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1897 Australasian Federation Conference
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[Continue page 943]

TUESDAY, APRIL 20, 1897.

Petition-Commonwealth of Australia Bill-Adjournment.

The PRESIDENT took the chair at 10.30 a.m.


Mr. REID: I have to present a petition requesting that a declaration should be made in the Constitution that no State [start page 944] in the Commonwealth should be allowed to make any law respecting religion, or prohibiting the free exercise thereof. It is signed by 2,337 persons-839 from New South Wales, 1,269 from Victoria, 129 from South Australia, and 100 from Tasmania.


In Committee (consideration resumed from April 19th).


The Federal Judicature.

Clause 70-The justices of the High Court and of the other courts created by the Parliament:

I. Shall hold their offices during good behavior:

II. Shall be appointed by the Governor-General, by and with the advice of the Federal Executive Council:

III. May be removed by the Governor-General with such advice, but only upon an Address from both Houses of the Parliament in the same Session praying for such removal:

IV. Shall receive such remuneration as The Parliament may from time to time fix; but such remuneration shall not be diminished during their continuance in office.

Mr. SYMON: I have a verbal amendment in the first line. I move:

To strike out the word "justices" with the view of inserting "judges."

This will restore it to the form adopted in the 1891 Bill.

Sir JOHN DOWNER: I think "justices" is a very good word. We have not here, but they have in the other colonies district judges, and we use the word "justices" to indicate the judges of the High Court.

Mr. SYMON: It is true that the word refers to the judges of the High Court, but there may be other Federal Courts, and those who preside over them will be known as judges. The generic word "judges" will be better although "justices," it is true, is the technical term.

Sir JOHN DOWNER: I would treat the Federal Courts as courts of high dignity, and after all it is merely a question

The CHAIRMAN: The word justices is used in the 69th clause.

Mr. SYMON: This is not exhaustive. This clause deals not only with the judges referred to in clause 69, but all judges by whatever designation they may be known.

Mr. WISE: "Justices" is a far better word.

Amendment negatived.

Mr. SYMON: I have an amendment which will shorten sub-section 2. I propose:

To strike out the words "by and with the advice of the Federal Executive Council," with the view of inserting the words "in Council."

Amendment agreed to; sub-section agreed to. Consequential amendment in sub-section 3.

Mr. GLYNN: I think the whole of subsection 3 should be struck out with the object of rendering the judges irremovable except on impeachment. I do not propose to argue the matter at any length. I will only say this, that when the court was instituted in America it was stated in the Federalist that the permanency of the judiciary was the very citadel of public justice. It shows the necessity of having the Court secure above popular clamor and political influence. Wilson in his work on "Congressional Government says:

Then, too, the Supreme Court itself, however upright and irreproachable its members, has generally had, and will undoubtedly continue to have, a distinct political complexion taken from the color of the times during which its majority was chosen. The bench over which John Marshall presided was, as everybody knows, staunchly and avowedly federalist in its views; but during the ten years that followed 1835 federalist justices were rapidly displaced by democrats, and the views of the court changed accordingly. Indeed, it may truthfully be said that, taking our political history "big and large," the constitutional interpretations of the Supreme Court have changed, slowly, but none the less surely, with the altered relations of power between the national parties. The federalists were backed by a federalist judiciary; the period of democratic supremacy witnessed the triumph of democratic principles in the courts; and republican predominance has driven from the highest tribunal of the land all but one representative of democratic doctrine. It has been only during comparatively [start page 945] short periods of transition, when public opinion was passing over from one political creed to another, that the decisions of the federal judiciary have been distinctly opposed to the principles of the ruling political party.

I say, even with this safeguard in America, attempts have been made to influence the court, and, therefore, it is necessary to have this as a protection. Then let us go a little further. Wilson shows that attempts have been made to, what Webster calls, dilute the Constitution by adding additional judges to upset a previous decision. They even went to the length of endeavoring to deprive the Supreme Court of a portion of its jurisdiction when they found the judges did not fall in with the views of some of the representatives of Congress. In the United States and here, as members will see, if they refer to section 72, there is power to interfere with the jurisdiction of the Supreme Court. According to that:

The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament may from time to time prescribe.

"With such exceptions" gives the opening here. In America attempts have been made to take away the jurisdiction of the judges where the judges were not complacent to Parliament. Wilson says:

A Democratic Congress swept away, root and branch, the system of Circuit Courts, which had been created in the previous year, but which was hateful to the newly-successful Democrats because it had been officered with Federalists in the last hours of the John Adams' administration.

I think I have said sufficient to recommend this proposal. There was only one case in America where an attempt has been made to remove a judge, and that was in the case of Judge Chase in 1803.

Mr. HIGGINS: It has no meaning under our Act.

Mr. GLYNN: It has no meaning in America. You can impeach a judge for corruption or if his brain failed him. You leave it to the discretion of the two Houses of Parliament to remove a judge, but that power should not be put in their hand

Sir WILLIAM ZEAL: Is it dangerous to be connected with politics?

Mr. GLYNN: It should not be regarded as a danger to have the matter connected with politics; but there is the fear of having a repetition of what has occurred in America, and the likelihood is greater here than under the inception of the system there, because with the larger franchise, we are so subject to being swayed by popular opinion.

Mr. WISE: I entirely sympathise with the object of this amendment, but I can see that if it is carried it will raise difficulties out of all proportion to the value of what my hon. friend seeks to obtain. In the first place, we have no provision for conducting impeachments under this Constitution. In the United States the Senate is expressly given power to hear impeachments. We have no machinery for conducting impeachment. It is a cumbrous process. The carrying of the amendment would necessitate the drafting of further clauses, and although that is no particular objection, because if it is desirable to make amendments nothing is to be gained by refusing to spend the requisite time in doing so. But I do not think it is so necessary as the hon. member imagines. The power of removing upon an address from both Houses for misbehavior is a power well understood by all English colonies. It is a part of the Constitution of New South Wales and of the Constitution of Victoria, and, speaking subject to correction, something of the game power exists here.

Mr. DOUGLAS: And in Tasmania.

Mr. WISE: Yes, and in Tasmania. We are all familiar with this practice, but we are not familiar with impeachment, and there is really no necessity to graft an entirely new procedure upon this Federal Constitution. There was one case of removal, either in Tasmania or in the early days in New South Wales.

Mr. KINGSTON: And there was one here.

[start page 946] Mr. WISE: The power was exercised, I believe, in both these cases for very serious faults, faults which would hardly have justified impeachment, because they did not come into the category of criminal acts, but there was no doubt that the judges were properly removed. If, however, it had been by impeachment, the court would have been compelled to have adjudged them not guilty, and to have retained them in their positions.

Mr. DOUGLAS: That was before responsible government.

Mr. WISE: Yes. I trust that the amendment will be rejected, and the clause retained as it is.

Mr. KINGSTON: I think we should be at great pains to secure the absolute independence of the Judges of the Federal Court, particularly of the Judges of the High Court of Australia, who are intended to adjudicate on matters which may affect the Federal Executive and the Federal Parliament.

To my mind we shall be committing a glaring mistake if we do not protect these judges from ill-considered action either by the Federal Executive or by the Federal Parliament. I note that the first paragraph of this section declares that:

The judges shall hold their office during good behavior.

That is a most excellent principle to lay down, and we should be very careful lest we introduce any provision which may have the effect of limiting the declaration to which I have referred. Now, although we have that declaration in paragraph 1, in paragraph 3 we have a provision which, if allowed to pass in the shape in which we find it in the section, will-and I understand that the Judiciary Committee so intended-have the effect of allowing a' judge to be removed although his behavior is everything that could be desired.

Mr. WISE: Certainly not.

Mr. KINGSTON: That is what I understand.

Mr. SYMON: That is not intended,

Mr. WISE: It is not the effect of the provision, either.

Mr. KINGSTON: I interjected an inquiry yesterday, and the information I received was of the character to which I have referred; and I have no doubt that if you pass the clause as it stands now that will be the effect. I am glad Mr. Wise did not intend it. Besides the first declaration that he shall hold office during good behavior, we have also this:

May be removed by the Governor in Council upon an Address from both Houses of the Parliament in the same Session, praying for such removal.

It strikes me that if you pass that the effect will be that on the address of both Houses a judge can be removed independently of whether or not he has been guilty, and that should not be so.

Mr. BARTON: You must read sections I and 3 together.

Mr. KINGSTON: You may, but we must make the thing as clear as clear can be. We should amend the clause. I move:

To strike out "may be removed" from subsection 3 and insert in lieu thereof "shall only be removed for misconduct, unfitness, or incapacity."

Mr. SYMON: Substitute "misbehavior" for "misconduct."

Mr. KINGSTON: I am inclined to think that that would require some active act on the part of the judge, and would not apply in a case where there was unfitness or incapacity, resulting from old age or some other similar cause. I want to protect the judges as far as ever I possibly can.

Mr. WISE: Leave out "unfitness."

Mr. KINGSTON: I think there are a class of cases in which this would be required. There is, for instance, a distinction drawn between unfitness and incapacity in the case of trustees. A trustee becoming insolvent-may be a case of unfitness, though not of incapacity. I agree entirely with the provision that the judges shall hold their offices during good behavior. I want paragraph 3 turned into a clause for the further protection of [start page 947] the judges, so that it shall not be a case in which the Federal Executive can act of their own mere motion, but they will have to consult Parliament on the subject; and there must be a consensus of opinion between the two Houses of the Federal

Parliament and the Federal Executive that the judge in question has been guilty of misbehavior, or is unfit or incapable, and then, and then only, shall the power to remove be exercised. It seems to me that this is a matter of considerable importance, and I draw the attention of the Judiciary Committee to the fact that the clause as we had it in the Commonwealth Bill did not leave the same room for doubt as to whether this sub-section 3 was an active power that can be exercised on the mere motion of the Executive Council with the consent of the two Houses, independent of any misbehavior. In that Bill it was expressly declared, after the judges had been given a tenure of office during good behavior, that it should not be lawful for the Governor-General to remove any judge except upon the address of both Houses. It was an additional safeguard, and that is what we ought to require in connection with this particular case. As regards the special form of the amendment, I commend the matter to the attention generally of the Convention, and particularly of the Judiciary Committee, and believe there will be a general desire on the part of the convention to do what it can to preserve intact the absolute independence of the judges, both in relation to the Federal Executive and the Federal Parliament; that they may have nothing to hope for, and nothing to fear either; and that in doing their duty they may feel secure in their office.

Mr. ISAACS: I wish to point out that there is some danger of confusion in this matter. I think that if we just look at the present position of English and colonial judges it will be the best guide in this matter. There seems to be an apprehension that judges in England and in the colonies can only be removed for misbehavior. That is not so. Far back, up to 1688 or thereabouts, as shown by all the constitutional textbooks, judges were absolutely at the mercy of the Crown, held their positions at the pleasure of the Crown, and drew their salaries at the pleasure of the Crown; and that was felt to be such a wrong position of affairs that under the Act of Settlement in the year 1700 they received a distinct and firm position by which they held their office thereafter during good behavior, but with a proviso that they might be removed by the Crown upon an address of both Houses of Parliament. I want to point out to the Convention that they held their office under two conditions, which are preserved down to the present time. If they are guilty of judicial misbehavior in regard to their office, they may be removed without any vote of the Houses of Parliament at all; but it Parliament comes to the conclusion that, for reasons good and sufficient for Parliament, these judges ought to be removed, they may, without any judicial determination on the question of misbehavior, ask the Crown to remove them, and the Crown has power so to do. Now, I think if we take the position that the judges are not to be removed on the vote of the two Houses of Parliament, as suggested by my hon. friend, Mr. Glynn, we shall be making a very great mistake, because it will then always be a matter in dispute between the judge in the particular case and the governing power. I hope the circumstance will never arise, but if it should arise there would probably be a litigious contest between the judge and the governing powers as to whether he was properly removed or not, whether he was guilty or not of improper behavior. The proviso that was inserted in the English Act and copied. into our colonial Statutes, giving the Parliament the power by an address of both Houses to petition the Crown to remove a judge, was intended to get rid of these litigious proceedings. Of [start page 948] course we know Parliament would not do that unless there were good grounds For instance, a judge might not be guilty of judicial misbehavior, but be might suffer such incapacity as to unfit him for the proper discharge of his high and important functions, and Parliament might have a case of this kind to deal with. In one portion of the British Dominions there was a case where a judge became deaf and eccentric, and unfit to carry out his duties; but he refused to go. He said that he had not been guilty of any judicial misbehavior; but a gentle hint was given him that unless he did resign Parliament would present an address to the Crown to remove him. He at once consented to resign, and if my memory serves me aright a very handsome pension was granted to him. If we introduce into this Bill any alteration from the present British practice of allowing Parliament the right in the highest interests of the nation at any particular juncture to petition the Crown to remove a judge, then I think we shall be making a very great mistake. It will bring upon us much possible litigation; but if Parliament comes to the conclusion-if not merely one, but both Houses, after serious and careful consideration think-that a judge ought to be removed, and they petition the Crown, and the Crown remove him, the judge may fight the matter out somewhere-I do not know where, but in the courts of law, I suppose-and if he were not guilty technically of misbehavior as a judge, he may defy the Parliament, the Crown, and the nation. That is a position which we ought not to court.

Sir JOHN DOWNER: That is a balance of risks which we might well take together.

Mr. ISAACS: I do not know that any trouble has arisen during the nearly 200 years in which the British Constitution has adhered to its present practice. In the thirty-eighth section of the Victorian Constitution we have this provision:

The commissions of the present Judges of the Supreme Court, and all future judges thereof, shall be, continue, and remain in full force during their good behavior, notwithstanding the demise of the Queen or of her heirs and successors, any law, usage, or practice to the contrary hereof in anywise notwithstanding: Provided always that it may be lawful for the Governor to remove any such judge or judges upon the address of both Houses of the Legislatures.

So that a judge holds office subject to removal for two reasons-first, if he is guilty of misbehavior, and, secondly, if the Parliament thinks there is good cause to remove him, when they may petition the Crown to do so. We must trust the Parliament in the last resort, as representing the will of the people in that respect, for what the two Houses of Parliament would do would be equivalent to an Act of Parliament. I have referred to Todd, page 190, as laying down the rule I have alluded to, and at page 191 this is what he says:

"The legal effect of the grant of an office during 'good behavior' is the creation of an estate for life in the office." Such an estate is terminable only by the grantee's incapacity from mental or bodily infirmity or by his breach of good behavior. But, "like any other conditional estate, it may be forfeited by a breach of the condition annexed to it, that is to say, by misbehavior. Behavior means behavior in the grantee's official capacity. Misbehavior includes, first, the improper exercise of judicial functions; second, wilful neglect of duty, or non-attendance; and, third, a conviction of any infamous offence, by which, although it be not connected with the duties of his office, the offender is rendered unfit to exercise any office or public franchise."

Mr. HIGGINS: Does that include ordinary unfitness?

Mr. ISAACS: I do not know what is meant by ordinary unfitness.

Mr. HIGGINS: That he is incapable, because of age.

Mr. ISAACS: It continues:

"In the case of official misconduct, the decision of the question whether there be a misbehavior rests with the grantor, subject of course to any proceedings on the part of the removed officer. In the case of misconduct outside the duties of his office the misbehavior must be established by a previous conviction of a jury. When the office is granted for life by letters patent, the [start page 949] forfeiture must be enforced by a scire facias. these principles apply to all offices, whether judicial or ministerial, that are held during good behavior." The legal accuracy of the foregoing definitions of the circumstances in which a patent office may be revoked is confirmed by an opinion of the English Crown Law Officers (Sir William, Atherton and Sir Roundell Palmer) communicated to the Imperial Government, in 1862, wherein it is stated, in reference to the kind of misbehavior by a judge, that "would be a legal breach of the conditions on which the office is held," that "when a public office is held during good behavior, a power of removal for misbehavior must exist somewhere; and when it is put in force the tenure of the office is not thereby abridged, but it is forfeited and declared vacant for non-performance of the condition on which it was originally conferred."

Then there are other technical observations which I pass over, and I come to page 193, where it is laid down:

But, in addition to these methods of procedure, the Constitution has appropriately conferred upon the two Houses of Parliament-in the exercise of that superintendence over the proceedings of the courts of justice which is one of their most important functions-a right to appeal to the Crown for the removal of a judge who has, in their opinion, proved himself unfit for the proper exercise of his judicial office.

Hon. members will observe that it is Parliament's opinion of the matter which is to be paramount.

This power is not, in a strict sense, judicial; it may be invoked upon occasions when the misbehavior complained of would not constitute a legal breach of the conditions on which the office is held. The liability of this kind of removal is, in fact, a qualification of, or exception from, the words creating a tenure during good behavior, and not an incident or legal consequence thereof. In entering upon an investigation of this kind Parliament is limited by no restraints, except such as may be self-imposed.

Then it goes on practically to say that of course Parliament would always regard the public welfare, and indeed no instance can be cited during the 200 years that this system has been in operation where Parliament has been actuated by a sudden impulse of public feeling or has been swayed by a political desire to bring pressure on any judge. In a matter of this kind it is highly important that we should not put in words which would prevent judges from being removed even by Act of Parliament. Otherwise it would simply be open to the judge on every occasion, though he was removed by both Houses of Parliament, to bring his action, possibly before his brother judges, or if he went to the Privy Council and established his case, however technical the point of success might be, he would come back, sit on the bench, and could not be removed. That is a state of things which we should not drift into. It is quite right that the judges should hold their offices for life and should have their independence carefully preserved, but it is highly important that there should also be preserved the power to the two Houses of Parliament to petition the Crown on the highest grounds of public welfare, and for the Crown to act upon that petition and remove the judge. I think it would be well if we should do here as is done in some Constitutions-our own and others-provide that the salary of the judges shall be beyond the reach of the annual appropriation.

Mr. HIGGINS: That is done.

Mr. SYMON: There is no doubt about that.

Mr. HIGGINS: Look at clause 4.

Mr. ISAACS: I am not quite sure that it is done as effectively as it ought to be. The section says:

Shall receive each remuneration as the Parliament may from time to time fix; but such remuneration shall not be diminished during their continuance in office.

That in my opinion is not quite full enough. It is not an appropriation of it.

Mr. WISE: It is in effect. It goes into Schedule A and cannot be touched.

Mr. ISAACS: It has not gone as far as the colonial Constitutions. I think we would be making a very great mistake if we departed from the lines that have worked so well for nearly two centuries under the British Constitution.

[start page 950] Mr. SYMON: I shall have the greatest pleasure in supporting the amendment to strike out the word "may," and to insert the word "shall."

The CHAIRMAN: No; that is not the amendment. The amendment handed in to me is to strike out all the words down to "by" with a view of the insertion of the words "shall not be removed except for misbehavior, unfitness, or incapacity, and."

Mr. SYMON: I have the greatest pleasure in supporting that amendment, with one exception, to which I shall refer, and it seems to me it will have the effect of setting at rest any doubt as to possibilities which may arise inimical to the independence of judges, or as to the control that Parliament may have over that independence under the sub-section as it stands. It seems to me that my hon. friend Mr. Isaacs is not quite accurate when he suggests that the Convention misapprehends the position that already exists in constitutional law regarding the position of judges. The misapprehension is on his own part in assuming that we are now dealing with the ordinary state of things which exists in the colonies and in England. He does not sufficiently discriminate between a Constitution in the unified state and a Federation. Now, the position of the High Court which is being established under Federation is entirely different in many respects from that which prevails in connection with the Supreme Court of the colony or the High Court in England. The Federal High Court is placed in a position to safeguard the liberties of the subject and the rights of the individual States against the encroachment of the Legislature. It is placed in a position in which its independence must be absolutely assured. Without attempting to take up the time of the Committee unduly I would like to read two sentences from one of those articles in the Federalist, which are even at this day wonders of constitutional learning and foresight upon this question. Hamilton, in one of his articles on the federal judiciary, says:

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. The independence of judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the Government and serious oppressions of the minor parties in the community.

He goes on to elaborate that point with very great care, and he concludes by emphasising the fact that unless you have not only a powerful High Court but a High Court which shall be constituted under such a Constitution that it will maintain its fortitude under all conditions, you will damage what is really the keystone to the federal arch. If it is necessary to maintain the independence of the judges under a Constitution such as we have in the colonies, and I admit there are no instances so far as I am aware in which the power vested in the Parliament has been abused, we must guard not only against instances that may be likely to be founded upon some precedent, but against the possibility of abuse, and if these instances of abuse have not occurred, we may also say no instance has occurred except one in this colony, so far as I am aware, in which the power of the Parliament to remove a judge has ever been exercised. The occasions are rare in the extreme when judges have wished to retain their seats when incapacitated. I should like to call the attention of Mr. Isaacs to the arguments which were used with much force last night in connection with clause 69 and the number of judges to be appointed. It was then pointed out that if the clause [start page 951] stood and had the effect contemplated, the result might be that the Federal Parliament might defeat the object of the Constitution by removing some objectionable judge and putting some one else in his place. Mr. Higgins said, "What is the use of appointing four judges if, when they become objectionable, they can be removed and the bench packed" he did not use that word- "by others being put in their places." That argument, which was used with so much effect by Mr. Higgins, is a strong argument why we should not put it in the power of the Parliament to remove any of the four judges and substitute others who would be wholly amenable to the popular will. We have passed clause 69, and declared it is necessary to have a strong court with four judges, and we may defeat that by giving this power to the Parliament, which may be exercised to the detriment of the High Court. The amendment which has been proposed meets the difficulty, and limits the power of the Parliament to deal with cases of

misbehavior, incapacity and unfitness, but I shall ask the hon. member to eliminate the expression "unfitness." It is a wide and rather uncertain expression. It is used in connection with trustees, as he said; but there is a tribunal to determine cases of unfitness, and that is the court before which the matter is brought. The tribunal to determine the tenure of the judges will be the Parliament, the Senate, and House of Representatives, and it would be introducing an element of great uncertainty if the word "unfitness" were left in, as all that it is necessary to guard against is misbehavior and incapacity.

Sir JOHN DOWNER: I think misbehavior has always been the word, and is all that is necessary.

Mr. SYMON: I should be content with putting in "misbehavior," but if the amendment is pressed I shall have no objection. The two words suggested are exhaustive of the conditions under which the Parliament should exercise its power of removal, otherwise we would place the High Court, which is supposed to be coequal with the Parliament, entirely under the dominance of the legislature for the time being, and that would be fatal to that independence of the High Court, which we all desire to secure. Its functions are enormous and are of the most critical and serious character in the interests of the Constitution, and they involve not only the interests of the States, both large and small, but of the individual as well; and therefore their independence should be placed above the interference of Parliament. I think, with the inclusion of these words, we shall be able to secure a high-, minded and capable bench, and therefore, speaking for myself and the other members of the Judiciary Committee, I am glad that the amendment has been moved. I think it is a distinct improvement, as it accomplishes the purpose which everyone who has the interests of the Constitution at heart desires, namely, the independence of the judges.

Mr. BARTON: I would point out that the Constitution of Canada seems to show a misapprehension which we should avoid in a true federal union. It expresses this in clause 99, and in expressing it carries out the view held by Mr. Isaacs, which is applicable to a unified or separate State. The provision declares:

The judges of the Supreme Court shall hold office during good behavior, but shall be removable by the Governor-General on address of the Senate and the House of Commons.

That practically carries out the ideas of Mr. Isaacs, which, if we were not making a Federal Union, would be applicable to this Constitution. The Canadian Constitution is not a Federation, but belongs to those large number of bodies which have been included under the names of unions and confederacies, with the exception that the tendency, in the case of Canada, is towards unification. In the United States Constitution it is provided in Article III.:

The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time [start page 952] ordain and establish. The Judges, both of the Supreme and inferior courts, shall hold office during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

There is no word in that about any manner of removal from office; and from the nature of the Constitution I do not think it can be gathered that the Executive can remove them under their own power. We, however, look at the power of the Senate, and we find how the judges can be removed. In article 1, section 3, clause 6 states:

The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.

Mr. ISAACS: That puts it in the hands of one of the Houses.

Mr. BARTON: It may put it in the hands of one of the Houses, but it must be recollected that that House is not like the House under this Constitution which it is proposed to establish, but it is one which from the very beginning has been invested with certain executive and certain judicial powers. Besides there is the great difference that that House in the United States cannot remove anyone except by trial at law. The Canadian Constitution amounts to an attempt to place it in the hands of Parliament to remove a person on presentation of an address, without actual cause assigned. That is no doubt the meaning of the Constitution, as my friend Mr. Isaacs has stated-without pause assigned and without a trial. There is a difference between a unified and a Federal Constitution, and I think we ought to make this Constitution as clear as possible in the federal element, and therefore I agree with Mr. Symon in that respect.

Mr. ISAACS: Who would be the judges of misbehavior in case of removal of a judge?

HON. MEMBERS: The Parliament.

Mr. BARTON: The two Houses of Parliament.

Mr. ISAACS: Would they be the judge of the misbehavior?

Mr. BARTON: Unquestionably.

Mr. ISAACS: If that is so it is all I contend for.

Mr. BARTON: If we do not insert some provision making it plain that it is only for certain causes a judge can be removed, then we shall have the position that a judge may be removed, notwithstanding the life tenure, without cause assigned and without trial, so long as both Houses concur. I might quote a short passage from Dicey, who shows the difference between the Canadian Constitution and that of the United Kingdom. The words "official mendacity" which he uses are apt to express the untruth of any statement in the Canadian Constitution which might describe that Constitution as a federal one or one like that of the United Kingdom. It is neither; it is a mongrel between both. The Federal Judiciary must be the bulwark of the Constitution. It must be the supreme interpreter of the Constitution, and it is not true that in the United States the Supreme Court is above the Constitution, and the Parliament below it. That is the way in which the matter has been stated by Englishmen who have not thoroughly studied the question. The truth of the matter is this, as laid down in the American Constitution in few and stately words:

This Constitution is the supreme law of the land. It is over judge, President, Parliament, and citizen, and it is that Constitution, characterised in few and stately words, which it is the office of the court to carry out, and that cannot be done if the judges are to be questioned unduly by those who may be the party most annoyed by a decision which wrests from their hands the power to make any attempt to mutilate the Constitution. When the Federal Judiciary or the Supreme Court of the United States [start page 953] has confided to it the maintenance of the Constitution, which is confided to it by that very phrase, the settlement of any question in which Parliament makes an attempt to transgress the law of the land comes within their jurisdiction. Acrimony may arise between the Parliament and the Supreme Court, and we have to ensure that the judges shall not be removed upon the occurrence of that acrimony. What will be the case if that happens? As Mr. Symon points out, there will be a crumbling of the keystone of the federal arch. That is the danger we must avoid. Whatever we do in this Convention, I hope we shall be able to arrive at some mode of putting this principle in such a way that the judicature will be saved, because upon the safety of the judicature rests the safety of the Constitution. That is the only way in which the Constitution can be maintained. I confess my indebtedness to hon. members for suggestions, and will say that I quite agree with any hon. member who will endeavor to amend this clause-if it is not clear enough as it stands-in such a way as to show that there must be misbehavior and incapacity before removal, and personally I shall be better pleased if it be made so plain that some proceeding must be gone through which would give a judge the

opportunity of being heard in his own behalf and of indicating his own defence before he can be removed from office.

Mr. HIGGINS: I understand the amendment is this, that a judge ought not under any circumstances to be removed from office except for misbehavior.

Mr. SYMON: Or incapacity.

Mr. HIGGINS. Or incapacity. Who is going to be the judge of incapacity or misbehavior?

Mr. SYMON: The Parliament.

Mr. HIGGINS: Is the hon. member willing to say that if in the opinion of both Houses a judge is guilty of incapacity or misbehavior he shall be removed.

Mr. SYMON: Yes.

Mr. HIGGINS: Then the end of it all is to leave it to the two Houses; and my friend the Attorney-General has urged that the final power should be left in the Federal Parliament. It is true that there is a distinction between unity of Government and a Federation, and we must keep this bench as independent and strong as possible, especially as it has to decide between the States and the Federation and upon encroachments by the Federation upon the States. I admit all that; but what is the protection given in America? Judges can only be removed by impeachment. That means that one House brings a charge before the other House, and a judge cannot be removed unless both Houses agree.

Mr. BARTON: The Senate alone has sufficient power to remove.

Mr. HIGGINS: Yes; but one House in the United States is able to remove upon indictment by the other House. I think that the British system affords sufficient safety. I do not think that there is any practical danger about it. You really have eventually to come to the judgment of both Houses of Parliament, no matter how you reduce it; and having reduced it to that, my friends say "Let it be a joint address." There is no difference of principle. We all want the judges to have as strong and independent a position as we possibly can give them. I hope we shall adhere to the British Constitution so far as we can, because we are more used to it. May I point out to Mr. Kingston that his amendment will not leave it to the judgment of the Houses of Parliament as to whether there has been misconduct or not. It will put a burden on them first to prove in a court of law that there has been misconduct or incapacity, and Secondly to pass an address. I say then it will be almost impossible to remove a judge if we put in that he shall only be removed on an address of both Houses of Parliament, leaving it to the Houses to prove inca- [start page 954] pacity or misbehavior if the judge sues for his salary. It should be sufficient to say:

If both Houses are of opinion that he has been guilty of misconduct or misbehavior.

I shall have to vote against the amendment.

Mr. FRASER: I endorse the amendment of Mr. Kingston. If the removal of a judge is to be left to Parliament it would depend how this clause reads whether the Parliament would remove a judge. They would want to have it clearly set out on what grounds they could remove him. They would not dare to remove him unless he was guilty of something or other. Therefore Parliament is the Supreme Court in this case. I do not follow the argument at all that there is no necessity to take this precaution, because a judge of the Federal Court will have very different duties to perform to the judge of the ordinary court. There may be a momentous State question to be settled, and it is absolutely necessary for the future of the Commonwealth that the judges should be in an independent position.

Sir WILLIAM ZEAL: What more do you want than you have in the clause?

Mr. FRASER: I want everything possible.

Sir WILLIAM ZEAL: It is here.

Mr. FRASER: It is not. Parliament may be in a hurry; the may be misinformed; the Ministry of the day may tell them a bushel of lies about a judge. I see no danger in making the amendment; there are all sorts of good reasons for carrying it, and there is no justification for rejecting it.

Mr. DOBSON: It is rather difficult to answer the well-put arguments of Mr. Kingston, Mr. Symon, and Mr. Barton, but such judgment as I have tells me they are in error, and have not sufficiently answered the strong arguments of Mr. Isaacs. The danger they wish to guard against is not, to my mind, so great as the danger they are creating, of having a Parliament turned into a kind of tribunal to try whether a judge has been guilty of misconduct or incapacity. There will be caused an enormous amount of litigation, and the judge may have the right of appeal to the Privy Council on some technical point, even when the whole Commonwealth might, know that, in the best interests of justice, that judge ought to be removed.

Mr. SYMON: Would not Parliament be turned into a tribunal just as much the other way?

Mr. DOBSON: No; I think not. For 200 years there has not been a single instance of Parliament having tried to do the slightest injustice to the judges.

Mr. SYMON: Then what is the harm of the amendment?

Mr. DOBSON: A judge will not be found guilty of embezzlement by a jury, or of any other crime; that is a very simple question. But a judge may act in such a way as hardly to be guilty of misconduct or incapacity, and yet it may be most undesirable that he should continue to be a judge. What is the first thing that goes wrong in the machine called man? The brain. A judge gets a kink in some direction in that brain, yet he might be in other points a most upright man-a most honest judge; and yet that small disturbance of his brainpower might render it undesirable that he should still sit on the bench.

Mr. SYMON: Then would not that be incapacity?

Mr. DOBSON: It would be a very nice point which the Parliament would be called upon to decide judicially, and the judge would have an appeal against their decision. That is more undesirable than the present clause, which comes from the Canadian Act, and Mr. Barton is hardly consistent when he says that Canada is not a Federation, or at least is not such a Federation as gives us an authority for the clause. He turns then to the United States, which I think still less to the point, while the quotation which Mr. [start page 955] Isaacs read to us exactly sets out the difficulty which will arise if we adopt the amendment of Mr. Kingston. The judge removed in Tasmania thirty or forty years ago did nothing very dreadful, but as you walked down to your office you heard that judge so and so was being sued for his milk bill, and the next day you saw a bailiff waiting at the judge's front gate; in fact the judge was like Micawber, his assets were not quite equal to his liabilities; and he brought the administration of justice into disrepute and contempt. It is much better to leave with the Federal Parliament a case of that sort, which may only happen perhaps once in fifty years or so, where some little disturbance of a judge's brain makes it most undesirable that he should continue to be a judge. I shall vote for keeping the Canadian clause as it is in the Bill, and shall not be found supporting Mr. Kingston.

Mr. DOUGLAS: I take the exactly opposite view from Mr. Dobson. I think we are under an exceedingly great obligation to Mr. Kingston for having introduced this amendment. It is a most important one, and the quotation made by Mr. Isaacs in reference to Great Britain, is entirely out of place as regards this Federation.

Mr. DOBSON: Very much in point.

Mr. DOUGLAS: Here the judges are called upon to express their views upon an Act of Parliament. In England the judges do not express any opinion as to the legality or otherwise of an Act of Parliament, because there, however queer or undesirable an Act of Parliament may be, as long as it is an Act of Parliament the judges have to obey it, right or wrong. Here, however, the judges are called upon to express opinions that may be exceedingly adverse to the views of Parliament, but which may be right, and we know that in a recent decision in America the opinion given by the judges was contrary to the views of Parliament or of the Congress. If these judges had held their offices as proposed by Mr. Kingston, they could not be removed. The words which Mr. Kingston proposed would prevent such a removal unless misconduct or incapacity were proved as facts. The hon. member Mr. Higgins asks how we are to prove it. It is easy to prove a fact. If a judge is incapacitated from want of brain power he ought to be removed. If he is guilty of misconduct, either moral or judicial, he ought to be removed. These are questions of fact, and they ought to be laid before Parliament in some way or other before a judge should be removed. Therefore I hope that those who are connected with the legal profession as I have been will support the view of Mr. Kingston coupled with the slight amendment of Mr. Symon, and assist in carrying it out. We cannot make these judges too independent of outside feeling. They should be upright, and independent and fearless in doing their duty, which they could not be in matters involving party politics or any particular laws passed by the Senate which were unconstitutional. Therefore I shall support the view of my hon. friend Mr. Kingston.

Sir JOHN DOWNER: I was a little shocked to hear the radical sentiments which fell from Mr. Dobson.

Mr. PEACOCK: Radical?

Mr. SYMON: Radically wrong.

Mr. BARTON: Revolutionary!

Sir JOHN DOWNER: And which almost justified the term used by Mr. Reid-"A firebrand."

Mr. DOUGLAS: A Tory, not a firebrand.

Sir JOHN DOWNER: I thought so before. But as far as this particular part of the Bill is concerned, I am surprised at my hon. friend. The bench ought to be placed in the highest independent position. Do not we follow the American precedent on this point in preference to following the English Constitution, which has no possible relation to what we are [start page 956] doing now? I look upon this part of the Bill as the most important part of all, because this court is what we have to look to, what all the States have to look to, for the protection of the Constitution.

Dr. COCKBURN: Protection against federal encroachment.

Sir JOHN DOWNER: Yes; against federal encroachments. We have to make it noble and lofty, and we have to put it beyond all possibility of being terrified by influence of any kind. The Americans took much care to avoid this, and my hon. friend Mr. SYMON has read some passages from Hamilton showing the views that actuated them.

Mr. ISAACS: They apply to any court.

Sir JOHN DOWNER: Those remarks may apply to any court, but they apply more particularly to this court.

Mr. ISAACS: Not a bit.

Sir JOHN DOWNER: Because there is no such likelihood of conflict between the judges of any English or colonial court and the Legislature as might be not unreasonably expected to arise between the Federal Parliament and the High Court of Justice. One does not anticipate, one, hopes it will not arise, but we want to make the judges strong enough to do their duty if it does take place, because we look to them to preserve us against encroachment, against the destruction of the Constitution, and the injury of the weaker. What is provided here? In Mr. Kingston's amendment, if the Houses of Parliament can come to his conclusion, they have got to find whether a man is guilty of misbehavior, or unfitness, or something else, but there is no method prescribed as to how they have to find this out. It may be done without a trial and without hearing the person affected at all, and this power which is to be exercised by the Parliament, to which in certain important matters the court is superior, may be exercised in a manner that will tend to injure the prestige of the judiciary and diminish the independence of its members. The Americans required two things to be done, and their custom has worked well. I think we had better do the same. They require an impeachment to be made by one House and a trial by the other. With reference to the trial of an official in America, to which reference has been made, the facts were that before one of the Houses impeached it had come to a conclusion, using such popular methods as it thought fit. Having come to a conclusion, it incapacitated itself from judging, and had to give this officer and high dignitary a proper trial. To do that the matter had to go to the Senate, and then even after it had reached that Chamber the judgment of the majority did not rule. The judgment that was to remove this high officer had to be the judgment of two-thirds of the members present. I hope hon. members will consider that time has not been wasted in talking about this part of the Bill. If troubles and difficulties arise between States in the future concerning the interpretation of the Constitution we will have this to fall back upon. If the citizen is in trouble this is his anchor, and is, as my hon. friend Mr. Barton suggests to me, his ultimate protection. Parliament will know he has got that protection, and will be careful that his liberties are not invaded. We ought to surround the removal of the judge-who himself can be the judge of the acts of the Legislature-with all sorts of precautions. We ought to ensure him a trial, and not act upon the loose talk of the two popular Houses in a mere debate, to which he has no possible opportunity of replying. A judge might be accused on account of all sorts of causes and prejudice apart from the merits. If we want to make this office a protection to the citizens of the Commonwealth-and we should give the person charged a trial before the highest tribunal, surrounded by the greatest solemnities-there must be some way of removing a judge, and this the Americans understood, for they prescribed accordingly, and [start page 957] in doing that they did well. They not only insisted upon what is the first attribute of justice, that a man should not be convicted without first being heard, but that the trial should be conducted under the most solemn circumstances and by the highest tribunal. The Senate and House of Representatives will be representative of the citizens. They will represent the same class in both Houses. I suggest the following substitution:

May be impeached by the House of Representatives and tried before the Senate for misbehavior; but shall not be convicted without the concurrence of two-thirds of the members present, and if so convicted shall be removed from office and disqualified to hold any office of honor, trust, or profit under the Commonwealth.

Sir WILLIAM ZEAL: Why not make it an absolute majority?

Sir JOHN DOWNER: This is more than an absolute majority.

Mr. BARTON: With a jury you would want the whole lot unanimous.

Sir JOHN DOWNER: The system to which I have just alluded has been in force 100 years, and has worked well, and in beginning the erection of this new edifice we ought to be careful we do not make a foundation mistake, for while we are pretending to make these judges the protectors of the citizens in the Commonwealth, and even superior from certain points of view to Parliament itself, at the same time we ought not to give Parliament, against whose unauthorised acts we intend the High

Court to protect us, authority to remove the judges without the greatest cause and the gravest trial. I think this is a matter well worthy of the serious consideration of hon. members. We should make our Supreme Court so strong and powerful that no Government will be able to set the Constitution at defiance owing to the presence of a majority in either House, whereby an authority would be obtained that was never intended by the founders of the Constitution.

Sir WILLIAM ZEAL: I should like to make a few remarks with reference to the popular view of this matter. Hon. members, particularly of the legal profession, have discussed this question at great length and have pointed out many contingencies, which in the ordinary course of events never arise and are never likely to arise. There are two conditions stipulated. One is that the judges can hold office on good behavior, and secondly they can only be removed by an address from both Houses. What has been the contention throughout this debate in reference to the position which the two Houses occupy, viz., that the Senate and the Assembly never agree? Are hon. members going to suppose that, for the sake of committing an injustice on an honorable and distinguished man, these two Houses will sink their differences and enter into a conspiracy to oust him from his office? It is perfectly monstrous to suppose such a thing. Are we going to put the judges into a position that they are not to be assailed When they do wrong, and that they cannot be censured when they neglect their duty? I say that these gentlemen are not entitled to any more consideration than the clause affords them. It is extraordinary that the whole business of this Federation is now being subordinated to the rights of the legal profession. Here we have hour after hour legal gentlemen getting up and discussing the matter at inordinate length, while the great question of Federation is trembling in the balance.

Mr. ISAACS: This is Federation.

Sir WILLIAM ZEAL: The great question of Federation is to make the States one for the purpose of our common interest and our common defence. Yet we have had legal gentlemen continually getting up and practically hair-splitting as to the meaning of words. Let us go to work and try to complete this Federal Constitution. Under the clause now being considered a judge will get every protection that the unanimity of the two Houses can afford him. If a judge does wrong punish him, but if he does that which is [start page 958] right we shall all of us honor him. I trust members will take a sensible and practical view of the question.

Mr. CARRUTHERS: I hope the Committee will retain the clause as drafted, because we have had the experience and working of similar provisions in the local Constitutions ever since the colonies have enjoyed self-government, and we have never heard of one instance of where the power has been abused. Sir John Downer speaks of the necessity of a trial of the judges by the Parliament, but can we contemplate that this power will ever be exercised without a trial? Parliament would never be so debased as to remove a judge from his position without first making a trial. There is a suggestion that there should be an impeachment by the Lower House, but the moment the judge is assailed there is an impeachment. Under the Bill he has to be impeached by both Houses, and we have provision practically for an impeachment by one House and a trial by the other-a trial in fact by the two Houses. Sir John Downer suggests that the judges should not be removed except by a two-thirds majority of the Senate, and can we fancy such an intolerable position of having a judge on the bench against whose occupancy or position a majority have voted, but not a two-thirds majority, and therefore he retains his seat. I will undertake to say that if a position of that character were conceded, and if a majority, although not a two-thirds majority, voted for the removal of a judge the public would instantly lose confidence in the administration of justice if a man were allowed to remain on the bench against the will of the majority of the House. Such a judge would feel compelled to resign at once if he had any sense of decency. The whole argument is based upon the assumption that Parliament will be so corrupt as to remove judges without due cause. We have never seen the power entrusted to our present communities abused, and still we are asked to do away with a power which has never been badly used, in order to so strengthen the hands of the Federal Judicature that if we get a judge whose brain faculty is disappearing we cannot remove him.

Mr. KINGSTON: That would be incapacity.

Mr. CARRUTHERS: You can remove him by a roundabout process. I was much struck by the observations used by the mover, and by every member who has supported this new departure. They speak of the Federal Judiciary as being the bulwark of the liberty of the citizens and safeguard of the Constitution, and they desire to have it so constituted as to be above parliamentary interference.

Mr. SYMON: And improper interference.

Mr. CARRUTHERS: That brings me at once to say that the dilemma that these hon. gentlemen are in arises from the fact that they are cutting off their right of appeal to that tribunal, the Privy Council, which is far removed from any local parliamentary influence. If you preserve the right of appeal to that body you have a court with which no local legislation can interfere.

Mr. SYMON: If you abolish the Privy Council, why not put this High Court above political influence?

Mr. CARRUTHERS: You are not abolishing the Privy Council as far as some of the decisions of the High Court are concerned. It has been put that if from a feeling of resentment on account of the decisions of the Federal Judiciary, any action was taken for the removal of the judges there would be interference with the administration of justice. It is put that, in order that the judiciary should not be interfered with, this power should be taken, and that we should have a body which cannot be overawed by any local Legislature. Members talk of the High Court as being the bulwark of the Constitution, but they are taking that bulwark away when they [start page 959] abolish the right of appeal to the Privy Council, which is far removed from any influence exercised by our local Parliament.

Mr. PEACOCK: Do you believe in a High Court of Justice for Australia?

Mr. CARRUTHERS: I believe in the establishment of a High Court for Australia, but not of the character proposed, which will sever all connection with the Privy Council, and which will, if we follow the logic of my hon. friend, be placed in a position above any power of the Commonwealth to control it. All men are human, and it is human to err with lawyers as much as anyone, and are we not to have any regard for the liability of our having a corrupt bench as we may have a corrupt Parliament? History shows that benches sometimes become corrupt. It is highly improbable and we cannot conceive it, but how can we conceive a Senate and a House of Representatives-a majority in each combined-being so corrupt as to inflict an injury upon another component part of the Constitution, simply because it has not done that which the legislature desired? By all means give a correcting power to the judiciary, but let there be a restraining influence in the other power; but if we adopt the amendment we shall be creating a power too strong for its proper strength in the Constitution. I shall, therefore, vote for the clause as drafted.

Mr. SYMON: I wish to point out the extremely anomalous position in which Mr. Carruthers has placed himself. He wants to retain the right of appeal to the Privy Council, which he says will be above the reach of local influences and totally beyond the control of the local legislature, and in order to have an argument to support this contention be wants to make the High Court subject to the dominance of the local legislature. If that commends itself to the minds of hon. members the sooner we sweep the High Court of Australia out of the Constitution the better, if my hon. friend's contention is correct. I would suggest, Mr. Chairman, that you should put the first part of the amendment first,

The CHAIRMAN: The question I will put is:

That the words proposed to be struck out stand part of the clause.

Mr. SYMON: I propose to ask you to first strike out the word "may" with the view of substituting "shall only be." It is a better form of expression. The substance of the amendment is the latter part.

The CHAIRMAN: Mr. Kingston's amendment is "shall not be."

Mr. KINGSTON: "Shall only be."

The CHAIRMAN: I have it in the hon. member's writing "shall not be."

Amendment agreed to.

Mr. KINGSTON: I have altered the amendment The way I now move it is that "except for misbehavior, unfitness, or incapacity." As regards the word "unfitness," I think that might perhaps be left out and I will leave it "misbehavior or incapacity." I think it will be idle to talk of these judges holding their offices during good behavior if, by the express terms of the Act, we render them liable to removal at the will and pleasure of the Executive and of the Parliament.

Mr. ISAACS: Who will be the final judge?

Mr. KINGSTON: The Parliament. I think the complaints should be investigated by the two Houses in such way as they see fit. I have such a high idea of the honor of the Federal Parliament, so long as you lay down principles for their guidance-and we do lay them down-that I think it will be unnecessary to provide here the precise mode in which these powers shall be exercised; and that is why I take a little exception to the argument of Sir John Downer. The Federal Parliament will provide the necessary machinery for carrying out the law. There is difficulty in providing that the Senate shall deal with the matter first.

Sir JOHN DOWNER: The House of Representatives first.

[start page 960] Mr. KINGSTON: I think it will be as well to leave it to the Federal Parliament to regulate that.

Mr. ISAACS: Then they will not be the final arbiters.

The amendment was altered so that it provided to insert the words:

For misbehavior or incapacity and.

Amendment agreed to.


The judges shall not be removed except for misbehavior or incapacity, and then only upon an address, &c.

Would that not be sufficient, because the removal must be by the Governor-General with the consent of the Executive? If the two Houses decide to remove a judge then the Executive act must be carried out by the Executive authority. So we may simply say:

Shall be removed only for misbehavior or incapacity, and then upon an address.

Mr. SYMON: Yes, that would do.

Mr. BARTON: If that is acceptable I will move:

To strike out the words " Governor-General with such advice" and insert in their place "and then only."

Mr. KINGSTON: Is there any particular object in striking out those words when it is made so clear.

Mr. BARTON: Except that it is not necessary to retain the words. The authority which appoints is the authority which removes. It reads more clearly and makes better English, I think, if the words are struck out.

Mr. KINGSTON: I would suggest that we make the section read as follows:

Shall not be removed except for misbehavior or incapacity, and then only by the Governor-General in Council, upon an address, &c.

Mr. SYMON: That will do.

Mr. BARTON: If that is so, I will move then:

To further amend the clause by inserting "then only" after "and."

Amendment agreed to.

Mr. BARTON: I now move:

That the words "I but only," be omitted.

Amendment agreed to.

The CHAIRMAN: The sub-section as it stands now reads:

Shall not be removed except for misbehavior or incapacity, and then only by the Governor-General in Council upon an address from both Houses of the Parliament in the same Session, praying for such removal.

Sir JOHN DOWNER: I have said what I had to say in reference to the form in which, in my opinion, this very important Constitutional question should have been worded. But I, found myself so much in a minority amongst the members of the Convention generally that I did not think it expedient to force a division on the matter. I would like that the amendment I had intended to move should be put in print and circulated amongst hon. members for their careful consideration. I consider-and most of the lawyers who have studied constitutional subjects will agree with me-that this is about as important as any part of the Bill. I shall probably, before the Convention is over, bring the matter up again with the view of seeing whether they have not made a mistake and weakened the Constitution by depriving it of the safeguards which have proved so efficacious in the great American Constitution.

Mr. ISAACS: As the clause will stand now, except during a session of Parliament, there are no means whatever of dealing with a judge, no matter what he may do. The power found in British and Colonial Constitutions of suspension or removal in flagrant cases is entirely absent.

Mr. SYMON: What sort of flagrant case could you imagine?

Mr. ISAACS: The hon. member can imagine them as well as anybody else. We are doing this with our eyes open. We are not only, as I think with Sir John Downer, weakening the Constitution, but we are wilfully shutting our eyes to the safeguards introduced in England And throughout the colonies for bringing any [start page 961] officer, however high and dignified his position, within the range of the Constitution under which he is appointed.

Sub-section as amended agreed to.

Sub-section 4-Remuneration of justices-as read agreed to.

Mr. KINGSTON: I would like to ask Mr. Barton whether he does not think it would be an improvement to provide in this clause, as we have provided with regard to the salary of the Governor, not only that it shall not be diminished during continuance in office, but that it shall not be increased?

Mr. BARTON: I think it would.

Mr. SYMON: I hope Mr. Barton will not so readily agree to that, because there is a great distinction between the appointment of the Governor-General and his salary, and the appointment of a judge and his salary. The appointment of a Governor-General is for four, five, or six years. The object of the clause fixing his remuneration is to prevent him intriguing for an increase of salary during that short period; but where you are appointing judges for life, during good behavior, the conditions are so altered that the condition would not be essential.

Mr. ISAACS: Would not your argument apply to diminishing as well as to increasing?

Mr. SYMON: No; because the provision with regard to diminishing is again introducing the principle of preventing pressure being put on on a judge.

Mr. O'CONNOR: A judge should have nothing to hope for.

Mr. KINGSTON: Hear, hear.

Mr. SYMON: That is a very convenient phrase, yet like other phrases it is one which creates a good deal of misapprehension. I should only like to call the attention of Mr. Barton to the view taken by the Federalist on this very point. It is a singular thing how little alteration there has been in the points which have been raised on this judiciary question, and indeed on many other questions.

Sir JOHN DOWNER: In fact, on any other question.

Mr. SYMON: And how little the objections have changed in the last 120 years or so in relation to these matters. This very point was taken, that if you provided that the remuneration of the President of the United States of America should not be increased nor diminished during his term of office you should provide the same for the judges. This is what Hamilton, in one of his exceedingly able disquisitions, not written so much philosophically as from a practical politician's point of view, says on the point of the non-interference by way of diminution with salaries:

It was therefore necessary to leave it to the discretion of the legislature, to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted, combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. It will be observed that a difference has been made by the Convention between the compensation of the President and of the judges. That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be sufficient at their first appointment, would become too small in the progress of their service.

Mr. ISAACS: Why is not the contrary correct?

Mr. SYMON: That is the view on [start page 962] which all these provisions with respect to the salaries of judges have been drafted, and I would beg my hon. friend not to place too readily this provision with regard to judges' salaries on the same footing as that which applies to an executive officer, who only holds his office for a comparatively short term.

Mr. HIGGINS: When did Hamilton write that?

Mr. SYMON: After the Constitution had been framed, when he was dealing with objections taken to its provisions

Mr. ISAACS: When he was pressing the people to accept it.

Mr. SYMON: Yes, just as, I suppose, the hon. member is trying to persuade us to reject the proper provisions of this Constitution.

Mr. BARTON: The suggestion made is one worthy of consideration. Although it may be that the circumstances of a new country may show that the salary which a judge is paid on his accepting office becomes inadequate as time goes on, I think that is a question which he should consider for himself before he takes office Mr. KINGSTON: Hear, hear.

Mr. BARTON: I do not think it is a good thing under any circumstances that a judge under a Federal Constitution, at any rate, should have anything to hope for from Parliament or Government.

Mr. KINGSTON: Hear, hear.

Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the interpreter of the laws as they arise, and not the guardian of a Constitution in the same sense as a federal judge is, the same circumstances remain in part; but where you will have a tribunal constantly charged with the maintenance of the Constitution against the inroads which may be attempted to be made upon it by Parliament, then it is essential that no judge shall have any temptation to act upon an unexpected weakness-for we do not know exactly what they are when appointed-which may result, whether consciously or not, in biasing his decisions in favor of movements made by the Parliament which might be dangerous to the Constitution itself. My friend Mr. O'Connor points out that the most important questions that may arise may be those between the States and the Commonwealth, the validity of State laws, and the validity of Commonwealth laws which may overlap or override them. Those very questions which the Senate exists to prevent may be arising and embarrassing the Constitution. The Senate will have to exercise its powers to prevent overlapping of that kind, but if it fails to exercise its authority power must be present in the court to adjust matters. You may easily conceive a case in which there might be a desire to reward a judge for past services, and with the view that he may be insensibly influenced in regard to future cases. I do not think a judge should have anything to expect in that way.

Clause as read agreed to.

Clause 71. The judicial power shall extend to all matters:

I. Arising under this Constitution, or involving its interpretation:

II. Arising under any laws made by the Parliament:

III. Arising under any treaty:

IV. Of admiralty and maritime jurisdiction

V. Affecting the public ministers, consuls, or other representatives of other countries:

VI. In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

VII. In which a writ of mandamus or prohibition is sought against an officer of the Commonwealth

VIII. Between States:

IX. Relating to the same subject matter claimed under the laws of different States.

Mr. GLYNN: I have given notice of a proposed amendment by the addition of the words as sub-section.:

Any matters that the Parliament may prescribe.

The effect of that will be that the Federal Parliament may pass an Act giving wider [start page 963] powers than are conferred by the Constitution upon the judges. I would remind hon. members that my proposition simply goes the length of vesting the power of passing an Act in the Federal Parliament. Some hon. members may say that it is a dangerous question of policy, but I would remind them that in Acts 3 and 4 Victoria, chapter 41, the power is vested in the Government in England to refer to the decision of the Privy Council in all matters whatever that the Crown may think fit to refer to the Council. Now it is not at all certain that we will retain this power of appeal to the Privy Council. We propose abolishing the right of appeal to the Privy Council, and if we succeed in that, another amendment will be necessary. We will have to invest our High Court with the power which is vested in the Privy Council to decide certain matters which axe not matters of contentious litigation at the time. I may mention that under the Canadian Act-the Supreme Court Act of 1875-wider powers are vested in the Executive Council. Todd, in his last edition, says:

By the Supreme Court Act 1875 the Governor in Council is empowered to refer any matters whatsoever to the court for hearing or consideration; and the judges are required to examine and report upon any Private Bill, or petition for the same, that may be referred to them by the Senate or House of Commons of the Dominion. And by the Act 54 & 55 Vict., c. 25, the power was greatly enlarged of reference to the court for opinion of the judges; and important questions of law or fact touching provincial legislation, appellate jurisdiction relating to educational matters, constitutionality of any legislation of the Parliament of Canada, or touching any other matter with reference to which he sees fit to exercise this power, may be referred by the Governor in Council to the Supreme Court for hearing or consideration.

Of course, as I have said before, I am not proposing that that should be vested in the Supreme Court. My proposition is that the powers vested there by Act of Parliament should be given under the Constitution. Again, in eight of the State Constitutions of America this power of reference to the judges is preserved, so that to some extent, at all events, we have precedents for the adoption of the amendment I suggest. Upon the expediency of doing this -not to rely merely on my own opinion in reference to this matter, which would carry very little weight-I will refer to Bryce, page 448, where it says:

It may be thought, and the impression will be confirmed when we consider as well the minuteness of the State Constitutions as the profusion of State legislation and the inconsiderate haste with which it is passed, that as the risk of a conflict between the Constitution and statutes is great, so the inconveniences of a system under which the citizens cannot tell whether their obedience is or is not due to a statute, must be serious. How is a man to know whether he has really acquired a right under a statute? How is he to learn whether to conform his conduct to it or not? How is an investor to judge if

he may safely lend money which a statute has empowered a community to borrow, when the statute may be itself subsequently overthrown? To meet these difficulties same State Constitutions provide that the judges of the Supreme Court of the State may be called upon by the Governor or either House of the Legislature to deliver their opinions upon questions of law, without waiting for these questions to arise, and be determined in an ordinary lawsuit. This expedient seems a good one, for it procures a judicial and non-partisan interpretation, and procures it at once before rights or interests have been created.

He goes on afterwards, of course, to discount this statement of the case for vesting the power in the Supreme Court by showing that it is open to some corresponding disadvantage. I might also mention that in 1886, in the Government of Ireland Bill introduced by Mr. Gladstone, power was given to the Lord Lieutenant to similarly refer matters to the Supreme Court.

Mr. DEAKIN: Did you quote Bourinot? He speaks favorably of its operation.

Mr. GLYNN: I have it here. I simply ask that this power should be given to the Federal Parliament. It is simply preserving to the extent of the delegated powers the absolute authority of Parliament. For these reasons I submit the amendment to the Committee.

Mr. BARTON: I think we will have to be rather careful before adopting a [start page 964] sub-section of this kind, because it framed in such a wide way as to include any matters that the Parliament may prescribe. We shall have in the first case to determine-and we shall have to invoke the power of the Supreme Court to determine it-whether a matter prescribed by Parliament is a matter within their power to so deal with under the Constitution. We should there find some fruitful sources of litigation if a proposal of this kind were carried.

Mr. SYMON: It is in the wrong place altogether.

Mr. BARTON: An amendment giving power to prescribe that anything is within the judicial power may not only have a very great effect in taking matters outside the ambit of the judicial authority, but the power to legislate for contingencies tells us that any attempt made in this respect may go so far as to bring about great ambiguities, in deciding whether a matter prescribed by Parliament is one that is within their power under the Constitution. That is to say, that there may be a new jurisdiction imported which would conflict with the jurisdiction conferred by the Constitution. To accept the proposal of my hon. friend would, I say it with all respect, condemn it. In England the House of Lords has the power of consulting the judges; and a similar power has been conferred on the Canadian Privy Council. The Governor-General in Council may refer to the Supreme Court for hearing or consideration any matter which he thinks fit to refer, and that court is required to certify its opinions to the Governor in Council. That is a substitute, according to Munro, not for the power of the Queen to refer any matter whatsoever to the Privy Council, but for the power which the House of Lords has to to consult the judges. It is only in a judicial capacity that the House of Lords ever wants to consult the judges. There is no such body created, or likely to be created, as far as is suggested, as far as I can see, and we cannot see that there is anything of the kind likely to be dealt with under this Constitution. The reason for which similar power has been conferred upon the Governor in Council on Federal legislation does not exist here. If we look at the clause as it stands we shall be satisfied that we have given judicial power to the Commonwealth which is likely to be sufficient for all its purposes. In the clause setting out the jurisdiction of the High Court we say that:

In all matters affecting public ministers, consuls, or other representatives of other countries, arising under any treaty between States in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party, in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth, the court shall have original its well as appellate jurisdiction.

I ask the hon. member if it is necessary to go beyond these powers?

Mr. GLYNN: They must arise in cases.

Mr. BARTON: Yes; in cases that come before a Court having jurisdiction under these judicial powers so defined. The question which seriously exercises my mind is whether we are not giving sufficient jurisdiction to the Supreme Court in this clause.

Mr. SYMON: It is not jurisdiction.

Mr. BARTON: It is a definition of the judicial powers.

Mr. SYMON: Parliament has no right to alter that.

Mr. BARTON: I am not saying that it has, and therefore Mr. Symon was right in his interjection that this amendment was moved in the wrong place. The judicial power, which includes the jurisdiction of the Supreme Court, is sufficient for the cases we have defined. We have a provision here dealing with the jurisdiction which may be conferred upon other courts. We have it in clause 74 that:

Within the limits of the judicial power of the High Court the Parliament may from time to time: Define the jurisdiction to be exercised by the Federal Courts other than the High Court: Prescribe whether the jurisdiction of the Federal Courts shall be exclusive of, or concurrent with, that which may belong to or be vested in the courts of the States, and invest the courts of the [start page 965] States with federal jurisdiction within such limits, or in respect of such matters, as it thinks fit.

Then we are told that in certain matters, which include many of the most important of there referred to in clause 71, the High Court shall have original as well as appellate jurisdiction. I ask Mr. Glynn whether he thinks it is worth while proceeding with the amendment-first, because it is too wide, second, because there is jurisdiction, and third, because if it ought to be inserted this is the wrong place to insert it.

Mr. SYMON: My hon. friend's amendment is directed to one point, and that is to enable matters to be dealt with and constitutional questions to be raised by the High Court and dealt with without suit. If this is the point he has in view, it deals with the procedure or jurisdiction of the High Court and not its judicial power. It has nothing to do with the judicial power, which is contra-distinguished from the executive and legislative power under the Constitution. There are three elements in the Constitution. One is the legislative, the second is the executive, and the third is the judicial power, and that judicial power exists quite irrespective of, the procedure under which it is exercised. My friend is moving the amendment with a view to enable questions to be submitted to the Federal Judiciary without the intervention of a party or suit. It may or it may not be a good object. The Canadian Act has secured it. Our provisions do not secure it. The Home Rule Bill of 1886, introduced into the Imperial Parliament, provided for it, but it is not a question of judicial power. Judicial power is one thing, and it is sufficient to embrace what is desired provided the machinery is good, and what my hon. friend desires is to provide machinery. I suggest, if he desires to see it carried into effect, that he should introduce it in a separate section, to be inserted in a more appropriate place. On the question itself, I submit for his consideration, that really it is not a desirable thing to introduce. The great charm of the judiciary in the Supreme Court of the United States consists in the fact that they do not mix themselves up with the questions of legislation or constitutional law or the question of executive control until their attention is directed to it in some suit between parties, and it seems to me that this is a very desirable course to preserve. If my hon. friend had followed his own quotation from Bryce he would have seen the encomiums which the writer passed upon the United States system. He says:

It is nevertheless true that there is no part of the American system which reflects more credit on its authors, or has worked better in practice. It has had the advantage of relegating questions not only intricate and delicate, but peculiarly liable to excite political passions, to the cool dry atmosphere of judical determination. By leaving constitutional questions to be settled by the courts of law another

advantage was incidentally secured. The court does not go to meet the question; it waits for the question to come to it. When the court acts it acts at the instance of a party. Sometimes the plaintiff or the defendant may be the National Government or a State Government, but far more frequently both are private persons seeking to enforce or defeat their private rights. For instance, in the famous case which established the doctrine that a Statute passed by a State repealing a grant of land to an individual made on certain terms by a previous Statute is a law "impairing the obligation of a contract" and therefore invalid, under article 1, section 10, of the Federal Constitution: the question came before the court on an action by one Fletcher against one Peck on a covenant contained in a deed made by the latter, and to do justice between plaintiff and defendant it was necessary to examine the validity of a Statute passed by the Legislature of Georgia. This method has the merit of not hurrying a question on, but leaving it to arise of itself. Full legal argument on both sides is secured by the private interests which the parties have in setting forth their contentions; and the decision when pronounced, sines it appears to be, as in fact it is, primarily a decision upon private rights, obtains that respect and moral support which a private plaintiff or defendant establishing his legal right is entitled to from law-abiding citizens. A State might be provoked to resistance if it saw as soon as it had passed a Statute, the Federal Government inviting the Supreme Court to declare that Statute invalid.

That is exactly the difficulty which is met [start page 966] by leaving these matters to arise between private parties. You then do not provoke the resistance of a State which has its law brought by the intervention of the Commonwealth before the judiciary to have its validity tested. Immediately you do that you arouse a debate which may never otherwise arise, and you bring about a mongrel suit to determine some matter which may otherwise never be brought before the court. I advise my hon. friend, if he desires to push the matter, that it should be done by way of a separate clause.

Mr. KINGSTON: Although my professional sympathies may not be expected in a case of legal procedure to be in the direction of haste, I thoroughly agree with the object of Mr. Glynn with regard to the propriety of providing some facile, expeditious, and inexpensive means whereby the highest judicial pronouncements on matters of great public concern can be obtained. I do trust we will not attach too much weight to the suggestion that we should go through the old routine of having to find some unfortunate people to make it a personal quarrel before we can obtain the decision of the highest court in the realm. I trust that Mr. Glynn, although for the reasons I shall presently mention I shall be unable to support him in the amendment, will do what he can by the adaptation of something similar to that we find in the Canadian Constitution, to enable the Federal Government or a State Government to obtain, without waiting for litigation between private parties, a decision from the High Court as to whether the federal law or the State law is valid and ought to prevail.

Mr. HIGGINS: Even if the facts have arisen on which there is a dispute?

Mr. KINGSTON: On a question of dry law, as to the legality or otherwise, the constitutionality or otherwise, of the Federal Act or the State Act, I imagine that there would not be the slightest difficulty in stating a case to which the judges could address themselves, with perfect confidence of their being able to pronounce a judgment which would satisfactorily deal with the point raised. I hope Mr. Glynn will confer with Mr. Deakin, who has already directed the attention of the Committee to a matter of this sort. I would, however, say that I agree with the objection which has been taken to the amendment which is now before the Convention. It seems to me that if you assent to the extension of the judicial power to all matters which the Federal Parliament may prescribe, it is simply in another way giving to the Federal Parliament the absolute power of arrogating to itself all the judicial powers it may wish, even to the extent of ousting State legislation. I hope that my friend Mr. Glynn, under these circumstances, will not press the amendment he has now moved, but I do trust that the principle to which he seeks to give effect by his motion will be embodied in the Constitution, and will prove acceptable to the Convention, and enable the Federal Parliament or State Parliaments to obtain a declaration from the High Court of Australia on matters of public concern, without all the routine, delay, and expense which are involved in litigation as we generally know it.

Mr. HIGGINS: I feel strongly that it is most inexpedient to break in on the established practice of the English law, and secure decisions on facts which have not arisen yet. Of course, it is a matter that lawyers have experience of every day, that a judge does not give that same attention, he cannot give that same attention, to a supposititious case as when be feels the pressure of the consequences to a litigant before him. If he feels that the effect of his decision will be ruin to this man or that man he will take the utmost pains in considering his decision. But here is an attempt to allow this High Court, before cases have arisen, to make a pronouncement upon the law that will be binding. I think the imagination of judges, like that of other persons, is limited, and [start page 967] they are not able to put before their minds all the complex circumstances which may arise and which they ought to have in their minds when giving a decision. If there is one thing more than another which is recognised in British jurisprudence it is that a judge never gives a decision until the facts necessary for that decision have arisen. I think it is advisable that private people should not be put to the expense of having important questions of constitutional law decided out of their own pockets. But I feel sure that is not the way to do it. If it is thought by the Convention or Federal Parliament that private persons who raise important points of constitutional law ought to be reimbursed out of the State coffers that is another matter. That is for Parliament to deal with. But with our knowledge of how English jurisprudence has grown up, and has the confidence of the whole empire, for as to allow judges the power of ruling on hypothetical cases would be most injurious. I sympathise with the desire of the President to prevent people being put to this expense. I hope we shall adhere to the clause, and not provide for the judges giving decisions until the facts have arisen.

Mr. DEAKIN: Some days ago at a time which did not appear appropriate, I introduced this particular question, and introduced it guardedly because I felt in advance the weight of the arguments which have just been forcibly explained by my friend Mr. Higgins. But it appeared to me then that possibly a sufficient safeguard by way of limitation might be found and at the same time some extra protection afforded to the smaller States. If the exercise of this judgment in advance were allowed first of all only when State interests were supposed to be involved, and secondly, only on the application of accredited representatives of the less populous States, that limitation would rob the suggestion of a good deal of its danger and many of its difficulties. But on further consideration I recoil a little from even that proposal, and have fallen back to something like the position of my learned friend who has just sat down. While recognising the end in view to be eminently desirable, I feel great diffidence in lending any sanction to a proposal of this kind until it has been better digested. I am cordially with my hon. friends Mr. Glynn and the President in admitting the hardships inflicted upon innocent litigants. and the dangers and difficulties which they ran, but the more I consider the great risks we must run the more I hesitate to take any decisive step towards placing in this Constitution such a power of reference as has been suggested.

Proposed sub-section negatived; clause agreed to.

Clause 72-The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament may from time to time prescribe, to hear and determine appeals, both as to law and fact, from all judgments, decrees, orders, and sentences of any other federal court, or court exercising federal jurisdiction, or of the Supreme Court of any State, whether any such court is a court of appeal or of original jurisdiction; and the judgment of the High Court in all such cases shall be final and conclusive: Provided that no fact tried by a jury shall be otherwise re-examined in the High Court than according to the rules of the common law.

Until the Parliament otherwise provides, the conditions and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

Mr. GLYNN: It seems to me that the words:

With such exceptions and

are exceedingly wide, and gives power to the Parliament to cut down the powers to practically nothing. I move:

To strike out "with such exceptions and”

Amendment negatived.

Mr. WISE: I move:

To strike out of the third line of the clause the words "both as to law and fact."

If this is carried it will be necessary to strike out the proviso at the end of the first sub-section. I think I was the cause of these words being put in, but on further [start page 968] consideration I have come to the conclusion that they are unnecessary. It is better to give the unrestricted power to appeal to the High Court, and let the Parliament fix the conditions. It has been laid down in New South Wales that where there is an appeal it does not include the power of re-hearing, and a similar decision has been given in Victoria, though, in my opinion, it does. The words were taken from the American Constitution, where the High Court has the power of reviewing a decision of the jury on a question of fact.

Amendment agreed to.

Mr. WISE: I now move:

That the following words at the end of the first section be struck out- Provided that no fact tried by a jury shall be otherwise re-examined in the High Court than according to the rules of the common law."

Mr. ISAACS: I quite agree with my hon. friend that the words are not needed. I have been extremely puzzled to know what the words mean to-day. There might have been some meaning in them and some necessity for them 100 years ago, when judges exercised such extreme powers, and when they tried to override trial by jury.

Amendment agreed to; clause as amended agreed to.

Clause 73.-No appeal shall be allowed to the Queen in Council from any court of any State or from the High Court or any other federal court, except that the Queen may, in any matter in which the public interests of the Commonwealth, or of any State, or of any other part of her dominions are concerned, grant leave to appeal to the Queen in Council from the High Court.

Sir GEORGE TURNER: This is a clause which, as I understand it, takes away from us the right of appeal to the Privy Council, and I shall test the feeling of the Committee as to whether appeals may be made in any case provided the consent of either the Federal Court or the Queen in Council is given. I agree that it would be wise to have some restriction on these appeals, so that there will be real cues in which the decision of the highest court in our land should be obtained. If we have a provision by which the appeal cannot be made in every case, but only with consent of the High Court, from whose decision is to be made, or from the Queen in Council, we will obviate any difficulties. I move:

That we strike out "may in any matter in which the public interests of the Commonwealth, or of any State, or of any other part of Her dominions, are concerned."

If that is carried I will move:

To insert after the word "Queen," the words "or the High Court may grant leave to appeal."

Mr. HIGGINS: Would you allow appeal even from the High Court?

Sir GEORGE TURNER: Yes, by special leave of the court or of the Queen.

Question - That the words "In any matter in which the public interests of the Commonwealth, or of any State, or of any other part of Her dominions are concerned," proposed to be struck out stand part of the clause-put. The Committee divided.

Ayes, 17; Noes, 14. Majority, 3.


Barton, Mr. Howe, Mr.

Berry, Sir Graham Kingston, Mr.

Cockburn, Dr. Lewis, Mr.

Deakin, Mr. McMillan, Mr.

Downer, Sir John O'Connor, Mr.

Fysh, Sir Philip Symon, Mr.

Glynn, Mr. Trenwith, Mr.

Gordon, Mr. Wise, Mr.

Higgins, Mr.


Abbott, Sir Joseph Fraser, Mr.

Braddon, Sir Edward Henry, Mr.

Brown, Mr. Isaacs, Mr.

Carruthers, Mr. Peacock, Mr.

Clarke, Mr. Quick, Dr.

Dobson, Mr. Turner, Sir George

Douglas, Mr. Walker, Mr.

Question so resolved in the affirmative.

Sir EDWARD BRADDON: I think this is a clause which ought to receive greater attention than it has received, inasmuch as a division has been taken, I understand, without any debate whatever. I think we ought to remember that this is possibly one of the most important provisions in the whole of the Constitution Bill. We have but very few links uniting us with [start page 969] the British Empire. We have sentimental bonds which, although very strong, are not sufficent for every purpose. The substantial links are very few indeed, and this particular one is one of these, and by limiting the power of the subject to appeal to the Queen we are, I think, doing a wrong to the subject in whatever part of

the empire that subject may be. We are denying by this particular clause as it is drafted the right of the people of Australasia to do that which is in the power of the people everywhere throughout the British Empire to do, whether he be a native of Canada, whether he be a native of the British Isles, or whether he be a native of any other part of the British dominion. I should like to read in this connection the opinion of a distinguished judge, the Chief Justice of Tasmania. He writes:

I do not know anything that contributes more to the constitution of a united British Empire than the fact that every subject may appeal to the Queen herself in Council if he considers himself wronged by the decision against him of a colonial Supreme Court. A Committee of the Privy Council-the Judicial Committee, as it is styled-hears the appeal and reports to the Queen in Council, by whom the judgment is finally given. This general right of appeal is a strong binding link between the Crown and the colonies. The Supreme Court of Australia cannot be as powerful a court as the Judicial Committee of the Privy Council. Judges of the same experience and ability as those who form the Judicial Committee are not to be found in Australia. We have no Sir Horace Daveys or men of that calibre. The Supreme Court of Australia will presumably consist of three or five judges; but the Supreme Court of Victoria already consists of six judges, and an appeal from the Full Court of Victoria to the Supreme Court of Australia would be an appeal from a powerful bench to a tribunal probably not so strong as the Full Court. The appeal would be more expensive. Counsel from the different colonies would probably attend the Supreme Court to argue the appeals from their colonies. The expense of counsel coming from one colony to another, and so abandoning and losing business in his home colony, is heavy; 150 guineas is the lowest sum paid for counsel coming from Melbourne to Tasmania, and I have known £800 paid. Now, in England £25 to £50 are fair leaders' fees in ordinary appeals to the Privy Council. Again, the solicitors' costs in England are, as well as the counsels' fees, more moderate than those charged and allowed in Australia. Delay may be urged against the Privy Council, but except as to the time taken in transmitting the papers to England, which is insignificant, the probability is that solicitors and counsel in England act with at least the same promptness that is likely to be shown in Australia. The Privy Council does not sit during the long vacation, nor will the Supreme Court of Australia sit continuously. For these and other reasons I should be sorry to see the appeal, as of right to the Privy Council, that is now enjoyed in every case of reasonable importance, taken away and conferred upon another tribunal which holds out no one advantage over the Judicial Committee. If the Supreme Court of Australia is to be constituted a Court of Appeal, I should say let it be left optional to each of the colonies to adopt it as its Court of Appeal by its own legislative enactment, or else let the Supreme Court have only concurrent jurisdiction with the Judicial Committee, leaving the suitor to elect to which tribunal he will appeal. This would leave the matter optional with the colony or the suitor, but do not let the Constitution take away the right of the subject to appeal for justice to the Sovereign.

I think that is an opinion that ought to be heard with considerable deference by hon. members of this Convention, and notably by those hon. members who are of the legal profession, because it is the opinion of one who is a leading member in their own profession, and whose opinion, therefore ought to be of especial value. My hon. friend Mr. Carruthers I hope has some amendment to propose. I have led the way and give him time by reading this opinion to frame any amendment which he may desire to submit.

Sir JOSEPH ABBOTT: I entirely agree with every word that has been uttered by Sir Edward Braddon. It appears to me it would be a calamity if, throughout the British Empire, we had for every place except for Australasia, a uniform law. If we established this Court, giving it power to interpret the laws of the Australian Colonies, how do we know that we shall be following the laws of the Empire at all. At the Convention of 1891, a very able letter written by Mr. Justice Richmond, of the [start page 970] New Zealand Supreme Court, to the late Sir Henry Parkes, was received. Possibly that letter is not available at the present time to hon. members.

Mr. KINGSTON: It is in the proceedings.

Sir JOSEPH ABBOTT: But very few hon. members have had copies of those proceedings. And, although I may detain the Committee at this time-and I am not one of those who has done much to waste time -still I feel so strongly the necessity for uniformity of law throughout the British dominions that I will crave the indulgence of the Committee while I read it.

Mr. WISE: Have you read Mr. Clarke's reply to that letter?

Sir JOSEPH ABBOTT: The hon. member can do that. I will accept the opinion of a man who was on the Bench for more years than Mr. Clarke has been a lawyer, and who was associated in a large degree with the public life of New Zealand. On March 11th, 1891, Mr. Justice Richmond wrote to the late Sir Henry Parkes as follows:

Although I have not had the advantage of a personal introduction to you, I make no doubt that you will excuse my addressing you on a subject of interest and importance to the whole of Australasia. It is one of which I may claim to have some special knowledge, being now in the twenty-ninth year of my service as a Judge of the Supreme Court of New Zealand, and having previously had some executive experience as a Colonial Minister. The subject I refer to is the proposal now made at Sydney to establish au Australian Court of Appeal, whose decisions shall not be subject to review by the Judicial Committee of Her Majesty's Privy Council.

Of course, this is at present a mere proposal; and I cannot but think that, on deliberate consideration, good reason will appear for not insisting upon it.

1. The first and most obvious objection is one which must necessarily have occurred to yourself, and to any other statesman who has given the matter a thought. British capital is, and it is to be hoped will continue to be, largely invested in these colonies. It appears, therefore, to be a perfectly reasonable demand on the part of the mother-country, that any British subject feeling himself aggrieved by the decision on his civil rights of a local court shall, if the case be of sufficient importance, have his right of final appeal to an Imperial tribunal. However fair colonial judges and juries may have shown themselves, it is inevitable that persons resident in the United Kingdom, or in other colonies, who should find themselves worsted in litigation before a colonial court from which there was no appeal, would, in many cases, both feel and express a doubt that justice had not been done them, and would be ready to impute the decision against them to local prejudice and favoritism.

It always makes things plainer to give an example of the working of a principle, and I will, therefore, shortly state a recent ease in this colony. A large ship, owned by an English shipping company, with a valuable cargo, was lost in attempting to leave the artificial harbor of Timaru, in the South Island. The accident was attributed by the company, or its underwriters, to the negligence of an officer of the Timaru Harbor Board, and an action for damages was accordingly brought in the name of the company against the board. The issues of fact were tried by a Wellington jury, and a verdict was returned for the plaintiffs for about £40,000, the value of ship and cargo. This, however, was subject to a large number of reserved points of law, which were subsequently argued before our New Zealand Court of Appeal. Two judges, out of three who formed the court, upheld one of these objections as fatal, and gave judgment setting aside the verdict. But a considerable proportion of the costs was thrown by our judgment on the defendant board as having failed on the main issues of fact. The shipping company appealed, as was, of course, expected, to the Privy Council; and Lords Halsbury and Bramwell sat with the ordinary members of the Judicial Committee to bear the case. The argument occupied five days. Finally a reserved judgment was given upholding the decision of the New Zealand Court of Appeal on a wider ground than we had taken, and charging the appellant company with the entire costs of the proceedings. Now, in a case of this kind, it is obvious that the result, from a public point of view, is far more satisfactory than it would have been had the plaintiff company been compelled to submit to the colonial decision in favor of the local body as final. It is more satisfactory to the people of both countries concerned; more satisfactory to the members of the colonial tribunal-I should say the same if the decision had been the other way; more satisfactory even

to the defeated litigants-in this respect at least, that they must feel that justice, so far as attainable in courts of law, has been done them.

[start page 971] To quit this part of the subject: It is to be expected that the proposed measure, if ever carried must have a prejudicial effect on the financia interests of these colonies. The confidence with which investments of all sorts are now made in Australasia by people at home must be largely due to the knowledge that rights of property will be dealt with here by the Law Courts on British principles of justice, and subject to final review by one of the highest English courts.

If we establish this court, it does not follow that these rights will be established upon principles of British judgment, but rather upon principles of determination of this Australasian court, which will be final. We will have in the British dominions one law for the majority of the dominions-that is, the law of the Privy Council; and we will have this law for the Australasian colonies, which will be the law of this federal judiciary. Judge Richmond goes on to say:

I conceive that this confidence must certainly be impaired if we constitute ourselves a foreign country in regard to the administration of justice.

The decisions of a colonial court of ultimate appeal would not only give less satisfaction to an important class of litigants. Such decisions would in all probability be lose satisfactory to litigants in general, and intrinsically less satisfactory. It is no disrespect to the Australasian benches to say that the chances are against our being able to furnish a court of appeal equal in legal attainment to the highest English courts.

I ask members to bear in mind that this is a member of one of the Australasian benches, and who has been a member for twenty-nine years, who is now speaking. He goes on:

Of course, we may produce great jurists here, and please God we shall.

Too many of the judges have got on to the Supreme Court benches because they have been members of Parliament, and not for the reasons which ever distinguish the judge who gets on to the British bench. He continues:

Of course, we may produce great jurists here; and, please God, we shall. But the present area of selection for the bench is a very narrow one. English judges, on the other hand, are taken from amongst the leaders of a numerous bar. They have had their ability tested in practice at the greatest business centre in the world, and have succeeded in a competition with which the colonies have nothing to compare. The composition in late years of the Judicial Committee may not have been entirely satisfactory-on that subject I have a word to say-but important appeals to the Queen-in-Council are generally attended by some of the most eminent English Judges.

3. It would be a dead loss to both bench and bar if the legal standard to which we have now to submit ourselves were removed-as in great measure it would be were decisions here rendered final. I should be sorry to see the judgments of lawyers reared in our comparatively narrow circle become our most important authorities. I say this, fully recognising the excellence of much judicial work amongst us. The public is more interested than it knows in maintaining the highest scientific standard in the admininstration of the law. The intellectual interest thus created in the profession is one of the best guarantees for purity of administration. Thoroughbred lawyers are supremely anxious to be right in their law. They may not always succeed in freeing themselves from class prejudices and party ties; but their interest in abstract law makes them generally incapable of showing favor to individuals.

4. The establishment of colonial precedents as paramount would lead to divergencies from the law of the mother-country which would be productive of considerable inconvenience; nor could colonial

judgments be entitled to the same favorable reception in the courts of the mother country as they now meet with.

I take it that this is the very strongest argument against appointing this court as the final court of decision. The decisions may be just, and I have no hesitation in saying I believe the decisions of most, indeed of all, the Supreme Courts of Australia have been, according to the views of the bench, entirely just; but there will always be the feeling that we have in the British Empire two final courts, one in England for the whole empire with the exception of Australasia, and one in Australia for the Commonwealth alone. This will create a feeling in Australasia amongst a large class of people that they have not got the same rights as the rest of the people of the empire. Then he says:

5. A very important consideration is the following:-In every colony possessing a Constitution the legislature is exercising powers created by a Statute of the Imperial Parliament. Its powers are limited by this document, and the document is [start page 972] subject to the interpretation of the Court, of law of the country. The Supreme Court of each of these colonies has jurisdiction to decide that a colonial Act is ultra vires. The power has actually been exercised in this colony in the case of an Act for deporting fugitive ofienders, it being held that the General Assembly of New Zealand is incompetent to provide for the custody of such persons during their passage over-sea to another colony. The difficulty has since been removed by Imperial legislation. Now, it is evident that if the integrity of the empire is to be maintained (which is our common object), the decision of a local court in regard to the powers of the local Parliament ought to be subject to review by an Imperial court. Otherwise, all limit to the local power of legislation might be disregarded, and practically set aside, by judges with strong separatist tendencies.

6. It may appear paradoxical, but in point of fact the Australian courts themselves will be degraded by the proposed measure. They will sink from the position of Imperial to more local tribunals, with, I apprehend, a corresponding contraction of their present jurisdiction, and, in the future, a probable diminution of judicial independence. To illustrate my meaning, I will again cite a recent proceeding in this country. A few years ago a gentleman resident in Samoa was forcibly removed from that island by Sir Arthur Gordon, then Her Majesty's High Commissioner for the Western Pacific, who supposed himself to be exercising powers conveyed by the Order in council constituting his office. The person so dealt with conceiving himself aggrieved, brought an action for wrongful arrest and imprisonment against Sir Arthur in the Supreme Court of New Zealand, both parties being then in the colony. Commissions to take evidence in Samoa and in London were issued and executed. It was understood that Sir Arthur was defended by the British Treasury; and the present Mr. Justice A. L. Smith, of the English High Court of Justice, acted as his counsel on the execution of the Commission in London. No objection was taken on behalf of the defendant to the jurisdiction of the New Zealand court, No doubt this was on the ground, established in the leading case of Mostyn v. Falrigas, and other oases, that a British subject may be sued for damages in any British court within whose jurisdiction he is found for a personal wrong done to another British subject in any part of the world. But such a jurisdiction is one which cannot belong to a merely local court. Supposing that it could in law survive the contemplated alteration, it is plain that the British Parliament could not allow it to remain. It may be asked: What loss would that be to the colony? I maintain that it would be a real loss. For by the existence of such a jurisdiction the remedy for injustice and oppression in this quarter of the globe is made more prompt and easy. The dignity of the tribunal exercising so high a function is enhanced. The unity of the empire is affirmed in a striking manner. To destroy such a jurisdiction would be an art of separatism and a degradation of our courts. If this view is regarded by anyone as sentimental, I would observe that it is exactly by the prevalence of such sentiments, if at all, that the unity of the empire can be maintained.

In Sir Arthur Gordon's case the decision was on the main point, favorable to the defendant, the question being one of law, but judgment went against him for a small sum. There was no appeal lodged. The plaintiff, it is said, would have appealed had his means permitted. The British Government acquiesced in the decision.

One point more in this connection: I believe Sir Arthur Gordon, though still in the colony, was no longer Governor when the writ in the action against him was served. But, had he been Governor, it is established by the case of Musgrave v. Pulidos before the Privy Council [Law Reports 5, Appeal Cases 102] that he would none the less have been liable to the jurisdiction of the Supreme Court of the colony. Such a court has, under our present Constitutions, the right of determining whether any act of power done by a Governor is within the limits of his authority. Evidently this high jurisdiction conld not continue to be exercised by a colonial court whose decisions were not subject to appeal.

7. No doubt it will be said that the expense and delay of appeals to London are great. I do not pretend to be able to speak with certainty upon these points. But it may be questioned whether in either respect there need be much difference between appeals to the Judicial Committee and appeals to the proposed new court. Distances in Australia are great, and the local lawyers would seldom be content to leave their appeals in the hands of the bar of the city where the court happened to sit. Hence a large outlay in travelling expenses would be apparently inevitable. As regards delay it would not, I apprehend, be found practicable at present to appoint special Justices of Appeal to sit continuously. The court must be formed by the attendance of members of the existing benches, and could only sit periodically, as is our practice in New Zealand; these, however, are points on which I do not venture to express any positive opinion.

At. present the Judicial Committee appears to be overloaded with work. If the committee wants strengthening in point of numbers so as to be able to sit in two or more divisions, the British Parliament is bound to find the means. Indian appeals [start page 973] which seem to take up a great deal of time might, one would think, be dealt with by a separate division. There can be no good reason why appeals should not be much accelerated.

8. Although several eminent judges have been amongst those who regularly sit on the Judicial Committee, the court has not maintained the extraordinary authority it had with the profession during the years when Lord Kingsdown commonly presided over it. Looking to the present importance of the colonies, and I venture to say, to the learning of colonial lawyers, it is not satisfactory that any but the most eminent in the profession should sit as judges of appeal from colonial courts. It is unfortunate that the attempt to constitute a single court of appeal for the whole empire did not succeed. The colonies have, I conceive, a right to ask that the ultimate appeal from colonial decisions shall be to the same tribunal, whether the House of Lords or some court to be substituted for the House of Lords, as deals with appeals from the English courts.

9. But to sum up: whatever may be the defects of existing arrangements, they are such as appear to be remediable without extraordinary difficulty. Even taking things as they are, we shall be wise, I conceive, not to seek a change open to objections such as I have endeavored to state-objections which seem even more important and significant in a political point of view than in one purely juridical.

As I desire the fullest and most public discussion of the subject of this letter, I need scarcely say that you are at liberty to deal with it in any way you think proper.

That letter was handed over by Sir Henry Parkes to Mr. A. Inglis Clarke, who was then Attorney-General of Tasmania, for his observations. Mr. Clarke did not agree with Mr. Justice Richmond. Against his views of the matter I place the opinion of Mr. Justice Richmond, who for twenty-nine years was a judge of the Supreme Court in New Zealand, and for a long time before that was mixed up with the public affairs of New Zealand, and was also a leading member of the bar. Added to that, we have a letter to day read by Sir Edward Braddon from the Chief Justice of Tasmania. We know the opinion of our own Chief Justice in Now South Wales, who endorses that of the Chief Justice of Tasmania, and we know the opinion of Sir Samuel Griffith, the Chief Justice of Queensland. In the face of all these opinions, are we going to say that for one part of the British Empire there should be one law and for the rest of the Empire a different and perhaps bad law? I believe all the colonies ultimately will be joined in this Federation. Suppose we have for many years a neighbor in the north and another in the south that will not join, we will have this absurdity: we will have a law which is not

a law all over Australia. Queensland-if not of the Federation-will be able to go to the Privy Council, while the other federated colonies and Tasmania will be bound by the law of this Federal High Court. I admit this Federal High Court will be a body superior to anything we have had in Australia, but at the same time it will be a body without that experience which the Privy Council has got in England, and it will be a body which will never command for its decisions the same respect.

Sir JOHN DOWNER: The judgments of the Supreme Courts command respect.

Sir JOSEPH ABBOTT: The judgments of the Privy Council command greater respect. The decisions of the supreme Court command respect for themselves, but more largely because they follow the decisions of the Privy Council. The judgments of the Commonwealth Courts will, under this proposal, not be bound by the decisions of the Privy Council, but by the Federal High Court. The Supreme Courts at present are not free to give their opinions as they think fit, for they have to follow the law as laid down in England, and therefore their decisions command the greatest respect. If we establish this Federal Court, and take away the right of appeal to the Privy Council, the Federal Court will have to establish its own precedents and its own laws, following or disregarding Privy Council as they think proper.

Sir JOHN DOWNER: Like the American Courts.

Sir JOSEPH ABBOTT: The American Supreme Court represents a nation.

[start page 974] Mr. SYMON: So are we going to be.

Sir JOSEPH ABBOTT: When we are a nation separated from England it will be different.

Dr. COCKBURN: The American courts have no appeal outside the States.

Sir JOSEPH ABBOTT: The American courts in the States are not courts which I would like our colonies to follow. The bulk of the American State courts are not courts which are held in respect in any place in the world, and they are held in less respect in their own State than outside. The decisions of the Supreme Court of America are held in respect, but that Supreme Court is a Supreme Court of a nation, as the Privy Council is the Supreme Court of the British Empire, and, acting for the British Empire, all its decisions are held in respect, and although they may not be agreed with, our courts must follow them. They have not got to strike out a path for themselves, but this Federal Court will do just as they like when they know that there is no review of their decisions.


Sir JOSEPH ABBOTT: The hon. member, Sir John Downer, laughs. How much better it will be to have uniformity of the law by compulsion throughout the British Empire than by the will of a particular court. The Supreme Courts of all the colonies are now respected, not because they give decisions of their own, but because they give decisions in accordance with the laws of the British Empire. But let us once set up this court of our own, which is not bound by any decisions of the Privy Council, and it will never command the respect which the Supreme Courts at present command throughout Australia. The very fact that they command respect is because they are guided by the principles laid down by the highest court in the British Empire. But this proposed court will not be guided by any such principles. This court will do, as I have heard some lawyers say, what they like. They may say that the Privy Council does not know anything about Australian matters; that the Privy Council does not know the circumstances under which a decision was given. One of the ablest judges in New South Wales has said-I will not say he said it publicly, because he was too wise to do that, but he has nevertheless said it-that the Privy Council was wrong, and that the Supreme Court was right. But whether right or wrong we have the advantage that uniformity of decisions results from following the decisions of the Privy Council. I remember the case of a lawyer practising in one of our courts. He

was then very young and inexperienced, but he is now a Queen's Counsel and leader of the Bar in New South Wales. He said to the judge, "I think you are wrong." The judge said, in reply to him, "When I was a young man I often thought the judges were wrong, but I never had the impudence to tell them so." The public will have to take these decisions, whether right or wrong, and submit, because there is no appeal, but if there is an appeal to the highest tribunal of the nation, the public will acquiesce in these decisions, and when the public know that the Federal Court would be compelled to follow these decisions no doubt they will accept these decisions as heartily and as readily as they accept the decisions of the Supreme Courts. I am not one of those who believe that we are to place no restrictions upon these appeals. Some restrictions should be placed upon them. Too often an appeal to the Privy Council is used as a weapon, but we can restrict that to some extent, and I would much sooner see any number of restrictions placed upon these appeals than see the decisions of the highest court in the British Empire ignored for a Federal Court, which may mark out its own path without following precedents.

Sir JOHN DOWNER: I have a good deal of sympathy with the two speeches that we have listened to, because one naturally has inclinations towards the way [start page 975] in which one has been brought up. But I would like to ask both Sir Edward Braddon and my hon. friend who has just sat down, whether we are ever to get out of our swaddling clothes? What are we here for?

Mr. FRASER: Not to cut the painter.

Sir EDWARD BRADDON: Not to deprive a British subject of a right.

Sir JOHN DOWNER: We have come to the conclusion that we may cease to be provincial, and form the foundation of a nation. We do not propose in any way to separate from the British Crown, but on the other hand we look to it with reverence. We consider ourselves the same people, but the very essence of the difference is that we think we can make laws which will suffice us; in other words, to put it colloquially, we think we can manage our own affairs. I ask these two hon. gentlemen to think for a moment or two. We are to have powers dealing to an unlimited extent with the most sacred of all subjects-life-and with property; in fact everything that can affect us is to be within the legislative power of the Commonwealth. Our relations to foreign powers so far as they do not interefere with Imperial concerns, we wish to have in our own hands, but when we come to the subsidiary thing, the administration of our own laws, we have got to admit our inefficiency.

Mr. FRASER: They may not be our own laws.

Sir JOHN DOWNER: They are our own laws, because the laws we bring from England are only our own laws so long as we do not please to alter them.

Sir JOSEPH ABBOTT: What about the Merchant Shipping Act?

Sir JOHN DOWNER: That is a question for the Imperial Parliament to consider, and no doubt they will. That will in all probability remain in force in spite of this or any other Act. We are asking for an Imperial Act, and we shall use the powers that that Act gives us. But when we are told we are quite competent to make laws as regards our own lives and property, and also as regards external relations with other nations we are in the same breath warned that we are not competent to establish an administrative body in ourselves.

Mr. FRASER: Small talk.

Sir JOHN DOWNER: Indeed it is not small talk. It is small talk on the other side. It appears to me to be a contradiction in terms. The greater includes the less. I venture to think the arguments we have heard arise from the prejudices that have grown up with us.

Sir JOSEPH ABBOTT: What prejudice can I have? I have never been out of the colonies.

Sir JOHN DOWNER: I believe Sir Joseph Abbott means what he says. I am talking with the same fairness as he did.

Sir EDWARD BRADDON: You call ours prejudices, but yours are opinions.

Sir JOHN DOWNER: Perhaps mine is a prejudice.

Sir EDWARD BRADDON: Hear, hear.

Sir JOHN DOWNER: The only thing is mine is a prejudice upon a prejudice, for I had a prejudice, the same as my friend had, but I have superseded it with another which is founded on reason. If we are good enough to do all these things that we have arranged that we can do, and good enough to become a nation, we ought to be good enough to administer our own affairs among ourselves.

Mr. CARRUTHERS: That is just it. We are not becoming a nation. If we were I would go with you.

Sir JOHN DOWNER: And then, Sir Joseph Abbott says:

What will happen? We shall have the restraining influence of the Privy Council taken away, and the judges will develop the natural corruption of human nature.

Sir JOSEPH ABBOTT: I never said anything of the kind. It is not right to charge me with having said words which I never uttered, and which even by im- [start page 976] putation cannot bear the construction put upon them.

Sir JOHN DOWNER: I know you did not use those very words, but you said:

The judges will do what they like.

Sir JOSEPH ABBOTT: Hear, hear.

Sir JOHN DOWNER: I do not think I put an unfair construction on what you said. Let us consider another great country, which took with it the English law, and which has, with such alterations as their Constitution has been pleased to provide for, remained under that law-America. So far from American decisions having provoked a perpetual conflict with English law among English - speaking people in different parts of the world, American jurisprudence has materially assisted the English law.

Mr. REID: Hear, bear.

Mr. SYMON: Why should we not have uniformity?

Sir JOHN DOWNER: We shall follow English precedents. It will make no more difference than it does in America, which respects the House of Lords almost as much as we do.

Mr. HIGGINS: And we respect American decisions.

Mr. SYMON: Hear, hear.

Sir JOHN DOWNER: And this difference which ought to have resulted in the judges doing as they liked, and in endless confusion, has led to greater wisdom and better administration. There are certain stages in conflicts between individuals in which it becomes almost a question of the

temperament of the judge how the decision goes. In many of, these matters it gets both by law and fact to such a refinement that it depends almost on the meal a man may have had, or his local condition, as to the manner in which he shall decide.

Mr. SYMON: I suppose digestions are no better in England than here?

Sir JOHN DOWNER: No. I expect human nature is no different here. have heard my hon. friend say so. What we want in law, above all things, is finality.

Mr. FRASER: We want justice.

Sir JOHN DOWNER: Of course we want justice. But when the question of what is just comes to the question of what a judge has had for breakfast, or reaches such a state of refinement that it becomes a mere matter of temperament of the individual, do not let finality be destroyed for the purpose of indulging in that new experiment of uncertainty. For my part I think it follows as a corollary of what we are doing that we ought to give our courts final jurisdiction in the ordinary cases in which appeals are now prosecuted. When we come to matters between States or between Commonwealth and State, or matters of Imperial concern, then it would be wise, and the Imperial Parliament will insist on it, not to interfere with appeal to them, and that is what this clause preserves. As far as ordinary private litigation goes, the decisions of the Court of Australia are final, as they should be, but when we come to matters in which the public interests of the Commonwealth. or of any State, or of any other part of Her Majesty's dominions are concerned, then there is a power to grant leave. I say that so far from sacrificing any right what we are doing is only a corollary of what we have done, and that to assume we have not the competency of appointing our own tribunals to finally decide these matters is to assume what is not correct.

Mr. REID: I do not underrate the gravity of this matter. It is really one of the most important matters we have to consider, and I also attach very great weight to the views which have been expressed in favor of preserving the right of appeal to the Privy Council. But it occurs to me that we really in this matter only have the choice between a Federal Court of Appeal without an appeal to the Privy Council, or no Federal [start page 977] Court of Appeal at all. That is the position we are in. I have every sympathy with the desire for scientific law, which great banking institutions can afford to try to get, and which desire they manifest on special occasions. I have every sympathy with them, and so far as I am concerned I would always be willing to help them on in their desire for scientific justice; but if you had a court above the Privy Council find another tribunal upon that again, you might be as far from the attainment of scientific justice as ever. We have to look at this matter in the interests of the mass of persons who are engaged in litigation. Looking at this mass of persons and their interests, I believe that the Federal Supreme Court of Australia would be a decided boon to those persons. To get a settlement of disputed points is sometimes a supreme question. As for bringing about any state of things in which the litigant will be satisfied after he is defeated, I despair of any such result. You may go to the Privy Council, and if you are successful, then it is the most august and just tribunal in the world. If you are not successful, yon think it is the very opposite of that. I give up any search for scientific justice. It is only the great, wealthy corporations who can afford to look after that sort of thing. What we have to consider is this: will the Federal Supreme Court give as much justice as any other tribunal of a similar kind? I think it will, and I believe its decisions will create uniformity within the Commonwealth. I think we all value our present privileges very much. I have, as I say, the greatest respect for the Privy Council. I would have still greater respect for some tribunal higher, than that, and so on, and so on, but we have to consider the average litigants. They want justice, but cannot get justice; they, want decisions as near their own homes as possible. The Privy Council is, so far as the mass of people is concerned, beyond their reach. They can never get there. The Federal High Court of Australia will be much more accessible to them. I believe in bringing an important superior tribunal as near the people of Australia as we can. The federal tribunal will, I know, be for a great many people too far away also, but, looking at the choice between the Privy Council and the Federal Court of Appeal, in the interests of the great masses of those who are unfortunate enough to become plaintiffs and defendants, I say again it is the choice between a Federal

Court of Appeal or no Court of Appeal at all, as far as the bulk of the people are concerned. I admit that we will require a Federal Court for other purposes. But I think this Convention will agree with me that we must decide this matter on the simple issue: Are we going to bring the final settlement of litigation nearer home to the Australian people? If so we must make the decisions of the Federal Court final; but if, on the other hand, we think that the loss of the advantage of Privy Council decisions would be so great that it overbalances the advantage of bringing the final decision nearer home, then let us bid good-bye to the Federal Court of Appeal. We have to make our choice, either to leave things as they are and allow the people of several colonies to appeal from the local Supreme Courts to the Privy Council, or to make this Federal Court the tribunal of Australia. On the whole, while admitting that the arguments on the other side are very weighty, I am prepared to take the step of creating, this local final tribunal. It will have the advantage of the decisions of the Privy Council and the House of Lords just the same.

An HON. MEMBER: It will not be bound by them.

Mr. REID: They will not be bound to follow them, but the decisions of such bodies will carry the greatest weight in the Federal Court even though there be no appeal from the Federal Court, just as the [start page 978] decisions in America do in the House of Lords or the Privy Council. I believe that in the end, flowing from the establishment of this Federal Court, the tone and precision of the laws of the empire may be improved, instead of the opposite result coming upon us. It is admitted that American jurisprudence has thrown lights on the British law of a most valuable kind. So in the administration of justice in Australia it may well be that in the course of years the fact that we have a final tribunal here, instead of creating confusion, will tend to improve the state of law. But the main point is, "Are we going to make the choice?" It would simply be mocking litigants to create a new and expensive obstacle in their way without removing any of the existing obstacles. These are sufficiently numerous already. On the whole, I prefer to take the clause as it stands.

Mr. CARRUTHERS: The hon. member who has just resumed his seat appeals to the vote of the Committee, chiefly on the ground of saving expense to litigants. Well, if this proposal is carried the litigants will not be dragged to London, but they will be dragged with their case possibly to one of the inland towns in one of the States. Counsel, too, will have to travel a considerable distance, and they will not go for nominal fees; so that when you come to the question of fees to be paid to them, I will undertake to say that they will be much higher than you would have to pay counsel in London. You will have to pay them for travelling perhaps to Ballarat or Goulburn. With the multitude of men of great ability who are offering their services to litigants in London you can fix your price at a reasonable figure.

Mr. REID: You would prefer to have both courts?

Mr. CARRUTHERS: No; I do not believe in giving this right of appeal to the Privy Council unless both parties consent. Do not make these obstacles for litigants to surmount. My hon. friend here has never been in the unfortunate position of having had to take a case to the Privy Council, and he is never engaged in a case except where it pays him well. Sir George Dibbs at the 1891 Convention expressed the opinion that he would find it much cheaper to go to the Privy Court than to a local court. The law is just as cheap in England as in Australia. We have so few men at the bar to take great cases in hand that they almost put whatever fee they like upon their services, and those fees are often enormous. If you go to an English bar you have the choice of 2,000 men of great ability, and the experience is that the Privy Council cases are not expensive. The reverse is the case, as the great bulk of the expense is incurred in the trial of the cases here-in Australia-and this plea about expenses being saved to litigants is one that will not bear examination, or if it be examined it will be found to be as I have indicated. With all due respect, I say that this is one of the steps towards separation from the mother-country. We have too few links left now binding us to the Crown. I am in favor of maintaining connection with the mother-country, for I do not want to see the links whittled away and destroyed one by one, unless there is a distinct mandate from the people of Australia to do so. Edmund Burke says Change is a word of ill omen to happy ears. Has there been any agitation for this? Has there been

any complaint as to the administration of law by the Privy Council? Why force this change upon the people, then? Why should we take away from the people a civil right which has nothing to do with Federation? We are here for the purpose of federating the Australian States, and to increase the rights and liberties of our people, not to deprive them of their privileges. You are by this action taking away from the people of Australasia that which they may hold dear, and even if only a large minority hold it dear, you have [start page 979] no right to deprive them of it, and risk Federation in making experiment of this character. If it is necessary to take away this right, then leave it to you Federal Parliament to do it. Do not attempt a thing which will imperil Federation. I know of circumstances which I am not at liberty to repeat here, but which make me hold strong views on this question. It is a matter of public notoriety that our own Chief Justice is against this being done, and after this and the testimony which has been added by Sir Edward Braddon we must pause before we deprive men of their civil liberty. This, I repeat, is one of the first steps towards separation from the mother-country, and this change is utterly uncalled for. My hon. friend Sir John Downer said it was a necessary corollary of our right to make our laws that we should be capable of interpreting them. The laws are made by the Parliament, of which the Queen is a component part. The laws are as much made by the Queen as by the people here, and you are going to cut out from the judiciary that which is an essential part of the legislation. The laws are not made by the two Chambers, but, in the words of the Act, by the Queen,

By and with the advice of the two Houses of Parliament.

We do not yet take the right to make our laws.

Mr. TRENWITH: We take the right to make them in this way, if the Constitution is passed.

Mr. CARRUTHERS: We are not competent, in the sense urged against this Federal Court of Appeal, to make our laws, because we recognise the necessity, of approaching Her Majesty. The hon. member speaks of this as one of the essentials to our becoming a nation, but we are not becoming a nation.

Mr. SYMON: What are we becoming, then?

Mr. CARRUTHERS: We are becoming a dependency; we are a dependency; we, are not an independent nation.

Mr. TRENWITH: A nation within a nation.

Mr. FRASER: Part of a nation.

Mr. CARRUTHERS: These interruptions sometimes help a speaker, but they do not help me. I hope it will not hurt hon. members if I do not reply to them. There have been strong arguments urged in the letter which was read by Sir Joseph Abbott, and they are arguments which cannot be lightly put aside. An additional argument, which would never be used by a judge, and which I dare to use, with all respect, is that with men selected in small communities where every man is known to the other, and where influences not felt in great communities are strong and make themselves manifest, even the most strong-willed and right-minded men are unconsciously biased. That bias is undoubtedly felt by judges in small communities, and would not be felt by judges in the court of any great empire. Knowing that the bias must exist, it is well to provide that the court should be as pure as the stream from the fountain by administering justice from that fountain-head where these influences are absent. I can give an instance which imputes no dishonor to anyone. I remember Mr. McMillan moving our House in New South Wales to take into consideration the case of the pastoral lessees of the Crown who were being rack-rented. The decision of the Supreme Court was given in the case of Allison v. Burns that the Minister of Lands had the power to put his pen to paper and fix the rent of pastoral leases. It was held that the Legislature intended that to be so, but an appeal was taken to the Privy Council, and the decision was given that the Minister of Lands had not this power. The power of

determining given to his hands was merely that of fixing it after it had been determined by another authority and recommendations on the subject had been made to him. That decision on the question put every lawyer of the colony on his feet, and they said it was against [start page 980] the intention of Parliament. Parliament was then appealed to, and it declared that the Privy Council bad properly announced its intention. There we had an instance of a body, not surrounded by local influences, and not breathing the air of local circumstances, which led up to the fact, and which was not influenced by evidence given in the court here, nor by the surroundings and circumstances which local men cannot possibly put on one side, giving an independent decision. As a result of that decision the pastoral lessees effected a saving of £200,000 or £300,000 per annum. Would that body of men in New South Wales, recollecting their experience, and recollecting that justice had been given by the Privy Council, and that it was denied them by the local courts, be prepared to hand over their civil rights to this Federal Court of Appeal? I will take another ease in which at the time most men thought the local court was right. I refer to the case of Taylor v. Barton, in which the privilege of Parliament was concerned. The decision of the local court was, however, overruled by the Privy Council, but at the first blush nine men out of ten thought the decision of the local court was right. What has been the result? Is there a man now who questions the decision of the Privy Council.?

Mr. BARTON: Will my hon. friend pardon me. He is utterly wrong, because the decision of the Privy Council was the same as that of the Supreme Court, which shows that the Supreme Court was sufficient.

Mr. CARRUTHERS: I may have been wrong in this ease. It was one which occurred to my mind while speaking. The English Court has opportunities of arriving at knowledge on legal matters which the courts here have not. Its lawyers have better opportunities and better experience, and, more than that, there is a greater selection of men to fill the positions than we will ever have here. I hope, therefore, that there will not be this unnecessary interference with the privileges of the people. We have declared to them that Federation will not curtail the civil rights of the people, but will enlarge them; but here is a curtailment of a right which every Englishman holds dear-the right that justice shall flow free from the fountain head. We are going to demand more than was conceded to Canada, more than has ever been demanded from the British Government, as we are demanding that the Queen shall give up her right to administer justice, through her best men, to the people who are her subjects. In a matter of this kind, do not let us jeopardise the cause of Federation by introducing this foreign element. For whose benefit is it? It is not for the benefit of the litigants, because it will be quite as costly, and the delays are as great now in the Local Courts as they are before the Privy Council. I can give cases where the Department of Lands has been waiting for two years for decisions from our Local Courts. We do not have to wait longer for a decision from the Privy Council. For the sake of uniformity of decision, and of that confidence which the people have in the Privy Council, do not let us make this change. Another thing the hon. member pointed out was that human nature affects men. We know that our judges, as well as any other men, are better for having a corrective influence behind them. There is no man so good, but he is better for knowing that there is a corrective influence behind him, and our courts would be all the better for having a power behind them, which could correct their judgments, if they are against the law. Do not let us remove this corrective influence, and take away the rights of the people. If the matter has to come, let it come in its own time, when public opinion has shaped itself. Let us remember that there is a large body of men who will vote against Federation, if only because the Constitution contains this innovation. Do [start page 981] not let us jeopardise the cause of Federation by imposing this distasteful provision.

Mr. SYMON: The hon. member, as he very often does, has adopted that uncompromising tone which carries him beyond the necessities of his argument. He reminds one-in fact he is an Australian reproduction-of that celebrated English politician known as "Tear'em." When he attempts, in that emphatic manner of his, to prove that the effect of the clause will be to take away rights which British subjects possess all over the empire, he is imposing a little too much on our credulity. This clause does not take away what is known as the inalienable right of a British subject in one single particle. The inalienable right of a British subject is to approach Her Majesty as a suppliant. That is left entirely untouched by this Constitution. It is the right of every British subject, the humblest in the

realm, whether in this portion of the Empire or any other, to go to the Throne for the redress of grievances, but Her Majesty has constituted in various parts of the Empire, courts for the redress of grievances, and each of these courts is as much the court of Her Majesty the Queen, whether it exists in this country or in England, as the Judicial Committee of the Privy Council. Now, if the Imperial Parliament had chosen, as they might have done, to declare some court in these colonies to be the final court of appeal, no one could have said for one instant that that was not giving the subject the right of final appeal to which he was entitled; and all we propose to do here is to declare that, instead of having a court of appeal in England to which the suitor can go, we have a final court of appeal here which should absolutely and finally decide the question.

Sir EDWARD BRADDON: Is that not begging the question?

Mr. SYMON: No. What particular virtue is there in the Privy Council that is not shared by the courts in Australia?

Sir JOSEPH ABBOTT; More able men!

Mr. SYMON: More able men, says Sir Joseph Abbott.

Mr. FRASER: More experience!

Mr. SYMON: Mr. Fraser says more experience.

Mr. FRASER: Less liable to influence!

Mr. SYMON: Less liable to influence! I will relate a story told by Lord Westbury to illustrate the point. Lord Westbury met the late Sir William Erle, a distinguished Chief Justice of the Court of Common Pleas, and he said, "How is it you never come and sit with us in the Privy Council?" "Well," was the reply, "I am old and deaf and stupid." "Oh!" said Westbury, "that's nothing. Chelmsford and I are very old, Napier is very deaf, and Colville is very stupid, but we make a very good Court of Appeal nevertheless." Except that I am supported by so distinguished an authority as Lord Westbury, I would not venture to insinuate any opinion of that kind against a court esteem in its proper place, and when it is right, for it has been admitted that it is sometimes wrong. But when we hear these extravagant eulogies passed upon the Privy Council in comparison with this High Court of Australia, which we intend to make strong and able and respected, I think it is doing a great injustice, and perpetrating a gross calumny on both the bench and bar of this country, and that in spite of the letter which an hon. member was good enough to show me, and which has been read by Sir Edward Braddon. I want to refer to the letter from Mr. Justice Richmond, read by Sir Joseph Abbott to-day, and which was read to the Convention of 1891.

An HON. MEMBER: It was not read, it was printed.

Mr. FRASER: Had it been read the majority would have been the other way.

Mr. SYMON: It would have had exactly the opposite effect.

Mr. KINGSTON: There was a reply by Mr. Inglis Clarke.

[start page 982] Mr. SYMON: I am told that there was a reply to that letter-by Mr. Inglis Clarke, and it was printed. In that connection I wish to deprecate an observation which, I am sure, was good-naturedly used by my hon. friend Sir Joseph Abbott when he was rather scornfully alluding to Mr. Inglis Clarke's reply by saying that Mr. Justice Richmond had been longer on the bench than Mr. Inglis Clarke had been at the bar. I have certainly not had a very long acquaintance with Mr. Inglis Clarke, but I have had enough to know that there is no man in Australia on the bench or off who has made a

more profound study of jurisprudence, or who is more capable of expressing an opinion on such matters as these now before us than that gentleman.

Mr. BARTON: Especially when they relate to a Federal Constitution.

Mr. SYMON: And as my hon. friend Mr. Barton observes, especially when they relate to a Federal Constitution. But I would commend this point to my hon. friend Sir Joseph Abbott, that although Mr. Justice Richmond-who, I believe, is dead now-was undoubtedly an eminent and distinguished judge, that letter which has been read is the letter of an advocate written by a judge; it is not a judicial letter, but a letter from the point of view, too, of a judge, and not of an advocate in actual practice and knowledge of his profession, because if hon. members attentively consider some of the passages of that letter they will, as I do, feel a sense of regret that so distinguished a judge should have indulged in such extraordinary and in some parts, for a letter, heated language. In the last paragraph-he does not say so in direct terms-but he implies or suggests that, looking at the present importance of the colonies and the learning of colonial lawyers, none of them are fit to sit on the Privy Council or adjudicate upon colonial questions.

Mr. DEAKIN: What about the Chief Justice of South Australia then?

Mr. SYMON: Yes: there is the test of the value of his letter. At this particular moment Australia has joined in sending one of her judges to take a seat on the Privy Council, in order, if you please -because it really amounts to that-to instruct the Privy Council on matters of Australian moment and assist in determining Australian questions. Surely that is the best illustration.

Mr. FRASER: And yet we want to cut off the connection.

Mr. SYMON: We want to keep our judges here. We do not want to send our judges to the Privy Council in order to strengthen that body and the administration of justice on colonial matters.

Sir JOSEPH ABBOTT: You worked very hard to get it done, though. (Laughter.)

Mr. SYMON: I did not; still I do not know but that perhaps the hon. member is not to some extent right in saying that. I think the interests of Federation were against it. But if we did ask for the appointment he refers to, surely that affords a strong argument against the position he takes up, that the Privy Council is the best tribunal with the material in England of which it is composed. I do not, therefore, need to press that further than need be.

Sir JOSEPH ABBOTT: When you get the Chief Justice there you destroy his localism.

Mr. SYMON: My hon. friend must see that if we in Australia consider it necessary or desirable that that tribunal which he lauds so much should be the court for dealing with colonial appeals by the presence on its bench of a colonial judge, the logical conclusion is-and this I put to my hon. friend Mr. Carruthers, who tries to be logical, with occasionally a fair amount of success-

Mr. CARRUTHERS: We hold mutual opinions in that respect.

Mr. SYMON: I say the result is that instead of trying to bolster up-and I use that word with all respect, for I should be [start page 983] sorry indeed that any disparaging words should escape my lips-instead of trying to build up the Privy Council in dealing with Australian appeals by sending home one or more of our judges, we had very much better keep our judges here to constitute a strong Court of Appeal in our midst. Then Sir Joseph Abbott talked about uniformity of the law. Well, really those of us who are in practice are well aware that the decisions of the Privy Council would exercise practically, if not absolutely, as much influence if cited before the High Court of Australia, if it were the final Court of Appeal, as they do now. The phrase that "the court is not bound by" is a mere facon de parler. It is a phrase we are in the habit of using. As Mr. Higgins said, great attention and weight

are attributed to United States decisions, not only from the highest court of the land, but from the Supreme Courts of the States, and they are cited before English tribunals, though they are not bound by those decisions. The law administered here would be the common law of England, as it is now, without divergence and without qualification, except as it is varied by Statute law. I have yet to learn, as Mr. Reid put it very clearly and very moderately, that the laws administered by our High Court of Australia would not have at least some weight in England. We have given statutes to England. We have had our statutes placed on the statute book of other colonies, and England has followed suit in some respects. I feel no reason to apprehend that the law which has been weighty in other courts of the realm would not be as weighty within the bounds of the Commonwealth we are attempting to create. My hon. friend said the establishment of the High Court of Australia and the discontinuance of appeals to the Privy Council would degrade our State Supreme Court. Surely he cannot have weighed that. How can it have such an effect? How can it be said that there would be one single element of degradation? He speaks of our financial interests, and we hear of the great bogie of the rights of property. I have as great a desire to maintain the rights of property as he has. I do not believe in the sacred rights of contract being wantonly interfered with. I do not believe in sacred rights of property being assailed unnecessarily, but it would lessen the power of the purse if we pass this; and if we do that, even, to a small extent, it will redound to our credit and bring upon us the commendation of those who have sent us here. Then Mr. Carruthers talked about local influences. We propose to have this federal judiciary exercising its functions in the federal territory. Does anyone mean to tell me-because this is really a suggestion of possible corruption-that the High Court would be more liable to local influences than the judges of our Supreme Courts, whose decisions are treated with respect? Would they not be less liable to be so influenced? And if they would be less liable to be so influenced, why should we not go to them for the final arbitrament of our cases? Is it necessary to go 12,000 miles away to get rid of these local influences? Is it necessary that one litigant should drag another to the other end of the earth in order to escape the possibility in some rare case-none has ever been suggested yet-in which local influences might be exerted? But then it all comes back to the real issue as put by Mr. Reid: either we are to abolish the High Court altogether or to do away with the appeal to the Privy Council. We have this morning with great care been constituting a High Court of Judiciary for the Federation; we have been establishing it with a minimum number of four judges and a Chief-Justice; we have been surrounding it with safe, guards to secure its independence, to secure its integrity, and to secure its freedom, from legislative domination. Then if we are going to keep the Privy Council for all appeals we want no such court; it is a useless expenditure of public money, because the State Courts will give their [start page 984] decisions, the subordinate Federal Courts will give their decisions, and if you are going to have an appeal to the Privy Council you want no Federal High Court at all. If you strike out this clause upon which we are now engaged, then I for one am prepared to go for certainly a modification if not the absolute repeal of the provision with regard to establishing the High Court. It is an unnecessary expense, whose only justification is that we want this High Court of Judiciary in our midst with a view to deciding questions which may arise. If we are going to entrust it with the determination of all these momentous questions of constitutional law, if it, is competent to decide them, surely it is competent to decide the thousand and one comparatively small matters of litigation in relation to the ordinary affairs of life? That is what is sought to be taken away from its appellate jurisdiction. I think we should be simply inserting in this Constitution a court that would be an absolute mockery if we withdrew this power of final appeal from it. The object of the court is to decide high matters of constitutional right-constitutional interest-and we superadd to that all the other powers of appeal in order to save expense; in order that all shall be on an equal footing, and have equal opportunity of going to the nearest court in order to have their cases determined. Then again what is the High court to do if we take away this power of appeal? What are to be its duties? How long is it to sit? What power is it to have? If you take away this power you give it practically nothing. The Convention has assented to the clause which establishes this High Court, and then in the next clause it is sought to take away from it its work. I would like some hon. member to say what this High Court of Australia will have to do. Mr. Carruthers is uncompromisingly inconsistent. He says, take it away. If the Convention, in its wisdom, had declared there should be no High Court, it would have avoided the necessity of a struggle to maintain appeal to the Privy Council, which would then have been the only means of redress, although a very inconvenient one; but to carry

the clause and still retain this iniquitous and burdensome power of appeal is to be utterly consistent as well as extravagant.

Sir EDWARD BRADDON: Iniquitous?

Mr. SYMON: Yes; absolutely iniquitous in its working in respect to poor litigants in this country. I have had some experience of its working. I do not put it upon the point as to the measure of fees here or there, but I say that no litigant can possibly instruct his advisers in England with the same efficiency or to the same degree as he can when he is on the spot. He has got to trust to correspondence, and he has communications made by other people who are there. He has not any direct communication with these, and the whole thing is in the hands of your wealthy litigants and wealthy corporations, who are able, holding this engine of appeal over the heads-I will not mention specific cases- of some less favored men, to compel a settlement or compromise that. the principles of justice would never have tolerated. Now, I want to say a word about that so-called link. I have no wish to sever any link, and I have

Mr. FRASER: A so-called link?

Mr. SYMON: Yes; the Privy Council is no link connecting us with the mother-country. This Council might conduct its proceedings in Central Africa or wherever else it might be located. The Privy Council is constituted under an Imperial Act, and there is no special virtue in it. It is no link between us and the mother-country any more than any other court. Why should not this appeal be given by the Imperial Parliament, to the Queen's Bench, the Court of Appeal in England, or the House of Lords? The appointment of the Governor is a link, and if we were to interfere with the appointment of the Governor by the sovereign, we should be [start page 985] on the brink, of republicanism. Here we are merely establishing one court, a Federal High Court for the necessities of Australia. All we say is, having gone to the expense of constituting this court, secured its independence, secured men of ability and probity to give its decisions, we prefer that Her Majesty -not that we-shall name that as a final Court of Appeal for Australia instead of the Privy Council.

Sir JOSEPH ABBOTT: Do you think the Queen will ever assent to this?

Mr. SYMON: I say emphatically yes. I think she will. I have no hesitation in believing that Her Majesty's assent will be assured if the people of Australia request this by their Constitution. Do I understand that Sir Joseph Abbott says that he will take care she does not?


Mr. SYMON: Then, I submit I feel a little embarrassed on this question. I can see my hon. friend going as a sort of corporation sole-a sole ambassador-in order to implore Her Majesty not to assent to this. I do not think he would meet with the success which in other and worthier causes he would deserve. It does not seem to me that we ought to consider this for a moment. If we think that it is for the happiness, the comfort, or better government of the people of Australia, we ought to insert it and take the risk, and I for one do not feel inclined to allow my courage to ooze out because of that delicately-put threat of my friend Sir Joseph Abbott. I am, reminded that in substance, although not in phraseology, this language is used in the Canadian Act. Matters of local interest are not referable to the Privy Council. In closing the remarks I have made I would only like to resent the imputation that it would be impossible to get men competent to sit upon this bench in Australia. All I can say is that if with a population of between three and four millions you are not able to establish a court of this character, which only requires five men to make up its full complement, then I say that we are here on an errand in establishing this Constitution that may, and indeed ought to be, fruitless. We ought to be a self-contained nation in this as in everything else-a self-contained nation not in the technical sense to which my hon. friend Mr. Carruthers referred, but in the large sense in which we have all used that expression. We should be a nation to all intents and purposes under the Crown, and we ought to be self-contained as far as it is possible to be so, and one of the elements of being in that position is that

we should have a High Court capable of deciding all our litigation and all our disputes. The suggestion about not being able to secure competent men is the same antiquated argument that was trotted out when these colonies got representative government. It was said: "Oh, you will not be able to find trained and competent men to conduct your public business." But we have found them; and an argument of that sort is answered by the presence here to-day of my hon. friend Sir Joseph Abbott and my bon. friend Mr. Carruthers.

Sir JOSEPH ABBOTT: Which is the worst, a weak bench or a weak bar, and where would the bar of South Australia be if you were taken away?

Mr. SYMON: My own view is that in New South Wales you could constitute this bench twice over.

Mr. CARRUTHERS: A very weak bar would be left.

Mr. SYMON: I hope my hon. friend will not reflect on the capacity of his own colony's bar or bench. Equally in Victoria you could constitute such a bench.

Sir JOSEPH ABBOTT: You would leave no bar.

Mr. SYMON: Whether that is so or not it is the same old argument that Australia cannot produce the same class of men as they can elsewhere. It was said so in regard even to our cricketers, but [start page 986] we have shown pretty conclusively what we can do in that line of life. The same thing was said of our oarsmen, and has been said over and over again in regard to other matters. Really, it is time that that argument was treated like the Trojan horse-turned out to grass.

Sir JOSEPH ABBOTT: The Trojan horse was not turned out. He was taken in.

Mr. SYMON: He took others in. However, the very existence of our Constitution depends on the establishment of this court. Of itself, it will promote and encourage able men. It will be constituted of able men even at its very inception, so that it will be impossible for anyone to utter with truth any imputation upon the possibilities, strength, integrity, and ability of such a tribunal, and I am satisfied that in dealing with these matters of appeal-which will be its largest functions-it will command the respect and confidence equally with the Privy Council of all the people of Australia.

HON. MEMBERS: Question, question.


Sir WILLIAM ZEAL: We have had quite enough of this-quite enough of it.

Sir JOSEPH ABBOTT: You move:

That the Committee do now divide.

Mr. HIGGINS: Notwithstanding the rather ungracious way in which my hon. friend Sir William Zeal has seen fit to treat me, I intend to have my say.

Mr. DOBSON: If the hon. member wants to go home he can.

Sir WILLIAM ZEAL: I shall go home, and I shall not ask you.

Several HON. MEMBERS: Divide, divide.

Mr. HIGGINS: My remarks will be shorter because of the speech delivered by Mr. Symon -

Sir WILLIAM ZEAL: We have heard the same argument a dozen times.

Mr. HIGGINS: I wish to appeal to the Chairman to allow me to proceed. I think I am entitled to speak.

The CHAIRMAN: The hon. member is entitled to address the Committee.

Mr. HIGGINS: I can assure Sir William Zeal that the debate will be made shorter if he will refrain from interrupting. feel a misapprehension has grown up that we are trying to do Something new. The object of this clause is simply to stereotype in the Act what has already existed in Canada, where there is a general right of appeal reserved to Her Majesty in Council on a decision of the Privy Council, but that right of appeal is not allowed unless the cases are of public interest. Therefore the effect of clause 73 is simply to put in plain English what is the law now in Canada.

Mr. BARTON: That is the whole purpose and object of the clause. My hon. friend hag saved me the trouble of explaining it.

Mr. HIGGINS: As Sir John Downer put it in 1891 at the Sydney Convention, we were merely putting that in plain language, so that it could be easily interpreted. There are certain phrases becoming current about this subject which are scarcely applicable to the position. It is said that we are cutting one of the links which binds Australia to England. I rather like the expression "link," but if you consider it one of the irritating links-one of the fetters round the feet of the people in Australia-then, of course, it is by no means conducive to amity between the old country and ourselves. If there is an appeal to the Privy Council when one of the parties to the action is beaten he does not like that body. As a rule, both parties dislike the Council because of the expense. How, then, it is to be regarded as conducive to harmony between England and Australia I do not know. How many are affected by this appeal to the Privy Council? I undertake to say there is not one man in a hundred thousand who has an appeal to go to the Privy Council; and I am sorry to think-that Sir [start page 987] William Zeal, and others who agree with him, think this appeal to the Privy Council is one of the means by which the Empire is held together.

Sir WILLIAM ZEAL: I have not expressed an opinion on it. You have talked me out.

Mr. HIGGINS: We have a stronger link with the old country than this-a silken tie in the direction of language, history, and sentiment-than in this miserable right of appeal to the Privy Council. It has been put as if we should be severing ourselves from the great stream of British law if we take away this right of appeal. The Privy Council is not an English Court; it is like a back water of the English law, and the English Courts refuse to be bound by its decisions.

Mr. BARTON: It is practically a board.

Mr. HIGGINS: Yes; and the judges of England sitting in the High Courts of Justice have refused to be bound by its decisions. It must not be thought that by this proposal we are cutting ourselves off from the stream of British law. Is it true that these colonies can get better law and justice from the Privy Council than from their own Supreme Courts? I remember the case of a poor woman in Victoria who suffered considerable injuries in consequence of the negligence of railway employes. She brought an action against the Government under it, and got substantial damages. The Victorian Government took the case home to the Privy Council and won it, with the result that the poor woman was ruined. Then a year or two afterwards that decision of the Council was commented upon in terms of the greatest severity by English Courts, which refused to be bound by it. The Victorian Court was right and the Privy Council wrong in the judgment of the best experts.

Mr. ISAACS: The Victorian Government could get an appeal to the Privy Council under this clause.

Mr. HIGGINS: If I have not been wrongly informed, I think there was great confusion introduced into the New South Wales land laws in connection with a decision of the Privy Council about fifteen years ago. I understand that a whole series of the New South Wales Acts were upset by a remarkable decision of the Council, and that about ten years afterwards the same point came up again and, without expressly overruling their former decision, the Privy Council so distinguished the decisions that it practically amounted to an overruling of the previous decision.

Mr. DOUGLAS: Does not that occur in connection with all legal decisions?

Mr. HIGGINS: That is a very vague question. There have been cases in which the ordinary courts of England have said they would not follow the Privy Council decision. I do not wish to speak disrespectfully of the work of the Privy Council, who have done so much work for the Empire, but when we say we are losing a valuable link with the Empire I say it is wrong. The Privy Council, up to a recent date, consisted principally of retired Indian judges, men who had no knowledge of the history and conditions of the colonies, but I admit there has been an improvement during late years. I feel there is no answer to Sir John Downer's contention. If you give to the Parliament of Australasia power to make laws to affect the lives and property of men, there is no possible reason why you should not give to the Federal Executive and Judiciary power to administer those laws. I feel that efficiency of the Court and dignity will come with responsibility. I say there is nothing that will make the Australasian Court so strong as the feeling that its decisions are to be final and are to guide the other courts. I think too much has been made of the point that there will be a cheapening of litigation. But the English counsel has to make himself very often familiar with a long course of colonial legislation and decisions in order to work up his case, and it stands to reason that he must charge more fees than a colonial [start page 988] counsel. I regard it also as very likely that wherever you place the federal capital you will find that lawyers will settle there, so that they will be available for conducting cases before the High Court. Another point raised is that British capital will be terrified from investment in Australia if we keep this High Court only. Does anyone say that British capital has been kept away from the United States because the States have not got an appeal to Great Britain? We know that British capital flows more readily there than to Australia, and you will find that the securities of the States-whether Government, railway, or corporation-stand upon as high a level at; any security in the world, with the exception of English consols. As British capital flows to the States it will flow to Australia, so long as Australia keeps its settled condition and shows its wholesome dread of any violent changes. I have therefore to say, although we have come to a division on the subject, and the only question is that the clause shall stand without amendment, that I feel sure that no one who has seized the idea of the importance of a Federal Court-because I say Australia is a nation under the Queen, and long may it remain so-will refuse to that national court the dignity and efficiency which will result from giving to it final jurisdiction.


Mr. DOBSON: I have only risen to claim the votes of my hon. friend Mr. Symon and the Premier of New South Wales, and will keep the Committee but a few minutes. I claim their votes for three reasons. Mr. Symon has spent his wonderful eloquence in pointing out that eminent and able lawyers will preside over the Federal Supreme Court, but he absolutely gave his case away when he said that if you allow citizens the choice as to whether they will appeal to the Privy Council or the Supreme Court there would be no need for a Federal Supreme Court.

Mr. SYMON: Not the choice.

Mr. DOBSON: We simply ask you not to take away a right which every British subject now possesses. It is all very well to refer to the petition of right, but that is never used Once in, a century.

Mr. SYMON: It has been used here.

Mr. DOBSON: It may be used once in fifty years, but we are talking about the practical right to appeal to the Privy Council from the decision of a colonial court. Both Mr. Symon and Mr. Reid have declared that there will be no need for the Federal Supreme Court, and that you might as well sweep it away altogether as give the people the right of appealing to either the Federal Courts or the Privy Council. In the words of Mr. Carruthers, we are here to enlarge the rights and privileges of the people and not to put a sentence in the Bill which will curtail a privilege which many of us hold very dear indeed. I do not believe that one case out of thirty will go to the Privy Council, but if in that one case and in other cases the parties agree to reserve a law point for the decision of the Privy Council why should they be debarred from that privilege? I have such an opinion as to the eminence of our colonial judges-and there are not as many of them amongst four millions as there are amongst forty millions of people-that I believe they will win the confidence of the people of Australia without our compelling all appeals to go to them, but, instead of strengthening them, by shutting out the right of appeal to the Privy Council you will weaken them. The judges of the High Court will have power to make rules for the conduct of appeals, and they will take very good care to keep down the fees if they have to compete with the Privy Council. I do not wish to make much of this point, but the fees at home are one-third less than they are here. I can show my bills going back for the last thirty years, and on the question of cheapness it is much better to go to England than go to an Australian Court of [start page 989] Appeal. Then you may have a German Subject from Samoa, or a Frenchman from New Caledonia losing a case here, and being advised by English lawyers that the very point of international law or maritime law involved in their action has been missed, but they would be debarred from going to the Privy Council. I believe our judges, in spite of the opinion of Mr. Symon and Mr. Reid, will gain the confidence of the people and secure most, of the appeals even if we allow the privilege of appeal to the Privy Council to remain, and I hope it will not be taken away.

Question-That clause 73 stand part of the Bill-put. The Committee divided.

Ayes, 22; Noes, 12. Majority, 10.


Barton, Mr. Howe, Mr.

Berry, Sir Graham Isaacs, Mr.

Clarke, Mr. Kingston, Mr.

Cockburn, Dr. Lewis, Mr.

Deakin, Mr. O'Connor, Mr

Downer, Sir John Peacock, Mr.

Fysh, Sir Philip Quick, Dr.

Glynn, Mr. Reid, Mr.

Gordon, Mr. Symon, Mr.

Higgins, Mr. Trenwith, Mr.

Holder, Mr. Wise, Mr.


Abbott, Sir Joseph Fraser, Mr.

Braddon, Sir Edward Grant, Mr.

Brown, Mr. Henry, Mr.

Carruthers, Mr. Turner, Sir George

Dobson, Mr. Walker, Mr.

Douglas, Mr. Zeal, Sir William

Question so resolved in the affirmative.

Clause 74-Jurisdiction of courts-as read, agreed to.

Clause 75-Original jurisdiction of High Court-as read, agreed to.

Clause 76.-Nothing in this Constitution shall be construed to authorise any suit in law or equity against the Commonwealth, or any person sued on behalf of the Commonwealth, or against a Stat or any person sued on behalf of a State, by any individual person or corporation, except by the consent of the Commonwealth, or of the State, as the cue may be.

Mr. GLYNN: I propose to move an amendment in this clause.

Mr. BARTON. Perhaps the hon. member will allow me to say that I have been considering this particular clause. Although it is in the Commonwealth Bill of 1891, and went through the consideration which that measure went through, I am not at all certain that that clause should find a place in this Bill.

Sir JOHN DOWNER: Hear, hear. Let us strike it out.

Mr. BARTON: The Judiciary Committee decided to send this clause on, and therefore the Drafting Committee thought they had no alternative but to embody it here. If, however, it is, thought that the clause should be defended it would be well to defend it now, and if it is not to be supported, let us strike it out.

Sir JOSEPH ABBOTT: Supposing you do, will the individual have the right to: sue the State?

Mr. BARTON: Why not? This Constitution binds the Crown.

Mr. GLYNN: I made a hard fight in, the Judiciary Committee to get this clause left out, but I did not succeed, and if it is to be struck out I will not press my amendment.

Mr. WISE: I thought it should be in.

Mr. GLYNN: The hon. members agree to it being left out now.

Mr. WISE: I do not agree, but if the majority is willing that it should be left out I will not object.

Mr. GLYNN: This deals with the right of the subject to sue the Commonwealth without the consent of the Commonwealth. We saw what occurred in the Transvaal recently, where a subject sued the State; and judgment, was given against the State, and an attempt was made by the Parliament. afterwards to practically emasculate the power of the court. If they had the power to prevent it they would have stopped the action. At present there is the remedy of petition of right against the State, if there is a breach of contract, and what I would propose is, seeing that some of our colonies have

disposed of the necessity of proceeding by petition of right against [start page 990] the State, that we ought to authorise the Federal Parliament to pass a similar law declaring that the subject shall have the right under certain circumstances without a petition of right. I would propose an amendment:

To insert at the beginning of the section "unti Parliament otherwise provides."

Sir JOHN DOWNER: Strike the whole clause out.

Mr. ISAACS: I would like to hear the meaning of this clause.

Mr. GLYNN: The meaning is that a subject has not the right to sue the Commonwealth or State without the consent of the Commonwealth or of the State.

Mr. ISAACS: I should like to hear what the chairman of the Judiciary Committee thinks of the clause.

Sir JOHN DOWNER: No one is in favor of it.

Mr. SYMON: I think it should be struck out.

Clause struck out.

Clause 77.-The jurisdiction of the High Court, or of any other court exercising federal jurisdiction, may be exercised by such number of judges as the Parliament prescribes.

Mr. SYMON: I move:

To insert after "Judges " the words "and in such places."

Mr. LEWIS: Surely the Executive should fix the place.

Mr. BARTON: Where would the High Court, or any other court which might be vested with federal jurisdiction, sit until an Act was passed by the Parliament?

Mr. ISAACS: Hear, hear.

Mr. BARTON: If the Parliament-like Some physicians-delayed prescribing for a little while, the community would be sick for want of the jurisdiction of the court.

Mr. SYMON: I think they will all be appointed pretty well simultaneously, and there would not be any difficulty. It would be convenient to leave the amendment I propose.

Mr. BARTON: Would this not be a difficulty? The Commonwealth would be in existence for six months before the Parliament can sit. If the amendment is carried subjects of the Commonwealth anxious to bring appeals, appeals which would be substituted for the appeal to the Privy Council, would not be able to unless there is some means for the Executive to determine where the court shall sit.

Mr. WISE: The first act of Parliament must be to pass a Judiciary Act.

Mr. SYMON: I do not see how the High Court, or any other Federal Court, could exercise its jurisdiction until there is a Judiciary Act.

Mr. O'CONNOR: I would point out that we ought not to fix the place for circuit under an Act of Parliament.

Mr. ISAACS: You might fix the times too.

Mr. O'CONNOR: It might be-necessary to alter the place. You cannot say where the judges will go to circuit because principally the Court of Appeal will sit where the centre of government is. The circuits, must be left to be provided by regulations; otherwise our hands may be tied in an inconvenient way.

Mr. SYMON: This amendment was moved in deference to the wish of Sir Samuel Griffith. At the same time I admit there is great force in what my hon. friends have said, and it would be better to leave the words out and leave Parliament or the Executive to make arrangements. I ask leave to withdraw the amendment.

Leave given.

Clause as read passed.

Clause 78-The trial of all indictable offences cognisable by any court established under the authority of this Constitution shall be by jury, and every such trial shall be held in the State where the offence has been committed and when not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Mr. HIGGINS: I shall vote against [start page 991] this clause. Trial by jury is an expedient which the Federal Parliament may or may not insist on. For my own part I think all criminal cases should be tried by jury, but still I think we should not tie the bands of the Federal Parliament, especially as there appear to be arising new conditions under which the whole system of trial by jury may be reorganised, although it would be almost impossible to change the existing system if this clause stand. All I want is not to tie the hands of the Federal Parliament, but to leave this as a question of expediency for the Federal Parliament to determine.

Clause, as read, agreed to.

Mr. BARTON: I have a statement to make to the Committee. The Treasurers who have been deliberating about the finance and trade provisions of the Bill have been in communication, and I believe that they have practically arrived at some provisions to be submitted to the Convention.

Mr. KINGSTON: Hear, hear.

Mr. BARTON: We have not yet had these placed in our hands, and when they are so placed it will be necessary for a couple of draughtsmen to detach themselves for the purpose of bringing the resolutions of the sub-committee into the shape which the Bill will require, so that we cannot now, as intended, go on with the finance and trade clauses. I propose to move their postponement till after the chapter dealing with the States has been considered, and if they are not ready then, till after the chapter dealing with new States. In the meantime we can go on with the clauses dealing with the States. I move:

That clauses 87 to 96 be postponed until after the consideration of chapter v.

Question resolved in the affirmative.

Mr. SYMON: I ask the attention of Mr. Barton to the words in the first line of section 74:

Within the limits of the judicial power of the High Court

ought to be struck out. It is an error, and might cause confusion hereafter.

Mr. BARTON: I shall remember that. They are unnecessary words.


Clause 97-Continuance of powers of Parliaments of the States-agreed to.

Clause 98.-Validity of existing laws-agreed to.

Clause 99.-Inconsistency of laws-agreed to.

Clause 100.-Powers to be exercised by Governors of States-agreed to.

Clause 101-Subject to the provisions of this Constitution, the constitutions of the several States of the Commonwealth shall continue as at the establishment of the Commonwealth, until altered by or under the authority of the Parliaments thereof in accordance with the provisions of their respective Constitutions.

Dr. COCKBURN: I move:

To strike oat the words "in accordance with the provisions of their respective constitutions."

I take it that it is an inalienable principle in a Federation that the States within the Federation should be at liberty to decide themselves as to what form of Constitution they will live under. They should not require to go to any outside authority.

Sir JOHN DOWNER: Only to their own Parliament.

Dr. COCKBURN: They require under this clause to have the Royal assent to any alteration of their Constitution. The Parliaments of the States will have no longer the power to deal with questions outside the Commonwealth. They will be confined to matters within the States, They will have no power whatever to, legislate in reference to navigation, immigration, or any of those matters regarding which- formerly Bills passed by the Parliaments have had to be reserved for the Royal assent. Therefore, seeing that it is regarded by all authorities, as a characteristic of Federation, and as a means of increasing the powers of self-government of the people, that the Constitutions under which the peoples of the [start page 992] States choose to live may be changed by them at their own will, without reference to outside authority, I propose to strike out these words.

Mr. ISAACS: They preserve the right you speak of.

Dr. COCKBURN: No; the States will not have the right to amend their Constitutions without appealing to some authority outside. They do not have to do that in Canada, nor in America.

Mr. DEAKIN: Do you want our States to take the place of Canadian provinces

Sir JOHN DOWNER: They only communicate with the Queen through the Governor-General.

Dr. COCKBURN: I have raised this point at every opportunity. I do not wish to take up the time of the Convention, but I certainly shall move-an amendment, because the clause is not in accordance with the general provisions of Federation. The States composing the Federation should have full power to deal with local affairs. Essentially, all external relations are taken out of their jurisdiction. I do think they ought to have the power themselves to say what the Constitution under which they live shall be.

Amendment negatived.

Mr. DEAKIN: I would like to ask Sir John Downer, who, I see, is in charge of the Bill, whether this would be the proper place to move the re-insertion of the clause which requires all communications with the Queen to be made through the Governor-General. It was in the 1891 Bill, but was omitted by the Constitutional Committee.

Sir JOHN DOWNER: We, have already decided, I think, that each colony can communicate direct, as to its own affairs.

Mr. DEAKIN: Not in this Committee; only in the Constitutional Committee.

Sir JOHN DOWNER: I would suggest it could, be better done as a new clause. Mr. DEAKIN: This is the proper place for it.

Sir JOHN DOWNER: I do not think so.

The CHAIRMAN: The proposition had better be put in this clause, or otherwise we will have to go through the Bill without it.

Mr. DEAKIN: It will be a new clause sandwiched between these clauses; but, if desired, we can defer it till the new clauses are considered.

Clause, as read, agreed to.

Clause 102-In each State of the Commonwealth there shall be a Governor.

Dr. COCKBURN: I wish to move:

That the following words be added to this clause! "The Parliament of a State may make such provisions as it thinks fit as to the manner of appointment of the Governor of the State, and for the tenure of his office, and for his removal from office."

Mr. DEAKIN: In the 1891 Bill it was dealt with in a separate clause.

Dr. COCKBURN: If the lion. member wishes to move it as a separate clause I will give place to him.


Dr. COCKBURN: This was a separate clause in 1891. It was excised by the Constitutional Committee, but I think a mistake was made in excising it. It would be a mistake to deprive the States of the power of making such provision for the appointment of its Governor as it may-think proper. If this clause stands in its present form the appointment of Governors of the States will practically lie in the hands of the Federal Executive. The Governor-General will make the appointments. The Federal Executive and the Governor-General will have such an influence with Downing-street that practically the nomination of State Governors will lie in the hands of the Federal Executive. I think that would be a most objectionable state of things. That is practically what occurs in Canada, and it is open to grave objections. The result there is that very often appointments are bestowed on persons who are unacceptable to the various provinces. A mistake has been [start page 993] made in excising the clause, and I hope this Committee will restore it. In any case I will press the matter to a division.

Mr. GRANT: Before you put the question I would suggest:

To substitute "Lieutenant-Governor" for "Governor."

I propose this amendment so that we may have some information from the Constitutional Committee, which is now represented here by Sir John Downer, as to why the word "Governor" is used. It seems to me that the term might give rise to some confusion of names, and it might be better therefore, as is done in Canada, to use the words "Lieutenant-Governor." I was in Canada when the first lieutenant-governors were appointed from local men, and so far from dissatisfaction having been shown, the community was pleased with the choice. They were selected from leading men, some of them being politicians who were anxious to retire from political strife. It would, I think, be better on behalf of the Commonwealth that eminent local men should be appointed at a moderate salary, and as a reward for services rendered to the community. I would like to see my amendment carried, unless the Constitutional Committee can give us some reasons against it.

Sir JOHN DOWNER: The reason the word was retained is practically mixed up with the amendment of Dr. Cockburn. We do not call them lieutenant-governors, because they are governors. We wish in this Constitution to preserve the entities of the States, except so far as they are surrendered, and we say that they are to have their governors.

Mr. ISAACS: Do you really want clause 102 at all?

Sir JOHN DOWNER: I should think it would be as well to leave it, because it will prevent misapprehension on the subject.

Mr. BARTON: In order that we might not be supposed to resort to the Canadian practice of having Lieutenant-Governors.

Sir JOHN DOWNER: I really do not know. It may be that under the Canadian Constitution the States have become so emasculated that there may not be so much trouble about anything; but I fancy that these colonies are not prepared to federate unless they understand that the States are to preserve their individuality to a very considerable extent. If they are to remain with all their Houses of Parliament and all their machinery of Government, I think the same arguments will apply with equal force here. It will be very bad to have at the head of the Commonwealth a man who is bound to be mixed up in the politics of the moment, with all the powers and prejudices that they will create. There are the same arguments against the Governor of a State being appointed as there is against the Governor-General.

Mr. WISE: I hope the amendment will be carried. It has been insisted frequently through these debates that in order to recommend this Bill to the people it will be necessary to show that there will be some compensating economies for the anticipated extra expenditure. Nothing can be more wasteful, as I think nothing can be more absurd under our Constitution, than for each of the colonies to keep up a separate Government House. I aim not going to enter into a discussion as to whether a Government House is a desirable thing in any colony; but letting that pass, we must admit that however much any colony might desire to change its present system of the appointment of its Governor, under the existing Constitution Act that process would be difficult. We are now making a change so complete as if not altogether intended to destroy the efficiency of Governors appointed from England, at all events considerably to modify the nature of their work. It seems only fitting that in making this change we should put it into the power of any State by a simple method to provide a new mode for obtaining a Governor for its own immediate requirements. In the interests of economy I [start page 994] hope that this clause will lead to the cessation of the practice of appointing State Governors from England, and establish the practice of choosing Governors in the provinces. I quite recognise that the amendment, if carried, will not necessarily lead to that result, but will simply put it in the power of each State to say which is the method to be adopted by which the Governors shall be elected. I shall support the amendment.

Dr. QUICK: I will support Dr. Cockburn's amendment. In the Constitutional Committee I voted for the omission of these words, which appear in the Commonwealth Bill of 1891, but on reconsideration I think it would be desirable to restore the words to give the various States power to

determine and fix the method by which they shall appoint or elect their Governors. I think that this will be an important concession to the States which they will duly appreciate.

Mr. DOUGLAS: I oppose the amendment, for I think it very undesirable in the interests of the people at large to have Governors elected by the people instead of being appointed by the Queen. If the amendment is not carried I will move at the end of the clause in that direction.

Mr. BARTON: If you leave the clause as it stands that aim will be secured.

Mr. DOUGLAS: I should like to see Australia declared a nation to-morrow, but as this is not to be, and being under Imperial rule, we should not interfere with the arrangements which exist now. If the people of any State want to make ail alteration in the Constitution, they can do it by petition to the English Parliament. We know very well that it is desirable that the Governor of the State should be appointed from home, for it does away with many annoyances and inconveniences. The saving of a few pounds should not cause us to alter a system that has worked so well.

Mr. BARTON: I propose to stand by the clause in this respect The clause enacting that appointment of Governor was put in this way by Sir Samuel Griffith, who said:

One reason for the clause, however, occurs to me. It is desirable that the States should know that the heads of the States are to be called Governors, and not Lieutenant-Governors or administrators. There is a great deal of difference between them. Here we are now accustomed to the term "Governor," but in olden days that was not the case. In Tasmania the Governor was formerly called Lieutenant-Governor, while the Governor of New South Wales was called the Governor-General of Australia, all the other Governors being more or less subordinate to him. My hon. friend Mr. Kingston reminds me that the Governor in South Australia was formerly called Lieutenant-Governor. There is a considerable difference between the two things.

What was running in his mind in connection with the term " Lieutenant-Governor" was the implication that the Lieutenant-Governor is subject to some other Governor. This Constitution does not propose to make the Governor of the State subject to the Governor General. It gives the Commonwealth paramount authority in respect of his own civil authority, but leaves untouched his relation to the Governor-General. Sir Samuel Griffith went on to say:

It may be thought by some hon. members merely a matter of words, perhaps; but I have heard of a controversy going on of late when the question arose as to whether an admiral would take precedence of a Lieutenant-Governor when a Lieutenant-Governor is administering the government of a colony. That is a point that occurs to me now, and it may be of importance. We indicate by this clause that there are to be Governors of States, and I think that this is the proper term to indicate that the States are sovereign.

We wish to indicate that, and we cannot have a better way of indicating it than by having this short clause. I should like to urge some of the reasons that were urged by members at the 1891 Conference. Mr. Gillies said in the Constitutional Committee where we had a long discussion on the subject:

As a reason for the insertion of this clause it was contended that the people of any State or colony should have an opportunity to determine whether the Governor should, or should not, be elected. It was argued, on the other band, that there could be [start page 995] no objection to the insertion of this clause, because it did not lay down the provision that there should be an election, but merely gave power to the various States to determine whether a Governor should be elected or not. This clause does a little more than that. No doubt the concluding portion may be said to be a corollary of the first portion: The Parliament of FL State may make such provisions as it thinks fit as to the manner of appointment of the Governor of the State, and for the tenure of his office, and for his removal from office. I say that if that be done in any colony it completely changes the relations hitherto existing between the colonies and the Crown.

Lower down Mr. Gillies says:

If the Crown once permitted any colony to adopt a provision such as is contained in this clause, that is, if any colony were to pass a law providing that the Governor should be elected by the people, and the Imperial Parliament were to assent to that law, and the Queen's assent were also given, what would happen? As was pointed out on several occasions in the Constitutional Committee, the position would be a most inadvisable one.

This is the reason given in the debate and it is a strong one:

The party which for the moment was predominant in the province would support the election of a Governor who belonged to their side. The Governor would at once become a strong partisan, or he would not be elected.

That is to say, so long as he remained in office he would be supporting the policy of one Ministry and thwarting the policy of the other side. He goes on-

In addition to that, the whole colony would be his constituency, and he would require to canvass it from one end to the other and solicit votes in the same way as they would be solicited by any gentleman seeking a seat in a legislative assembly. Now, for a gentleman proposing to take up the independent position of a Governor, to see that fair play is given to both parties in the State, that is an extraordinary proceeding. A gentleman sitting below me conended the other day that if a Premier asked a Governor to dissolve Parliament, the Governor was bound to dissolve it at that Minister's request. That would mean if course that if the Governor was a friend of the Ministers-who had absolutely helped to put him there-he would be under such obligations to them that he would naturally take sides with his Ministers, and would give them as many dissolutions as he decently could. That would be an unfortunate position for the Governor; nay, worse than that.

Then he said:

As I have already told the hon. member, Sir Henry Parkes, without disrespect to him, if I were a citizen of a community which proposed to elect its Governor, I would do all that I possibly could to prevent his election as Governor. That hon. gentleman occupies a public position in this country which would make him far too powerful for the place of Governor.

That is to say; the strongest politician in the State might claim election as Governor, and being returned and identified with a party in the State, his election would at once give that party a position of predominance which would enable it to exercise power in a manner quite apart from the manner in which a Governor should act in connection with contending parties. The hon. member continued to say:

It is a stage we are ask to reach, and which I object to reach. The hon. member, if he aspired to the position of Governor, would go through the length and breadth of the colony making some of those grand-toned orations which touch the hearts of the people, and I have no doubt that he would be elected almost unanimously. After he secured his seat in the saddle it would he the most difficult thing to dislodge him. I do not think that we should create such troubles unnecessarily.

Then he went on to give several illustrations. On the other hand, he supported the retention of the clause on the ground that if, as matters stand now, any State proceeds to make a change in the selection of its Governor, it cannot pass a law to that effect, and that any law giving it the power to make a change in the manner of the choice of the Governor, would have to be one passed by the Imperial Parliament. Consequently he urged that it would be better to allow a clause of this kind, which was struck out by the Constitutional Committee, in this case, to be inserted in the Act, so that in the Australian Constitution Governors of the States might, if the people thought well, be elected by

the States. Still the question remains whether the Australian Constitution is to contain such a provision. The object is to create a system of government under which, as to over all the powers they [start page 996] retain, the States will be supreme and sovereign in their own sphere, and over all the powers which are given to the Commonwealth, whether original or transferred, it shall have sovereign power within that range of powers. If we are to complicate the Constitution by putting in provisions not to conserve the interests of the States, which we are fully entitled to do, but fresh clauses which give fresh powers to the States, it is a position which does not arise in the making of a Federal Constitution, and it is foreign to its purpose. In any case the authorising of the election of the Governor by the States, would result in the evils, which are so well pointed out, in the election of partisans to positions which should only be held by impartial men, and, under the circumstances, I do not think we should pave the way for such a state of things, and it is not part of our business to deal with such a thing.

Mr. WISE: I am afraid 1 have unfortunately led this discussion into altogether wrong lines, as the question of elective Governors has nothing whatever to do with this question. This is not a clause to provide that the Governors of the States shall be elected, and it was only, as I see now, an unfortunate reference to my own opinion, as to how it would operate if the States were allowed to do so, that has brought about this discussion. The question is whether by this Constitution we may perhaps destroy the necessity for Governors in the several States. However that may be, when by this Constitution you do most materially modify their position, you ought in having made that change, by the same Act give to the States, which are affected, the power to adapt themselves to the new circumstances. That is why it was put in the Constitution, and that is why Sir Samuel Griffith was right in insisting upon it, and not for the purpose of expressing an opinion as to whether the Governor should be elected or not, but to put it in the power of the colonies to adapt themselves to the new circumstances.

Mr. KINGSTON: I agree with the remarks of Mr. Wise; and I hope the amendment will be inserted. It is a fact that whilst we have the quotations from the utterances of the gentleman who was foremost in his opposition to this clause in 1891, yet we cannot help also noticing the fact that that gentleman is nut here with us to-day.

Mr. HIGGINS: Who is that?

Mr. KINGSTON: I need not mention his name, except to say that he was a candidate who was not elected. It is also a noteworthy fact that this particular clause was affirmed by a majority of the Convention in 1891, and that Sir Samuel Griffith, who has been largely quoted in this and other matters, was in favor of the amendment now suggested, and said towards the close of his speech:

For these reasons I say that the Constitution would be incomplete without a provision of this kind, because it would be necessary to have recourse to the Parliament of England to provide a change.

There is another noteworthy fact which I was hopeful would promote the assistance and sympathy of the Drafting Committee, and that is, that the only member of the Committee who recorded his vote voted in favor of the amendment now proposed. The way I look at it is that it is not a question of elective Governors, or anything of that sort.

Mr. HIGGINS: It may become possible.

Mr. WISE: Why should they not?

Mr. KINGSTON: A lot of statements have been made in connection with the matter, and for my part I am not in favor of an elective Governor. The working of a system of popular election of our Governor in connection with our responsible government would raise many difficulties. It would be difficult to keep the Governor so elected in his proper place, and induce him to take the advice of his constitutional advisers with that humility [start page 997] which is proper in the discharge of his vice-regal duties. He would say that his position was somewhat superior to that of his Ministers-elected by

constituencies and removable by a vote of the House of Representatives.-in view of his election by the people throughout the colony; and, under the circumstances, I am not in favor of an elective Governor. But I do think we ought to take the power of effectually making our views and sentiments on this subject known in the future. It could be done in the beat way by Parliament passing an Act declaring their wishes in this respect, and it could be either assented to or rejected as circumstances required. I do not think we have had much cause to complain in the past, but there have been occasions where there has been exhibited on the part of the Colonial Office a reluctance to consult local wishes, or even to make the Imperial intentions known with regard to vice-regal appointments. I hope this may not be repeated, and I think the best plan will be, for the reasons I have mentioned, to take power for the local Parliaments by appropriate legislation to make their wishes on the subject of the system they desire known to the Imperial authorities. I think if that power is given we can rest assured it will be wisely exercised, and will supply a means of expression of local views on matters of considerable importance to the various provinces, which has hitherto been wanting, and which ought to be supplied in the way now proposed, and which recommended itself to the majority of the Convention in 1891.

Mr. O'CONNOR: I cannot assent to the arguments of my friend Mr. Wise, that this Constitution will make any difference to the position of a Governor in the colonies, in regard to the discharge of his duties; nor do I think it will come anywhere near destroying the necessity for his office, and I took it that one of the arguments of my learned friend was based on that principle. The Governor would have the same powers with regard to all matters left to the State that he has now. These powers, as the population and importance of the different States advance, will become more and more important. Inasmuch as they-affect larger and larger populations. And it appears to me, whether under the present Constitution, or under the powers which the States will have left to them under this Constitution, it is equally necessary that the Governor should be a person not only removed from the arena of politics but from all active sympathy of politicians on every side, and above the suspicion of being influenced by local likes or dislikes or sympathies. It is said that this is only an enabling clause, that it gives the power to the Parliaments of the States to make this election if they think fit. That is true, but it is an illusory argument. It means that once you place that power in the hands of the States Parliaments, then you at once enable any Parliament which may be brought in on an agitation set up for this purpose, to at once enact a law for the appointment of a Governor by election or nomination, or in some other way. In other words, for a State-to make this important change in its Constitution should be a difficult matter, and one which could only be obtained by the assent of the Imperial authorities. You are making it a matter which can be brought about by the carrying of an Act through any State legislature under the influence of some local excitement.

Dr. COCKBURN: It is already decided that the Act must have the Queen's assent.

Mr. O'CONNOR: I know that, but if the Act is passed by both Houses of any State, the Queen would not refuse her assent. The Queen would never interfere with the exercise of the legislative powers of the State in any way. But if this power is left open to the States, it could very well happen that, under the influence of some popular agitation, the people unthinkingly may adopt some mode of appointing or electing their Governors, that [start page 998] would make it almost impossible to work the Constitutions of the States as they ought to be worked. There is a large number of people upon whom the use of the term popular election operates like a charm, and in the circumstances, they forget altogether that they are going to obtain any advantages the proposed change. But there can be no question, that, if you hand over the appointment to the people, that power can only be exercised in two ways. Either the Governor must be elected by the Executive authority or by the people. In the case of nomination, at all events, he must be the strongest man of the particular party which puts him in office, so you have in that place in the Constitution, in which a man ought to be above party influence, a partizan whom it would be difficult, and perhaps impossible, to get rid of. If you chose the mode of popular election, then you create an authority under the Constitution who would probably not feel disposed to be guided by the advice of a Ministry elected on a chance majority, but would feel that his position is that of a man who has been elected by the whole of the people of the State.

Mr. WISE: I would ask whether this discussion on the system of the election of Governors has anything to do with the matter before the chair?

The CHAIRMAN: It seems to me that the whole question is involved in it.

Mr. O'CONNOR: I am sorry that my hon. friend fails to see the application of the argument. This is not only a power to elect Governors, but an invitation to the States to elect Governors.

Mr. WISE: No one has ever proposed to elect Governors. Such an absurdity as put by the hon. gentleman has not been suggested.

Mr. O'CONNOR: I wish to point out that it is impossible for the system of responsible government to be carried on except by some system in which the position of Governor is held by some person who stands altogether above and outside the arena of party politics. This clause is not only an enabling clause, but it is an invitation to the people of the States to either elect or nominate their Governors, and it is impossible to suppose that you would not find, at some time or another, a clause like this taken advantage of by the leader of some extreme party in a State for the purpose of winning popularity. We know there are persons who take the view-thoughtlessly, it appears to me-that the election of Governors would be a very good thing. Therefore, it seems to me, that if the majority of us think it would not be a bad thing to have an elected Governor, in such a condition of things a nominated Governor would be an impossibility. Why, then, should we put in the hands of the States the power, in the event of some popular agitation of bringing about such a condition of things. At the present time any agitation of that sort must reach such dimensions that it is strong enough to persuade the Imperial Parliament that the power sought should be given. The change is said to be only a nominal one, but in reality it would change the affairs of Government in these colonies. For these reasons I hope the Committee will not assent to Dr. Cockburn's amendment. Circumstances as they are at present are recognised by the Federal Constitution. They will go on as now. Let us not interfere with them in any way. It is no part of our duty to make it easier for the States to amend their Constitution, and if you put it on the ground that we are really not affecting the position of the Governors of the States, I say that has not been shown. Their power will be exercised exactly in the same way as now, and the only difference will be that the number of subjects over which the local Parliament have jurisdiction will be diminished.

Mr. WISE: Will not five Government Houses, on the same scale and style as at present, be a grotesque absurdity?

[start page 999] Mr. O'CONNOR: If hon. members put it on that ground, I would point out that each of the colonies would have to pay for its separate establishment, and would have to decide whether there was any necessity for its reduction or not. Surely they are the best authorities to deal with that question. If they find there is any reason for a change, you may be certain that a change will be made. For my own part I cannot see that the taking away of any of these subjects will affect in any way the importance of the office or the powers to be exercised under it. Under section 97 the powers which are now vested in the Constitutions of the different States will be exercised by the Governors, with the advice of the Executive Council, except the powers which the States give; and we know that the area of jurisdiction which is given to the Government (if the Commonwealth will not practically diminish the importance and area of the State powers.

Mr. MCMILLAN: I do not intend to say much on this question. I do not think we need enter into the question of what the colonies would do as separate States if they had this particular power. I do not think we have any business to intimate in this Bill that a different mode of procedure shall go on in future to what has ruled in the past. Is it not better to leave those States, after certain powers have been given over, to work out for themselves what will be the status of their Governor and in what way they will carry on their local government.

Dr. COCKBURN: That is what is sought to be done.

Mr. MCMILLAN: But you do more than that. You practically embody in this Constitution a modus operandi for doing that, whereas I consider we have no reason to decide there shall be any change whatever.

Mr. O'CONNOR: Hear, hear.

Mr. MCMILLAN: That should be left entirely to them. Then, furthermore, this Act of course as a whole will be assented to by the Queen, and it seems to be a pity to put into it anything that might be of an objectionable character. It seems to me we are introducing into this Bill a proposal as a guide to the different States when they are very well able to look after their own business. We are departing entirely from our object. I think myself that the safest and the best way is to carry the clause as it is in the Bill, because, while Mr. Wise talks about these various Government Houses, and the absurdity of the little State business being kept on by these different local Parliaments, still it is for them to say what their dignity and status will be, and we are not, now going to forecast a much lower state than they have at present, because they are in their own domain practically separate entities, practically separate sovereignties, and it seems to me that by belittling them, even inferentially, in a Bill like this, we to a certain extent go entirely outside our own province. I fail to see why it is necessary for us to contemplate any other system than that which now prevails, and under which responsible government is so effective.


That the Committee do now divide.

Mr. DOBSON: I wished to raise a point of order. I do not think the amendment is in order.

The CHAIRMAN: The motion is:

That the Committee do now divide. I must put it.

Question resolved in the negative.

Mr. ISAACS: Very wrong to try and stop discussion.

Mr. SYMON: I shall not keep the Committee long. After listening to the debate which has taken place, I cannot for the life of me see what business this clause has in the Constitution at all. I was under the impression that we were framing a Constitution which implied that the various States were to hand over something to the Federation, not that the Federation under the Constitution was going to hand [start page 1000] over something to the States that they had not got already. I can find no other provision in the Constitution which either gives the States something they had not got before. The States have not got this power at the present moment. It is sought to confer upon the Parliament of the State power to make such provisions as it thinks fit as to the manner of appointment of the Governor of the State, and for the tenure of his office, and for his removal from office What have we got to do with that? We are framing a Constitution for the Federation. We are not legislating or framing a Constitution for the various States; nor are we framing alterations or making reforms in the mode of the appointment of Governors or the establishment of Government Houses, or anything of that kind. It does seem to me that the discussion as to elective Governors is outside this matter altogether. At the same time, the amendment itself seems to be out of place in this Bill, and if any State, as it is entitled to, chooses to pass an Act through its own. Legislature, seeking to give itself the power of appointing its own Governor, then it is at liberty to do so and to send it on to the Imperial authorities; then if the Queen's assent is given, they have got power. We ought not to interfere with that. This will be an enabling clause, no doubt, in a Constitution which will bind the whole five colonies in a particular direction, when some of them, if properly consulted, would not agree with it at all.

Mr. DOBSON: I wish to put a point of order. I carry the argument of my friend Mr. Symon still further. I submit that the amendment is absolutely ultra vires, and if the clause is passed, and you then pass the Bill, you will be getting the Royal assent to a Bill which practically alters the Constitution of my colony. Now Tasmania has not sent me here to consent to or to discuss such a provision. If we like to pass an amendment of the Constitution Act of Tasmania, and the Queen assents to that, with all the circumstances of our colony before her, she might exercise a wise discretion; but if you ask her to assent to a provision in globo, which alters the Constitution of each colony, and we are not sent here for any such purpose, that is a different thing. Therefore I ask you whether the motion is within the province of the work we are sent here to perform.

The CHAIRMAN: No doubt the question is one of very great difficulty. By clause 18 of the Federal Enabling Act the duty of the Convention is stated to be the framing for Australasia of a Federal Constitution under the Crown. Now, the question which I understand the hon. gentleman submits is this: whether it is within the scope of our powers in framing that Constitution under the Crown to alter the Constitution of any of the colonies. I admit that the question is one that on the spur of the moment I have some difficulty in answering. But it seems to me that we must of necessity alter the Constitutions of the various States, inasmuch as we take from them certain powers and confer these powers on the Federal Government. In doing this we are, to a certain extent at all events, altering their Constitution. Therefore I am not prepared to say that the amendment is out of order.

Mr. WISE: My hon. friend Mr. Isaacs has pointed out to me a matter worthy of the most serious consideration in connection with this clause.

Sir WILLIAM ZEAL: Let us divide.

The CHAIRMAN: The proposition that the Committee divide cannot be put again for fifteen minutes.

Mr. WISE: I would ask the attention of Mr. Barton to this matter. As the clause stands it says, "In each State there shall be a Governor." You are absolutely imposing restrictions for all time upon the States. If that clause stands, it imposes a restriction which limits the powers of the self-governing States as exercised to-day, because if we choose, with the consent of the Imperial Government, we can get a [start page 1001]Governor changed to a Board of Advice; but if the clause stands, we cannot do it. If the clause stands, the amendment should go with it; and, if the amendment goes, the clause might go with it. The subject is, are-

Mr. BARTON: I understand that Dr. Cockburn is willing to let the amendment go with the clause.

Dr. COCKBURN: I will withdraw the amendment, and let the clause remain to be decided on its merits. Then, if the clause is passed, I will move my amendment.

Mr. BARTON: I do not call that any concession at all.

Mr. WISE: If the clause is struck out, there is no need to move the amendment.

Dr. COCKBURN: I shall ask to have the amendment added, and then it will be competent for anyone to vote against it and the clause.

Mr. BARTON: I will undertake to move for the omission of the clause if the hon. member will withdraw his amendment.

Dr. COCKBURN: If that is the case, I will ask leave to withdraw my amendment.

Leave given.

Clause struck out.

Clause 103 - Appropriation of provision referring to Governor-as read, agreed to.

Clause 104-A State may cede any of its territory-as read, agreed to.

Clause 105-States not to levy import or export duties, except for certain purposes-as read, agreed to.

Clause 106.-A State shall not, without the consent of the Parliament of the Commonwealth, impose tonnage dues or raise or maintain any military or naval force, or impose any tax on property of any kind belonging to the Commonwealth; nor shall the Commonwealth impose any tax on property of any kind belonging to a State.

Mr. HENRY: I would like to ask Mr. Barton what effect this would have on several Marine Boards and Harbor Trusts of the colonies which are dependent for their revenues on tonnage rates. This clause, I see, provides that no tonnage duty should be imposed except by Commonwealth. What position, I would like to know, would the various Harbor Trusts and Marine Boards, which are dependent for a portion of their revenue on these tonnage dues, occupy till the Federal Commonwealth has had time to legislate upon this matter.

Mr. BARTON: If the tonnage dues are not an infringement upon the principles of intercolonial freetrade, I take it that they would remain in force after the establishment of the Commonwealth; but if the State proposed to take in hand legislation on the subject, it would not be permitted to legislate on that subject without the consent of the Parliament of the Commonwealth.

Mr. HIGGINS: If it were only an amendment?

Mr. BARTON: Possibly the only trouble there would be, that a period of six months would elapse before the Commonwealth Parliament was called together after it is established. So far as the tonnage dues, mentioned by Mr. Henry, did not infringe upon the principles of intercolonial freedom of trade, there would be no difficulty.

Mr. GLYNN: I think the last few words of this clause are too comprehensive in their meaning. In South Australia there is a lot of land which is leased with the right of purchase, and I can see that under the latter portion of this clause there is considerable danger of defeating the effect of direct taxation.

Mr. O'CONNOR: In a case of that kind the reversion which is in the Crown would not be taxed, but the letting value would be taxed.

Mr. BARTON: I might mention that the property of the Commonwealth in that land is the reversion upon the lease. The reversion upon the lease would not be [start page 1002] taxable, but the interest of the lessee in the property would be taxable.

Mr. GLYNN: I am only pointing out a difficulty that might arise.

Mr. HENRY: I would like to raise a question as to the right of the Commonwealth to tax materials for State purposes. In the event of a colony importing rails, machinery, engines, &c., for State purposes, I would like to know whether such exports are to be free from Customs duties. Will the Federal Parliament have a right to levy duties on materials imported for State purposes?

Mr. BARTON: This is a matter that was discussed very fully in the Constitutional Committee, and I think my hon. friend Sir George Turner will remember that I consulted the members of the

Finance Committee upon it, intimating to them the opinion of the Constitutional Committee on the point. The words:

Impose any tax on property

do not refer to the importation of goods at all, and any amendment to except the Customs would be unnecessary. This clause states that a State shall not, without the consent of the Parliament of the Commonwealth, impose taxation on property of any kind belonging to the Commonwealth, meaning by that property of any kind which is in hand, such as land within the Commonwealth. That has no reference to Customs duties.

Sir GEORGE TURNER: Will articles imported by the States Governments come in free?

Mr. BARTON: The question then arises whether articles imported by the States Governments are to come in free, but this section has nothing to do with that. Under this Bill and in the measure of 1891 I believe duties would have been collectable upon imports by any State, and after the consultation which I had with the hon. member and his colleagues on the Finance Committee the Constitutional Committee decided not to make any exemption in the case of any State.

The CHAIRMAN: I would ask hon. members to confine themselves to the discussion of this clause.

Sir GEORGE TURNER: I propose to carry out your desire, Sir, to restrict my remarks to this particular clause. In Victoria, as I mentioned the other day, we have an independent body called a Harbor Trust, which collects a large amount of money and, as far as I can recollect, does it in the way of tonnage dues. If we pass this clause, and we deprive this body of its revenue, they will simply have to fall back upon the Government of the State. What is the meaning of the phrase:

Impose tonnage dues?

According to the way I read the clause it means that it is not to pass any law which would put on any fresh dues.

Mr. MCMILLAN: I suppose the States gave these rights to the harbor trust.

Sir GEORGE TURNER: The State passes a law constituting a Harbor Trust and gives over to them the right to collect these various revenues. What I desire is to preserve that right, whatever it may be. I am in great difficulty as how this particular clause will affect that body, as well as similar bodies in other colonies which collect small sums. I would be glad if my hon. friend Mr. Barton can give me any assistance with regard to this matter, and tell us if this clause will or will not interfere with this existing body. If that be so I shall be prepared to let the clause pass, and then, before the adjourned Convention is held, we shall have an opportunity in the different colonies of ascertaining how these dues and rates are collected, and how this clause will affect them, and whether we should make this amendment. In the meantime I should like Mr. Barton to give me the real meaning of the clause.

Mr. BARTON: As far as I can gather from this clause and the clause of 1891, it seems to me to refer to any future legislation on the subject:

The State shall not impose tonnage dues.

[start page 1003] The question of whether existing legislation would be invalidated would depend, first, upon whether the dues were an infringement of the equality of trade throughout the Commonwealth, and next upon whether the Commonwealth passed a law which-if it were in the province of the

Commonwealth to past; it-was in conflict with the law of the State, in which case, to the extent of the difference between the laws, the law of the Commonwealth would prevail if section 98 were passed. It deals only with future legislation, I think. but these tonnage dues may incur a prohibition if we find that they are a system of taxation, because the Parliament of the Commonwealth has power to raise funds by any method of taxation. If the method of carrying out that power were found to be in conflict with the law of the State, the law of the Commonwealth would prevail. We have no provision for the Commonwealth taking over harbors or harbor works, and it may be a question for consideration whether the Commonwealth, as it has power to legislate on other subjects relating to the regulation of commerce and trade and so on, should not take over harbor works too. That is what, on the face of it, seems to me to be the effect of the clause.

Mr. MCMILLAN: I think these tonnage dues must be excepted if the Parliament is to take over harbors. Tonnage dues are simply payment for services rendered, and they do not practically come under the system of taxation at all. They are levied for something done. If they are not excepted great trouble will ensue, especially in regard to corporations. Is that System referred to by Sir George Turner administered by a Minister of the Crown?


Mr. MCMILLAN: Does it apply then? These. are dues paid by the State as a State, but the case mentioned is one of a corporation, in which there is a payment for services rendered. Tolls are exacted for the services, call them dues or wharfage rates or whatever you like; they are the same in essence.

Sir GEORGE TURNER: If we do not guard against it corporate bodies may evade the Act, and the State may appoint corporations to do work so as to evade it.

Mr. MCMILLAN: Something will have to be done or great trouble may ensue.

Mr. BARTON: With reference to the question of wharfage rates, members will recollect that the United States Constitution contains a prohibition against the State levying tonnage duties without the consent of Congress. It has been decided in the case of the Packet Company v. Catlettsburg, 105 U.S., 559:

A city or town on a navigable river may exact a reasonable compensation for the use of the wharf which it owns without infringing the constitutional provisions concerning tonnage taxes or regulations of commerce.

That would appear to be rather in favor of the exemption of the harbor trust.

Mr. HENRY: It is within my own knowledge that there are Marine Boards in Australia, at all events in Tasmania, worked as State departments. They are nominee bodies with a Minister practically at their head.

Mr. HIGGINS: Who gets the money?

Mr. HENRY: The Customs officers collect the wharfage and tonnage dues, and they pass into the hands of the Government. I would like to ask Mr. Barton how it would operate in cases where the tonnage rates vary at different ports in Australia? We might have one harbor with a particular rate and another with double or treble that rate, so that we would not have an equality of trade. This is one of the difficulties which Mr. Barton. and others, in considering this matter, should have placed before them. In this clause we are going to hand to the Federal Government the right to legislate with regard to tonnage dues, and it is desirable that we should know precisely what we [start page 1004] are doing and how it is going to affect the various harbor trusts and marine boards.

Mr. BARTON: On considering the matter, I think that the tonnage dues mentioned here-we have altered the word "duties" into "dues," and they seem to me like the word "tonnage dues" that used to prevail in the the old country, such as tonnage dues on wines. We find the word referred to in Acts 9 Anne, and 10 George IV. They were tonnage dues granted to the Queen, and I think those referred to here were the same in the United States Constitution. Whether that be so or not, the tonnage dues referred to in the clause seem to be charges for services performed. For instance, a Harbor Trust is formed and carries out improvements and as a means of recouping themselves the harbor authorities charge dues. Wharfage dues are for the use of a wharf and have they not a similar meaning in the modern acceptation of the term? One is an impost for the use of a wharf, the other for the use of a harbor on which money has been spent for the purpose of rendering it more adapted for shipping. If that is so the words may be left out, and if they are left out any tonnage due which is not a charge for services performed would be an impost interfering with the freedom of trade and intercourse, and would come under section 86; that is to say, as soon as uniform duties have been imposed, trade and intercourse shall be absolutely free, If they interfere they could only do so so far as they are of the nature of taxes. If they are only charges for services performed, as I explained in connection with clause 83, then there can be no objection to them. because charges for use of a wharf are much in the same position as charges of the post office authorities for the carriage of letters; they are payments for services. If that view is taken I shall offer no objection to it.

Sir GEORGE TURNER: Why not for post and telegraphs?

Mr. BARTON: Any mere service that the Commonwealth does not take over is still in the hands of the State. Clause 86 can only be infringed by something which means an interference with the freedom of trade and intercourse. Anything that is fairly construable as a payment for services performed is not handed over-the mere service can be charged for as before, because it is not an interference with trade and intercourse. In such cases as that, mere service can be charged for as before, because it is not an interference with trade or intercourse. I think we may well accept that view and leave out the words:

Impose tonnage dues or.

I move that they be left out.

Sir GEORGE TURNER: I am glad that my hon. friend, after consideration, has taken this view, because it is very difficult indeed to understand what these words refer to and what effect they would have upon harbor trusts and similar bodies. But, as the other clauses appears to be sufficient to prevent any injustice being done, and in order to remove any doubt as to what the words really mean, it will be well to strike these out.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 107-State not to coin money-as read agreed to.

Clause 108-Nor prohibit any religion -as read agreed to.

Clause 109-Protection of citizens of the Commonwealth-as read agreed to.

Clause 110-Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public acts and records, and the judicial proceedings, of the States.

Mr. DOBSON: I should like to ask the Drafting Committee an important question. I understand that my hon. friend Mr. Wise is not moving in another clause in accordance with his notice to insert:

Wills, intestacy.

I was going to move an amendment to add:


[start page 1005] I desire to know whether, under this section, the courts of the other colonies take cognisance of the appointment of a Receiver or Trustee of Lunacy or Curator of intestate Estates, so that upon the registration of the document making the appointment, assets and lands in different colonies can be administered. I have now two cases in my office where I want to sell land belonging to a patient in lunacy in another colony, and where I want to get land in Victoria sold, the estate having already been administered in Tasmania. I want to know whether under this section we can have some such machinery as that under the Probate Acts, where probate granted in one colony is sealed in another colony, whereby the will is practically proved in another colony, so that estates of an intestate or lunatic may be administered under the one authority.

Mr. BARTON: I may mention one or two illustrations of cases decided which seem to me to be relevant to this matter, and which perhaps will serve to clear up any doubt. They were decisions based under a similar section in the United States Constitution. In Baker's "Annotated Constitution of the United States":

Record of judgment, conclusive when-Attachment.-The record of a judgment in one State is conclusive evidence in another, although it appears that the suit in which it was rendered was commenced by an attachment of property, the defendant having afterwards appeared and taken defence and judgment of one State, how enforced in another -A judgment rendered in one State does not carry with it into another State the efficacy of a judgment upon property or persons to be enforced by execution. To give it such force in another State it must be made a judgment there, and can only be executed in the latter State as its laws may permit.

Then there is a more important decision illustrative of the principle which has been decided in another case.

No new powers are conferred on States by this clause.-By this provision "the Constitution did not mean to confer any new powers upon the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It did not make the judgments of other States domestic judgments to all intents and purposes, but only gave a general validity, faith, and credit to their evidence.

So I take it that the effect of this clause would be to cause the courts of the Commonwealth to take judicial notice of the laws, acts, and records of the States without the necessity of requiring them to be proved by cumbrous evidence. It would depend upon the opinion of the whole Convention as to whether the transfer to the Commonwealth of the power to make laws of intestacy and lunacy would be a wise provision. The proper place to do that would be in Clause 50. For myself, I do not think there is a necessity to deal with intestacy or lunacy in this Constitution.

Mr. DOBSON: I thank my hon. friend for his explanation. I understood Mr. Wise was going to move an amendment as regards intestacy in clause 50, but, after consulting the Drafting Committee, decided not to do so. We want to simplify the law. The point is, if a man dies intestate in one colony, would the administrator or curator be able to register his appointment in another colony and deal with the assets there? Then, as to the case of a lunatic, when a man is declared to be a lunatic, the sheriff has to summon twelve good men and true, and, if they find the man to be insane, a trustee is appointed. If a man is declared to be a lunatic in Victoria, how are you to get hold of his assets in Brisbane, unless there is a provision which says action shall be taken in Queensland upon a record of the proceedings in Victoria being filed?

Sir JOHN DOWNER: You can do it now

Mr. DOBSON: The only legislation I know of is the Intercolonial Judgment Act passed by the Federal Council. We do not want to make the Federal Parliament more impotent than the Federal Council.

Mr. BARTON: I shall give another illustration, so that we may be quite sure as to the effect of the clause. This is clearly elucidatory:

This provision and the laws of Congress in [start page 1006] relation thereto establish a rule of evidence rather than of jurisdiction.

It would have this effect. If there had been a suit between two parties in one State touching certain causes of action that dispute would only be taken judicial notice of in any State, but as regards the subject matter of the dispute between them it would be conclusive between them. The illustration goes on:

While they make the record of a judgment rendered in one State, after due notice, conclusive evidence in the courts of another State, or of the United States of the matter adjudged, they do not affect the jurisdiction, either of the court in which the judgment is rendered, or of the court in which it is offered in evidence. They differ from judgments recovered in a foreign country in no other respect than in not being re-examinable on their merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties.

That is the full explanation.

Mr. DOBSON: Will you consider the other point?

Mr. BARTON: Yes, we shall take that into consideration.

Mr. ISAACS: Would the hon. member look at another clause which has reference to that matter almost in the same words: Sub-clause 26 of clause 50 gives the Commonwealth Parliament power to legislate for the recognition throughout the Commonwealth of the laws, the public acts and records, and the judicial proceedings of the States. That might be merely a recognition of them, but coupled with the previous sub-clause 25:

The service and execution throughout the Commonwealth of the civil and criminal process and judgments of the courts of the States.

It might mean more. But I am not quite sure that that sub-clause 26 would go to the length that Mr. Dobson wishes, by recognising them in such a way as to treat them as a judgment of every State, but it might be so. The Commonwealth Parliament might possibly exercise the power to give the same effect throughout the Commonwealth to the judgment of the State as is given in the State to the judgment itself.

Mr. BARTON: It is more than possible that the hon. member's suggestion is correct. One clause means that as a matter of evidence judicial notice is to be taken; the other means that there is legislative power, not only to define the manner in which that shall be done, but it may also mean further than that, that there is a legislative power to cause recognition of these matters in substance as well as in evidence.

Mr. KINGSTON: No doubt there is something in that. But I trust Mr. Dobson will further press an amendment to section 50, to give in addition power to bring about uniform legislation on the subject of lunacy and the administration of estates of deceased persons. The same reasons that make it

desirable to clothe the Federal Parliament with powers in the matter of bankruptcy and insolvency would apply with almost equal force to these questions, and should require them to be dealt with in the same category.

Clause agreed to.

Clause 111-Protection of States from invasion-agreed to.

Clause 112-Custody of offenders against laws of the Commonwealth-agreed to.

The CHAIRMAN: We now go back to clause 87.

Mr. BARTON: The Treasurers of the colonies have not yet placed in our hands their resolutions, but I understand they need very little more discussion.

Sir GEORGE TURNER: We are waiting to get some prints over from the Government Printing Office. We shall let you have them to-night, but they may be late.

Mr. BARTON: I move:

To postpone clauses 87-96 until after the consideration of chapters VI., VII., and VIII.

I wish the finance and trade clauses to take precedence of other postponed clauses so that we may get them at the earliest possible moment.

Question resolved in the affirmative.

[start page 1007]


Clause 113-Any of the existing colonies o [name the existing colonies which have not adopted the Constitution] may upon adopting this Constitution be admitted to the Commonwealth, and shall thereupon become and be a State of the Commonwealth.

Sir GEORGE TURNER: This clause provides that any of the existing colonies may, upon adopting this Constitution, be admitted to the Commonwealth, and shall thereupon become and be a State of the Commonwealth. The next section provides for the admission of new States, with power to impose certain conditions on their admission. Is it wise that we should allow any of the existing colonies to stand aside as long as they like, for any number of years, and to ultimately come in, whether the colonies which have joined like it or not, on exactly the same conditions? Surely it is not unreasonable to say to the existing colonies: "You have a perfect right to join with us, to throw in your lot with us, participate in the advantages, share the risks, make the losses we have to make jointly, make the enterprises we have to make jointly; but if you do not wish to do that, if you desire to stand aloof and allow us to make this Federation, we must have some say in it when you wish to join." I think that is fair and reasonable, and I should be glad if Mr. Barton will explain why this unlimited right should be given to the existing colonies, and why the Federal Parliament should not have the power to admit any existing colony on conditions which may be laid down.

Mr. DEAKIN: Something similar to clause 114?

Sir GEORGE TURNER: According to clause 114 new States may be admitted on terms which the judgment of the Federal Parliament might fairly decide. Certain conditions ought to be imposed by the Federal Parliament as representing the States which initiated the Federation, and which certainly ought to have some say in it. I do not desire at the present moment to move an amendment because

my hon. friend may be able to give some good reason why this distinction should be drawn. If so I will be willing to fall in with it.

Mr. BARTON: The reason of this provision is partly due to what is included in the United States Constitution as follows:

No new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress.

That section is practically the same as we have placed in this Bill-sections 133 and 114 read together. Section 113 provides a sort of locus poenitentiae that every existing colony may be allowed to come in when it likes.

Sir GEORGE TURNER: At any time.

Mr. BARTON: Clause 114 allows the Commonwealth to make and impose conditions, as to the extent of representation in either House of Parliament or otherwise, as it thinks fit. However we might read the parallel provisions as they appear in the American Costitutions, as they appear here it does seem as if the existing colonies not joining the Federation at first are entitled to come in under these provisions at any time, and that only new States are made subject to conditions. I think that is the meaning of the clause.

Sir GEORGE TURNER: That is the intention.

Mr. BARTON: That is the intention. The motive of the clause is that we may offer a fair inducement to those colonies which we want to join us to come in at the earliest moment. It is for this reason that every State that does not join under this Constitution at first, as the rest of the Bill shows, is a colony. It is a State when it joins. After this Commonwealth is formed any existing colony that joins will in a sense be a new State, because the States will be the colonies which join at-first. That is why [start page 1008] this provision is placed in this chapter, and I think it is as convenient a place for it as any other. We are offering, not a time, but an opportunity to the other colonies which do not join with us at first, being existing colonies, to come in and join, and we offer them an absence of the conditions that we would have to impose on new States if new States had to be created. There may be difficulties existing as to the joining of other existing colonies which will be smoothed over by a provision of this Sort. If you place them all on the same footing, and make existing colonies, as well as those which are to be created hereafter, all liable to conditions, then, it seems to me, that there may be a very great discouragement to any State., such as Queensland or Western Australia, which might not decide at first, to join in the Commonwealth. But if you give them an opportunity, even for an indefinite period, to join, you are really offering them the terms of this Constitution, which, if varied from, would make it harder for them to come in.

Mr. HIGGINS: Is not this an inducement not to join now?

Mr. BARTON: I think not. The greatest advantage is to be gained by joining when the others join.

Mr. SYMON: Would you limit the time?

Mr. BARTON: No; and for this reason: This clause is not to be read with the Federal Enabling Act which will be a spent Act within a short time. Then it might be argued that this clause did limit a certain time, but that is not so. So it does not impose a definite period of time. But the Committee may think it is better to leave the provision in its present state, leaving it to the Commonwealth, if the existing colonies do not come in within a reasonable period, to fix a limit.

Mr. DEAKIN: That would mean an amendment of the Constitution. The clause as it stands is entirely one-sided. It binds the outstanding colonies to nothing, but it does bind the colonies who federate to the unconditional acceptance of a colony which has stood out as long as it has been to its interest to Stand out, and enabling it to come in at its own will without the consent of the other States. I take it that at least the consent of the Commonwealth should be necessary before any State should be able to join in this union.

Mr. WISE: If we begin that clause with the words " Until Parliament otherwise determines," would that meet the difficulty?

Mr. DEAKIN: That would meet the difficulty I have just mentioned, and would certainly be a very great improvement. It would be unreasonable, as Mr. Barton indicated, to expect that all the colonies about to join can federate within the same month, or perhaps year. In the case of the United States more than twelve months elapsed before all the colonies were brought into line. A certain time limit might perhaps be fixed, but I do not know if, after all, the proposal that has been made is not better. It makes this, then, a less one - sided arrangement, which now binds the Commonwealth and does not bind the States.

Mr. O'CONNOR: Is not this one of those things which would be better dealt with after the adjournment?

Mr. DEAKIN: I feel strongly that it is absolutely necessary to insert the words, "Until Parliament otherwise determines." I think this is absolutely essential, for the present clause is obviously unfair on the face of it. Supposing there was a great emergency and some of the colonies came together for a common purpose-say for defence-and at great expense provided against risks. It might happen that some colony which stood out at first would step in subsequently, not to share in the risk, but only in the profits.

Sir JOHN DOWNER: Why not strike out clause 113?

Mr. DOUGLAS: Would the hon. member allow me to suggest to add to the clause these words:

As may from time to time be declared.

[start page 1009] Supposing one colony comes in this year and another colony comes in three years afterwards, you would then have to make a calculation of the revenue, and the colony that was late in entering the Federation would have to pay a sort of penalty fixed on a comparative financial basis.

Mr. DEAKIN: That would be best. The hon. member has put his finger upon a further difficulty. I understand that a financial scheme has been drafted which is to be determined by calculations made for a particular period; but these calculations will be null and void as far as the particular province coming in is concerned. Having stood out it seeks to enter the Federation, so as to dislocate the whole financial system.

Mr. BARTON: Perhaps we had better see what the financial scheme is first, and postpone these clauses.

Mr. DOUGLAS: I would like to ask the Leader of the House how is a colony to be admitted, and what is the proceeding to be gone through?

Mr. BARTON: It can only be done by Act of Parliament.

Mr. ISAACS: Whatever the financial scheme may be, I think we should deal with this clause in the way suggested, and not postpone it, and I think the view taken by my hon. friend Mr. Wise is the

correct one. We may be able to incorporate the principle to which he alluded at a later period, by inserting, the words "upon such conditions as Parliament may think fit," in a subsequent portion of the clause. Whatever may be the financial scheme arranged, I think this should be done; for as the provision now stands it is offering a premium to stand out from the Commonwealth-something like a mining speculator who holds aloof until he sees which way things are going. We should all throw in our lot at once and take our chance, and not stand out till there is an opportunity of coming in afterwards, when difficulties are over, and sharing in the profits. I think we ought to deal with this question irrespective of what the financial scheme is.

Sir EDWARD BRADDON: I hope we shall safeguard the Commonwealth. I think some provision is necessary to be taken against those colonies that are languid in the movement. We do not want to allow any colony to lounge into the Federation on its own terms after the other colonies have borne the heat and burden of the day and made things easy for it. I hope, amongst other stipulations-it is necessary to make some stipulations-that one shall be that all of the colonies shall enter upon the same terms as those upon which we enter, and that is by a referendum to the States. I understand Mr. Barton is going to postpone the clause, and I think it is one that needs postponement until we know what the Financial Committee has been doing. If we agree to some basis in connection with the Financial Committee's work, we may be able to make some provision here to guard those in the van of the movement against those who are the laggers.

Mr. BARTON: I do not think it will be well to leave out clause 113 until we have made some alterations to clause 114. I am a little exercised in my mind as to the meaning of certain words in the clause, and if the legal members will give me their assistance I shall be glad. In clause 114 you will find these words:

The Parliament of the Commonwealth may make and impose such conditions as to the extent of representation in either House of Parliament, or otherwise.

Mr. WISE: Strike them out.

Mr. BARTON: No, do not strike them out yet; I am a little exercised as to the meaning of the words:

As to the extent of the representation in either House of the Parliament, or otherwise.

Would they not exclude the Commonwealth from making provision, except as to representation?

Mr. WISE: You bad better strike out all the words after "conditions."

[start page 1010] Mr. SYMON: Put in after "conditions" the word "including," and strike out "as to."

Mr. BARTON: I think I shall move:

That clause 113 be struck out,

I shall, if that is done, move amendments to the next clause, and make the one deal with the whole matter.

Clause 113 struck out.

Clause 114-The Parliament may from time to time establish and admit to the Commonwealth new States, and may upon such establishment and admission make and impose such conditions, as to the extent of representation in either House of the Parliament or otherwise, as it thinks fit.

Mr. BARTON: In the first line I move:

To insert after "from time to time" the words "admit to the Commonwealth any of the existing colonies and may," and strike out "and admit to Commonwealth."

Then I shall adopt Mr. Symon's suggestion, and move to insert "include" and leave out the words "or otherwise."

Mr. KINGSTON: I think you will want to make the words read:

And may upon such admission or establishment.

Sir JOHN DOWNER: You do not want the word "establishment."

Mr. BARTON: I would explain this for the consideration of the Convention, that you do want the word "establishment" with regard to new States.

Mr. KINGSTON: You want both.

Mr. BARTON: Yes; I was explaining to Sir John Downer that we do. We are only dealing with the continent and Tasmania, as far as we know at present. There may be such a thing as the division of Western Australia and. Queensland, but apart from that any new State would have to be carved out of the limits of the Commonwealth. That would consequently be matter for absolute establishment, as new States could not be created any other way.

Mr. ISAACS: I do not know whether I caught the answer correctly, but I think Mr. Kingston wants the word "admission" repeated.

Mr. BARTON: I move:

To insert after the word "time," where it occurs the second time, the words "admit, to the Commonwealth any of the existing colonies of (name the existing colonies which have not adopted the Constitution) and may from time to time.

Amendment agreed to.

Mr. BARTON: I move:

To strike out the words "establishment and admission," with the view of inserting the words "admission or establishment. "

Amendment agreed to.

Mr. BARTON: I propose

In line 4 to insert before "conditions" the words "terms and."

Amendment agreed to.

Mr. BARTON: I propose:

To leave out the words "as to," just following "conditions," with a view to putting in their place the word "including."

Amendment agreed to.

Mr. BARTON: I propose:

In the next line to strike out "or otherwise."

Amendment agreed to.

The CHAIRMAN: I will read the clause as amended:

The Parliament way from time to time admit to the Commonwealth any of the existing colonies [here name the colonies which have not adopted the Constitution], and may from time to time establish now States, and may upon such admission or establishment make and impose such terms and conditions, including the extent of representation in either House of Parliament, as it thinks fit.

Sir EDWARD BRADDON: I think your grasp of this clause in its present condition shows your perfect knowledge of the art of amendment in every possible way. It has been done in such a way that we have not the scantiest idea of what it now provides.

Mr. DEAKIN: It is a mosaic.

Sir EDWARD BRADDON: Distinctly mosaic; but I think the majority of this Convention do not know what it is. We have embodied everything and struck out everything.

Mr. DEAKIN Give up everything, and take back all."

Sir EDWARD BRADDON: I would [start page 1011] suggest that those who have not grasped this volcanic amendment in the way in which our chairman has, should have this clause placed before them in print, so that they may see what it is.

Mr. DEAKIN: Have it set to slow music. (Laughter.)

The CHAIRMAN: Perhaps Sir Edward Braddon will take my assurance that it is all right. (Laughter.)

Mr. DOBSON: I confess I was very much disappointed with Sir Edward Braddon's last utterance. I thought he would be the fool to rush in where the angels fear to tread.

Mr. DEAKIN: Disappointed that he was not the fool?

Mr. DOBSON: I thought he would say that here is a departure from equal representation in the Senate. I can see why the clause should stand as it is to the extent of equal representation in the House of Representatives, but not as to equal representation in this Senate. It can hardly arise that Norfolk Island would come in as a separate State, and few of us would like to give Norfolk Island six senators. Here we are making a departure as regards new States, inasmuch as we are giving the Federal Parliament power to alter that which is supposed to be the very foundation of the federal edifice we are rearing.

Mr. DOUGLAS: Before we pass this I think, with Sir Edward Braddon, we should see this clause in print.

Mr. DEAKIN: You can have it recommitted if necessary.

Mr. DOUGLAS: It seems to me that the wording is entirely incorrect.

Sir GRAHAM BERRY: I would ask Mr. Barton's attention to clause 23, which we have already passed. We have provided there:

Each of the existing colonies of Now South Wales, Now Zealand, Queensland, Tasmania, Victoria, and Western Australia, and the province of South Australia shall be entitled to five representatives at the least.

That seems to conflict with the clause we are now considering.

Mr. BARTON: No. That clause is part of the Constitution dealing with the existing colonies which become States, and the Commonwealth would not under the clause we have just dealt with be deprived of making terms and conditions which give more than five representatives if the States were entitled to more. Clause 23 deals only with the minimum number of representatives.

Mr. GLYNN: This clause will be part of the Constitution, and will give the power to change the representation. I am afraid we made a mistake in leaving out clause 113. There Should have been a distinction between existing colonies and new States. If Queensland does not come in at once and wants to come in later on she will have to make application without stating the terms on which she wishes to be admitted. The Parliament can state the terms, and it will be out of Queensland's power to revise them, and it may then be difficult for Queensland to come in.

Sir EDWARD BRADDON: I should like Mr. Barton to tell us what this really means.

Mr. BARTON: If the hon. member will look at section 113 he will see within brackets:

[name the existing colonies which have not adopted the Constitution.]

Sir GRAHAM BERRY: How can that possibly be done? None of the colonies have adopted the Constitution.

Mr. BARTON: That of course can only be done when the colonies which have adopted the Constitution are known, then their names could be filled in when application is made to the Imperial Parliament. Bearing that in mind when the imperial Parliament has legislated, clause 114 reads:

The Parliament may from time to time admit to the Commonwealth any of the existing States, and may from time to time establish new States, and may upon such admission or establishment make and impose such terms and conditions, includ- [start page 1012] ing the extent of representation in either House of of Parliament as it thinks fit.

Sir EDWARD BRADDON: How can the representation of either House of Parliament be stated? We have agreed to the representation of every State being in the ratio of two to one, and how is the Federal Parliament to arrange a representation which may be, according to this clause as now amended, the representation of one House only, and that possibly the House of Representatives? That is the point Mr. Dobson referred to, and which concerns us of the smaller States as it affects representation of the smaller States when there may be additions to the Commonwealth by new States.

Mr. DEAKIN: The answer is that no such bargain can be made without the consent of the smaller States, through the House in which they have the majority.

Mr. WISE: And subject to the Constitution.

Mr. O'CONNOR: And they could not come in unless these States like.

Sir EDWARD BRADDON. The smaller States cannot ensure a majority.

Mr. DEAKIN: They have a majority in the Senate from the commencement.

Clause, as amended, agreed to.

Clause 115-The Parliament may make such laws as it thinks fit for the provisional administration and government of any territory surrendered by any State to and accepted by the Commonwealth, or any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Mr. WISE: I move:

That the following words be added at the end of the clause:

No federal territory shall be leased for a longer period than fifty years, or alienated in fee simple, except upon payment of a perpetual rent, which shall be subject to periodic appraisement, upon the unimproved value of the land so alienated at intervals of not more than ten years.

Mr. DEAKIN: Is "territory" the best word to use there? Territory here is given a peculiar significance in the American sense-a great area under a Government which is not a State.

Mr. WISE: "Lands," then, I shall make it:

No lands, the property of the Commonwealth.

I do not know what reception this amendment will meet with in this Convention, but I am satisfied that there is no resolution that has been submitted to it which will touch the interests of the people outside more nearly than this.

Mr. GLYNN: Hear, hear.

Mr. WISE: It is desirable, if we wish to commend this Constitution to the approbation of the democratic multitude, whose votes it must receive, that we should indicate in the clearest possible manner that those principles which they have most at heart are conserved by this Constitution. No one need imagine that I am going now to enter upon any discussion of the question of land values taxation. It would be out of place altogether in an assembly of this kind to assume that there is any representative here who has not fully considered that question from every point of view. All I desire is in a definite form to bring up for acceptance or rejection by this Convention a proposal as to the future treatment of the lands which may ultimately belong to the Commonwealth. And in the amendment I have proposed I endeavor to avoid for all time to come-as we hope we are framing a Constitution now that will last for many generations-all the evils which have attended the reckless alienation of territory since the foundation of these colonies-

Mr. GLYNN: Hear, hear.

Mr. WISE: And to secure for the Commonwealth the growing and permanent source of revenue from that State-earned increment in the value of land which comes silently from the mere accretion of population, and from the exercise of the powers of Government. With these ends in view I have drawn an amendment which comprises two [start page 1013] matters; the first limits the tenure of leasehold to a period of not more than fifty years, and the second provides that if alienation is allowed at all, it shall only be allowed upon such terms as will secure that a fair portion of the unearned increment of the land shall go back to the people who make that value by popular exertion. And so I propose my amendment. I think the Convention will admit I have faithfully fulfilled my promise not to enter into a large and discursive discussion. I hope, therefore, that those opposed to this will follow my example in this respect, and not enter into a discussion, which in this assemblage, at all events, would be

largely academic. If this Convention rejects the amendment, I may say that those who support it will try and persuade the local Parliaments to insist on its insertion in the Bill, and if I may prophesy-though I know it is dangerous to prophesy, and in nothing more so than in politics-shall prophecy that if this amendment is rejected now every Parliament in Australia will insist on its being adopted, and that we shall have to pass it in the Convention next time.

Mr. FRASER: You do not know the Parliaments.

Mr. BARTON: I would only suggest with regard to my hon. friend's amendment that it-

Mr. FRASER: He does not mean it. He is only joking.

Mr. WISE: You will find it is no joke.

Mr. BARTON: I have only to say this. If after the establishment of the Commonwealth the people are land nationalisers they will do what my hon. friend suggests. If they are not land nationalisers we have no business to make them so against their will.

Sir EDWARD BRADDON: I think there is a necessity for amending line 6, It states that the Commonwealth may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit. I would ask why it should be left to the Federal Parliament to decide? The representation in this instance is to be in both Houses, not in one House or in the other. Why should we not preserve in this question the ratio of representation which has been fixed already in regard to our representation generally?

Mr. BARTON: We have passed that clause long ago.

Sir EDWARD BRADDON: I am discussing clause 115.

Mr. BARTON: My hon. friend is speaking on clause 114.

Sir EDWARD BRADDON: My hon. friend does not know his own Bill.

Mr. BARTON: I thought you were harking back.

Sir EDWARD BRADDON: No. I am harking forward. I would suggest to my hon. friend that it is not intended that there shall be any departure from the principle that we have bound ourselves to, and that the difficulty here may be got over:

By striking out all words after "Parliament" in the twenty-second line and inserting "in accordance with the ratio of representation provided in the Constitution."

I am not going to manifest that mistrust in the Federal Parliament which has been shown here occasionally; still I think it is desirable that we should as far as possible safeguard ourselves against the breach of that engagement which has been entered into in a previous part of this Bill. I will move to test the matter the amendment which I have suggested.

The CHAIRMAN: Will Mr. Wise withdraw his amendment to allow this to be put?

Mr. WISE: Yes.

Leave given.

Mr. MCMILLAN: I think this is a very important matter, because I look forward with some hope that in future under federal administration a large portion of this continent will have to be dealt with

under peculiar conditions. I do not think that [start page 1014] in regard to the administration of these territories, which are very peculiar in themselves, we ought to bind the Federal Parliament. I would suggest to my hon. friend that the matter might be dealt with in this way: instead of bringing in either Houses of Parliament allow of the representation of such territory to the extent and on the terms it thinks fit, leaving it entirely open as to the course to be adopted.

Mr. O'CONNOR: That is what the section provides.

Mr. MCMILLAN: So far as I can understand my hon. friend he wants to bring the territories practically into line with the States, which, of course, would be a great mistake. There would be many experiments in administration owing to the peculiar conditions of these territories, and we ought not to tie the Federal Parliament under these circumstances.

Mr DEAKIN: I think my hon. friend Sir Edward Braddon somewhat mistakes the position. If the United States plan is followed territorial delegates would simply be entitled to enter the House of Representatives and speak there, but would not be permitted to vote. They are only agents. The territories here would consist of parts of Australia in which there was merely a nominal population. From them persons might be privileged to enter the House of Representatives in order to state their wishes, but these persons could not take any other part in the proceedings.

Mr. BARTON: They are provisionally governed by the Commonwealth.

Sir EDWARD BRADDON: Representation should carry with it the right to vote.

Mr. DEAKIN: Under territorial representation if it follows the plan of the United States, as it probably would, territorial representatives would be entitled to speak in the House of Representatives, but not to vote. I think Sir Edward Braddon will see that his alarm is not well-grounded, and that whatever determination is come to in regard to the representation of territories must be settled by both Houses. The Senate will have an equal voice with the House of Representatives in determining what representation is to be given, when it is to be given, and how.

Mr. BROWN: I hope that Sir Edward Braddon will not insist on this amendment. It appears to me that we are again doing as we have been doing very frequently during the discussion of this Bill, namely, trying to put into the Constitution things which ought to be dealt with hereafter by the Commonwealth. It is perfectly plain that as regards any territory which may require to have representation in the Commonwealth, Some special arrangement will have to be made such as that indicated by my hon. friend Mr. Deakin. To put into this clause a condition that such territory can only be represented under the terms and conditions to which the complete States are admitted will, I apprehend, be contrary to what the Convention has in view.

Mr. BARTON: And prevent the Commonwealth from taking over any at all.

Mr. BROWN: In addition to that, it is showing a large amount of distrust of the wisdom of Parliament. We shall all, through our representatives, have the opportunity of influencing decisions in the future Parliament just as we have done here. Some hon. members occasionally regard this Commonwealth Parliament as a sort of foreign and hostile body which will have to be watched, and concerning which all sorts of precautions will have to be taken to prevent it from doing mischief. Having faith in the wisdom and capacity of the Federal Parliament, we should not load the Constitution with these unnecessary details.

Mr. BARTON: I ask the hon. member not to insist upon his amendment, which refers to territories and not to new States. It would be impossible for the Commonwealth ever to consent to the admission of territories which might be sparsely populated, and which would, [start page 1015] according to the hon. member's proposal, be entitled to six members in the Senate. Territories or districts which are only in a primitive state of development are intended to be dealt with by a clause of

this sort. They are in a transition state, and they are governed by the Commonwealth until such time as the States have reached a condition which would entitle them to representation in the Senate. Bryce says:

Besides these full members there are also eight territorial delegates, one from each of the territories, regions in the West enjoying a species of self -government, but not yet formed into States. These delegates sit and speak, but have no right to vote, being unrecognised by the Constitution. They are, in fact, merely persons whom the House under a Statute admits to its floor and permits to address it

This Constitution is on a little more liberal basis than that in this respect: the Commonwealth in the case of the secession of a territory which is cumbersome, gives power to allow the representation of it in either House of Parliament under the terms which the Parliament thinks fit. Instead of the territories being governed in a way that only entitles them to be represented as delegates there is power to give them a certain degree of representation. It is quite as much as they can have the right to expect, and this is a more liberal provision than is to be found in the American Constitution. I trust we shall not have to divide on this.

Mr. DOUGLAS: Why should the words "either House of the Parliament" be there? What is required is to strike out:

In either House of the Parliament to the extent and to insert:

And it shall be on such terms and conditions as the Parliament shall think fit.

Sir EDWARD BRADDON: I should not object to the clause so strenuously as I have done if it were clearly shown that representation in this instance did not carry with it the voting power which we generally understand accompanies representation. A representative is as well as being a speaking machine, a voting one, and if Mr. Barton will say in the Bill that this representative or these representatives are not to have votes, then my alarm will be dispelled. This is the fact as regards the representation of colonies under the American Constitution, but we have nothing in the clause to show that it is to be the fact here also.

Amendment negatived.

Mr. Wise's amendment was then put

Mr. HIGGINS: My feeling is in sympathy with Mr. Wise's general intention, but I am embarrassed with the proposal at this stage. There is no doubt our duty is to frame a Constitution for Australasia, and in framing a Constitution we are giving the Federal Parliament power to acquire territory for the purposes of the Federation. It must acquire territory belonging to private persons or to the Crown, and all the resolution can apply to is as to what belongs to the Crown. It must deal with the lands under the Constitution, and I submit to my hon. friend, that his proposal is not constitution-making at all. However advisable it is to have no alienation in fee simple of these federal lands, and although we know there will be an effort to boom the land when the federal capital is fixed, we are departing from the ambit of our instructions in the Federal Enabling Acts if we adopt the proposal now. Our duty is to frame a Constitution, and for us to put in the Constitution something as to what is to be done with the property under the Constitution, is something which I cannot understand. I ask the hon. member to withdraw it. Rightly or wrongly, a great proportion of the people look with apprehension upon these views, and we do not want to frighten the people from coming into the Federation.

Mr. WISE: It will have the opposite effect.

Mr. HIGGINS: I feel as strongly as Mr. Wise as to the expediency of the policy indicated in his resolution, but I want to get Federation, and I do not want to deter a large portion of the people from [start page 1016] voting "Yes" if we get a working Constitution. Mr. Wise can tell his friends that we shall try to induce the Federal Parliament to accept this system. I think Mr. Barton has struck the nail on the head when he said it was not a matter to be considered in framing a Constitution. In framing the Constitution power is given to acquire Crown or private lands by the Federal Government, but at the same time, what is to be done by the Commonwealth is not a matter of Constitution framing.

Mr. TRENWITH: I differ from my hon. friend on this question, as I think it is desirable that we should, if we can, put a provision in the Constitution that the lands of the Commonwealth shall always remain the lands of the Commonwealth. We have bad ample evidence of the unwisdom of selling lands in fee simple in all of the States. We have had several very remarkable instances in the colony of Victoria-quite recently, where from time to time land was required for public purposes. All the land has belonged to the people of the State, and when it is sought to be acquired for public purposes, it is always found that the people have to pay very high prices for that which should never have departed from them, and we are continually embarrassed with the difficulty. The railways are notoriously non-paving from a book-keeping point of view, and it is altogether because of the fact that in the early days we alienated a large amount of the public lands, and when we required them for public purposes we had to pay private persons inordinate prices. I feel I should not be doing right in discussing this question at the length it deserves, but I feel bound to urge one or two reasons why it would be right to put it in this Constitution at any rate at this stage, even if it were struck out subsequently. Mr. Higgins points out that in the Constitution Act we have there are provisions for the sale, letting, or otherwise dealing with Crown lands, and therefore it is unwise to to put in this Constitution that they should not be sold. Now clearly there is no departure from the Constitution to which he refers. Supposing we only made a provision for letting the lands we have only done the same thing in a different degree as has been done in the Constitution to which he referred. It has been said that if the people cannot acquire the fee simple of the land they will not develop it to the same degree as they would if they could acquire it. We have been able in Victoria to furnish an object lesson in this connection. We recently passed an Alienation Act to which we attached clauses providing for the perpetual leasing of land subject to a re-valuation every ten years. We find that that land known as the mallee country in Victoria is being taken up very largely indeed under that system. affording to the agriculturist an opportunity of using the land for agricultural purposes, and leaving to the State perpetually such unearned increment as may from time to time accrue. We all know that unexpected developments take place and land is inordinately increased in value, not through any effort of the person using it, but through some extraneous circumstances over which he has no control, such as the discovery of a goldfield, or the development in the locality of some form of production which was not thought to be likely at the time it was alienated. The mallee land of Victoria was thought a few years ago to be absolutely worthless, and the difficulty was not to get people to buy it, but to stop on it at all, in order to destroy the rabbits and keep them from overrunning the adjoining lands. But quite recently, through two inventions, the land has become amongst the most valuable, the most easily worked, and the most remunerative in the colony, and if it had been alienated at the price that could be got for it a little while ago it would have been giving away the land to a few lucky people. If this clause is put in the Constitution now it will give us an opportunity of ascertaining what is the feeling of [start page 1017] the Parliaments that will have to deal with the Bill. It will give us an opportunity of learning the opinions of the people through the press.

Mr. O'CONNOR: This is not a proper use to make of this Convention.

Mr. TRENWITH: It is a proper use.

Mr. O'CONNOR: To test the feeling on a fanciful doctrine.

Mr. TRENWITH: It is for us to learn between now and four months hence what is the desire of the people, and by inserting it now we should have discussion on it in a way.

Mr. BARTON: Do you not think we would have discussion on it if we do not put it in.

Mr. TRENWITH: No. Because if we pass it it will be made a clause in this draft which we are preparing with a view of inviting criticism. Our work just now is to deal as nearly as possible with what we think is wise with the knowledge that it will receive serious and extensive public and Parliamentary criticism in order that we might, in the light of that criticism, do what seems most in accord with the public will. It was thought desirable in previous constitutions to put provisions in for what was then the prevailing custom in regard to the sale as well as the letting of public lands. But there has grown up, and is growing up, a very emphatic and widespread feeling that a great injustice was done to the people at the inception of the colony by disposing of their right to the public lands. We are making a Constitution for lands to be dealt with by another body, and if that feeling is as general as I, Mr. Wise, and others think it is, we have a right to put in the Constitution a provision that will guard the public property in land from being dissipated as it has been in the past. I feel this subject is so interesting and so important that it is very difficult indeed-it requires a great deal of self-abnegation-to refrain from discussing it as I should like to discuss it. But it is not proper that I should; and, having in view the shortness of the time, I will not do so. But I would urge hon. members to vote for the clause Mr. Wise has proposed; and if, as they think, it will frighten a large number of persons from coming into Federation, we can eliminate it when the second consideration of this Constitution comes on; or if, as some others think, there is such a widespread feeling in favor of it that this will popularise and even frighten away many that have that guidance from public discussion in the press, upon the platform, and in Parliament.

Mr. WALKER: I hope that our hon. friend Mr. Wise will allow this to go to a division at once.

Mr. WISE: I am quite agreeable.

Mr. WALKER: Or else withdraw it. Those who have been in Australia for many years know that the fact of acquiring land on easy terms is one of the main reasons Australia has such a much larger population now than it had forty years ago. At the present time we have enormous areas in Australia practically uninhabited, and yet these lands have been offered on remarkably easy terms. It is preposterous to make this Convention a debating society for the discussion of this land question, after all the delays we have had.

Sir JOHN DOWNER: Hear, hear.

Mr. WALKER: If Victoria wants more land, why not let her annex the Northern Territory from South Australia? I believe she could get it for the asking.

Mr. TRENWITH: There is only one reason, and that is that South Australia will not consent.

Mr. WALKER: Perhaps the best thing is to give away the land so as to get the people to reside on it and occupy it, and thereby contribute to the revenue through the Customs-house. I hope that without further discussion this proposal of the hon. member will be negatived.

Dr. COCKBURN: I do not think that this is the lace for a dissertation on the [start page 1018] various forms of land tenure. Still this is a special case, and not a general one. We are dealing with practically the site of the federal capital.

Mr. TRENWITH: That, and possibly more.

Dr. COCKBURN: Therefore the circumstances attending the consideration of this clause are altogether exceptionable. Wherever that capital is fixed there is bound to be a large influx of population, and a rise in land values to a fabulous extent.

Mr. WISE: Hear, hear.

Dr. COCKBURN: And we should consider how we can make the best practical arrangement, so that Federation may as far as possible pay its way.

Mr. WISE: If you leave it to the Federal Parliament the people will rush in and get the land beforehand.

Dr. COCKBURN: If a scheme can be proposed by which it is shown that the Federal Parliament will retain to itself as the landlord an enormous rise of prices in land, then it will be able to dispense with revenues from other directions. This is an aspect which might guide the people in considering what the cost of Federation will be.

Mr. HIGGINS: The people cannot rush and get Crown lands when it is a federal capital.

Dr. COCKBURN: We have to consider this matter simply as an ordinary landlord. The federal authority will be the landlord of the site of the federal capital, and it is for us to consider what is the best possible use to which the landlord can put the land. This does not necessarily touch the question of land nationalisation or of methods of land tenure. Therefore I feel compelled to vote with Mr. Wise, and in doing that I do not admit that I agree with the hon. member in all his views. I vote for the amendment because it establishes the general methods of a sound principle, which is applicable in the present instance, and will go a long way towards settling the question I have just alluded to.

Mr. HOWE: This land question is really the basis of all public good. So fax as the land laws of each individual State are concerned, I think they should be left entirely to the Parliament of that State. Ever since I took an interest, directly, in the politics of the State to which I belong I have advocated the leasing of our Crown lands, and, I am happy to say, Mr. Glynn, myself, and others, working shoulder to shoulder, have introduced into this country a system of leasing for a term, of leasing in perpetuity, for a fixed rent, or of giving a leasehold with right of purchase, which, instead of giving the principal part of the money to the Government, reserves it to the lessees, so that they may improve their properties, which is as good to them as if they held it in fee. The State which is to be created under this Bill is to have a Parliament which will outnumber any of the Parliaments of the other colonies, and which is to be elected by the people of all the colonies. What right has one State to say to the Parliament representing the whole people that you shall do so and so with your land? The Parliament should be allowed to deal with the land in which the federated government will sit as they like, just as we claim that we should be allowed to deal with the land in our own States. I should resent the Federal Government having the power vested in them of directing any individual State, however small, how it should dispose of its Crown land. We should never give them that right, and at the same time we should not attempt to dictate to the Federal Parliament how they should dispose of their land. You say, "Trust the people"; Mr. Deakin is always telling us to do that. I say, let the Federal Parliament deal with their lands at their sweet will and pleasure. They are appointed by the people, and will have to account to the whole of the people for the way in which they dispose of their lands.

[start page 1019] Sir EDWARD BRADDON: This discussion is purely academical, and it was intended to be so by Mr. Wise. He is a believer in one capital for the Commonwealth. There is but one possible capital.

Mr. TRENWITH: There is only one Hobart.

Sir EDWARD BRADDON: And inasmuch as it is not at all likely that that capital will have a very considerable quantity of land to dispose of-

Mr. BARTON: Not even if you have the whole island.

Sir EDWARD BRADDON: If we had the whole island we should make it difficult for some impecunious, if largely populated, States to acquire property there. But as a matter of fact there will not be a very large amount of unalienated land to deal with in the capital, and that amount may very well be dealt with in accordance with the ordinary laws prevailing in the Commonwealth from end to end.

Question-That the words proposed to be added be so added-put. The Committee divided.

Ayes, 13; Noes, 21. Majority, 8.


Berry, Sir Graham Kingston, Mr.

Clarke, Mr. Peacock, Mr.

Cockburn, Dr. Quick, Dr.

Deakin, Mr. Reid, Mr.

Glynn, Mr. Trenwith, Mr.

Holder, Mr. Wise, Mr.

Isaacs, Mr.


Abbott, Sir Joseph Higgins, Mr.

Barton, Mr. Howe, Mr.

Braddon, Sir Edward Lewis, Mr

Brown, Mr. McMillan, Mr.

Dobson, Mr. Moore, Mr.

Douglas, Mr. O'Connor, Mr.

Downer, Sir John Symon, Mr.

Fraser, Mr. Turner, Sir George

Fysh, Sir Philip Walker, Mr.

Grant, Mr. Zeal, Sir William

Henry, Mr.

Question so resolved in the negative.

Clause, as read, agreed to.

Clause 116.-Alteration or limits of States. Agreed to.

Clause 117. - Saving of rights of States. Agreed to.


Clause 118-The seat of Government of the Commonwealth shall be determined by the Parliament.

Until such determination the Parliament shall be summoned to meet at such place within the Commonwealth as a majority of the Governors of the States, or, in the event of an equal division of opinion amongst the Governors, as the Governor-General shall direct.

Mr. WALKER: I am only going to add a few lines to the first sentence. I propose:

That the following words be added after the word "Parliament," "and shall be within an area which shall be federal territory."

That is giving effect to the intention of the Constitution Bill as in clause 104. I may say that my desire is that the federal capital shall be in some place which is not at present a capital city, thereby removing a bone of contention, and giving us an opportunity of forming another centre of population. If the Federal Parliament thinks proper to test the principles which my hon. friend Mr. Wise advocates they can do so. But that, in my opinion, is comparatively a small matter at this stage.

Mr. HIGGINS: Is it a small matter?

Mr. BARTON: I trust that the Convention will not find it necessary to add this amendment. It is far better to let that matter be settled in the future. We have a provision in clause 51, sub-section 2-that is the only one which deals with the site of the federal capital-which says that the Parliament shall, subject to the Constitution, have exclusive powers to make laws for the peace, order, and good government of the Commonwealth with respect to the following matters, including the site of the seat of government. But that does not say that the Federal Parliament is bound to take any piece of territory heretofore not inhabited, or not thickly inhabited, and turn it into a federal capital. At present it will be better to leave the hands of the Federal Parliament free, and I trust [start page 1020] most of the hon. members will be of that opinion. We ought to leave the Federal Parliament free to determine the site of the Federal capital. My hon. friend's amendment would make it compulsory upon the Commonwealth to take some area and turn it into a federal capital. It would also practically impose this limitation, that some territory would have to be selected which is not at present a great centre of population. I am inclined to the opinion myself that it would be a good thing, in order to avoid intercolonial jealousies, that the site of the capital should not be in one of the present centres. But subject to that limitation of opinion we shall do well to allow the Commonwealth to deal with the matter itself. We should not tie its hands. It is fair to leave it in the hands of those who will be the citizens of Australia, and who ought to determine it for themselves. In the meantime we can allow the clause to stand as it is. I therefore suggest that this amendment be not carried.

Amendment negatived; clause, as read, agreed to.

Clause 119-Power to Her Majesty to authorise Governor-General to appoint deputies-as read agreed to.

Clause 120-In reckoning the numbers of the people of a State or other part of the Commonwealth aboriginal natives shall not be counted.

Dr. COCKBURN: As a general principle I think this is quite right. But in this colony, and I suppose in some of the other colonies, there are a number of natives who are on the rolls, and they ought not to be debarred from voting.

Mr. DEAKIN: This only determines the number of your representatives, and the aboriginal population is too small to affect that in the least degree.

Mr. BARTON: It is only for the purpose of determining the quota.

Dr. COCKBURN: Is that perfectly clear? Even then, as a matter of principle, they ought not to be deducted.

Mr. O'CONNOR: The amendment you have carried already preserves their votes.

Dr. COCKBURN: I think these natives ought to be preserved as component parts in reckoning up the people. I can point out one place where 100 or 200 of these aboriginals vote.

Mr. DEAKIN: Well, it will take 26,000 to affect one vote.

Mr. WALKER: I would point out to Dr. Cockburn that one point in connection with this matter is, that when we come to divide the expenses of the Federal Government per capita, if he leaves out these aboriginals South Australia will have so much the less to pay, whilst if they are counted South Australia will have so much the more to pay.

Clause, as read, agreed to.


Clause 121-The provisions of this Constitution shall not be altered except in the following manner:-

Any proposed law for the alteration thereof must be passed by an absolute majority of the States Assembly and of the House of Representatives, and shall thereupon be submitted to the electors of the several States qualified to vote for the election of members of the House of Representatives, not less than two nor more than three calendar months after the passage through both Houses of the proposed law.

The vote shall be taken in such manner as the Parliament prescribes.

And if the proposed alteration is approved by the electors of a majority of the States, and if the people of the States whose electors approve of the alteration are also a majority of the people of the Commonwealth, the proposed alteration shall be presented to the Governor-General for the Queen's assent.

But an alteration by which the proportionate representation of any State in either House of the Parliament or the minimum number of representatives of a State in the House of Representatives, is diminished, shall not become law without the consent of the electors of the State.

Mr. DEAKIN: According to the first subsection any amendment of the Constitution requires an absolute majority of the Senate and the House of Representatives, a majority of the whole of the people of the Commonwealth, and a majority of the States of which the Commonwealth is com- [start page 1021] posed. It is a small matter, but under these circumstances the requirement that there should be an absolute majority of the Senate and House of Representatives is surely unnecessary. As the question of reform is practically remitted to the people, I move:

To strike out in line 2, the words "an absolute" with a view to the insertion of the word "a."

Sir EDWARD BRADDON: I think the feeling in regard to this clause has been that it should be made as difficult as possible to amend the Constitution. The idea underlying the clause is to provide

that, while an amendment of the Constitution is not made absolutely impossible, the Constitution shall not be so easily capable of amendment that in any » « fluctuation » « of » « public » « opinion , any change of feeling on the part of the people in some crisis of a temporary character, it might be changed.

Mr. DEAKIN: A majority of the whole people, and a majority of the States.

Sir EDWARD BRADDON: Yes; an absolute majority of the members representing the States in the Senate and House of Representatives. I do not think this is too much to ask in such an important matter as an amendment of the Constitution, and, while I would not say the Constitution should be such as could only be amended by force of arms, I hope we shall provide all necessary safeguards against its being lightly amended.

Mr. ISAACS: I hope these words will be eliminated. I should like to point out the meaning of the clause. There is power given for the intervention of the people on the question of the amendment of their Constitution, but that power is merely by way of veto. Unless the proposed amendment of the Constitution first succeeds in passing an absolute majority of both Houses of the Legislature the proposition never reaches the people for their determination at all.

Mr. MCMILLAN: You mean there is no initiative like there is in Switzerland.

Mr. ISAACS: There is no initiative, but I mean something more. It is possible for an absolute majority of either House to prevent the people from expressing their views on the amendment of the Constitution. I think that is wrong. If we are to provide for a mere majority of the Legislature to alter the Constitution, then I could understand the complaints of some of my hon. friends that that was too easy a mode, but the decision of the Legislature in this case is not intended to be final, and the passing of the amendment of the Legislature is intended to be the means of ascertaining whether this proposition is of so great an importance, of such great interest, and of such necessity as to require the consultation of the people. I can quite understand that circumstances have not failed to occur in some colonial Legislatures where by some accident a proposition has passed the Houses, but has failed to get an absolute majority. I can quite understand why it is necessary in cases where the voice of Parliament is sufficient in itself to establish a new law amending the Constitution to have an absolute majority, and with much more reason than in the present case. Although we are dealing with the question of amending the Constitution, we have to recollect that it never can get passed into law without the sanction of a majority of the States and people. Now, surely that is safeguard enough.

Mr. HOWE: An ordinary majority.

Mr. ISAACS: This is only preliminary to getting to the people, and then you have in the States the amplest power of rejecting a proposal, and in the population you have similar power of rejecting a proposal if it is not in accord with the views of the people. In America there are loud and frequent complaints concerning the difficulty of altering the Constitution. As Mr. Moncure Conway has lately pointed out, there exists an almost intolerable state of things there, "arising," as Mr. Stead has graphically phrased it, " from the iron grasp of the dead hand." We know perfectly [start page 1022] well the evils-I need not refer to them again-that have arisen from the difficulty of amending the American Constitution. Dr. Burgess has pointed out that. Taking the figures of one census of recent years, three millions of American people could withstand the undoubted will of forty-eight millions of their fellow-citizens, but if we are going to say here that besides running the gauntlet of discussion in the Legislature we are going to impose the condition of getting an absolute majority of both Houses, we put a wrong and unnecessary condition between the proposal and the people's will. Therefore I strongly support the amendment of Mr. Deakin, and I hope the word "absolute" will not find a place in the final draft of the Bill.

Dr. COCKBURN: An amendment of the Constitution should not be made too easy, but on the other hand it should not be made too difficult. In America it is too difficult. It requires a two-thirds

majority of the Congress and a Convention of three-fourths of the States. This Bill only demands an absolute majority of both Houses and a majority of the States and the people.

Mr. HOWE: But two large States can stop it for all time.

Dr. COCKBURN: If the Parliament is to have anything to do with it, it should be in accordance with the deliberate will of the House. What is provided for is an absolute majority, and that only means one more than half of the House. It means that there is to be no catch vote, and it is well to provide against that. I cannot imagine a case where a majority of the House wishes to see an amendment carried that the majority cannot be got together to vote. It may mean a delay of a day or two, but only a day or two. The decision should rest on the deliberate will of the House instead of on a catch vote.

Mr. MCMILLAN: I do not quite follow Mr. Isaacs in his logic. It seems to me it is a very serious matter to attempt to interfere with the whole machinery of the constitutional Government, and surely it is the initial step that should be surrounded by every possible safeguard. Mr. Isaacs seems to take it for granted that there is some pressure of the people to be brought to bear on the Parliament, and that the Parliament will block the way, but before we attempt a change of the Constitution, causing elections throughout the country which mean heavy expenditure, a great deal of unrest, and a dislocation of all business, such a thing should be initiated only by a very solemn process, meaning at the least an absolute majority of both Houses. That would necessitate the giving of proper notice of the intention to move in that direction. Surely if the matter is of such tremendous importance as to dislocate the whole of the social and business life of the community for a period it should be ushered in by every possible safe guard. I think an absolute majority is not unreasonable under the circumstances.

Mr. KINGSTON: I would ask Mr. Barton whether it is perfectly clear what is meant by the words:

Must be passed by an absolute majority.

The general provision of our Constitution is that the second and third readings must be carried by an absolute majority. Does this mean that it shall be sufficient that the motion:

That the Bill be now passed, and its title be as read

is carried by an absolute majority?

Mr. BARTON: I think it is sufficient if it passes its final stage by an absolute majority.

Mr. KINGSTON: I am inclined to think that the meaning of a clause of this description would be that the final stage of the Bill should be passed by an absolute majority. As there is room for a little doubt, and parliamentary authorities evidently differ over the point, I would suggest that Mr. Barton should consider it.

Mr. BARTON: I will certainly do that.

[start page 1023] Mr. FRASER: Surely it is not to be desired that a minority of Parliament should be allowed to alter the Constitution, and I never heard of such a thing.

Mr. ISAACS: And no one else either.

Mr FRASER: If you have not an absolute majority of both Houses you allow a minority to past; the amendment. The most liberal man on earth would not ask for such a proposition as that. The

reference to the United States is a different thing altogether, and has no analogy to our conditions. The 1891 Bill contained the same provision, and why should you make an alteration merely for the sake of creating strife and confusion? The Constitution should not be altered to every gust of wind that blows hither and thither.

Mr. HOWE: Who blows? The lawyers?

Mr. FRASER: It is not desirable that an alteration of the Constitution should be effected except at the wish of the majority of the people.

Sir WILLIAM ZEAL: I think this clause should be altered, so that it should be necessary that a Bill altering the Constitution should be carried by an absolute majority of both Houses on its second and third readings.

Mr. BARTON: Suppose the Bill is carried without a division?

Sir WILLIAM ZEAL: In Victoria on similar occasions we count the House, and the Clerk has to certify that an absolute majority of members have voted. I move:

To insert after the word "passed" the words through its second and third reading."

Mr. BARTON: It is not necessary. Supposing they have some different mode of procedure.

Sir WILLIAM ZEAL: If Mr. Barton does not consider my amendment necessary I withdraw it.

Mr. Deakin's amendment negatived.

Dr. COCKBURN: I see the referendum must take place within three months after the passage of the Bill through both Houses, and it is proper there should be some limitation as to time; otherwise the question might be allowed to get cold and the educative effect of the debates be lost. This means a referendum of the whole of the Commonwealth, and is an expensive and somewhat troublesome matter. Very often we might have coming on in one or more of the States about the time the referendum was to be taken a general election either for the Senate or the House of Representatives, and it would be well to allow a little more than three months so that both may be fixed for the same time. Would it not be better to make it six months?

Mr. BARTON: I was prepared to make it four, not less than two nor more than four.

Mr. DEAKIN: Make it two and six. It does not matter.

Dr. COCKBURN: It would be a greater convenience to have it six.

Mr. BARTON: It is possible there might be a popular desire at the time to carry out an amendment of the Constitution, and the whole thing might become stale in six months, and the result would not be so satisfactory.

Dr. COCKBURN: It might become stale if there were no election pending, but if there were such a desire for the amendment that it passed both Houses and a general election was coming on there would be no fear of it growing cold.

Mr. BARTON: If it is the wish of the Convention I will agree to it.

Dr. COCKBURN: I move that amendment:

That the word "six" be substituted for the word "three" in sub-section 1.

Agreed to.

Mr. BARTON: A suggestion has been made to me by Mr. Symon, which puts the sub-section beginning "And if the proposed alteration" in perhaps a clearer form. Instead of putting it in the form:

If the proposed alteration or the proposed law is approved by the electors of a majority of the States.

[start page 1024] And so on, if it is put in a more direct narration it would be better. I will move:

That all the words after "the" in line 12 be struck out, so that the sub-section may be put in this form:

And if the electors of a majority of the States approve of the proposed law, and if the people of the States whose electors approve of such law are also a majority of the people of the Commonwealth, the proposed law shall be presented to the Governor-General for the Queen's assent.

Mr. HIGGINS: I submit to Mr. Barton the obvious primary meaning of "electors" is "all the electors," and although I understand that he personally takes the view that "electors" means "the majority of the electors," I fear that he has no authority for accepting it in that sense. I do not wish to go against the draughtsman's view in the matter, but it seems to me that if the consent of "the electors" for the alteration had to be obtained the proposed alteration would not become law unless all the electors of a majority of the States approved the proposed law.

Mr. O'CONNOR: It means if the State by a majority of the electors approves.

Mr. HIGGINS: I have suggested to the draftsman who is responsible for this that the words "the electors" means all the electors unless you say "a majority of he electors."

Mr. LEWIS: I should like to call attention of the Committee to the way in which this clause is drawn. The proposed alterations must be approved by the electors of a majority of the States. The people of the States whose electors approve are also a majority of the Commonwealth. The proposed alteration should, in my opinion, be approved by a majority of the States, and also by a majority of the electors who record their votes upon the referendum that may be taken upon the proposed law. That is a very different thing to what is presented here. I need not delay the Committee, because the difference will be seen at once. I have an amendment to the effect that the proposed alteration should be approved by the electors of a majority of the States and by a majority of the electors who vote.

Mr. BARTON: That would not secure a majority of the Commonwealth.

Mr. LEWIS: Under this system one large colony might join with two or three smaller ones, and their votes would override the votes of another large colony which had joined with one of the small colonies, notwithstanding that a large majority of the electors in the Commonwealth decided against the proposed alteration.

Mr. BARTON: The proposition is that if the electors of a majority of the States approve, and if the people of the States, who are also a majority of the people of the Commonwealth approve, then the proposed law shall be presented for the Royal assent. As to the point raised by the hon. member Mr. Higgins, I think, on looking into the matter closely, that the thing is sufficiently stated in the clause. I will ask hon. members to look at the Bill of 1891, which dealt with the question by way of Conventions. The last clause of that Bill provided:

Any law for the alteration of the Constitution must be passed by an absolute majority of the Senate and House of Representatives, and shall thereupon be submitted to Conventions, to be elected by the electors of the several States qualified to vote for the election of Members of the House of Representatives.

Then in place of our sub-section 3, the 1891 Bill read:

And if the proposed amendment is approved by the Conventions of a majority of the States, and if the people of the States whose Conventions approve of the amendment are also a majority of the people of the Commonwealth, the proposed amendment shall be presented to the Governor-General for the Queen's assent.

Mr. Lewis will see that according to that section the approval of Conventions of the majority of the States must be equal to the approval of the majority of the people of the States whose members sit in these Conventions.

Mr. HIGGINS: That is different to electors.

[start page 1025] Mr. BARTON: I do not think so, because the electors are summoned to vote. The clause reads:

Shall thereupon be submitted to Conventions, to be elected by the electors of the several States qualified to vote for the election of members of the House of Representatives.

So that the electors are placed in the same position in this Bill as Conventions were in the Bill of 1891. The majority of one must be applied to the majority of the other. If the passage by the Convention is the passage by the majority, the passage by the electors is the passage by the majority.

Mr. ISAACS: Could you not strike out electors in the first line of the third subsection?

Mr. BARTON: That might remove any lingering difficulty, though I do not think there will be any difficulty. There would have to be a prior amendment. Starting with the third line of the third sub-section it should read:

And shall thereupon be submitted in each State to the electors of the State qualified to vote for the election to the House of Representatives.

I cannot move that now, as we have passed that part of the clause, but at a subsequent stage I shall move to do so. To meet Mr. Isaacs, I will now move:

To alter the third sub-section, so that it shall read: "And if a majority of the States approve the proposed law, and if the people of such majority of States are a majority of the people of the Commonwealth, the proposed law shall be presented to the Governor-General for the Queen's assent."

Mr. DEAKIN: Before that is put I wish to direct attention to the point put by Mr. Lewis, which I do not think has been exactly caught. It is worthy of consideration.

Mr. LEWIS: I suggest that it should be made to read:

If the electors of a majority of the States approve of the proposed law, and if a majority of the electors who vote on the subject also approve of the proposed law, then the proposed law shall be presented to the Governor-General for the Queen's assent.

The principles embodied in that amendment and in that of Mr. Barton are radically different.

Mr. ISAACS: It will give a very unfair advantage to South Australia, which has women voters.

Mr. BARTON: South Australia would count twice that way.

Dr. COCKBURN: They only count as electors.

Mr. LEWIS: I did not consider that phase of the question.

Dr. COCKBURN: That principle is the right one.

Mr. LEWIS: How are you to reckon the people of the States? Is it to be on a population basis, men, women and children?

The CHAIRMAN: The only amendment I can put is that suggested by Mr. Barton.

Dr. COCKBURN: And this is an amendment on that.

The CHAIRMAN: Mr. Barton has now suggested a second amendment I do not know which be wishes to propose.

Mr. LEWIS: If these words are struck out, and Mr. Barton's amendment becomes a substantive motion, the consideration of my amendment will be quite in order.

Mr. DEAKIN: I was struck by the point raised by Mr. Lewis. It Seems a very fair one to raise, and a very fair one to insist upon if there were a uniform franchise through the Commonwealth. One obstacle is that in South Australia at present there is a different franchise from that obtaining in any other portion of the Australian continent, and the double voting power in that colony and in any which follow its example would be certainly unfair to the remaining States. If the franchise were uniform I do not think that the more populous States should have their abstinence from voting allowed for, as it is in this plan. It might even enable them to negative a proposal which secured, not only a majority of the States, but actually a majority of those persons who took the [start page 1026] trouble to go to the poll. This plan would not enable a proposal to be carried unless the States in the majority were also the most populous States of the group. It is right to require a majority of the States as States. But why should you require that the people of the States whose electors approve of the alteration should also contain a majority of the people of the Commonwealth? One can conceive that if you have one State much outstripping the others in population, although You might have practically all the other States, except perhaps one small one, in favor of the proposed reform, and although a majority of those who went to the poll were in favor of the proposed reform, the population in the oustanding State would be so numerous that the majority of the States would not include a majority of the Commonwealth. The amendment would be defeated solely by the abstinence from voting of that very large State.

Mr. LEWIS: Can you defend that?

Mr. DEAKIN: I do not think it is fair. I can conceive circumstances in which it would not be. But the hon. member's proposal is not fair unless he couples with it a provision that it is only to apply after a uniform franchise has been established.

Dr. COCKBURN: The proposal will undoubtedly be an advantage to the women of South Australia, as it will class them as electors instead of as infants. Otherwise it is a baby franchise. It will be some year or two before Federation is accomplished, and it will be some time after that before the Constitution is amended, and there will be plenty of time for the franchise to become uniform. I do not suppose there will be any amendments in the Constitution for ten years.

Mr. DEAKIN: In America they followed pretty soon.

Dr. COCKBURN: Say six or seven years. By that time the question of women's franchise will have been fought out and won or lost-will be won long before then, so I believe. I think this is a fair matter to be raised, otherwise the interests of the smaller States would not be protected, for it is only the population of the larger States that will count at all. It is a perfectly fair proposition to make, and I shall support the amendment. At the same time I am gratified by the improvement made on the Bill of 1891 by the introduction of the referendum.

Question-That all the words after "if" in the first line down to "alteration" in the fourth line be struck out-put and agreed to.

Mr. LEWIS: I will now move the insertion of the words I have read.

Mr. DEAKIN: That is an interference with our State rights.

Mr. SYMON: That is not just, because you are not getting a majority of the people, only a majority of those who vote -a quarter of the people may vote. I suggest that we ought to reconsider that part of the agreement.

Mr. KINGSTON: I am inclined to think it will not work well. If you are going to require that the States which consent to an alteration of the Constitution must constitute a majority of the people of the Commonwealth, what chance will the smaller States have of doing anything, even if there is almost equal division of opinion in the larger States? It maybe that New South Wales and Victoria are equally divided, but by a very small majority the alteration is negatived in those States. The alteration is affirmed by a very large majority in the other States, which altogether extinguishes the majority by which the proposal is dealt with in the larger States. There is in point of fact on a balancing of all the electors voting a very considerable majority indeed in favor of the amendment. But because the larger States have not been able to affirm it under the circumstances to which I refer, and it has been carried against them by the most trivial majority, the thing is to be set at nought. Such a thing would be perfectly ridiculous. I [start page 1027] think the right thing to do would be to preserve, so far as we can, the principle on which you have established your Parliament-have a majority of the States, and have a majority also of the people. Declare that as regards any alteration of the Constitution, if it is affirmed by a majority of the States, which is equal to an affirmance by the constituencies of the Senate, and by a majority of the people of the whole Commonwealth, which is equal to an affirmance by the constituencies of the House of Representatives, then the alteration shall be made. I understand that the object is to ascertain by means of the referendum what should be done in regard to any alteration of the Constitution. If you get two things, namely, a majority of the State electors who vote on the subject and a majority also of the electors of the whole Commonwealth in favor of the proposed alteration, I think that is all you ought to require.

The CHAIRMAN: The question before the chair is "that the words proposed to be inserted be so inserted."

Mr. KINGSTON: I would suggest to Mr. Barton that he should move the amendment in two portions. I am sure he is only desirous of ascertaining the wishes of the Convention in this respect. I would ask him to move it down to the portion which includes "by requiring a majority of the States." On that practically there will be a consensus of opinion on the part of the Convention. Subsequently Mr. Barton can move the other part, and we can then deal separately with that.

Mr. BARTON: I should be glad to do anything that is reasonable, but Mr. Lewis's amendment as it stands is one which we cannot accept. That is the one which proposes first that there should be a majority of the States, and then a majority of the electors voting If we have five States joined together, of which one has female suffrage, then the electors count for double those of the other States. Then, in the case of a State which has the one man one vote system, that counts for two, and there is the difficulty. As no one can give me a way out of the difficulty, I think we had better adhere to the proposal in the Bill.

Mr. Lewis's amendment negatived.

Mr. Barton's amendment agreed to.

Mr. BARTON: I would like to draw attention to the wording of this clause which reads:

But an alteration by which the proportionate representation of any State in either House of the Parliament or the minimum number of representatives of a State in the House of Representatives, is diminished, shall not become law without the consent of the electors of that State.

It would be better to make it clear that the rights of representation of the State in the Senate and proportional representation in the House of Representatives shall be preserved. I propose:

To leave out "proportionate" in the first line and "either House of the Parliament" in the second line, and insert instead "Senate or proportional representation of the State in the House of Representatives."

Mr. SYMON: Why not simply strike out proportionate"?

Mr. BARTON: Perhaps that would be as well.

Mr. DEAKIN: That will not do at all.

Mr. BARTON: I want to make it clear that the State shall retain its rights

Mr. DEAKIN: An objection is that the operation of the quota may reduce the number in the House of Representatives, and could you do that without an alteration of the Constitution?

Mr. SYMON: If you leave out "proportionate" then the section must mean the representation that the State is entitled to under the Constitution. If it is proportionate then logically it will be proportionate; if it is a fixed quantity then it will be a fixed quantity.

Mr. DEAKIN: The sub-section reads:

But an alteration by which the proportionate representation of any State in either House of the Parliament or the minimum number of representatives of a State in the House of Representatives, is diminished, shall not become law without the consent of the electors of that State.

[start page 1028] By the operation of the quota the representation of a State in the House of Representatives may easily be diminished. One provision appears to override the other, and my hon. friend will admit that that is undesirable. I do not say that the contention of my hon. friend Mr. Symon is untenable, but is it not doubtful?

Mr. BARTON: I will not move my amendment. I will leave the clause as it stands.

Mr. HIGGINS: Before the clause is finally settled I will ask Mr. Barton if this clause is seriously intended? The fact is that the proportionate representation of the State is not to be diminished without the consent of the electors of that State. What does this clause mean? Does it mean a majority of the electors of that State? - Is it the intention of the Convention deliberately, in fixing a constition which may last for hundreds of years, to say that there shall be no change in it which shall alter the equal representation of the Senate unless the State whose representation is to be reduced concur with the alteration? We cannot tell what changes will take place, but supposing there are six colonies in the Federation a hundred years hence, and five of these have many millions of people each, and

supposing Western Australia becomes like Gold Town in Max Adeler's book-a sand waste perhaps with only a few people fringing the coast, with ten millions in Tasmania, and 2,000 or 3,000 in Western Australia, do I understand the intention here is to say there shall be no change in the representation of Western Australia without her consent?


Mr. HIGGINS: If that is the intention let us know it.

HON. MEMBERS: We do know it.

Mr. HIGGINS: It is simply a case like that in Max Adeler's book, where the hundred thousand people dwindled down to one nigger, who was sitting on a stump and was left with the responsibility of all the bonds to Europe. So it is possible for one colony, according to this proposal, to be wiped out and become as bare as the plains of Babylon, but still to remain in possession of the same representation. wish members to face the position which is the most absurd that any legislation can contemplate.

Sir EDWARD BRADDON: I recognise that Tasmania's population may in a short time be ten millions, and I quite accept the proposition laid down in this clause. It is a fair thing, and if at any time it appears to be exceedingly unfair the necessary remedy can be applied by the Federal Parliament making the necessary amendment.

Mr. BARTON: I still think the first of these amendments is the proper one, namely, to leave "proportionate" out of line 40. That will keep alive the representation of any State in the House of Parliament for the amendment of the Constitution. I shall move:

To strike out "proportionate."

Amendment agreed to.

Mr. ISAACS: This clause is a vital portion of the Bill, and I should like Mr. Barton to postpone it and consider it.

The CHAIRMAN: We cannot postpone it now.

Mr. ISAACS: If necessary, I hope Mr. Barton will move to re-commit. It is not so much a matter for the larger States am for the smaller States. I am not sure that the word "representation" will cover the whole thing.

Mr. BARTON: If it is found that a re-committal is necessary, and that it will not involve a long debate, I shall consent to it.

Mr. SYMON: I think the words:

Or the minimum number of representatives of a State in the House of Representatives are unnecessary.

Mr. BARTON: I agree with my hon. friend, and I will move to strike them out.

Sir GEORGE TURNER: That means that [start page 1029] the number of members cannot be diminished.

Mr. BARTON: Except with the consent of the electors of the State. This chapter, consisting of one section, relates solely to the Constitution. The present paragraph means that a proposal to make an

alteration in the Constitution to diminish the representatives of any State in either House of Parliament shall not become law without the consent of the electors of that State.

Dr. COCKBURN: I do not know that it means the same thing. We may wish to guard against the possibility of the House of Representatives becoming unwieldy on account of its numbers, but at the same time we must rigidly protect the statutory number of five as the minimum representation in the House of Representatives of each State and its equal representation in the Senate against reduction except with the consent of the State.

Mr. BARTON: Supposing an alteration to the Constitution is proposed, the question which anyone would put to himself would be "Is the representation in either House of the Parliament diminished by this proposal?"

Sir EDWARD BRADDON: I would like to ask Mr. Barton why, if he takes this view, the words were introduced at all? No doubt the words were introduced to give effect to a certain arrangement which was made as to the proportionate representation of the two Houses. If I have his assurance that these words are surplusage I shall be satisfied.

Mr. KINGSTON: I think that to strike out the words would be both sufficient and effective. I would like to know from Mr. Barton if he means that it should not become law without the consent of the electors of the State. There is no provision for taking a poll.

Mr. BARTON: Yes; there is a provision for a poll. It is that it shall not be effective unless the majority of the electors are in favor. It must be passed by the electors of a majority of the States, who are a majority of the people of the Commonwealth. There is only one way of carrying a proposal, and that is by a majority.

Mr. KINGSTON: I suppose that is a majority of the people who vote, and would like the hon. member to say so.

Mr. ISAACS: Supposing a proposal were made to alter the Constitution, not to diminish the representation of any State, but to increase the representation of all the others. That is a case hardly provided for. It would do away with equal representation.

Mr. BARTON: The provisions already adopted make that an impossible contingency.

Mr. O'CONNOR: Look at clause 23. It is not to be altered except on a referendum.

Mr. ISAACS: You are speaking of altering the Constitution now.

Mr. O'CONNOR: And you cannot alter that without this amendment.

Dr. COCKBURN: It may be my misfortune, or it may be my fault, but I think a mistake is being made. I do ask the hon. member is it not conceivable that a time may come when both Houses may become unwieldy, and if that state of things comes to pass will it not be necessary to make a reduction all round; and would not that be an ordinary amendment of the Constitution quite different from altering the proposition or reducing the minimum of representation? I think we are making a mistake in striking out the words.

Mr. BARTON: There can be no difficulty about this matter unless it is necessary to restore the word "proportionate." Then the words "minimum number of representatives" might be left where they are. The question is made difficult by clauses 23 and 27. In clause 23 there is a provision that there shall be two members in one House to one of the other. Then we go on to arrive at a quota which, until [start page 1030]Parliament otherwise provides, is to be the number for each member. Then we provide in clause 27:

Subject to the provisions of this Constitution, the number of members of the House of Representatives may be from time to time increased or diminished by the Parliament.

If the Parliament, that is by the concurrence of the House of Representatives and Senate, wishes to decrease the number of the House of Representatives then the question arises whether the whole of this clause 121 is not necessary in order that that the proportionate representation of any State in either House may be preserved. Taking the proportion of one House and the proportion of the other, and then taking the liberty given to the Parliament to increase or diminish the number of the House of Representatives, although the proportion may be maintained, the one result may be to diminish the representation in both Houses. On reconsideration, therefore, I am a little inclined to think that by adopting the suggestion to leave out the word "proportionate" I made a mistake. If we keep in that word it will also be necessary to keep in minimum representation. As it has been suggested that we should re-commit the clause, perhaps it will be better to pass it now and re-commit it, as I shall probably have other amendments to suggest. I shall probably move-although I am not certain yet-to restore the word "proportionate." I ask leave to withdraw the proposed amendment.

Amendment withdrawn.

Mr. LEWIS: I think that what is intended is that equal representation of any State in the Senate and the proportionate representation of any State in the House of Representatives shall not be interfered with. Also that the minimum number of representatives of any State in the House of Representatives should not be diminished.

Clause agreed to.


Mr. BARTON: I propose that we shall simply take the schedule and then leave the postponed and the new clauses, together with the financial propositions, over till tomorrow. The financial propositions are not quite ready yet. I understand they are in print, but whatever there is will have to be considered by the Drafting Committee before it is proposed in the Bill. I would therefore like to report progress. The draughtsmen will have some work to do. I would suggest that we leave ourselves quite open to-morrow, so that if the finance clauses are not ready as soon as we could wish we may proceed with the consideration of postponed and new clauses, and then take finances if necessary.

Schedule, as read, agreed to.

Progress reported.


The Convention adjourned at 10.10 p.m.