of rights in respect to legislation. If the Parliament of South Australia were to pass a law contravening the Merchant Shipping Act

Mr. GORDON.-I am not speaking of Imperial legislation.

Mr. WISE.-Suppose the Parliament of South Australia wanted to get rid of the Plimsoll Mark Act-even though there were a majority it would be invalid, but according to the honorable member, when, we have here a case exactly analogous, if the Constitution limits the power of the state, and enacts that certain powers shall belong exclusively to the Commonwealth Parliament, and that if the state deals with them it invades the authority of the Commonwealth Parliament, the individual is to have no rights unless he can persuade the Government of the day to take up his case. It is in the interests of the poorer and uninfluential classes of the community, it is. in the interests of the minority, that this amendment should be rejected, because it places an obstacle in the way of obtaining that justice which ought to be free to every individual in the community.

Mr. HIGGINS (Victoria).-I should like to add my protest against this new clause. I am bound to say something, because the honorable member (Mr. Gordon) says it is only the conservative and timid lawyers who would venture to oppose this proposal.

Mr. GORDON.-I did not say that. I said as a rule the legal profession is, according to Herbert Spencer, a timid and conservative class.

Mr. HIGGINS.-That may be so, and if the honorable member says he did not make that statement it is all right. Anyhow, I thought he said that only conservative and timid lawyers would oppose this clause. There is no doubt the intention of the honorable member is excellent. He wants to diminish litigation. If he can show that this will diminish litigation to any material extent, and, at the same time, will not involve us in a great many dangers to our liberties, I will go with him, but he has not shown anything of the sort. As Mr. Wise has shown, it will throw an unpopular minority into the power of a chance Ministry of the day. We must see to-day that the rights of individuals, even unpopular individuals, are preserved in the Constitution. I think Sir John Forrest said that I personally had not got sufficient respect for the rights of individuals.


Mr. HIGGINS.-Do I understand him to refer merely to private property?

Sir JOHN FORREST.-Not the same respect as I have.

Mr. HIGGINS.-I understood the honorable member to put himself on the very highest pedestal, and by contrast to put me on the very lowest. At all events, I feel that if this were carried, an unpopular individual, to obtain his rights and liberties, would have to go cap in hand to and be at the mercy of the Government of the day. I was thinking of the pig-tail case which occurred in California, and which I alluded to some time ago, where an abominably unjust law was passed against Chinamen. It was passed to persecute them in regard to their pig-tails, which they [start page 1689] regard with exceptional reverence. That law was declared to be unconstitutional as a law passed by a state. I ask honorable members to consider the great difficulty there would be in getting the Federal Congress or Federal Executive to interfere in the case of Chinamen, so as to enforce their rights in such a case. There was an exceptional law which should never have been passed. It was distinctly a persecuting law. Any practical politician would see the great difficulty there would be in appealing to a Federal Executive, especially if there was an election approaching, to enforce the just rights of Chinamen in such a case. The same thing might happen supposing a federal law were passed which was outside the Constitution. Supposing that a majority of the state concerned happened to regard the man as unpopular supposing a law were passed that no one bearing the name of Jones should be admitted into the state of Virginia, the law might be directed against a certain person named Jones, and it would be unconstitutional, and Jones could not enforce his rights to go into that state. I ask, is he to be compelled to go cap in hand to the Attorney-General of the state of Virginia to enforce his rights? I feel that, with the very best intentions my honorable friend is making the gravest of mistakes. So far as regards the main purport of the amendment, it would mean this: That you could only get a point of this sort decided by having a state or Commonwealth intervening as a party. You would turn judicial questions into political questions. You would proclaim-"Here is a question between the state and the Commonwealth; here is a political question"; and you would make the Judges partisans. It is one of the great advantages of private persons being able to raise these points, and not the states or the Commonwealth, that you keep the judicial bench free from the taint of political partisanship. I feel that the more you look at this thing all round, the more inconsistent it is with the very first principles of justice. It may be said-”Even supposing the law does go beyond the Constitution in some degree, surely it ought not to be left to a private person to upset it." I say it ought to be upset at once and at the very earliest point. As soon as ever you find it has gone beyond the bounds you ought to say-"This thing is illegal." Otherwise you will leave to the Ministry of the day these powers of which you are so careful, giving them to a majority of the states and to a majority of the people. You would allow the Ministry of the day to exercise a suspending power as to whether it would enforce a law or not, which is most dangerous. It is one thing to induce a Government or Parliament to pass an unjust law, and it is quite another thing to induce a Government for one excuse or another to hold its hand from acting. What I fear is that you would often induce the Government to withhold its hand from acting, for fear it would incur opprobrium or unpopularity. I sincerely hope the amendment will not be carried.

Mr. GORDON (South Australia).-Of course the objections raised are those I expected, only I think they might have been put with even greater force. And there is a great deal more to be said in favour of my motion than I have been able to say. I agree at once with the interpretation of Mr. Wise that this measure is a simple method of amending the Constitution by acquiescence. I intended it to be so, and that is not a demerit-it is a merit-of the proposal. As for the argument that you might as well have no Constitution at all if you allow amendment by acquiescence, that seems rather wide of the mark. People going into a partnership lay down the general terms of that partnership, but they may be qualified by consent. But you must have in your partnership general rules laid down. There are the general lines laid down in the Constitution, which within certain limits may [start page 1690] be modified as agreed, so that the honorable and learned gentleman's argument in that view, I think, fell to the ground. Mr. Higgins enforced the argument as to the rights of the individual. Now, I have already said that I think those individual rights should be subordinated to the general rights of the community, and to their interests as expressed in the law for the time being. I object altogether to the objection that party faction would govern. What would govern it would be the sense of the community for the time being. However, as there appears to be no hope of carrying the proposal, I must content myself by submitting it to the committee.

Mr. Gordon's proposed new clause was negatived.

Mr. WALKER (New South Wales).-It is with a feeling of considerable responsibility that I now propose new clause 117A (to follow clause 117),which is as follows:-

If the colony of Queensland adopts this Constitution, or is admitted as a state of the Commonwealth, nothing in this Constitution shall be taken to impair any right which the Queen may be graciously pleased to exercise by virtue of Her Majesty's Royal prerogative or under any statute in respect of the division of Queensland into two or more colonies; but so that the Commonwealth shall retain the powers conferred on it by this Constitution to impose terms and conditions in respect of the establishment of any such colony as a state.

Clause 117 reads as follows:-

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.

We are all aware that one of the reasons why Queensland is not with us to-day is that in the Parliament of that colony the members for the Central and Northern Divisions voted against the Federal Enabling Bill because they were afraid, from the way in which the measure was introduced, that Queensland would be made one electorate, and that the members of the Federal Convention would therefore be largely elected by people resident in the Southern Division of the colony. In that case, they feared, if clause 117 became a part of the Constitution, they would be deprived of the right of petitioning Her Majesty which they now have. It may be, perhaps, in the recollection of honorable members that on the 9th April I presented at Adelaide a petition to the Convention from the Central Queensland Territorial Separation League. That petition has had the attention of the Queensland electors, and has not been dissented from. I think it would be well if I read a few extracts from it, showing the grounds on which the petitioners desire that a new clause shall be inserted in this Constitution so as to facilitate the entrance of Queensland into the Commonwealth. Before doing that I may mention that the colonies of Victoria and Queensland were separated from New South Wales on petition, and without the approval of the Parliament of New South Wales. In fact, Victoria would never have been able to secure separation from New South Wales if the consent of the New South Wales Parliament had been required. At the time Queensland was made into a separate colony, Her Majesty, as will be seen from the extracts I will presently read, reserved the right to separate

Queensland into two or more colonies. The memorialists, amongst other things, made the following statements:-

That, by Acts passed by the Parliament of Queensland, that colony has for certain administrative purposes been divided into three parts, described as the Southern Division, the Central Division, and the Northern Division respectively, with the several boundaries described in the 1st schedule to this memorial.

That in every one of the Government Financial Separation Bills introduced unsuccessfully into the Queensland Parliament from time to time since 1871-

They have had Financial Separation Bills introduced more than once.

the colony was proposed to be divided into three parts-South, Centre, and North.

That the Queensland Federal Enabling Bill, introduced last year, provided for the three divisions being constituted as separate electorates. [start page 1691] The Premier, Sir Hugh Nelson, when moving the second reading of this Bill, said-"Take the Northern and Central districts. We all know that they have a perfectly legitimate aspiration, that they are looking forward to the day when they will be formed into separate states. Why should they not? I propose that they shall of necessity be represented at this Convention by dividing the colony into three electorates-Northern, Central, and Southern, each sending its own representatives. This is a burning question with the electors of the Northern and Central districts."

That is the first time they brought in a Bill in which it was proposed that the members of the Convention should be chosen merely by the members of the House of Assembly. Further on, and this is a matter to which I wish to draw the particular attention of honorable members, the memorialists say-

That the inhabitants of the Central Division have for many years desired the privilege of self-government, and to that end have repeatedly and almost unanimously claimed the boon from the Parliament of Queensland, as well as by petition from the Imperial Government. They rely, not only upon the provision made in past Imperial legislation for the protection and benefit of communities placed in the position of the petitioners, but also upon the implied promise of the Duke of Newcastle, in his despatch of the 18th August, 1858, addressed to Sir William Denison, the Governor of New South Wales, in which he stated that "It will be desirable that the Crown should possess the power of dividing further the territory now created into the colony of Queensland by detaching from it such northern portions as may hereafter be found fit to be erected into separate colonies"; and also upon his despatch to the Governor of Queensland, Sir George Bowen, dated 14th September, 1861, in which he said-"I am not prepared to abandon on behalf of Her Majesty's Government the power to deal with districts not yet settled as the wishes and conveniences of the future settlers may require."

The petition ends as follows:-

That a clause of the Commonwealth Bill of 1891 contains the provision that subsequent to the passing of the Act of Union no state shall be subdivided, except with the sanction of the Parliament of that state; and your memorialists have reason to apprehend that the same provision will be contained in the Bill of the Convention.

That is so at the present time.

That the enacting of such a provision would be calamitous to the Central and Northern Divisions of Queensland, and leave them perpetually at the mercy of the more numerous but less productive populations of the Southern Division.

That, as an act of simple justice, your memorialists therefore pray that provision may be made in the Constitution Bill of the Convention for the admission of the present colony of Queensland into the Federation as three separate autonomous provinces or states.

Well, of course, we could not think of admitting the present colony of Queensland into the Commonwealth as three different states, because that would give them an undue representation, but my amendment overcomes that difficulty. And I must here express my thanks to the leader of the Convention for putting my proposal into proper form. I therefore hope that the Convention will see their way to adopt this new clause, because it may be the means of facilitating the entrance of Queensland into the Federation. I have shown this clause to several members of the Queensland Legislature whom I have met in Melbourne, some of them representatives of Southern Queensland.

Mr. BARTON.-Whom do you say you have discussed the matter with?

Mr. WALKER.-With several members of the Queensland Parliament.

Mr. BARTON.-With any representing Southern constituencies?

Mr. WALKER.-Yes, among others, with the representative of Maryborough, and they did not see that Queensland will be in a worse position if this clause is passed than she is at present. Southern Queensland will be in no worse position if the power to petition Her Majesty remains as it now stands. I have myself resided in the three districts of Queensland, so I can speak from personal knowledge. Since the early "sixties" there has been a continual movement for separation, and so much is this state of public opinion in Queensland recognised that the headquarters of one Supreme Court Judge are [start page 1692] at Townsville, of another at Rockhampton, and the remainder of the Supreme Court Judges have their head-quarters in Brisbane. The clause I now propose practically says to the people of Queensland-"If you join the Federation you shall have the same privilege as regards dividing your territory as you have now."

Sir EDWARD BRADDON.-They have been told that by the Secretary of State for the Colonies.

Mr. WALKER.-Yes. I shall not detain the Convention further, but if there is anymore information which I can give to honorable members, I shall be most happy to give it. I have shown my proposed clause to a good many members of the Convention, and, so far as I can gather, the feeling is that it seems to be only reasonable that Queensland should not be put at a disadvantage by coming in. At present a large portion of Queensland would be put at a great disadvantage if they came in and this Constitution was not altered, because they would, for all time, lose the opportunity of being separated, except with the consent of the Queensland Parliament, and many years might elapse before they could get the relief for which they have petitioned Her Majesty the Queen.

[The Chairman left the chair at five o'clock p.m. The committee resumed at thirty-five minutes past seven o'clock p.m.]

Mr. DEAKIN (Victoria).-I understood, before the adjournment, that the leader of the Convention was about to offer some remarks on this clause, and awaited with interest what be had to say upon it. For my own part, there seems to be one amendment and one addition necessary. I have, since the adjournment, learned that a similar provision obtains in the Constitution of Western Australia, and it seems to me that the clause should be made to apply also to that colony.

Mr. KINGSTON.-Why not make it general?

Mr. DEAKIN.-Perhaps that would be better still. But it is interesting to know that the conditions which this clause is intended to meet pertain to more than one colony.

Sir JOHN FORREST.-We do not want it to apply to us.

Mr. WALKER.-Is it not the case that Queensland has not made a special effort to come into this Federation owing to the necessity for this provision?

Mr. DEAKIN.-But that is not a reason why Queensland should be the only colony referred to in the clause, nor is it a reason why the proposal should not apply to all the colonies. It seems to me that the amendment suggested by Mr. Kingston would be an improvement; but I would suggest that the proper provision is that which is already found in the measure before us, and that is the reservation to the Federal Parliament of the power of subdivision. The exercise of such a power during the separate existence of the colonies would naturally be vested in Her Majesty, but after the establishment of union the proper authority in which to vest such a power would be the Federal Parliament.

Mr. WALKER.-Look at clause 117.

Mr. DEAKIN.-That clause provides that a new state shall not be formed by separation from another state without the consent of the Parliament thereof. If any power of subdivision is to be given it should be to the Federal Parliament, as such a provision would be more in accordance with a Federal Constitution. In fact, it would be embarrassing to give to Her Majesty such a power, when the state to be subdivided was a member of a federal body, in whose Constitution and whose representative strength such a subdivision would make serious alterations.

Sir EDWARD BRADDON.-But Queensland apparently does not intend to become a member of the Federation.

Mr. DEAKIN.-The matter can only be considered from the point of view [start page 1693] of the possibility of her becoming a member. I am in favour of Mr. Walker's proposal, with the amendment indicated, and with the suggestion made by the Premier of South Australia that instead of confining it to an individual colony the clause should be made to apply generally, and that the power of subdividing should be transferred to the Federal Parliament.

Mr. SYMON.-You would not make it apply to any other colony as to which the same power does exist?

Mr. DEAKIN.-It is not necessary, because clause 117 provides for every other instance in which such power of subdivision may be required.

Sir JOHN FORREST.-Is there any such provision in regard to Queensland?

Mr. DEAKIN.-So I understand. The provision in clause 117 can only be exercised with the consent of the colony to be subdivided. But in two states at least-Queensland and Western Australia-there exists a special power in their present Constitution for subdivision without the consent of the states.

Sir JOHN FORREST (Western Australia).-Although I am quite aware that there is a provision in the Constitution of Western Australia that Her Majesty in Council may subdivide the colony, I think it very unlikely, at any rate under any circumstances we can foresee at the present time, that that event will ever take place unless it is desired by the Legislature of the colony. I am not aware that in the Constitution of Queensland there is any provision for the separation of the colony, although I know that there has been a good deal of controversy in regard to the matter.

Mr. KINGSTON.-Is there any special provision in your Constitution Act?

Sir JOHN FORREST.-Yes. I think the Imperial Government has pretty well laid it down that it will not subdivide Queensland without the consent of its Legislature. That has been the position, I think, which has been taken up, if not actually in words, certainly in effect. Although the fact is stated

in the Constitution of Western Australia that Her Majesty in Council may subdivide the colony, I suppose that power is inherent in the Imperial Parliament in regard to any British colony. Although it would probably be easier to subdivide Western Australia than it was to subdivide New South Wales, still I take it that the power is inherent in the Imperial Parliament to subdivide New South Wales, Queensland, or any other British colony, if it chooses to do so. But we know very well that that is not likely to take place, at any rate, under circumstances that we can foresee. I cannot think that the proposal of Mr. Walker is one which I should support, because I take it that the subdivision of Queensland is not likely to come about unless with the consent of her people, and that would come about just as easily under a federal form of government, subject to conditions, as it would come about under existing conditions. I do not think it belongs to us particularly to pave the way specially for Queensland in this matter. Queensland, no doubt, will be able to look after herself, to manage her own business in her own way, and, as she is not represented here, I think we should treat her as we treat every other colony in the group, that is, pave the way for her to come in, leaving it to her people to determine hereafter whether it shall or shall not be subdivided.

Mr. ISAACS (Victoria).-I shall be very glad if some honorable member who is more familiar with the Constitution of Queensland than I am can tell us precisely where this alleged power of subdivision exists.

Mr. WISE.-It is in their Constitution.

Mr. ISAACS.-I shall be very glad if some honorable member will point it out to me. So far as I have been able to gather, the Imperial Act of 1855, 18 and 19 Vict., chapter 54, provides that the northern boundary of New South Wales may be altered by letters patent. Section 7 of that [start page 1694] Act provides that whenever the Crown does alter the northern boundary of New South Wales, it may constitute the portion north of the newly-constituted boundary into a separate colony or separate colonies. Now, Her Majesty did in 1859, by letters patent, alter the northern boundary, and constituted a colony. It converted the Moreton Bay district into Queensland.

Mr. HIGGINS.-Then is not the power exhausted?

Mr. ISAACS.-I am not aware whether any power of subdivision exists apart from Imperial legislation.

Mr. BARTON.-It is only Imperial legislation, I think, and then there is the Boundary Act of 1895.

Mr. ISAACS.-That Boundary Act of 1895 does not, I think, touch this particular point. That is the Act requiring the consent of the colonies to a decision on this point.

Mr. KINGSTON.-That is merely an Act of agreement.

Mr. BARTON.-It says that where any colony has been or is altered afterwards by letters patent, those boundaries shall be considered the boundaries of the colony.

Mr. ISAACS.-That is a short Act of two or three clauses dealing with the point of the consent of a state, but I don't think it touches the point now before the Convention.

Mr. WALKER.-That Act only refers to the boundaries of existing colonies and does not deal with severance.

Mr. ISAACS.-That Act is the 58th or 59th Victoria of 1895. It provides that where the boundaries of a colony have, either before or after the passing of the Act, been altered by Her Majesty the Queen by Order in Council-by letters patent-the boundaries so altered shall be deemed to be from the date of the alteration the boundaries of the colony fixed, and the consent of the colony shall, be required to the alteration of the boundary. As I have said, I do not think that affects the present position. So far as

I am personally acquainted with the law-I do not pretend to a close acquaintance with it-that is the position. The 7th section of the Act gives power to alter the northern boundary of New South Wales by letters patent. That has been done, and territory severed from New South Wales has been erected into a new colony called Queensland. It looks very much as if the power given by letters patent has been exhausted. I am aware the separatists, as they are called, in certain parts of Queensland have urged on the Imperial Government that there still exists an unexercised power to further subdivide Queensland. Whether that be correct or not I do not know. The Home Government have said they do not abandon the claim to do it, but on what ground that is urged I am not aware. We are not in a position to say there is such a power, and until we are clear on that point we might be taking an extraordinary step if we put in a clause dealing with the matter.

Sir EDWARD BRADDON (Tasmania).-I think it would be prudent, in the interests of the Commonwealth, to retain this power in the hands of the Queen, even if no immediate necessity arises for such retention out of the existing Constitution of Queensland. We know that it is at present admitted by Queenslanders themselves that they have no power of dividing their territory. At the present time the people of Queensland seem to be in a very puzzled condition on this question. The northern and central portions of that colony desire to be separated. They desire Queensland to be divided into three colonies, and not very long ago-I think some two or three years ago-the Secretary of State for the Colonies forwarded the information that no such division might be made until the colonies are federated. Federation, therefore, had to precede the division of Queensland. Now, apparently there is a movement in the northern part of Queensland, which has for its object the reversal of the order of things, and making the division of Queensland [start page 1695] precede federation. As the matter stands at present, there is a direct flying in the face of the advice received from home, and no hope whatever is offered to the people of Northern Queensland of obtaining the division for which they ask. They have first to federate, and it would certainly not impede that federation if we retain this provision in the Constitution Bill, which gives Her Majesty the prerogative to say whether that division shall take place or not.

Mr. BARTON (New South Wales).-Among the parliamentary papers published in Queensland will be found in the Votes and Proceedings for 1893 a synopsis of Imperial legislation relating to the separation of Australian territories, and the creation of new colonies therein, and the establishment of government therein. In that synopsis (page 1036) reference is made by quotation to the Acts which seem to deal with this matter. The first is 3 and 4 Vict., chapter 62, section 2, which recites-

Whereas the said colony of New South Wales is of great extent, and it may be fit that certain dependencies of the said colony should be formed into separate colonies, it shall be lawful for Her Majesty, by letters patent to be from time to time issued under the Great Seal of the United Kingdom of Great Britain and Ireland, to erect into a separate colony or colonies any islands which are now, or may hereafter be, comprised within or be dependencies of the said colony of New South Wales.

Then, 5 and 6 Vict., chapter 76, section 51, provides that-

It shall be lawful for Her Majesty, by letters patent to be from time to time issued under the Great Seal of the United Kingdom of Great Britain and Ireland, to define as to Her Majesty shall seem fit, the limits of the colony of New South Wales, and to erect into a separate colony or colonies any territories which now are, or are reputed to be, or may hereafter be, comprised within the said colony of New South Wales: Provided always that no part of the territories lying southwards of 26 degrees south latitude in the said colony of New South Wales shall be by any such letters patent as aforesaid separated from the said colony.

13 and 14 Vict., chapter 59, section 32, provides-

And whereas by the said firstly-recited Act of the sixth year of Her Majesty power is reserved to Her Majesty, by letters patent to be from time to time issued under the Great Seal of the United Kingdom of Great Britain and Ireland, to define the limits of the said colony of New South Wales,

and to erect into a separate colony or colonies any territories which then were, or were reputed to be, or thereafter might be, comprised within the colony of New South Wales: Provided that no part of the territory lying southwards of the 26th degree of south latitude in the said colony of New South Wales should by any letters patent as aforesaid be detached from the said colony of New South Wales: And whereas it is expedient that the power reserved to Her Majesty as aforesaid should be extended over certain parts of the said territories lying southwards of 26 degree of south latitude upon the application of the inhabitants thereof: Be it enacted that it shall be lawful for Her Majesty from time to time upon the petition of the inhabitant householders of any such of the territories in the said proviso mentioned as lie northward of 30 degrees of south latitude to detach such territories from the colony of New South Wales, and to erect such territories into a separate colony or colonies, or to include the same in any colony or colonies to be established under the powers of the last mentioned Act; and all powers and provisions of the last mentioned Act in respect of any new colony or colonies to be established under such Act shall extend to any new colony or colonies to be established under this enactment.

Then there is a provision in the New South Wales Constitution Act, section 7, that-

It shall be lawful for Her Majesty, by letters patent to be from time to time issued under the Great Seal of the United Kingdom of Great Britain and Ireland, to erect into a separate colony or colonies any territories which may be separated from New South Wales by such alterations as aforesaid of the northern boundary thereof.

Further, the 24th and 25th Vict., chapter 44, section 2, provides-

It shall be lawful for Her Majesty, by such letters patent as aforesaid, to annex to any colony which is now or may hereafter be established on the Continent of Australia any territories which, in the exercise of the powers hereinbefore mentioned, might have been [start page 1696] erected into a separate colony: Provided always that it shall be lawful for Her Majesty in such letters patent to reserve such powers of revoking or altering the same as to Her Majesty shall seem fit; or to declare the period during which such letters patent shall remain in force; and also in the revocation or other determination of such letters patent to exercise in respect of the territories referred to therein or any part thereof all such power and authority as might have been exercised if the said letters patent had never been issued.

And then the petition says-

It is assumed that the foregoing citations establish these facts-

(1) In the beginning the Crown carried out the details of administrative government and restricted legislation.

(2) By the Act of 1842 (5 and 6 Vict., chapter 76), the separation of the two functions-division of territories and establishment of colonies-was first indicated, the reservation of the divided power to the Crown being distinctly stated. By this Act the elective principle was first introduced.

I mention this to show the position taken up by those who advocate separation.

(3) By the Act of 1850 (13 and 14 Vict., chapter 59), the reservation to the Crown of the power to separate territories was re-affirmed; but with the right vested in the inhabitants of Australian territories to call for its exercise. As regards government, the elective principle was continued, and the power to the Legislative Council, established under the preceding Act, and the Act presently cited, to establish an enlarged form of Legislature, either of one or two Houses, with either partly nominative or wholly representative. By the 37th section of this Act these powers were extended to all new colonies from time to time created on separated territory, and it thus became the constitutional, charter of Australia, and on which or from which all the Australian Constitutions have been framed or devised.

The New South Wales Constitution Act of 1853 and the recent Western Australia Constitution Act were both submitted to the Imperial Government on this authority, of which no diminution has hitherto been attempted, except by the 18 and 19 Vict., chap. 54, by a provision in which the form of Legislature and Government in new colonies was directed to be in accordance with those in force at the time in New South Wales. This proviso was repealed by the 24 and 25 Vict., chap. 44 (1861), and the provisions of the 13 and 14 Vict., chap. 59, are the only ones in force at the present time.

That seems to be the position which the petitioners took up, that the division is possible, and ought to be carried out, under Act 13 and 14 Vict., chapter 59.

Mr. HIGGINS.-Is not the power of creating new colonies exhausted?

Mr. BARTON.-In all these cases the power may be given by letters patent from time to time. The power is not exhausted as long as there is territory to operate upon.

Mr. ISAACS.-Her Majesty might have constituted a portion of that territory into a colony.

Mr. BARTON.-She might. She might have made Southern Queensland into a colony, and not dealt with the remainder. Then the question arises, whether the power might not be exhausted by the territory to be operated upon being also exhausted-whether these powers are such as entitle Her 'Majesty, after making a subdivision, to make a further subdivision of the same territory. There is a doubt as to whether the alteration of boundaries can be read so widely as to mean the separation of territory. Having explained the position of the petitioners, who seem very urgent in their claims, I feel considerable doubt and difficulty about this clause myself. I should be very loath indeed to omit any reasonable provisions from this Constitution which might satisfy the inhabitants of Queensland as to the terms on which they might hereafter come in-not terms affecting the Commonwealth, but terms affecting the relations of one part of that territory with another part. It might be wise to provide that nothing should be done by this Constitution which should determine any existing right of the Crown to be exercised as this Act specifies upon the call of the inhabitants, and there, probably, [start page 1697] the Convention will be agreed. I do not complain of the form of the clause, because I have had a hand in drafting it myself. It simply refuses to impair any right that may exist. The real question is whether, taking all these Acts into consideration, there is really anything to be conserved.

Mr. WISE.-It can do no harm.

Mr. BARTON.-No, I am inclined to think it can do no harm; but I recognise that the electors of Southern Queensland are in a majority, and that Southern Queensland has all along resisted this separation, and claimed from the Imperial Government the right of determining when the separation should be made. That is to say, the people of Southern Queensland, being in a majority in the Queensland Parliament, have all along urged that they are the people who should determine the question of separation; and, that being so, I am in doubt whether, by the passing of this clause, we may not generate some friction which will be rather adverse to the interests of federation. It is quite true that the passing of the clause will not derogate from their claim, because, if Her Majesty has no right to subdivide the colony further, this provision will have no effect. On the other hand, we should be careful not to put into the Bill anything which is merely blank cartridge, as in that case this provision would be. I do not want to give any strenuous opposition to the proposal. We should, however, consider it well, and if we agree to it, it might be well for the President to telegraph to the Queensland Government-who, so far as the Convention is concerned, represent the colony-the text of the clause, and to ask for their opinion upon it. Our action in passing the clause would not have finality at this stage, and this might be a good opportunity to get the opinion of the Queensland Government.

Mr. SOLOMON.-Which Government may or may not represent the people of the colony.

Mr. BARTON.-Yes; but in, regard to any colony which is not represented here, we must assume that the Government is the only authority which can present the opinions of the people. The clause raises a difficulty, and the question arises whether we should embody it in the Constitution, or whether it would not be better that a telegram should be sent to the Government of Queensland, intimating that the clause had been proposed, and inviting their opinion upon it. That could be done at the present stage, and would prevent any trouble if, as might happen, the clause were negatived. Perhaps it might suit the views of the honorable member (Mr. Walker) to withdraw the clause until a reply could be obtained. That would preserve our right to deal with the matter, because we could at a later date insert the clause upon the recommittal of the Bill if we found that the views of the Government of Queensland sustained the opinion that the clause was one which should be passed. I would suggest to the honorable member that, as a middle course, and one which would not involve friction-because, although we may put the clause into the Constitution, and take it out again, we may arouse jealousy and friction, which would do no good, in the face of our desire to see Queensland a member of the Federation-he should withdraw the clause until we can hear from the Government of Queensland. That course would not leave the memory of any past wrong. At the Present time we are not quite sure of the effect of the proposal, although members of the Queensland Legislature-one of them representing a southern constituency-

Mr. WALKER.-The Chairman of Committees.

Mr. BARTON.-Although these gentlemen have told the honorable member that the provision is a good one, we might get a more authoritative pronouncement by taking the course I suggest.

[start page 1698] Mr. WALKER (New South Wales).-I have much pleasure in complying with the suggestion of the leader of the Convention, more especially as it will give our Queensland friends another opportunity of knowing that it is our wish to act in a thoroughly federal spirit, so far as that colony is concerned. I may mention for the information of honorable members that when Queensland was established as a separate colony, on the 10th December, 1859, its total population was under 30,000; it is now about 470,000-a very considerable increase in 38 years. The portion of Queensland which does not want federation at present, but which wishes to make provision for it, contains 170,000 people-a population as large as that of the great colony of Western Australia. I have no doubt but that if we follow the suggestion of our leader good will eventuate. I have no other object than to do what I can to bring the great colony of Queensland into the Federation, being one of those who think that the Federation of Australia will never be complete until we are surrounded by water as our natural boundary. With the permission of the committee, I beg leave to withdraw the proposal in the meantime.

Mr. SOLOMON (South Australia).-I object. I would like to point out to the Convention that this is a much more important clause than it seems to have been considered by the leader of the Convention, who has pointed out the various enactments under which the different colonies have been established. He has pointed out that by some means, which he did not well define, we might, by putting in a clause of this kind, arouse a spirit of jealousy in the people of Queensland. He suggested that the way to get over this difficulty is for this Convention to appeal to the Government of Queensland to learn their opinion upon it. The Government of Queensland have had ample opportunity, had they chosen to be as earnest in the cause of federation as the other colonies, to be represented in this Convention. It is not to the Government of Queensland that this Convention should desire to appeal. I believe this clause has been drafted by the Drafting Committee.

Mr. REID.-No; mainly by Mr. Walker.

Mr. SOLOMON.-It was submitted, I believe, by Mr. Walker, and drafted by the leader of the Convention, and it was meant to provide an easy means by which the people of Queensland could approve of this Constitution. We must all recognise that every delegate here is most anxious that federation should be completed by the admission of Queensland upon the same terms that we are

being admitted 'ourselves. In another portion of this Constitution we find that with regard to other states coming in it will be necessary, perhaps, later on, for a bargain to be made between the Commonwealth as then established and the new states seeking admission. We all recognise that the difficulties in Queensland have been, first of all, a generally greater desire for the separation of the colony into three portions than for federation. We must all admit that, had it not been for the peculiar action of the Government of Queensland, that colony would have been represented in this Convention. I have no need to call attention to the telegrams that we received at different times from the representatives of that Government as to their desire to join in the deliberations of this Convention. We know perfectly well that those desires, as expressed in their telegrams, could not have been in earnest, or they would have been represented here. And what does Mr. Walker seek to do now? He seeks to place the colony of Queensland in a position that they would be able to come into this Federation, when it is formed, on precisely the same advantageous terms as the other colonies who are now taking part in it.

Mr. BARTON.-That is not the object of Mr. Walker's clause.

Mr. SOLOMON.-Of course it is not all the object of that clause.

[start page 1699] Mr. BARTON.-It is not any of it.

Sir JOHN FORREST.-Queensland in have to come in on better or worse term than the other colonies. The new term might be better.

Mr. SOLOMON.-We will admit that; but I am sure that neither Queensland nor any other colony would seek to be admitted on better terms than the smaller colonies are admitted. But one thing those who have sought Mr. Walker's aid desire is that they shall not be prejudiced, and that they shall still have a right, if necessary, to subdivide their colony.

Mr. WALKER.-Subject to Her Majesty's will.

Mr. SOLOMON.-Subject, of course, to Her Majesty's will. And the clause is so drawn that I cannot see for a moment, nor has the leader of the Convention pointed out, one reason that could possibly lead to any friction or any possible jealousy. The honorable gentleman talks about the possibility of friction, and about the possibility of arousing jealousy in Queensland in this matter, but he has not shown us any reason for it. What point is there in the whole clause, from first to last, that can possibly give occasion for any jealousy on the part of the people of Queensland?

Mr. BARTON.-On the contrary, it might arouse the most intense jealousy on the part of South Queensland, which, at present, has the majority.

Mr SOLOMON.-Well, we all know pretty well that, as far as the south of Queensland is concerned, we have very little hope from that portion of the colony in regard to federation-very little indeed. It is more the central and the northern portions of Queensland that we have to look to for the majority of the people being favorable to federation. This clause seeks to do two things-first of all, to permit the colony of Queensland to come into the Federation, and next to preserve their right in reference to the subdivision of the colony at a later date; and, more than that, it provides against any objection that might be raised by the members of this Convention as to the representation of the separate portions of Queensland, by stating that if that colony is subdivided in the future, by permission of Her Majesty, in accordance with her prerogative, those states shall then only come into the Federation on such terms as may be made with the Commonwealth. Will the leader of the Convention, or any other honorable member, show me a single legitimate reason for refusing to mollify the people of Northern and Central Queensland by a clause of this sort, or a reason why we should not place such a clause in our Bill? I would like to hear some other members of this Convention, who are, no doubt, as anxious as I am myself-as anxious as most of us are, I believe-to

see Queensland represented in this Convention, and joining the Federation, because without that colony it will be a very incomplete Federation of Australia.

Mr. WALKER.-It will be lop-sided without Queensland.

Mr. SOLOMON.-A very lop-sided Federation indeed. I would like those honorable members to show some real cause for withdrawing this new clause.

Mr. WISE.-It is only temporarily withdrawn for a day; it will be brought on again.

Mr. SOLOMON.-For what reason is it withdrawn?

Mr. WISE.-To get the views of the Government of Queensland; we shall not be bound by them.

Mr. SOLOMON.-That is a reason we have no justification for descending to. The views of the Government of Queensland on this point are not such as should influence this Convention to any extent.

Mr. WISE.-Probably they would not.

Mr. SOLOMON.-Our experience of the Government of Queensland has not been, so far, of the most satisfactory description.

[start page 1700] Mr. WISE.-We can discuss their views when we get them. Why occupy time in the discussion of the matter now?

Mr. SOLOMON.-I hope the honorable member (Mr. Walker) will reconsider the subject before he withdraws the clause on the off chance of it being considered, probably next week, when a great many honorable members of this Convention will be in a hurry to get away to their own colonies, and when it will not have a fair chance of being fully and fairly discussed. This clause appears to me to have been carefully drafted, and it is calculated to obtain the approval of the majority of the people of Queensland. Of course, there may be an anti-federal feeling on the part of some people in the southern part of Queensland, where the mercantile community are in strong force, and where they recognise that under federation they will have a powerful opposition-or rather, I would say a powerful competition-from the merchants of Sydney operating against the merchants of Brisbane; but the central portion and the northern portion of Queensland look upon it from a far wider stand-point. If the question of being represented in this Federation had been put to the citizens of Queensland in the same way as it was put to the citizens of New South Wales, Victoria, and South Australia, we should have seen ten Queensland representatives sitting here with us to frame this Bill. I ask the honorable member not to withdraw his proposal, but to insist on having it discussed, at any rate, at greater length than it has bee discussed.

Mr. WISE.-And of losing it.

Mr. SOLOMON.-I do not think so. There would have to be more cogent reasons given why it should be rejected than have been given before it would be lost. I hope it will be fully considered before the honorable member withdraws it, on the off chance of having it discussed on another occasion with the fullness that its importance demands.

Mr. BROWN (Tasmania).-I suppose it will be readily recognised that no one has more sympathy than I have with any proper attempt to secure the inclusion of Queensland in the Federation of the Australian colonies; but it appears to me that if we adopt the clause proposed by Mr. Walker we shall be making a mistake, and if we postpone that clause for the purpose of consulting the Government of Queensland as to their views about the inclusion of it in the Bill, we shall be making a still greater

mistake. With all deference to the leader of the Convention, it appears to me that, while his suggestion is admirable as a matter of courtesy, it will be an entire mistake as a matter of business to adopt any such course. We have already objected on two or three occasions to the inclusion of the name, of a particular colony for special treatment. We know that there was strong objection to the special mention of Western Australia-and both on the ground that it would be a mistake to adopt the suggestion of the leader of the Convention, and also because it is unnecessary, I hope that this proposal will be withdrawn. I would ask the attention of the Convention to clause 114 of the Bill, which relates to the admission of existing colonies to the Commonwealth from time to time, and I would put it to honorable members whether it would not be quite as well-I think it would be rather better-to accomplish the object of the mover of this new clause by simply recommitting clause 114, and inserting some such words as "or any subdivision of such colonies." I will just read the first few words of the clause to which I refer:-

The Parliament may from time to time admit to the Commonwealth any of the existing colonies of-

And then follows a direction for the insertion of the existing colonies which have not adopted the Constitution. If, after these words, we were to insert the words "or any state formed by the subdivision [start page 1701] thereof," it seems to me that we should accomplish all that we ought to be asked to accomplish. It would, in my opinion, be a great mistake to encumber this document which we are preparing, and which we hope will last if not for all time at any rate for, many years, perhaps for centuries, with the mention of any particular colonies, if we can by any general terms accomplish otherwise what we desire. I take it that all we desire is to leave the power open, not only for Queensland, but for any subdivision of Queensland, to come in on terms agreed upon; and by the adoption of such words as I have mentioned rather than by the insertion of a special name, as proposed by Mr. Walker, we can best accomplish our object. For this reason, I hope that the clause will be either withdrawn or rejected, and that such an amendment as I have suggested will be made in clause 114, which will give all that Queensland can desire to meet the case of her possible subdivision.

Mr. O’CONNOR (New South Wales).-I do not think that the honorable member who has just spoken (and with his views as he expressed them I entirely agree) has quite touched the difficulty here. Queensland will be as free up to the time when she joins the Commonwealth (should she join it) as she is now to take advantage of any Imperial statute regarding the subdivision of her present territory. The difficulty about her subdivision is this: At any time, if the Parliament of Queensland agreed, she could be subdivided. But the Parliament will not agree, and the party in the minority are seeking to invoke the power of the Imperial Parliament against the majority in opposition to subdivision. If Queensland came into the Federation under clause 117, she could only be admitted on such terms as the Federal Parliament thought fit to impose.

Mr. HOLDER.-That is to say, by becoming a state under the Federal Parliament she loses her power to subdivide?

Mr. O’CONNOR.-That is so. So that the difficulty really cannot arise until Queensland desires to join the Federation. If this clause of Mr. Walker's were carried it would be at once an incursion by this Convention into the most dangerous area of Queensland party politics. We cannot conceal from ourselves that if this clause were put in the Constitution it would be, on the face of it, taking part with the separatist party, which might do incalculable injury in regard to the rest of Queensland. A proposal has been made, and I think a very good one, that my honorable friend (Mr. Walker) should withdraw this clause for the present; but I do not altogether fall in with the suggestion that the President of the Convention should make a communication to the Government of Queensland.

Mr. KINGSTON.-I hope not.

Mr. O’CONNOR.-I quite agree with what has been said by Mr. Solomon and Mr. Brown. We ought not even to go to the length of making any appeal to the Government of Queensland officially

on this matter, because I think it would be just as near the mark to ask the Premier of New South Wales some question regarding the policy of protection or freetrade in that colony, or any other question of local party politics, as to ask the views of the Government of Queensland at the present time on the question of federation. I think it may be very desirable, in order that we should not dismiss a proposal of this kind without the fullest consideration, that the views of the Government should be ascertained, but I think they might be ascertained by our leader in an unofficial way; and before we finally decide this question we will have the advantage of having those views, and will be able to decide for ourselves how far they represent the views of the whole of Queensland, how far they represent the views of the separatist party, and in what way they will throw light on what we are to do in the decision of this question. Anxious as I am to see [start page 1702] Queensland join the Federation, my own view at present is that we might be doing more harm than good by putting in the Constitution any provision which would seem to lean towards one party rather than another in the local politics of Queensland.

Mr. DOBSON (Tasmania).-I rose simultaneously with Mr. Solomon to point out the same arguments as he and two others have submitted, probably better than I could have done. I desire to remind the Convention of one thing which I think adds weight to the words which have fallen from Mr. O'Connor. It appears to me the Government do not represent the colony of Queensland on the question of federation. I say that with some hesitation. I do not for a moment say that the Government of Queensland are not the right authority for any one to communicate with privately. But I would just call the attention of the Convention to what happened when the Enabling Bill was before their Parliament, which ended in our friends not being with us here. The Bill was introduced by the Government. A member of the Opposition asked Ministers to pledge themselves, I think, to the effect that the three divisions of the colony which they desired to obtain should to some extent have their proportional number of delegates, instead of having ten men elected by the whole of the colony, ignoring the division in which the separatist party want the colony to be divided. The Ministry declined to give that pledge, a debate ensued, and the Bill was rejected, I think by a majority of one. We have before us the distinct fact that the Ministers were in a minority, and that the Enabling Bill was negatived by a division, which showed that the Opposition, or the separatist party, practically, on that occasion at all events, had a majority in the Parliament. Under these circumstances it appears to me that it would be suicidal for us to interfere in any way in this matter. I do not think the suggestion that the President of the Convention should communicate with the Ministers is a wise one. I think the only thing which can be done is that Mr. Walker, or possibly our leader (Mr. Barton), should, in a distinctly private way, take any step he likes to take.

Mr. BARTON.-I have drafted a telegram to Sir Hugh Nelson now, as from myself, setting out the clause, telling him what has happened, and asking him if he can favour me with the views of his Government.

Mr. DOBSON.-That is the only thing which can be done, and I even fear that doing that much, and having this little debate, will get us into hot water. We know from what happened that Southern Queensland and the Government will not be in accord with this clause. We know perfectly well that the fact that some of us wish to pass the clause will make some of our northern friends in Queensland look with some suspicion and hostility on the Convention. The matter appears to me to be one which we should leave severely alone.

Mr. WALKER (New South Wales).-I still intend to withdraw the clause, with the permission of the committee. I am very glad that Mr. Barton is going to take the action he has indicated. I will follow that up by a private telegram to Sir Hugh Nelson, and, with the permission of the committee, I will bring forward the clause at a later stage.

The clause was withdrawn.

The CHAIRMAN.-I may point out that Mr. Holder's new clause is proposed to be put as the last clause of the Bill, and that if Sir John Forrest wishes to propose his new clauses he should do so now, to follow after clause 102.

Sir JOHN FORREST (Western Australia).-Honorable members are aware that no mention is made in the Bill as to the mode of appointment of the Governor of a state. I believe the result of that omission will be that the Governors of the several states will be appointed by Her Majesty in the way in which they are now appointed. Honorable members will also [start page 1703] recollect, that, in 1891, a provision was placed in the Bill by which the states had power to legislate in regard to the office of Governor of a state. That provision was excised in Adelaide, I think very wisely, and there is now no provision in the Bill for the appointment of a Governor of a state. We have provided that the Governor-General shall be appointed by Her Majesty, but we have said nothing whatever, as far as I can recollect, in regard to how the office of Governor of a state is to be filled. I hope that no one will think that I have any desire, to weaken the bonds which unite us to the great mother country. Every one of us, I think, is agreed that the Federation we are trying to create-in fact, it is mentioned in plain words in the preamble-shall be a Federation under the Crown of Great Britain. But it seems to me that if we are to have a real federation of these colonies that federation will be very much weakened if we have each state with a Governor, appointed by Her Majesty, from home.

Sir EDWARD BRADDON.-How can that weaken it?

Sir JOHN FORREST.-I will show the honorable member directly. In 1891 the idea was-and, of course, it is more so now, because there is nothing to the contrary in the Bill-that each state should have a Governor appointed by Her Majesty as at present, that that Governor should have the right to correspond directly with the Secretary of State, and that there should be no bond of unity between the Governor-General, as head of the Commonwealth, and the Governor of a state. I think that will be altogether foreign to the Federation I desire to see established. The Federation we may have most experience of is that of Canada, which, like that of Australia, is based on responsible government. In Canada the Lieutenant-Governor of a state holds office during the pleasure of the Governor-General.

Sir EDWARD BRADDON.-Canada is not federated.

Sir JOHN FORREST.-The honorable member may, perhaps, be able to explain that. At present I believe Canada is federated, and the Federation there is most like the Federation we are trying to constitute here, namely, a Federation based on responsible government. I recognise very fully the chief objection to having Governors appointed by the Federal Government. It is generally thought that the colonies would suffer in prestige thereby. There is no fear of that. We know very well-and if we don't know now it is time we did-that these colonies when we become a Commonwealth will cease to have that prominence in the world which they enjoy at the present time. On the 30th of August, 1888, in an address delivered at Sydney-I quote this to show that I have not only thought of the matter now-I used words which are as applicable to-day as then, and which embodied my opinion. Speaking on the subject of federation, I said-

No doubt there are great difficulties and great prejudices to be overcome before federation takes place, for the different colonies and their different Governments will lose their prominence, and the Dominion Government will alone be known in the world. This is a very serious obstacle to the ambitions of each colony, and will play an important part in preventing the federation of Australia. For instance, we may all know who is the President and Ministers of the United States, or the Governor-General and Ministers of Canada; but how few of us know anything, for instance, of the local Governments of the state of California, or of the province of British Columbia? The states and provinces are merged in the Central Government and Legislature, and it will be difficult to convince the colonies of Australia that it is desirable to sink their individual prominence and become merely a factor in the Central Government

Mr. REID.-Is that in Bryce?

Sir JOHN FORREST.-No, these are words which I used myself.

Mr. REID.-They sound exactly like Bryce.

Sir JOHN FORREST.-The words are my own.

[start page 1704] Mr. REID.-Bryce's book was not published then, but the style is the same.

Mr. HOLDER.-Perhaps Mr. Bryce copied Sir John Forrest.

Sir JOHN FORREST.-I do not say that, but the words I have quoted are the words I spoke at a gathering in Sydney in 1888. If we are not prepared to face this question of lost prestige-for that is what it comes to-we are not prepared for federation. Another reason why I think the Governors of the various states ought to be appointed by the Federal Government is that we should desire this Constitution to be self-contained.

Mr. SYMON.-Hear, hear.

Sir JOHN FORREST.-My friend (Mr. Symon), in the early part of this session, while addressing himself to the constitution of the High Court, used these words-

I understand we are creating a nation which is to be self-contained, self-sufficing in every possible respect.

If that applies to the constitution of the High Court, surely it should also apply to the appointment of the heads of the states in the persons of the Governors.

Sir EDWARD BRADDON.-Are we creating a Federation under the Crown?

Sir JOHN FORREST.-Yes, and it will not be less under the Crown because the Lieutenant-Governors, or whatever we call them, are appointed by the Governor-General.

Mr. SYMON.-A federal monarchy.

Sir JOHN FORREST.-I desire with my friend (Mr. Symon) that this Federation should be self-contained. Speaking for myself, I desire that the very highest post on this great continent should be open to our own public men. That would give dignity to our public life. At the present time in our own small Governments we do not go out of our own colonies for officers to fill the highest posts in the land, leaving out the position of Governor. We have our own Chief Justices and Puisne Judges appointed by the local Government. If there be a High Court established, as there will be under the Federal Constitution, the Judges of that court will be selected from the public men of Australia.

Mr. SYMON.-And they will dispense final justice.

Sir JOHN FORREST.-I don't know about that.

Mr. SYMON.-Oh, I think so.

Sir JOHN FORREST.-If we are prepared to trust the Federal Government to appoint the Judges of the High Court, and also other officers to carry on the business of the Government, why should we refuse the right to appoint our state Governors? At present we must remember our field of selection is very much restricted in appointing Chief Justices, Puisne Judges, and other high officers. But when we have the whole of Australia to select from, our area will be very much enlarged, with the result

that better men may be appointed. In selecting a Lieutenant-Governor for a state the Government would not be restricted to the state in which that officer would have to perform his functions, but would have the whole of Australia to select from.

Mr. KINGSTON.-You have disqualified the Judges for that office, have you not?

Sir JOHN FORREST.-There would be a wider selection, with the exception of the Judges.

Mr. WISE.-In the states the Judges are not disqualified for the office of Lieutenant-Governor.

Sir JOHN FORREST.-There is difficulty enough at the present time in obtaining prominent English statesmen and noblemen to take the position of Governor in these autonomous colonies. When we have federation the prestige of these smaller Governorships will be very much lessened. The states then, although they will be autonomous, will not be autonomous to the same degree as at present. Under such circumstances, will the difficulty of obtaining Governors not be very much greater? Does any [start page 1705] one think we shall be able to attract prominent English statesmen and noblemen to come here as state Governors? If we are not able to do that-and we certainly will not be, because we are scarcely able to do it now-we will find that the men selected for the position by the Imperial Government will not be so experienced, or in any way better qualified to uphold the dignity of the office than persons who could be obtained in Australia. I admit freely that there may be some difficulty in the colonies in obtaining suitable persons. There always is a difficulty in obtaining highly-educated cultured persons in new communities. There may be a difficulty probably in the early days in obtaining the most suitable persons to fill these offices. The same argument would apply with some force to the appointment of the Judges in the various states, and it will apply also to the appointment of Judges of the High Court of the Commonwealth. If we continue the practice of giving. these high offices to gentlemen from the other side of the world there will be less inducement to persons of culture and education to remain here, and we shall be less likely to secure a leisured class. This Constitution is not for to-day or for to-morrow, but for all time. We believe that Australia, will, under this Constitution, grow into a great and prosperous nation. All these offices should by right belong to the people who have made the colonies what they are, and who are doing their best to build up on this side of the world a Greater Britain. Some honorable members would leave this matter to the states, as was done in the Bill of 1891. I am altogether opposed to that proposal, because you would not be likely to obtain a constitutional government by such means. You would have a Governor elected by the people, who would probably feel himself to be stronger than the Government itself. An elective Governor is not, in my opinion, quite consistent with responsible government.

Mr. KINGSTON.-Suppose you gave the Federal Parliament power to legislate on the subject of the mode of appointment.

Sir JOHN FORREST.-I should not object to that, but my own feeling is that we shall be acting wisely, and certainly consistently, if we leave to the Federal Government, which, of course, represents the Federal Parliament, the disposition of all the offices of the state. If they are worthy to appoint to the great offices of Judges of the High Court, I can see no reason whatever why they should not also be intrusted with the appointment of the Governors of the states. I do not believe that the present plan, if continued, will work well. It is no use trying to deceive ourselves by thinking that the states will be absolutely independent of the Federal Government. That would not be a real Federation.

Mr. BARTON.-You differ altogether from Mr. Freeman. He says that that is a Federation.

Sir JOHN FORREST.-My idea is that we want some connecting link between the states and the Federal Government. If you have a Governor who is independent of the Federal Government, and who can correspond with the Secretary of State quite independently of the Federal Government, you will find that the Federation we are building up will not be perfect. The only reason that can be given against the Governors of these states being selected from the Australian people, is the absence of suitable persons of education and culture amongst the politicians of this country. If that is the case

now-and I do not think it is-it surely is not a reproach that will last for ever. As time goes on it will disappear, and the best means of insuring its disappearance is to hold out every inducement to persons of education and culture to remain here.-We should not tell the citizens of Australia that it is not to be open to them to aspire to the highest offices in the state, and that those offices are to be [start page 1706] reserved for persons brought from the other side of the globe, who may have no sympathy with them in the work in, which they are engaged. I beg now to propose the insertion, after clause 102, of a new clause 102A, which is as follows:-

In each state of the Commonwealth there shall be a Governor, who shall be appointed by the Governor-General in Council, and shall hold office during the pleasure of the Governor-General, but for no longer than six years in any one state at any one time.

If that is agreed to I will then propose the following new clause:-

All references or communications required by the Constitution of any state, or otherwise, to be made by the Governor of the state to the Queen shall be made through the Governor-General, as Her Majesty's representative in the Commonwealth, and the Queen's pleasure shall be made known through him.

Mr. BARTON (New South Wales).-I do not think this is a clause which need take up much of the time of the Convention, although my right honorable friend has, in moving it, departed, to some extent, from his golden rule of brevity.

Sir JOHN FORREST.-How long was I?

Mr. BARTON.-Not very long. I do not recognise the force of the argument that, because the colonies have to face a possible loss of prestige under the Federation, that is a good reason for taking away a little more of that prestige. If it is true that there will be a diminution of prestige, I suppose it would be important to those who do not wish to have that prestige further diminished not to take another step in the same direction, which certainly is the sum and substance of this proposal. We have, from the beginning, had before us, with certainly some exceptions, but to a large extent, the idea of a Federation as defined by Mr. Freeman. Now, Mr. Freeman, in his History of Federal Governments, lays it down that as between the Federal Commonwealth and the states the one should be sovereign in its sphere just as the others are sovereign in their sphere.

Sir JOHN FORREST.-Then you would let them appoint their own Governors.

Mr. BARTON.-I do not say that. I say that as between the Commonwealth and the states the one should be sovereign in its sphere just as the others are sovereign in their sphere, and that is a question of the relations between them. It would certainly destroy any approach they might make to coming within that definition to leave the highest office in any of the states to be made the subject of appointment by the Governor-General of the Commonwealth. There would no longer be that independence of relation to which the right honorable member objects, and which is one of the essences of a Federation. So far as you depart from the independence of the state, as between it and the Commonwealth, in all matters relating to purely internal government, you depart from the definition of federation which every philosophical writer on the subject has given. Nor do I think the precedent of Canada furnishes any reason why we should adopt the course taken in that case. It is well known that, although Canada is called a Federation, it differs in many serious respects from a Federation, and that the individuality of the states, which every one of the states concerned in this endeavour to federate maintains as a prime object, would suffer, not in prestige merely, but in actuality, by the adoption of such a clause. I do not think we shall be doing wisely or well if we adopt a clause of the kind. We should be departing from what is the fair and authentic idea of a Federation for the mere purpose of taking away a prestige, the loss of which, if it did take place, would be lamented by a great many of those who will have to vote for this Constitution. That is not the way to

commend the Constitution to the people. It will rather have the effect of inducing many of them to reject it, and for that reason alone I should be strongly disinclined to agree to any such proposal.

[start page 1707] Sir JOHN FORREST.-It will come someday.

Mr. BARTON.-My right honorable friend has asked what reason is there against this proposal. He might as well ask what reason is there against the Governor-General appointing the Judges of the states. To what extent would this remain a true Federation if such a provision were inserted in the Constitution?

Sir JOHN FORREST.-You would object more to the state doing it.

Mr. BARTON.-My right honorable friend's argument might be extended to the appointment of any class of officers. It is only a question of degree. What would be the result of such an argument in a system of federation?

Sir JOHN FORREST.-Would you let the state Governments make these appointments?


Sir JOHN FORREST.-We are in accord in this.

Mr. BARTON.-I believe that, as these colonies propose to federate under the Crown, the appointment of the Governor-General should come from the Crown; and, for a very similar reason, the appointments of the Governors of the states should come from the Crown. My right honorable friend, by his interjection, has given us a remarkably good reason why we should not adopt the new clause. He has stated that the only reason that can be urged against its adoption is that there are not enough good men in the colonies to fill the position of Governors. There may be enough competent men for these positions, but that is not the reason why I think that the power of appointment should be in the Crown. If my right honorable friend wants to declare that the citizens of the Commonwealth shall be eligible for the position of Governor-though I should not follow him there-he might have some reason for putting a declaration of that kind in the Constitution. I take it, however, that the appointment of persons in the Commonwealth to the position of Governors would probably result in the appointment of men who had led the life of political partisans, and who were, therefore, less fitted for the office than men outside the Commonwealth.

Sir JOHN FORREST.-The same argument would apply to the appointment of the Judges.

Mr. BARTON.-No. A man who belongs to apolitical party is advocating the views of that party day by day, but a man employed in the business of an advocate has to deal with various sets of men and various sets of cases. If the right honorable gentleman only knew the effect of his profession upon the mind of an advocate, he would know that the training of an advocate does not unfit him to take a calm judicial view of things. But a man who had lived a life of political partisanship would be unfitted for the position of Governor.

Sir JOHN FORREST.-We have had cases of Premiers being appointed Judges.

Mr. BARTON.-That may be so. If my right honorable friend wants to increase the range of choice, his more rational course would be to declare that citizens of the various states shall be eligible for the position of Governor.

Sir JOHN FORREST.-They are eligible now.

Mr. BARTON.-Yes; and there is an instance upon record in which a citizen of New Zealand was appointed Governor of a Crown colony. I am not, however, seriously concerned in arguing this point. I take it for granted that the citizen of a state is eligible for the office of Governor, and I have read and heard it urged with some warmth that if the Crown were to take more account of distinguished colonial citizens in making some of its appointments, that would tend to bind the empire more closely together. But, by limiting the range of appointment, as the right honorable gentleman proposes, the inevitable result will be that the Governors of the various states will be Australian citizens, and I do not think that any good [start page 1708] can result from this restriction. In my opinion, it is better to leave the power of appointment in the hands of the Crown. We should, too, do what we can to leave to the states the prestige that they now enjoy, so long as it is consistent with the federal idea.

Mr. DOUGLAS (Tasmania).-In the Convention of 1891 there was a member named Mr. John Forrest. Amongst us at the present time is a gentleman called Sir John Forrest.

Mr. HOWE.-The Right Hon. Sir John Forrest.

Mr. DOUGLAS.-Oh, well, have it as you like. It appears that the two names signify the same individual; but I should like to know what has caused the alteration of his opinions?

Sir JOHN FORREST.-I cannot remember what was done seven years ago at this moment.

Mr. DOUGLAS.-What is the object of allowing the Governors of the states to be appointed by the Governor-General?

Sir JOHN FORREST.-I do not think this question was ever discussed in the Convention of 1891.

Mr. DOUGLAS.-What good would be obtained by carrying into effect the right honorable member's proposal? Is it not desirable that the Governor of each colony should be a gentleman who has not been so associated with the politics of that colony as to have become a partisan?

Sir JOHN FORREST.-He might come from Queensland and go to Tasmania.

Mr. BARTON.-Would the people of Tasmania like that?

Mr. DOUGLAS.-Such an appointment might be made, but it has always been found desirable to leave the power of appointment with the Home Government. Why not appoint We Governor-General from amongst the people of the colonies, and then go to the fountain-head, and provide that he be elected as the President of the United States is elected? What has been our object in this federation? Has it not been to separate the states Governments as far as possible from the Federal Government? This is attained to some extent by having the Governors of the states appointed by the Home Government. It is to be hoped that the Commonwealth will not be so far separated from the British Government as was proposed in 1891. It is well known that at the Convention of 1891 some strongly republican opinions were held, and many of the views which were then expounded by Sir George Grey were more or less of a republican nature. The right honorable member was upon that occasion strongly opposed to the appointment of the state Governors by the Governor-General.

Sir JOHN FORREST.-I do not think so-I was opposed to the election of Governors.

Mr. DOUGLAS.-It would be as well for the right honorable gentleman to explain to us the reason of his change of opinion.

Sir JOHN FORREST.-I do not think I have changed my opinion.

Mr. DOUGLAS.-What advantage would it be to the community if the Governor-General were allowed to appoint the Governors of the colonies? Why not leave the appointment of the Governor-

General to the people of the colonies, and provide for a plebiscite for the purpose? The proposal before us is not necessary, and if it were carried we should have to alter several other clauses in the Bill to give effect to it. It is to be hoped that the Convention will stick to the old institutions, and that the Governors of the several colonies will be independent of the Governor-General. If every enactment of the local Parliaments must go through the Governor-General-which is what the provision of the right honorable gentleman means-the effect would be that the states would come more under the influence of the Governor-General and of the Parliament of the Commonwealth. That has not been our object from beginning to end. Our object has been to retain for the slates certain rights, powers, and privileges independent of the federal power. It is to be hoped that we are not [start page 1709] going to make an unification in that respect. We have agreed that we will not adopt the Canadian system, but, as far as possible, according to circumstances, we will adopt the principle that each state should be independent of the Federal Parliament.

Sir JOHN FORREST.-Would you have the Presidents and Speakers appointed from home?

Mr. BARTON.-Would you have them appointed by the Commonwealth?

Mr. DOUGLAS.-Sir John Forrest is altogether abroad on this question. The better plan would be to deal with this as we did with another matter recently. Let us give Western Australia the privilege of having a Governor appointed by the Governor-General. No doubt that will suit the honorable gentleman; but, so far as we are concerned, we do not want this, and as far as possible, we will not have it. As far as Tasmania is concerned, there is no doubt we shall send a petition to the Queen asking her not to recognise such a position. I feel confident that the mother colony-although she is a sort of mother-in-law on the present occasion-will also go in for the same thing, and have a proper Governor appointed, instead of the nominee of a nominee, as the honorable member proposes. I hope we shall stick to our institutions in a proper manner. When the proper time comes, no doubt these colonies will form a nation, but that time has not yet arrived.

Mr. WISE (New South Wales).-As one of the representatives of the mother or mother-in-law colony, I am afraid I shall not please Mr. Douglas in the view I am going to take. I feel great hesitation in taking an adverse view to that of the leader of the Convention in a matter of this kind. I recognise that there is a certain logical inconsistency between the amendment and the strict theory of a Federation. At the same time, we are not to be governed by theories in dealing with practical affairs. The amendment appears to me to be a fair practical solution of an exceedingly difficult question. One of the chief objections urged against union is the increase of expenditure in government. One of the difficulties is how to reduce the expenditure upon state Governments without diminishing their efficiency. Nothing could be more absurd than the maintenance of six vice-regal courts in the several provinces after a Governor-General has been appointed representing Her Majesty in her dealings with Federated Australia. If this clause is not put in there will be a necessity imposed on each state of getting an alteration of the Constitution by an Imperial Act, a difficulty which will vary more or less in the different states, but which will certainly exist, and cannot be overcome for a long period. If, however, this amendment is passed, we at once secure to the people of every colony that for which they have been asking for a long time, namely, that the Governor appointed by Her Majesty shall be one acceptable to the people of the colony. I do not regard this proposal as being in any way a derogation from Her Majesty's prerogative. Her prerogative will be exercised by the Governor-General and the Ministers of the Commonwealth, just as truly as it is exercised by the Secretary of State in Downing-street. The appointments to the Governorships of the various colonies will be appointments by Her Majesty, whether they are made through the agency of the Ministry of the Commonwealth or through the agency of the Ministers in London; so that, from any point of view, the prestige will remain the same. Such prestige as attaches to the nominee of the Queen will attach to the nominee of the Governor-General of the Commonwealth, in whom it is proposed to vest the appointment of Lieutenant-Governor, but there will be this difference-that the people of each state will inevitably, through their Ministers, be consulted before the Governor-General nominates anyone to that high position. There is another consideration. I look [start page 1710] forward to a great alteration in the duties and powers of the Lieutenant-Governors after the Commonwealth has been

established. I look forward to seeing the Lieutenant-Governors occupying a much more important political position than they do to-day, and a much less important social position. If we are to have anything like economical administration of the various colonies, there must be a diminution of the parliamentary apparatus in all of them. Probably we may see one Chamber only in each colony, and in that case it may be that we should desire to have a Governor performing purely political functions, as the Governor of an American state does, for the purpose of expressing the executive will of the community, and acting as a restraint upon Parliament when it comes into conflict with what he believes to be the popular opinion of the state. In many ways the position of Governor must be modified.

Mr. GLYNN.-You cannot modify it unless you change clause 102 of this Constitution.

Mr. WISE.-I am not sure that the honorable member is right. I do not see that that really touches it. The consideration I wish to bring before the Convention is: That in view of the probable change in the position of the Governors of states, this proposal, which virtually leaves to the people of each state the selection of their own Governor-because no one can imagine the Governor-General, which means the Ministry, appointing any Lieutenant Governor without consulting the Ministry of the state as to the fitness of the person to be appointed-raises the question whether we should not embrace the opportunity in this Constitution of pointing out to the people concerned the opportunity for a diminution of expenditure which may be of a very useless kind. No one feels a higher admiration than I do for the gentlemen who fill the positions of Governors in the various colonies, but, at the same time, I dare say that they would be the first to admit, if at liberty to speak frankly, that the Government Houses, to-day, in the various colonies have to a considerable extent outlived their original purpose-I will not say their usefulness. That Government House which, in the old days, was the centre of a society composed of military and civil officials, fulfilled a purpose of a very distinct and useful kind, but a purpose which it may be doubted can be occupied now that society has widened, and when the social duties of a Governor so much encroach upon his time as to leave him little opportunity of performing the other duties appertaining to his position. Now, Government House necessarily, not through any fault of those who fill the position, but from the circumstances of the colonies, sets what is altogether a wrong standard of manners and culture. It holds up to the people of the colonies an ideal which is not a true ideal, either of manners or of culture, and that is a necessity of the situations necessity which cannot be removed, but which, as the colonies grow, and as the social circle widens, must every day increase. Consequently, I welcome a proposal of this kind, which gives the colonies an opportunity of expressing an effective voice in the selection of their Governor. I welcome it also for the reason put forward by my right honorable friend (Sir John Forrest) that it does offer a reward to merit in men born and bred in Australia, because it opens up new opportunities of usefulness to the chief executive officer of the community-the Lieutenant-Governor-and because it binds more closely together the various states in a union in which they will all find their best expression. The fact that this proposal is moved by the right honorable member is sufficient evidence to us here and to everybody outside that it is in no way aimed at weakening the strength of the tie between Australia and Great Britain. If it were, I should not be found supporting it. I believe the amendment is a very valuable one-I am certain that it is a very important one and, if it is carried, I am confident it will [start page 1711] go a very long way to commend this Constitution to the popular approval of Australia.

Dr. COCKBURN (South Australia).-I thoroughly indorse a great many of the remarks which fell from Sir John Forrest in moving this proposal. It seemed to me at the time as if the mantle of the great tribune of the people, Sir George Grey, had descended on his shoulders, because the eloquence with which he appealed to us to keep the highest offices of state in this country within the reach of the citizens of Australia, appeared to be quite familiar to my ears. But there are practical difficulties in the way. As has been pointed out, it is necessary to guarantee the independence of the states in relation to the Commonwealth. Now, let us consider who would be the gentlemen appointed to the positions of Governors of the states by the Federal Executive. They would be creatures of the Federal Executive, of course, and would be essentially party men.

Sir JOHN FORREST.-Why should they be creatures of the Federal Executive?

Dr. COCKBURN.-Because they would be appointed by the Federal Executive, and the appointments would be given to men who had faithfully and for a long time served their party.

Mr. HIGGINS.-There is only one party in Western Australia.

Sir JOHN FORREST.-The Judges are appointed by the Executive, and surely they are not creatures of the Government.

Dr. COCKBURN.-That is a different thing altogether. Judges are not politicians, and this patronage will be given to men who will continue to be politicians.

Sir JOHN FORREST.-The appointments to the judicial bench are often political appointments.

Dr. COCKBURN.-If this system of appointing state Governors is carried out, the highest office in the state will be much more of a political office than it is to-day, and that would lead to a most disastrous condition of things. If the Lieutenant-Governor is to be, in the first place, something of a politician, and his appointment is to be conferred by a party Government, it will be given to a partisan, and I cannot think of anything more likely to be obnoxious to a state, which may not be high in favour with the Federal Government, because, in some states the Federal Government might not desire to conciliate the feelings of the state, and might appoint a member of a party opposed to the party in power in the state-I say I cannot imagine anything more obnoxious to states than the appointment of old politicians as Lieutenant-Governors.

Mr. HOWE.-Old politicians have made the best Judges on the bench up to the present time.

Dr. COCKBURN.-The Judges are removed altogether from politics, but the Lieutenant-Governor cannot be so much removed from politics.

Sir JOHN FORREST.-Why not? How much influence has a Governor of a colony in its politics?

Dr. COCKBURN.-I ask the Convention to bear in mind that the nominee-the creature-of the Federal Executive, backed up by the power of the federal authority, would be in no mean position, but in a position of considerable power. While I am entirely with the desire of Sir John Forrest in this matter, I do not see how his proposal can be carried out without exceedingly grave danger. I think it is absolutely necessary that the proposition laid down by the leader of the Convention should be given effect to, namely, that the independence of the states in relation to the Commonwealth with respect to these appointments must be secured. Now, there is one way of reconciling these two positions, and I beg to move, as an amendment to the clause-

That all the clause after "Governor" (line 1) be struck out with a view to the insertion of the following words:-"And the Parliament of the state may make such provisions as it thinks fit as to the manner of the appointment of the Governor of the state, and for the tenure of his office, and for his removal from office."

[start page 1712] Sir JOHN FORREST.-That was struck out at Adelaide.

Dr. COCKBURN.-The right honorable member is now alive to considerations which he did not then recognise, or, at any rate, which he did not then express with the same eloquence. He is alive to the fact that we ought to make the highest offices of Australia open to the sons of Australia, but, at the same time, I am sure he is not desirous of carrying that out in any way obnoxious to the state. By the adoption of my amendment each state can carry, out the honorable member's views in the way that

seems best to the people of that state. I think it would be a mistake to make the position of Governor elective. No state in a condition of sanity would make such a provision.

Mr. SYMON.-That is the provision in force in America.

Dr. COCKBURN.-But the Governor in America is essentially the head of a political party, and therefore occupies an entirely different position from that of the Governor of one of these colonies. Indeed, the very reasons which make his election proper in America make it improper here, because we do not want to see the Governor of a state a partisan. Very considerable powers lie in the hands of the Governor of a state. He has the issue of the writs for the federal elections. That is not placed in the hands of the Governor in Council.

Sir JOHN FORREST.-Oh, surely, it is.

Dr. COCKBURN.-I think not. I think it is in the hands of the Governor of the state. Undoubtedly that is a prerogative. The issue of writs for the election of Members of Parliament, and also the dissolution of Parliament itself, are still prerogatives which are exercised by the Governor without the consent of the Executive Council, that is to say, without the formal consent of the Executive, although Governors who understand the matter do not do these things without the knowledge of, and without consultation with, their Ministers. But, unquestionably, it is part of their office to be able to do so, and, therefore, under this system the office of Governor might become more political than it is at present.

Sir JOHN FORREST.-How is it that this system has worked well in Canada?

Dr. COCKBURN.-It has not worked well in Canada, I believe. I am not so well up in Canadian precedents now as I was six or seven years ago, when the matter was fresh in my memory, but I have seen, over and over again, in the writings of those who are most conversant with the methods of Canada, the very objections which I have mentioned raised, namely, that worn-out politicians, old party men, who have done excellent service, who have served their party in their day, and who are entitled to something, and whom, at the same time, the federal authority wants to get rid of, to shelve, are raised to these appointments. Now, that has given rise to a good deal of offence, and we desire to avoid all that here. I certainly want to see everything that Sir John Forrest has proposed carried into effect in such a manner as will in no way imperil the future of the Commonwealth, and, therefore, with a view of carrying out all that the honorable member desires, and at the same time without doing anything which all authorities have recognised is a wrong to the state, I beg to move the amendment I have already indicated.

Mr. REID (New South Wales).-I think this is a very interesting discussion, but entirely out of place here. These are matters to be settled by the states themselves. I cordially agree with my honorable and learned friend (Mr. Wise) that one result of this Commonwealth, if it ever comes about, will be that the system of local Governors and the parliamentary systems of the several states will be entirely remodelled on economical lines, but the way that is to be done will be left for the states themselves. We are framing a Constitution for the whole Commonwealth. There is an entire difference between the [start page 1713] Constitution of Canada and the Constitution being framed by this Bill. In the case of Canada everything not expressly left to the states comes under the jurisdiction of the Canadian Dominion. The exact opposite of the case is here. Everything not expressly mentioned in the Commonwealth Bill is left within the jurisdiction of the states. The United States principle has been adopted here as opposed to the Canadian principle. That being so, it would be entirely foreign to the scope of this Bill to depart from its principle by providing for these matters being taken out of the hands of the states. I believe the improvements contemplated will take place, but they can take place by means of state legislation. I fear that if we place this proposal in the Constitution, we shall simply create another prejudice against the Bill.

Sir EDWARD BRADDON (Tasmania).-My honorable friend (Mr. Douglas) has expressed his surprise at the change of attitude of Sir John Forrest between 1891 and the present time.

Sir JOHN FORREST.-What did I do in 1891?

Sir EDWARD BRADDON.-Still greater is his change of attitude since the beginning of this Convention at Adelaide and the present time.


Sir EDWARD BRADDON.-Because the right honorable gentleman was then an advocate of keeping up the sovereign rights of the states.

Sir JOHN FORREST.-I am now.

Sir EDWARD BRADDON.-Not at all. The right honorable gentleman has made a comparison between the states the Commonwealth as they will be and the provinces of Canada. But the provincial Governments of Canada are simply so many municipal councils-glorified municipal councils, I believe, they have been called and the right honorable gentleman is apparently prepared to bring our sovereign states down to the level of the provinces of Canada. If he will only think of the arguments already advanced against his proposal he should be satisfied. It has been clearly shown that to make the Governor-General in Council the appointer of the several local Governors would be to make them the nominees of the Federal Executive Council-the Federal Ministers-and therefore, necessarily, it would be almost a partisan arrangement, which must have disastrous results to the various states.

Sir JOHN FORREST.-It has not been so in Canada.

Sir EDWARD BRADDON.-The right honorable gentleman goes back to the case of Canada, where the form of government is not a federation, but a confederation.

Mr. SYMON.-A unification.

Mr. GLYNN.-And where the federal body can repeal local Acts.

Sir EDWARD BRADDON.-Yes. Yet the defender of the rights of the states of Australia is trying to reduce them to the level of the provinces of Canada. I do not believe that the right honorable gentleman himself hopes to see that done.

Sir JOHN FORREST.-A small colony like Tasmania need not trouble about that.

Sir EDWARD BRADDON.-Size is not everything. A bladder may be large, but there is little in it. He has admitted that there is not the material here for the production of a body of men from whom provincial Governors can be selected.

Mr. SYMON.-If the material is here the Queen could select from that material.

Sir EDWARD BRADDON.-But I am showing how the right honorable gentleman has failed to make out his case so as to put any strength into it. According to his own showing, there are no people of culture, or education, or so forth here.

Sir JOHN FORREST.-You quite misunderstood me. I did not say that.

Sir EDWARD BRADDON-My right honorable friend said something like that. When I heard the right honorable member speaking I was wondering if he was going on to say that there would have to be started a university for the education of Governors, with a master of deportment, and all that sort of

thing, and that he did [start page 1714] not do so was a disappointment to me. I hope we shall leave the Bill as it stands in this matter, that we shall not interfere with the prerogative of the Crown in regard to the appointment of state Governors, and that we shall maintain our state Governors in the high position they occupy, and, what is more, in the perfectly independent position they occupy as between parties and parties.

Mr. HOWE (South Australia).-I was very much pleased indeed to hear such a genuine ring of Australian patriotism emanating from my old friend (Sir John Forrest).

Mr. SYMON.-Did not you expect it?

Mr. HOWE.-I expect everything that is good from Sir John Forrest, and this is one of the best proposals I have ever heard emanating from him. So far as I am individually concerned, and so far as I recollect the discussion in the Sydney Convention of 1891, Sir George Grey raised a different question altogether-in fact, his motion was tantamount to severance from the old country.


Mr. HOWE.-With that I had no sympathy whatever, and the mantle of Sir George Grey, I would remind my honorable colleague, not yet fallen on the shoulders of Sir John Forrest.

Dr. COCKBURN.-He is nearly as eloquent, and is going very much in the same direction.

Mr. HOWE.-The contention of Sir George Grey was, why should Australia permit the Governor-General to be even nominated by the Home Government? I have no sympathy with that contention at all. I do not believe in "cutting the painter" in any shape or form; but after Australia is federated under a Governor-General, appointed by the Crown, I see no reason why a state should not have a Governor appointed by the Governor-General, or otherwise by the Federal Parliament. It has been said that prominent politicians would be appointed to the position. What is the history of the state from which I come? Prominent politicians who are lawyers, every one of them, are now administering justice on the bench of South Australia, and one of them has discharged the duties of Governor on many occasions, and throughout the length and breadth of the colony his justice has never been impugned by a single soul. I do not see why the Federal Parliament should not appoint one of the prominent politicians to the position of Governor of a province. I would not allow a state to interfere in this matter. Politicians lead their party to victory, and suffer with them in defeat, and there may be an unconscious bias existing. Moreover, if we allow a state to choose its own Governor, and we have a powerful Government, perhaps presided over by a genius like our right honorable friend (Mr. Reid), what is to prevent him from appointing himself to the position? Nothing at all. If it is going to be left to the state to appoint its own Governor, and there is a strong Government in power in that state, it would be quite open for the Premier to be appointed if he desired to take the position. I desire to take out of the hands of the local Government the power to appoint any member of the Executive Council as Governor. I have no objection to the Federal Parliament assuming that function, as a very proper function for it to perform. I was pleased to hear the arguments brought forward in favour of this new departure. Are we in Australia-a nation of nearly four million people-going for ever to send home for Governors to rule over the destinies of each separate province? Have we not men amongst us equal to any who could be brought from home? Are we not likely to have here men superior to those whom the British Government might choose to send out to administer our affairs? Have, we not men who have done great service to the country, and men who are born Australians, who could fill the position satisfactorily? Why should we not give the highest positions in this country to those who belong to the country, and who are pure Australians, instead of sending 12,000 or 13,000 miles for a stranger? In every particular I say [start page 1715] Australia for the Australians," and every position which Australians are equal to fulfilling with credit to themselves and honour to the country should be reserved to them.

Mr. SYMON (South Australia).-I doubt very much if the amendment will go the length which my honorable friend (Mr. Howe) wishes. It hardly, in language at any rate, declares that these posts are to be reserved for Australians. What the amendment really amounts to is this: That it would be just as possible for the Governor-General in Council to choose the Governor of a state in England as it would be for the Queen under the present system. My objection to the amendment is not founded on any of the reasons dealt with at so much length. It does not appear to me that the question is that of the material available in Australia for the appointment of states Governors. Nor is the question whether it is desirable or not that political partisans should be appointed. Further, I do not think that the amendment proposed by Sir John Forrest involves any question whatever, even if the amendment were carried, of "cutting the painter."

Sir JOHN FORREST.-I would not move it if it did.

Mr. SYMON.-I hope both Sir John Forrest and myself would be found resisting any proposal which involved a step in the direction of separation. It appears to me that the real objection to the amendment is that stated by Mr. Reid, that it really seeks to interfere with the state Constitutions. This amendment in its first line is to the effect-"In each state of the Commonwealth there shall be a Governor." What right have we, in the Federal Constitution, to declare that? What right have we to interfere with the Constitutions of the states, which will remain, practically, independent states within the Commonwealth? We are not seeking to interfere in any way with the existing state of things in relation to the head of the Executive. But the proposal would involve us in a difficulty. Having declared there shall be a Governor for the state, the proposal goes on to prescribe, not that the existing state of things shall continue-subject, of course, to the Imperial authority, and to the control of the state itself-but that the Governor shall be appointed for all time under the Constitution, until that is altered, by the Governor-General in Council. And that we are asked to do without the consent of the state. It is not for this Convention to take a step of that kind. It would be interfering in the highest-and I venture to think the most improper-degree with the functions of the state, which we seek to preserve. It is a state interest and a state matter entirely; and, therefore, without going into the large question raised by Mr. Wise as to the social and other functions of the Governor, or Lieutenant-Governor, we ought to abstain from taking one step beyond what we are obliged to do in interfering with the existing government of the autonomous states.

Sir JOHN FORREST (Western Australia).-I wish to make a few observations with regard to some of the arguments that have been used. The only good argument, I think, which has been put forward was that of Mr. Symon. That may be an argument-I think it is one-which requires careful consideration; but, at the same time, in 1891 we dealt with this matter in a way in which we specially gave power to the states to legislate in the direction of appointing Governors. I think, myself, that those who oppose the proposition now must really be, in favour of elective Governors.

Mr. REID.-No, no.

Sir JOHN FORREST.-That most likely would be the result. Mr. Barton asked why should we restrict the area of selection of state Governors to the Australian Continent. I might ask him a similar question-why restrict the area of the Judges of the High Court to the people of Australia? What would he or any one else think if it was proposed, or [start page 1716] thought of for a moment, that in appointing the Judges of the High Court under this Constitution the selection should be made from the Bar of England? I do not think that would meet with the approval of the people here, but it seems that what is sauce for the goose is not sauce for the gander. They are willing to limit the area of selection of the High Court, but they are not willing to limit the area of selection with regard to the Governors of the various states. We have some foundation, at any rate, for the argument which we use. We have the United States of America, in which Governors are elected. That, of course, I do not approve of. I think it is not consonant with our ideas of responsible government to have the chief executive officer appointed by the people. I think friction is more likely to arise under such a system than if you place the Governor in a constitutional position, as we do, by appointing him as the representative of the Queen. Then we have the case of Canada. I have been through Canada. I have had the pleasure of

visiting Government House in the state of Ontario, and I found a refined and cultured gentleman dispensing the hospitality of Government House there-not to such a large extent as in the city of Melbourne, but certainly in a way which I think would meet with the approval of every one. We have facts there to guide us. We find that the system adopted in Canada-at any rate as far as my experience goes, which is certainly not a great one-has worked well. Now, it has been said some that this would weaken the tie between the mother country and ourselves I repudiate that idea altogether. I should withdraw this motion, and not say a word in support of it, if there was any chance whatever that there could be any weakening of the tie between the mother country and ourselves. My object through life has been to strengthen that tie, not to weaken it. I believe we owe a deep debt of gratitude to the great mother country, and that we cannot do too much to repay all the good we have received from her. In regard to the statements that we would have politicians as Governors, I can see no objection to that. Retired politicians occupy high offices all over the world. We know that in England the highest offices in the state are occupied by Judges who were prominent politicians in their day. There is scarcely one of these colonies in which you will not find gentlemen who have been prominent politicians, and even party politicians, occupying the chief judicial offices.

Dr. COCKBURN.-To whom would they owe their allegiance?

Sir JOHN FORREST.-I do not think our Judges owe allegiance to anybody except the Crown. We know that the Chief Justices of some of the colonies have been Premiers and party politicians, but I have never heard a word said against them on that ground. Then it is stated that the Governor would exercise an influence in local politics, but that is carrying the matter too far. We know that, under our form of responsible government, the Governor does not interfere. There has been no instance, certainly for many years past, in which a Governor has tried to interfere, or has had the opportunity even of interfering, with local politics. You may depend upon it that if a prominent Australian were appointed to the position he would know enough of constitutional government to prevent him from doing anything so foolish. I believe that, if we leave this matter to the states, we shall very soon have elective Governors. I need not give the reasons, but the trend will be in that direction. Sir Edward Braddon said I stated that persons of education and culture could not be found here. I stated that there might be some difficulty on that account, and that it might be used as an argument, but, I do not think there is much in it. We know that until a few years ago all the Governors of these colonies were civil servants, who had in many [start page 1717] cases worked themselves up from humble positions. We had a squatter from New Zealand (Mr. Frederick Aloysius Weld) as a Governor in Western Australia, and he performed his functions admirably, although I admit that his was an exceptional case, as he had special social advantages and great family influence in England. Then we had Sir Frederick Broome, who filled the office with credit. He was a squatter in New Zealand, and afterwards a writer on the Times, and in all these colonies we have had professional Governors filling the office with credit and advantage to all. I see no reason, therefore, why we should not find persons in Australia fitted for these positions. I say that there are such persons now, but we are not making a Constitution for today or to-morrow, but for all time. The only argument of any force against this proposal is that advanced by Mr. Symon, but, at the same time, I think we shall be acting more in the interests of the states if we adopt this plan than if we leave the matter to the states themselves, when the result will be that we shall eventually have elective Governors.

Question-That the words proposed to be struck out stand part of the proposed new clause-put.

The committee divided-

Ayes ... ... ... ... 24

Noes ... ... ... ... 12

Majority against Mr. Cockburn's amendment ... ... ... 12


Briggs, H. Lee Steere, Sir J.G.

Brown, N.J. Peacock, A.J.

Brunker, J.N. Quick, Dr. J.

De-akin, A. Reid, G.H.

Dobson, H. Trenwith, W.A.

Downer, Sir J.W. Turner, Sir G.

Fraser, S. Venn, H.W.

Glynn, P.M. Walker, J.T.

Hackett, J.W. Wise, B.R.

Henning, A.H. Zeal, Sir W.A.

Holder, F.W.

Howe, J.H. Teller.

Isaacs, I.A. Forrest, Sir J.


Barton, E. Leake, G.

Braddon, Sir E.N.C. O'Connor, R.E.

Carruthers, J.H. Solomon, V.L.

Clarke, M.J. Symon, J.H.

Douglas, A.

Higgins, H.B. Teller.

Kingston, C.C. Cockburn, Dr. J.A.

Question so resolved in the affirmative.

Question-That the proposed new clause be inserted in the Bill-put.

The committee divided-

Ayes ... ... ... ... 10

Noes ... ... ... ... 26

Majority against the clause 16


Briggs, H. Peacock, A.J.

Cockburn, Dr. J.A. Venn, H.W.

Deakin, A. Wise, B.R.

Hackett, J.W.

Howe, J.H. Teller.

Lee Steere, Sir J.G. Forrest, Sir J.


Braddon, Sir E.N.C. Kingston, C.C.

Brown, N.J. Leake, G.

Brunker, J.N. O'Connor, R.E.

Carruthers, J.H. Quick, Dr. J.

Clarke, M.J. Reid, G.H.

Dobson, H. Solomon, V.L.

Douglas, A. Symon, J.H.

Downer, Sir J.W. Trenwith, W.A.

Fraser, S. Turner, Sir G.

Glynn, P.M. Walker, J.T.

Henning, A.H. Zeal, Sir W.A.

Higgins, H.B.

Holder, F.W. Teller.

Isaacs, I.A. Barton, E.

Question so resolved in the negative.

The CHAIRMAN.-Does the right honorable member (Sir John Forrest) desire to move his second clause?


Mr. HOLDER (South Australia).-I beg to move-

That the following new clause stand, part of the Bill:-In the event of any law passed by the Federal Parliament being declared by any decision of the High Court to be ultra vires of this Constitution the Executive may, upon the adoption by absolute majorities in both Houses of the Legislature, within six months after the decision of the High Court, of [start page 1718] resolution thereto directing, refer the law to the electors under section 121, and if approved as therein provided the Constitution shall be deemed to have been enlarged, and the law shall be conclusively deemed to have been intra vires of this Constitution from the passing thereof.

In the opinion of our constituents, or of a great many of them, one grave objection to this Constitution is that over everything is the High Court. In the opinion of many, the legal formulae and legal proceedings usurp in this Constitution the place which the people have occupied in the state Constitutions. If we accept the Constitution, the final appeal will be, not to the people as represented by the Parliaments, but to the High Court. I admit freely that as the Constitution is a deed of partnership, it is absolutely necessary to have the High Court to interpret it, and to see that the various co-partners keep in all that they do within the four comers of the deed to which they have agreed. At the same time, so rooted is the objection to the position which law occupies in this Constitution that it will be well if we can meet that objection in any way by placing in the hands of the people the final appeal, at least in some cases where the final appeal would otherwise be to the High Court. I do not need to quote from many opinions of others to support what I have said as to the general view that federation means a great deal of law. I noticed in the daily papers in this city a few days ago a report of an address by Professor Harrison Moore, the professor of law at the Melbourne University, in which he said that the legal profession had not had very much to do of late, but that under the Federal Constitution now under consideration the lawyers would have plenty of work. I do not take that comment as coming from one who is hostile to federation, but simply regard it as the expression of Professor Harrison Moore's deliberate opinion that federation under this scheme would mean any amount of work for the lawyers. That is just what the people do not want, and if we can by any means lessen the law work and place the final decision of some matters in the hands of the people, from that point of view we shall do well. I can quite conceive that again and again the Federal Parliament might pass laws involving comparatively small extensions of the Constitution as we have it before us, but yet involving such amendments as, if the people were appealed to, they would certainly indorse-amendments not of sufficient weight and importance to be submitted to the people for their endorsement unless the laws in question were challenged. Therefore, in this amendment I propose that in the event of any law passed by the Federal Parliament being declared by the court to be ultra vires, then the Federal Parliament may, by an absolute majority of both Houses of the Legislature, within six months of the adverse decision of the court, submit the matter to the electors for a referendum in the same way as provided in the clause dealing with ordinary amendments of the Constitution. We have deliberately decided previously that the Constitution should only be amended by direct appeal to the electors, in which the vote shall be counted in two ways. I do not propose to alter that provision in the slightest degree. We have provided that measures altering the Constitution shall only come into force after they have been carried by absolute majorities of both Houses. I include the same provision in this clause. Before a matter can be sent to the referendum, both Houses must by absolute majorities agree thereto.

Mr. HIGGINS.-If so, how do you improve the position by this clause?

Mr. HOLDER.-The honorable member asks me what effect my clause would have. I will suggest a case. Suppose that it is desired to effect an alteration in the Constitution. The steps necessary for that now would be to introduce into the Federal Parliament a Bill to amend the Constitution. That Bill must go through [start page 1719] its various stages, be passed by absolute majorities in both Houses, and must then go to a referendum of the people. But suppose that without any knowledge on the part of the Parliament that that would be the case the major portion of the Bill was found to be outside the limits of the Constitution, and that it was held to be ultra vires. Honorable members will begin to see what this clause would achieve in that event. Supposing in this case the Bill had been passed without any belief by the Federal Parliament that the provisions were ultra vires of the Constitution, and some months afterwards the courts were petitioned to exercise jurisdiction, and pronounced the measure

ultra vires; if, then, the Constitution had to be amended in the ordinary way, it would follow that, after the Bill had been passed, after some steps might have been taken under it, after it had been pronounced ultra vires, the whole matter would have to be begun again at the very beginning. You would have once more to introduce a measure to Parliament, to pass it through all its stages, to take a vote of the people, so that all your work has to be done again, whereas under my clause the procedure would be this: The court pronounces the Bill ultra vires; at once, or at anytime within six months thereafter, the two Houses of the Legislature are asked to pass addresses, if they consider it important enough, and think it right to do so, and all the time that would otherwise be spent in passing a new measure through Parliament is saved, because the carrying of the two resolutions would not take nearly so long as the passing of an Act of Parliament. And then this provision comes in. If on the referendum the majority of the states and of the people approve-

The Constitution shall be deemed to have been enlarged, and the law shall be conclusively deemed to have been intra vires of this Constitution from the passing thereof.

Mr. GLYNN.-Is not that putting matter of legislation in the Constitution?

Mr. HOLDER.-No, I do not contemplate for a moment putting any legislative matter in the Constitution.

Mr. GLYNN.-That is what its effect will be.

Mr. HOLDER.-I do not see how that result could come about.

Mr. ISAACS.-This makes it retrospective altogether.

Mr. HOLDER.-I will answer that interjection, which certainly has great weight.

Mr. O’CONNOR.-Will the honorable member answer this question: Supposing a law is affirmed by this process, and afterwards another law involving the same question is proposed, is that also made good, or must there be a referendum for that?

Mr. HOLDER.-I have two interjections to answer. I will deal first with that of the Attorney-General of Victoria. In reply to his statement that this makes the law altogether retrospective, I simply say that the proposal is to make the law retrospective in this sense: That during the interval throughout which it was, according to the judgment of the court, ultra vires, the decision of the people afterwards could make it intra vires.

Mr. ISAACS.-That might make persons criminals who were not otherwise criminals. It might not have been an offence to do a certain thing if the High Court declared the law to be ultra vires, but if that law was made intra vires from an antecedent date, all the persons who did that thing might be subject to punishment.

Mr. HOLDER.-I have great respect for the eminent legal authority of the Attorney-General of Victoria, and he may help me to overcome that difficulty, and attain the advantage I seek to attain. Mr. O'Connor asks me, if this were adopted, and under a certain referendum a certain Bill was declared to be intra vires, whether that position would cover any similar Bill adopted afterwards? My answer to that is this. I wish it [start page 1720] should do so, that the enlargement of the Constitution should be not merely for the inclusion of the particular measure which had been passed, but for the inclusion of the particular matter concerning which otherwise that Bill had been, but for the referendum, ultra vires. I do not profess to be a draftsman, and I gather that the Drafting Committee have been kind enough to undertake-especially for lay members-to put into proper phraseology any resolutions which the Convention has by a majority declared to embody principles which they wish to have included in the Bill. So I am content, if the Convention adopts my proposition as being an indication of its will, to leave the wording of the clause as it shall appear finally entirely in the hands

of the Drafting Committee, and shall be very glad of any help they can give to suggest a method of covering what the honorable member has suggested, so that my intentions my be fully met. do feel that in any question where the point of the law ultra vires is raised, not the High Court but the people ought to be the final appeal-that if I or any one else is on the other side of this controversy concerning a measure, and I take the ground that it is ultra vires or that it is not, the final appeal concerning what the Federal Parliament may do ought not to rest with the High Court, which can simply determine it on the dry question of law, but ought to rest with those people who, themselves, have the right to say whether or not the Constitution shall be enlarged to take in the particular question at issue. I do not hesitate to affirm that, if we can place this final appeal in the hands of the people instead of keeping it in the hands of the High Court, we will have done very much indeed to popularize this measure, not only in South Australia, but in other colonies. For I do assure honorable members that the presence of so large a number of lawyers as there are in this Convention has helped to give colour to the suggestion, which is very widely prevalent, that this Constitution is being made for the lawyers and for the courts.

Mr. SYMON.-Nonsense!

Mr. GLYNN.-That is pandering to the popular cry.

Mr. BARTON.-I think my honorable friend ought to do his best to dispel any such base slander as that.

Mr. HOLDER.-I can assure my honorable friend that I will do my best to dispel any such base slander as that. I am not stating a matter in which I express my own thought or my own feeling, but I repeat that in what I said just now I am expressing the thought and the feeling of a great many persons outside the Convention who are not so well informed as we are. If we can remove a misapprehension, if we can cure a ground of distrust, by making the people themselves the final arbiters in their own cause, we shall surely be doing well, and by doing that we will not be endorsing, but will be going the very best way possible to refuse an indorsement to that opinion which was dissented from just now.

Sir EDWARD BRADDON.-Why not make them the first arbiters, too?

Mr. SYMON.-Why not make them the High Court at once?

Mr. HOLDER.-I have already shown that the adoption of my clause would save a large amount of time. It is quite impossible that the people can sit as Judges, because the function of Judges is one thing, and the function of electors of the Commonwealth is quite another thing. I am not confounding these two. The people are absolutely incompetent to judge whether a certain law is or is not ultra vires, and I would not dream of committing that charge to the people, for there are no persons less fit than the general electors-taken all together on a referendum-of any country to decide whether this or that is true law.

Mr. ISAACS.-You say the people accept the position in law; but they are asked whether they will change the Constitution.

[start page 1721] Mr. HOLDER.-That is exactly it. I would never dream of asking the people to reverse a legal decision arrived at by the High Court. I have been specially careful in the form of the amendment to avoid any such thing. I do not dream that the High Court will on one day say that a certain Bill is ultra vires, and that the people shall the day after, or some months after, say the court was wrong. That is not what I suggest. I suggest that the people should accept the decision of the High Court that the law was ultra vires, but should say it ought not to be ultra vires-that the Constitution should be enlarged so that such a decision could not be given again. I do not wish to leave it to the people to say that the decision was wrong, but to leave them to say that the Constitution should be so enlarged so as to-make such a decision impossible in the future. That is a different thing from making the people Judges

or giving them a judicial position. I really feel very hopeless as a layman addressing the Convention on a very technical legal point like this. I quite anticipate-and though this is not a wise thing to say, I do not mind saying it-I quite anticipate defeat before I sit down. At the same time, I shall not cease to regret defeat if it comes, nor shall I cease to believe that this way out, or some other which the Drafting Committee could easily suggest, ought to be adopted, so as to avoid the possibility of anybody outside saying, with any appearance of truth, that this is a lawyer-written Constitution. I want to move the motion in a slightly different form. I want to leave out the word "High" before "Court" in each case, so that the word "court" only shall stand. I mean that word to cover not merely the decision of the High Court, but the decision of the last court of appeal from the High Court, if that appeal be made. With that alteration, I move the amendment standing in my name.

Mr. BARTON (New South Wales).-I move that progress be reported. I wish to make a statement without discussing the question. I should like honorable members not to go away when progress is reported, because I wish to get an order for the printing of the Bill with the amendments so far, and for the Drafting Committee's amendments to be embodied pro forma in the Bill. In order to do that the standing orders will have to be suspended, and that requires the attendance of a majority of the House.

Mr. DOBSON (Tasmania).-Would it not be better for the leader of the Convention (Mr. Barton) to answer the arguments of Mr. Holder, and let a division be taken? If we do not take a division tonight we shall occupy the whole of tomorrow in discussing this question, which includes that of the High Court, the referendum, and deadlocks.

Mr. BARTON.-After the opinion some persons outside seem to hold about lawyers, I shall leave the discussion of this matter to the laymen.

The motion was agreed to.

Progress was then reported.

The standing orders having been suspended,

Mr. BARTON.-(New South Wales) moved-

That it be an order of this Convention that the amendments prepared by the Drafting Committee be embodied in the Bill pro forma, and that the Bill, as amended to this day, be printed.

The motion was agreed to.

Mr. BARTON.-The ordinary course will be the reconsideration of the clauses, and after that, if necessary, the recommittal when the last, of the new clauses and the preamble have been dealt with. It might appear well to make it one stage of recommittal, instead of having a reconsideration stage also. I will leave that to the consideration of honorable members between this and to-morrow.

The Convention adjourned at twenty minutes past ten o'clock.