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1891 Australasian Federation Conference
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[Continue page 19]


The Roll -Division-Admission of the Press and the Public-Quorum-Federal Constitution.

The PRESIDENT took the chair at 11 a.m.


Sir George Grey, K.C.B. (New Zealand), and Sir Thomas McIlwraith, K.C.M.G., LL.D., M.P. (Queensland), subscribed the roll.


Debate resumed (from page 12) on motion by Mr. McMillan:

That in any divisions taken in the Convention the President or Vice-President, as the case may be, have the right to vote, and in case of an equality of votes exercise a second or casting vote; and that the names of the delegates be printed in alphabetical order, without reference to the colonies which they represent,-

Upon which Mr. Playford had moved an amendment to omit the words:

and in case of an equality of votes exercise a second or casting vote.

[start page 20] Mr. MCMILLAN: In order to save time I have found out, to a great extent, the wishes of members of the Convention in regard to this motion and amendment; and I will propose an alteration, subject, of course, to the concurrence of hon. members, when I have stated what that alteration is to be. I find that it is the general desire that the President should not have a casting vote, and that when the votes are equal, a motion should be considered as having been practically decided in the negative. I propose, therefore, to omit the words "exercise a second or casting vote" with the view to the insertion of the words "the question shall be deemed to have passed in the negative."

The PRESIDENT: As the matter now stands, the amendment moved by the hon. member, Mr. Playford, is in the way of the proposal by the hon. member, Mr. McMillan.

Mr. PLAYFORD: I ask leave of the Convention to withdraw my amendment.

Amendment, by leave, withdrawn.

Motion (by Mr. MCMILLAN) agreed to:

That the words "exercise a second or casting vote" be omitted with a view to the insertion of the words "the question shall be deemed to have passed in the negative."

Mr. SHIELS: Perhaps my hon. friend will allow me to suggest the advisability of providing for what may occur, namely, the desire of the Convention to have the question again submitted to it. The passing in the negative may be held to preclude the right of the Convention, excepting by special

order, to have a matter again submitted for consideration. Perhaps it would be advisable to provide for any such contingency by adding words to the resolution such as the following: but may be again submitted for consideration.

Mr. MCMILLAN: Notice of motion can be given under the orders of the day!

Mr. GILLIES: The orders of the House of Commons would prevent that!

Mr. SHIELS: The difficulty will be that when once the question in passed in the negative-if you simply follow the rules of the House of Commons which are to guide our proceedings-it cannot be brought forward again in the same session.

Mr. PLAYFORD: A motion can always be rescinded!

Mr. SHIELS: I am only throwing out the suggestion in order to prevent anything of that kind.

Question resolved in the affirmative.


Debate resumed (from page 19), on motion by Mr. McMillan:

(1.) That when the Convention is engaged in debating matters formally submitted by previous notice, or submitted by consent without notice, the press and public be admitted on the order of the President.

(2.) That whenever the Convention is in Committee, the press and public be not admitted, unless otherwise ordered.

Upon which Mr. Dibbs had moved an amendment to omit from the first paragraph the words:

"when the Convention in engaged in debating matters formally submitted by previous notice, or submitted by consent without notice," with a view to insert the words "during the sitting of the Convention."

Mr. MCMILLAN: Again with the object of saving time, I would ask my hon. friend, Mr. Dibbs, to withdraw his amendment with the view of substituting the following:-

That the press and public be admitted, unless otherwise ordered, during the sittings of the Convention, on the order of the President.

I think a motion of that kind will meet the views of the delegates generally. It still leaves it open to us to have close sittings, if necessary, and it establishes the general principle that, in most cases, the press shall be admitted.

Mr. DIBBS: With the concurrence of the delegates, I have much pleasure in [start page 21] withdrawing my amendment. The principle I advocate is the free and open discussion of all our proceedings. Of course we shall have the right to exclude the press; but I feel perfectly certain that that right will never be exercised.

Amendment and motion, by leave, withdrawn.

Motion (by Mr. MCMILLAN) proposed:

That the press and public be admitted, unless otherwise ordered, during the sittings of the Convention, on the order of the President.

Sir THOMAS McILWRAITH: I cannot understand why such a distinct change should be made from what was considered necessary yesterday. So far as I can gather from reading the debate of yesterday, the opinion of most of the delegates is that the press shall be admitted whilst the Convention is sitting as a convention; but that, whilst sitting in Committee, the press shall not be admitted. I believe that is the intention; and we do not get away from it by simply throwing upon yourself, Mr. President, the responsibility of directing whether the press shall be admitted or not. We have to look at what will practically be the result if the matter is left entirely to yourself. The result will be that the press will always be present, because I do not think for a moment you will ever take-unless moved strongly by the Convention itself to do so-the responsibility of ordering out the press. It is quite possible, therefore, that the press will always be present, unless something happens in connection with which the Convention may consider it would be more to its credit for the press not to be present. It is not to prevent anything of that kind that we want the press to be present. It is to curtail our proceedings, to allow us to act in Committee with a great deal more freedom, and to allow us to come to a determination more quickly than we would do if the press were present. I believe myself that if the press are present at our proceedings in Committee the Convention will be protracted from week to week. We will be posing to the press, and we will, possibly, be led by the press. We ought to come to the Convention with our own ideas and discuss them ourselves. I am perfectly satisfied that, in discussions in Committee, we shall come to much better, quicker, and freer determinations without the presence of the press than we shall if every motion in Committee is commented upon by the press. I shall not vote for the motion.

Colonel SMITH: I regret to have to differ with the hon. gentleman who has just resumed his seat; and I do so, not on account of the press, because that is a matter of the most profound indifference to me, but because I think the people of all these colonies ought to know everything that is said, whether in Committee or out of Committee. They ought to know the reason why we arrive at certain resolutions in Committee. The people of the whole of the colonies are expected to indorse our actions, and to know the reasons for the decisions at which we arrive. For my part, I support most cordially the proposal which was brought forward by the hon. member, Mr. Dibbs, or the one now proposed by the hon. member, Mr. McMillan. I certainly do think that if we act fairly to the people we represent in the various colonies we ought to allow the utmost publicity. The hon. member, Sir Thomas McIlwraith, knows that the attending and reporting of our proceedings is a costly matter for the press. It is not for the purpose of pleasing us that the press are present, but for the purpose of letting the people of the various colonies know what we are doing, and why we are doing it. I cordially support the proposal of the hon. member, Mr. McMillan.

Sir PATRICK JENNINGS: I must own that when I first considered this [start page 22] subject I thought our proceedings would be expedited if certain debates which will take place in Committee were not attended and reported by the press. I certainly believe, with all due respect to the delegates, that the reporting of all our proceedings will tend to prolong the sitting of this Convention. I find, however, that gentlemen whom we might most naturally expect would desire to return to their homes as early as possible are in no degree adverse to the probable prolongation of our sittings by the presence of the press fully to report all that is done. We are, no doubt, doing a great work; and I think that we ought not to hurry over it. Every opportunity ought to be given to discuss and reflect upon every proposal brought before the Convention. Under these circumstances I have fallen in with the view put forward in the amendment proposed by the hon. member, Mr. Dibbs, yesterday, and now substituted by the motion of the hon. member, Mr. McMillan, that it will be most desirable, in the interests of all the colonies, in the interests of the Australasian public, and as a means of giving very wide and broad information in regard to our proceedings, to have the whole of them reported in the press. I think my hon. friend, Sir Thomas McIlwraith, probably misunderstood the meaning of the motion. I do not take it to be the intention of the President to exclude any person whatever; he is simply to have the power to regulate the numbers of those who may attend-that is, for the purpose of keeping order and preventing overcrowding. I do not expect there will be any occasion upon which

the members of the Convention will comport themselves in such a way as to render necessary a motion that the press be excluded. I am quite confident, from the concourse of gentlemen who are here, with all their vast experience and ripe knowledge, that our proceedings throughout will be consistent with the dignity and importance of the occasion and will be well worth reporting. I have great pleasure in supporting the motion.

Question resolved in the affirmative.


Mr. MCMILLAN: I beg to move:

That twenty-five delegates do form a quorum of the Convention.

The idea is that we ought to have present at least a majority of the whole of the delegates before going to business on any important matter, and as the delegates number about forty-five, and as it is better to frame the resolution in a specific manner, so that we may easily count those who are present, rather than have a mere majority and an open question as to what a majority might be, I have decided to make it specific-that is to say, that twenty-five members shall form a quorum.

Mr. GILLIES: Inclusive or exclusive of the President?

Mr. MCMILLAN: Inclusive. The President is a member.

Mr. THYNNE: I think that some provision might be made for a few minutes' grace after the hour appointed for meeting. If you, Mr. President, should happen to be a few minutes late, and, although the Vice-President might, perhaps, be on the premises, but not actually in the room, the Convention would have to adjourn for the day if no grace at all were allowed. I think that five or ten minutes', or half an hours grace should be provided for, in order to prevent accidents that might otherwise happen.

Mr. GILLIES: The House of Commons' rule is half an hour's grace after the time of meeting, and we have adopted the House of Commons' rule.

Question resolved in the affirmative.

[start page 23]


The PRESIDENT: As the next business stands in my name, I would suggest that Sir Samuel Griffith, Vice-President, relieve me of the chair, if agreeable to the Convention.

The chair was taken by the Vice-President.

Sir HENRY PARKES: I have the honor to move:

That in order to establish and secure an enduring foundation for the structure of a federal government, the principles embodied in the resolutions following be agreed to:-

(1.) That the powers and privileges and territorial rights of the several existing colonies shall remain intact, except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the National Federal Government.

(2.) That the trade and intercourse between the federated colonies, whether by means of land carriage or coastal navigation, shall be absolutely free.

(3.) That the power and authority to impose customs duties shall be exclusively lodged in the Federal Government and Parliament, subject to such disposal of the revenues thence derived as shall be agreed upon.

(4.) That the military and naval defence of Australia shall be intrusted to federal forces, under one command.

Subject to these and other necessary provisions, this Convention approves of the framing of a federal Constitution, which shall establish,-

(1.) A parliament, to consist of a senate and a house of representatives, the former consisting of an equal number of members from each province, to be elected by a system which shall provide for the retirement of one-third of the members every years, so securing to the body itself a perpetual existence combined with definite responsibility to the electors, the latter to be elected by districts formed on a population basis, and to possess the sole power of originating and amending all bills appropriating revenue or imposing taxation.

(2.) A judiciary, consisting of a federal supreme court, which shall constitute a high court of appeal for Australia, under the direct authority of the Sovereign, whose decisions, as such, shall be final.

(3.) An executive, consisting of a governor-general and such persons as may from time to time be appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend upon their possessing the confidence of the house of representatives, expressed by the support of the majority.

In submitting these resolutions, I must repeat in the full Convention what I have stated to different delegates and to different sections, that I submit these resolutions in no sense with a desire to push them to a conclusion in any special interest. In other words, I do not submit them as I submit a resolution embodying some principle upon which I have strong convictions in the Parliament of the country; but I submit them as a ground-work on which a debate may be raised on the whole question with which we have to deal, and I submit them with the expectation that they will be freely and unfearingly discussed, amended, negatived, dealt with in whatever way the Convention pleases. They certainly give a fair expression of the outline of the constitution which we want, as it exists in my own mind, and to that extent I at once acknowledge the paternity of the motion I make. I may, perhaps, be permitted, before entering upon the subject-matter of my resolutions, to say a few words which, if I deemed an inaugural address absolutely necessary, I should have said. I venture, before entering upon a discussion of these special resolutions, to appeal to every colony, and to every delegate representing every colony, to meet the work which we are now about to begin in a broad, federal spirit. We cannot hope for any just conclusion-we cannot hope reasonably for any amount of valid success-unless we lose sight, to a large extent, of the local interests which we represent at the same time as we represent the great cause. There can be no federation if we should happen, any of us, to insist upon conditions [start page 24] which stand in the way of federation; there can be no federation-no complete union of these governments, of these communities, of these separate colonies, unless we can so far clear the way as to approach the great question of creating a federal power as if the boundaries now existing had no existence whatever. I think it is quite consistent for every one of us to disburden our minds of our local-I will not say prejudices, but of our local inclinations, without in any way impairing our patriotic resolve to preserve the rights of each of the colonies we represent. It does seem to me in the highest degree necessary that we should approach the general question in the most federal spirit that we can call to our support. I do not know that I need dwell on that topic any longer, because I think, looking at the gentlemen around me, it must be apparent to the mind of every one who hears me; but I myself cannot too fervently impress on my co-representatives from all parts of Australia the necessity of keeping in view the one object of the better government of the whole Australian people. I contend that any resolutions to form a basis for our proceedings must be sufficiently informal and elastic not to fetter, as it were, our hands at every effort we make. I, therefore, lay down certain conditions which seem to me imperative as a ground-work of anything we have to do, and I prefer stating that these first

four resolutions simply lay down what appear to me the four most important conditions on which we must proceed. First:

That the powers and privileges and territoria rights of the several existing colonies shall remain intact, except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the National Federal Government.

I think it is in the highest degree desirable that we should satisfy the mind of each of the colonies that we have no intention to cripple their powers, to invade their rights, to diminish their authority, except so far as is absolutely necessary in view of the great end to be accomplished, which, in point of fact, will not be material as diminishing the powers and privileges and rights of the exiting colonies. It is therefore proposed by this first condition of mine to satisfy them that neither their territorial rights nor their powers of legislation for the well-being of their own country will be interfered with in any way that can impair the security of those rights, and the efficiency of their legislative powers. By my next condition I » « seek » « to » « define what seems to me an absolutely necessary condition of anything like perfect federation, that is, that Australia, as Australia, shall be free-free on the borders, free everywhere-in its trade and intercourse between its own people; that there shall be no impediment of any kind-that there shall be no barrier of any kind between one section of the Australian people and another; but, that the trade and the general communication of these people shall flow on from one end of the continent to the other, with no one to stay its progress or to call it to account; in other words, if this is carried, it must necessarily take with it the shifting of the power of legislation on all fiscal questions from the local or provincial parliaments to the great national Parliament sought to be created. To my mind, it would be futile to talk of union if we keep up these causes of disunion. It is, indeed, quite apparent that time, and thought, and philosophy, and the knowledge of what other nations have done, have settled this question in that great country to which we must constantly look, the United States of America. The United States of America have a territory considerably larger than all Australasia-considerably larger, not immensely larger-and from one end of the United States to the other there is no custom-house office. There is absolute freedom of trade throughout the [start page 25] extent of the American union, and the high duties which the authors of the protectionist tariff are now levying on the outside world are entirely confined to the federal custom-houses on the sea-coast. Now, our country is fashioned by nature in a remarkable manner-in a manner which distinguishes it from all other countries in the wide world for unification for family life-if I may use that term in a national sense. We are separated from the rest of the world by many many leagues of sea-from all the old countries, and from the greatest of the new countries; but we are separated from all countries by a wide expanse of sea, which leaves us with an immense territory, a fruitful territory-a territory capable of sustaining its countless millions-leaves us compact within ourselves. So that if a perfectly free people can arise anywhere, it surely may arise in this favoured land of Australia. And with the example to which I have alluded, of the free intercourse of America and the example of the evils created by customs difficulties in the states of Europe, I do not see how any of us can hesitate in seeking to find here absolute freedom of intercourse among us. My next resolution says:

That the power and authority to impose customs duties shall be exclusively lodged in the federal government and parliament, subject to such disposal of the revenues thence derived as shall be agreed upon.

Here we create the power of raising revenues through the Customs, which, of course, will open the field to the great and aggressive debates as to which form of customs duties will be most conducive to the welfare of the country as a whole. It may be-it is not for me even to prophesy or to express my own opinions in that direction-it may be that the federal parliament will at once declare for a protective policy for Australia against the world. Possibly it may be that the federal parliament, composed, as we have a right to expect it will be composed, of the best men Australia can supply, will propose some different policy. I will not use words here to describe that policy-I will use no qualifying words-but let the federal parliament propose what policy it may, it will be the duty of every loyal and patriotic citizen of Australia to cheerfully submit to its decision. It will be their duty-the duty of those who hold an opinion different from that which may be in the ascendant-to fight the

battle out in the federation, in the federal parliament. Taking my own case for a moment, holding the views I do, if I should be honored with a place in the federal parliament, it would be my duty, to the utmost of my power, to seek to embody in the fiscal laws of the country the principles of what is known as free-trade. I could do no other as a conscientious man. But suppose the majority were against me it would be my duty to cheerfully submit-not to give up my opinions-to fight for my opinions though in a narrow minority, but to submit to the majority that must rule in a free country. I think I have made apparent in a very few words what I mean by these two resolutions. I then come to one to which I expect an almost unanimous agreement:

That the military and naval defence of Australia shall be entrusted to federal forces, under one command.

Whatever our views may be on other points, I think we shall all be agreed upon this: that for the defence of Australasia to be economical, to be efficient, to be equal to the emergency that may arise at any time, it must be of a federal character, and must be under one command. I am seeking to simplify my words as much as possible. I do not mean that the land forces and the naval forces shall be under one commander-in-chief; but that they should be under one kindred command that the naval officer in command equally with the military officer shall be a federal [start page 26] officer, and amenable to the national government of Australasia. Now, these are the conditions which appear to me to be essentially requisite that we should decide in one way or the other-that should be strictly defined by this Convention before we can proceed to construct a bill to confer a constitution. I then proceed:

Subject to these and other necessary provisions, this Convention approves of the framing of a federal constitution, which shall establish:

(1.) A Parliament, to consist of a senate and a house of representatives,-

What I mean is an upper chamber, call it what you may, which shall have within itself the only conservatism possible in a democracy-the conservatism of maturity of judgment, of distinction of service, of length of experience, and weight of character-which are the only qualities we can expect to collect and bring into one body in a community young and inexperienced as Australia is; and a house of representatives upon a thoroughly popular basis. The resolution proceeds:

the former consisting of an equal number of members from each province, to be elected by a system which shall provide for the retirement of one-third of the members every years, so securing to the body itself a perpetual existence combined with definite responsibility to the electors; the latter to be elected by districts formed on a population basis, and to possess the sole power of originating and amending all bills appropriating revenue or imposing taxation.

I hold that these latter words must be engrafted upon any constitution bill, especially if the two houses are elective, because we may naturally expect-if we have an elective upper chamber, whether elected by the colonies as provinces or by bodies of electors-that that body will contend for an equal authority in dealing with what are called money bills, unless we expressly provide that these bills shall originate and be amended in that chamber which is more directly and more truthfully responsible to the whole body of the electors. Hence, then, I contend that it will be absolutely necessary not to trust to derivations to be drawn from principles or practice in other countries, but to expressly provide that all money bills shall originate and undergo amendment only in the house of representatives. The next clause says:

A judiciary, consisting of a federal supreme court, which shall constitute a high court of appeal for Australia, under the direct authority of the Sovereign, whose decisions as such shall be final.

In seeking to create this supreme court of Australia, it will be observed that I seek to create within it an appellate court from which there shall be no appeal to the Queen in the Privy Council. For that reason, if the Queen has authority in England, she can have authority here. If she forms, even

sentimentally, a part of the Judicial Committee of the Privy Council she can also form a similar part of our Appellate Court. But at the same time I think we shall make a great mistake if we allow any appeal to be made outside the shores of the new Australia. I appeal to, and I shall expect several gentlemen, learned in the law, who are delegates here, to dwell further, and in a much more definite way upon this branch of the subject than I shall pretend to do. I think I have stated the object I have in view with sufficient clearness. The resolutions conclude:

An executive, consisting of a governor-general, and such persons as may from time to time be appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend upon their possessing the confidence of the house of representatives expressed by the support of the majority.

What is meant by that is simply to call into existence a ministry to conduct the affairs of the new nation as similar as it can be to the ministry of England-a body of constitutional advisers who shall stand as nearly as possible in the same relation to the representative of the Crown here [start page 27] a her Majesty's imperial advisers stand is relation to the Crown directly. These, then, are the principles which my resolutions seek to lay down as a foundation, as I have already stated, for the new super structure, my object being to invite other gentlemen to work upon this foundation so as to best advance the ends we have in view. I again express my desire that the discussion may be as free as possible; that the amendment of my scheme may not be guided by any consideration except what will be lost for the country; and that no importance whatever will be attached to the source from which these resolutions come. I think I have sketched the grounds of my resolutions with sufficient clearness, and, if so, certainly with sufficient fulness. I am sorry to say my health will not permit me to dwell very long upon the subject, but I cannot refrain from saying a few words on the general question. As to the wisdom of the great step we have now taken-for so many eminent men from different parts of Australasia meeting in this chamber as delegates from their respective colonies is in itself a great step-as to the wisdom of that step we have the warning of every country in the world which has tried government by a confederation. I know of no single instance where anything like complete success, anything like satisfactory success, has arisen where there has been a number of states of equal authority and power trying to govern by confederated authority. But we need not go any further than the striking example of the states which came into existence immediately after the declaration of independence in America. The history of those confederated states and their vain attempts to conduct their affairs is a warning for all time to a free people not to attempt to manage their affairs in any other way than by a solid united government representing the whole people. We had throughout the years of the revolutionary war, and not only so, but for several years-I forget at this moment how many-of the new republic, we had the example that neither in war nor in peace were those confederated states able to exercise any power, and in the lamentations uttered by the great authors of the Union of their inability to get anything done we may find a warning to all future peoples who attempt to govern themselves as a whole. The thing is so reasonable in the very nature of things that it hardly admits of reference to history or elaborate argument. Take our own example. Here we find a people I suppose about 4,000,000 strong. They have afforded in the great cities of Sydney, Melbourne, Adelaide, Brisbane, and Hobart abundant proof of the power of founding an empire. Go beyond the cities: they have accomplished under responsible government what appear to me, and what must appear to any stranger who knew the country thirty-five years ago, marvels in the way of internal improvements. Not only the railways, but the roads, the telegraphs, and everything that conduces to the best ends of a civilised community, has been achieved by this scattered people in a marvellous manner. But all through this great, this noble, this successful effort we have had different sources of irritation, of bad neighbourhood, of turmoil, of aggression, which, if they were to go on, must make these conterminous communities instead of being a people of one blood, one faith, one jurisprudence-one in the very principles of civilisation themselves-instead of that, must make us as cavilling hostile, disputatious foreign countries. The only way to stop that is for the whole people-and remember that the whole people in the final result must be the arbiters-to join in creating one great union government which shall act for the whole. That government must, of course, be sufficiently strong to act with effect, to act successfully, and it must be [start page 28] sufficiently strong to carry the name and the fame of Australia with unspotted beauty, and with uncrippled power throughout the

world. One great end, to my mind, of a federated Australia is that it must of necessity secure for Australia a place in the family of nations, which it never can attain while it is split up into separate colonies with antagonistic laws, and with hardly anything in common. I do not now, Mr. President, dwell upon the many conflicts in the laws of these colonies which ought not to exist, such as the conflicts in our marriage laws, in the laws governing all monetary and financial institutions-I do not dwell upon these things-they are too numerous for me at this time-but every one of us knows the extent of the evil resulting from this want of harmony. All that can be cured; but it can be cured only by one great union government which shall faithfully represent us all. I regret to say, Mr. President, that my strength is not such as will enable me to keep on my feet many minutes longer. I have submitted these resolutions-perhaps it is all the better-without any great effort in their support. I trust I have explained them with a clearness sufficient for my purpose, and I trust that I have indicated with a clearness sufficient what the great object we aim at must be, and the means by which alone we can hope to accomplish it. I do not doubt that the gentlemen present will each of them address themselves to the subject which, I think, the resolutions have the merit of fairly launching in a spirit of patriotism, always keeping in view the welfare, the prosperity, the united strength, and the ultimate glory of our common country. We cannot fail if we set about this work in earnest. I shall say no more now for the reason I have stated, but reserve anything that I may wish to advance in further support of these resolutions to the reply which I have no doubt will be accorded to me. I have the honor to propose the resolutions standing in my name.

Question proposed.

The President then resumed the chair.

Sir SAMUEL GRIFFITH: As no hon. member desires to proceed with the debate just now, and it is possible that some hon. member may be willing to speak this afternoon, I would suggest, Mr. President, that you should leave the chair until an hour which may be considered most convenient for the Convention to meet in the afternoon.

Mr. GILLIES: There is a feeling among a number of gentlemen in the Convention that it would be extremely desirable to adjourn until to-morrow, when we should go on with the general discussion. Of course, if any hon. gentleman is desirous of continuing the discussion raised by you, sir, on your resolutions today, I do not suppose that any hon. member would like to prevent that from taking place. But we ought to have an assurance from some hon. member that he is prepared to continue the discussion if we meet here at half-past 2 o'clock this afternoon.

Sir JOHN BRAY: It will be convenient, perhaps, that some gentleman present, who is prepared to resume the discussion, should move an adjournment until that time.

The PRESIDENT: If an intimation is made that an hon. gentleman will be prepared to take up the debate at half-past 2 o'clock, I will leave the chair now, and, take it again at that hour. If there is a desire to adjourn until to-morrow, I think the adjournment must be made by motion. But I would suggest that my leaving the chair until half-past 2 o'clock is the preferable course.

Mr. DEAKIN: The understanding here was that one of the senior members of the Convention was likely to move the adjournment of the debate until half-past 2 [start page 29] o'clock this afternoon. If that is not the case, I shall myself be prepared to move an adjournment until that hour.

The President left the chair, and resumed it at half-past 2 o'clock.

Sir SAMUEL GRIFFITH: I should have preferred, Mr. President, that my hon. friend beside me, the Hon. James Munro, Prime Minister of the great colony of Victoria, should have followed you in the debate on the resolutions that you have submitted to us. But we are all of us, I suppose, conversant with the subject which we are met to discuss, and under these circumstances I think that no useful purpose can be served by delaying the discussion. You, sir, have set us a very good example in many

respects in the speech in which you opened it. I trust that the various speakers who may address the Convention will not be unduly long, while I hope, at the same time, that they will address themselves in detail to the important matters which we have to consider. I do not propose to address myself to the general aspects of the question, because I feel that I could not usefully add anything to what has been so well said by yourself, nor could I say it so well; but I propose to offer some observations which I think may be worthy of consideration before we come to a conclusion upon the important matters submitted in these resolutions. The first of the propositions, or the principles, sir, that you ask the Convention to affirm, is really, I think, the fundamental one of all. It is the question upon which public opinion in the colonies is most agitated, namely, how far the separate self-governing states on this continent are to surrender their powers of autonomy. The proposition which you enunciate is this:

That the powers and privileges and territorial rights of the several existing colonies shall remain intact, except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the national federal government.

Entirely concurring in that proposition, I do not propose to offer many words in support of it. But I will make this observation: that that indication of the functions of the federal government is really the key to the whole of the resolutions that follow. We are met here to devise a constitution, that is, a great governmental machine to govern the general affairs of Australia. But before we can attempt to indicate what the nature of that machine should be, it is absolutely necessary that we should have a clear conception of the work that it has to perform. The work that has to be performed by independent states or provinces, of which we have several in Australia at the present time, is in many respects very different from the work that will have to be performed by that general governmental machine, and that consideration must be ever present to our minds in considering both the relative functions of the two houses of Parliament and the relation that is to exist between the executive and the legislative departments of government. For instance-and I will refer to this more particularly later on-the relationship between two houses of Parliament that is quite applicable to, and, I may say, is manifestly the proper one to adopt in, a single self-contained state may not necessarily be equally well adapted to a federation of states. It may well be that the relations of the smaller house-the senate I will call it, using the word you have used in the resolution-to the other house representing the people directly, may be different in a state of that kind. But I say that in considering all these matters we must bear in mind the functions which the general government and the general parliament have to perform. Without referring more in detail to that just now, I will pass on to the first of the great subjects you have referred to in the resolutions as one to be dealt with by the federal [start page 30] parliament, the question of tariff or customs. You propose to affirm that there shall be free-trade between the provinces and that the general parliament alone shall have the power to impose any restrictions upon trade, or to raise revenue from customs. Not dissenting in the smallest degree from that proposal, I offer no observation either in support of or against it. I do not think it necessary until some opposition is shown to it, to offer any further observations than you made in support of it. But I would point out at the present moment that the establishment of a federal tariff must be subsequent to the establishment of a federal parliament. The time that will be occupied in devising a federal tariff is at present unknown to us, and I think it follows almost as a matter of course that, until that federal tariff-that federal customs system-is adopted there must be a continuance of the existing system-and that for more reasons than one. First, because otherwise there would, for some time, he no source of revenue from the customs at all, and the various states would be thrown at once into a condition of inability to meet their engagements and carry on their functions. That is the first and most obvious reason; but beyond that there is another question, which is a very serious one for us all to consider, and it is this: We in these colonies have been in the habit of relying to a very large extent for our revenue upon customs tariffs. The conditions of Australia in that respect are very different from those of the American States, which have never of late years-never since the very earliest inception of their present constitution-had to rely upon the customs for revenue. Their revenue has been derived from internal sources. We, in Australia, all rely to a large extent on customs revenue; and some security must be devised that the future customs revenue will still be available, and will be sufficient when distributed for the needs of the separate provinces. I myself do not apprehend that when the federal parliament meets any practical difficulty will be found in raising a sufficient external revenue by

means of the customs, a revenue equal, or nearly equal, to that now raised by the colonies separately. An equal amount certainly must be raised. In the third of these resolutions, you have referred to the disposal of that revenue. It appears to me that we must carefully bear in mind, throughout our deliberations here the necessity of providing a sufficient amount of revenue to be disposed of amongst the separate states. I do not at present indicate, nor am I in a position to do so, how that will be secured; but I will just indicate the great difficulty which might arise under some circumstances, which I do not think likely to happen. Suppose the federal parliament were to consider it desirable that there should be something like absolute free-trade, or as near free-trade as possible, that as small an amount of money should be raised by customs as is compatible with the existence of the government. Then some other means of raising revenue would have to be devised by the separate states. I mention that, not because I wish to refer particularly to this branch of the subject, in respect to which a great many members of the Convention have a much larger knowledge than I possess; but because it is a subject which requires to be carefully considered. We must secure for the federal government and for the separate governments, who will derive great part of their revenue from the surplus customs income of the general government, a sufficiency of money to carry on their work. In considering that also, we must not lose sight of the essential condition that this is to be a federation of states, and not a single government for Australia. I will make that clear later on. I do not at present pro- [start page 31] pose to offer any observations in respect to military and naval defences. We are all agreed that there must be one command-of course, there must be sub-commands-but those are matters of detail. Concurring, as I do, with the general propositions which you have laid down as to the general functions of the machine that is to be constructed, I wish to proceed to consider the question of the legislative and executive power, because that is the machine which has to work, and it is our business, if we are capable of doing our work-it is our business whether we are capable or not-to devise a scheme that will work, and to avoid any possible or probable sources of friction, as far as historical information will enable us to do so. And here let me insist upon the essential condition-the preliminary condition-that the separate states are to continue as autonomous bodies, surrendering only so much of their powers as is necessary to the establishment of a general government to do for them collectively what they cannot do individually for themselves, and which they cannot do as a collective body for themselves. You propose that there shall be a parliament of two houses-a senate and a house of representatives, you propose to call them, and I know of no better terms-that in one the states shall be represented equally, and in the other the people of Australia in proportion to population. What does that mean? I ask hon. gentlemen here to consider the full extent of all that is involved in the proposition, because I take it that it is the key to the whole of what follows. For it means this, in the language of one of the writers of those admirable papers which we have all read, written for the purpose of inducing the American States and the state of New York, in particular, to adopt the federal constitution of America-that every law submitted to the federal parliament shall receive the assent of the majority of the people, and also the assent of the majority of the states. That is the essential condition of the American Constitution. It has given rise no doubt to much friction; but any form of government probably will, unless one body is absolutely preponderating in power. But that is a condition absolutely new to us in Australia. It is absolutely new to us in the British empire, that every law shall receive the assent of a majority of the people, as well as of a majority of the states. And I particularly wish hon. gentlemen here to consider how that will affect the concluding words of this first proposal as to the form of the constitution, and also how it will affect the relationship of the executive to the parliament-that everything has to receive the assent of the majority of the people and the assent of the majority of the states. Our present system in the colonies and in the British Parliament, as well as in that of Canada, is that one house has a preponderating influence. It is practically sufficient for most purposes of government that a measure should commend itself to that house, and if it commends itself to that house it will sooner or later have the force of law. The other house is a weaker, not so independent a body; it can exercise at most a power of delay to prevent undue haste in government; but sooner or later it has to give way. But if you recognise the principle-and I think we must if we are to get federation of the Australian colonies-that the states must also concur by a majority in every proposal, then one house cannot have that preponderating influence. There must be on all important matters a deliberate and not a coerced concurrence of the two branches of the legislature. As to the constitution of the senate, I may be permitted to say that I believe it can only be satisfactorily framed on a basis such as is indicated in the resolution, that there shall be an

equal number of members from each state, and First day. [start page 32] that they shall retire periodically; that is to say, it shall be a body incapable of dissolution-a continuous body periodically renewed by the vacation of office of a portion of its members. The number of years that they should hold office, is entirely a matter of detail. In respect to the concluding words of the resolution, in which you propose that the lower house shall have the sole power of originating and amending all bills appropriating revenue or imposing taxation, I desire to say that as at present advised it seems to me that that is quite inconsistent with the independent existence of the senate as representing the separate states. The functions of a legislative council are all more or less supposed to be founded on those of the House of Lords, the powers of which have become considerably diminished, and are now principally those of a checking and a useful revising body. This is the case with regard to our councils, especially the nominee bodies which exist in many of the colonies. The elective councils have a more real control; but in all great contests between the two houses of parliament, one representing the whole body of the people, and the other representing only part of them, the body representing only part of the people has necessarily had to give way; and it has become recognised that the two houses have not in substance, although they have in form, equal authority in the state. I understand that the first part of this proposition involves the assumption that the two houses shall have equal powers, and that all that is to be done shall be by the concurrence of the people and the states. If that is so, I take it that the least you can give to the house representing the states as states, is an absolute power of veto upon anything that the majority of the states think ought not to be adopted. I will illustrate that by one or two probable instances. The limitation suggested in this resolution is merely as to bills originating the appropriation of revenue or imposing taxes. That is, indeed, the only restriction that is in form adopted in any of the constitutions we have. Nor do I suggest for a moment that any but the house representing the people directly should have the power of originating taxation, or of originating expenditure. But if every law has to receive the approval of the majority of the people as well as of the majority of the states, it follows that they must have the power of refusing their assent to any proposed taxation or to any proposed expenditure.

Mr. PLAYFORD: That is involved in the resolution!

Sir SAMUEL GRIFFITH: It appears to me that the resolution strikes at that altogether. Suppose that it was proposed by the persons having the conduct of business in the house of representatives to expend a large sum of money, say, in establishing a federal arsenal in a particular place, or in raising a large body of troops, and suppose that the proposal were embodied, as it might well be, in an appropriation bill, should the senate representing the states have the power to veto that expenditure, or should it not? That is the form in which the question has arisen in the various colonies. It may be in Australia, where we have some very large colonies and some very small ones, that a majority representing, perhaps, two colonies only, would have practically the power of enforcing that expenditure against the will of the majority of the states. And they would have it, if it were not competent for the senate representing the states to exercise the power of veto as to any item of expenditure of which they disapproved. That is a matter which must be considered, and I bring it up at this early stage because it requires the fullest consideration from every gentleman present. We must know exactly what we mean-whether we mean that the senate repre- [start page 33] senting the states is to have the power of vetoing any law or anything in the nature of a law, because the authorisation of expenditure for important purposes is in the nature of a law, or whether we do not mean that. We must make up our minds as to what we do mean. When we have done that we can easily express our meaning. I cannot see at present how it is possible for the lower house alone to have practically uncontrolled, authority over expenditure; how it is possible to reconcile that principle with the principle that everything done by the federal legislature must have the assent of a majority of the states. I hope that hon. gentlemen will consider the matter and address themselves to it. I have no hesitation in expressing what I believe to be the true solution of the question, not only as a matter of practical necessity for the purpose of establishing a federal constitution, but the best adapted for its stability when established. I do not think that the smaller Australian colonies will be content to relinquish the power of exercising the veto by a majority of states in regard to any proposal in the federal legislature, and I do not think it desirable that they should do so, because it would be departing from the fundamental principle enunciated in the first resolution, that we are only surrendering to the

general government what is absolutely necessary for the benefit of the whole of Australia, leaving to the several states their autonomy. If we leave to the states a power of autonomy as ample as the resolution indicates, we must leave them their individual existence as state entities capable individually of voting as states in favour of or in opposition to any proposed federal legislation. Without that a source of friction will exist for the future. It may be said that we are not familiar with this form of constitution. In the British empire there is no instance of two houses of parliament having co-ordinate authority; but we have an instance of it in America.

Mr. PLAYFORD: We shall have to have an executive!

Sir SAMUEL GRIFFITH: I will come to that directly. These are questions which lie at the root of the whole matter, and until we know our own minds upon them we cannot make much progress in any matters of detail. It was pointed out early in the history of America that there was great danger of friction between the two houses differently constituted. It is said it was only a compromise-that no one thought it was the best plan at that time, but it was the only compromise possible. I believe myself, as I said just now, it is the only compromise possible now, and it is proposed in these resolutions. I also believe from the history of America for 100 years that it was the best plan that could be devised, and that we should do well to follow it, as you do, sir. But I also desire at the present moment to point out the necessary consequence of adopting that principle, that we may know exactly what we are doing. I will not further occupy time on that matter. I desire at present rather to indicate these questions, which must necessarily be considered and solved as preliminary questions, than to argue at great length in support of any of them. Indeed, sir, I desire to follow your example this morning of brevity as far as possible. With regard to the judiciary I do not propose to occupy the time of the Convention now. I believe there should be a supreme court, and that not on the American model, but a real court of appeal for Australia from all the Australian courts. Whether it should be absolutely final, or whether there should be under any conditions a right of appeal to a supreme court representing the whole empire, differently constituted certainly from that which now exercises that jurisdiction-whether there [start page 34] should be such an ultimate power of appeal under conditions, is a matter which may be considered later. I confess that on that point my mind is open to conviction either way. But next to the question of the constitution of the Parliament, the legislative body, leaving aside the question of the judiciary, upon which I believe we are nearly all agreed-comes the question of the executive government; because, after all, the legislature sits only sometimes, it is not in perpetual session, while the work of the government must be carried on every day. Now, here again, the question of the relationship of the executive to the legislature appears on the threshold. We are accustomed in these colonies, as we have been accustomed from our reading of the history of the United Kingdom for the last 100 years-not more, not so much indeed-to the system called responsible government, and I will venture to say that there are many misapprehensions as to what is the essence of the system called responsible government. We are accustomed to think that the essence of responsible government is this: that the ministers of state have seats, most of them, in the lower house of the legislature, and that when they are defeated on an important measure they go out of office. That I venture, with the greatest submission, to say is only an accident of responsible government, and not its principle or its essence. In form-legal form, I mean, statutory form-so far as our written Constitution goes, and so far as the unwritten and partly written Constitution of the United Kingdom goes, the system depends on these propositions-that the ministers are appointed by the head of the state, the Sovereign, or her representative, and that they may hold seats in Parliament. That is all that will be found in the Constitution of the United Kingdom. They are appointed by the head of the state, and some of them may hold seats in Parliament-a limited number. That is part of the written Constitution. In the Australian colonies, with few exceptions, the same propositions are the only ones that are to be found laid down by positive law. The ministers are appointed by the head of the state-the Sovereign's representative-and they hold office during his pleasure, and they may, or a certain number may, hold seats in Parliament. In two of the colonies, I believe, is to be found an innovation, an addition to this proposition, stereotyping in formal language the practice that has grown up in Great Britain and in the other colonies since the system of responsible government has been invented; that is, that some of the ministers shall hold seats in Parliament. Victoria and South Australia, I believe, have provisions of that kind.

Mr. BARTON: And Western Australia!

Sir SAMUEL GRIFFITH: But that is not common by any means to the system of responsible government, as it is known throughout the British empire, nor as it is known in the other European country where they have adopted, after profound study, what they believe to be the essential principles of the British Constitution as at present administered.

Mr. GILLIES: It all comes to the same thing!

Sir SAMUEL GRIFFITH: I wish to point out that it does not at all come to the same thing. And here I would again refer to that fundamental principle that the two houses are differently constituted, and that one is of equal authority with the other-the one represents the states as states, and the other represents the people as people. Now in America the directly opposite form of government from that which we call responsible government has been adopted. I submit with great deference that the essential difference is this: that there the ministers may not [start page 35] sit in Parliament, whereas under our form of government ministers may sit in Parliament, and in practice do. In the other form of government they cannot sit in Parliament, they are expressly dissociated from Parliament. The origin of this difference lies in the fact that the framers of the American Constitution had been frightened by the tendency then lately exhibited in the United Kingdom of ministers to overawe Parliament, and they thought it extremely desirable to separate the executive and legislative branches of government, following the arguments of a great writer-I should rather say a celebrated writer-of those days, Montesquieu, the wisdom of whose observations and the accuracy of whose deductions and assumption of principles may be, I submit with great respect, very open to doubt. But the Americans adopted that system-that the executive shall be entirely dissociated from Parliament, and therefore may not sit in Parliament. As I believe that the history of the American Constitution has shown the wisdom of having two houses of equal and co-ordinate authority, so also has it shown the unwisdom of the system there adopted of having ministers dissociated, and the executive government entirely dissociated, from the legislature. It has taught us the lesson that the character of legislation, the manner of legislation, and the result of legislation, the orderly conduct of business, and the good government of the country, are not nearly so well attained under the American system, where the executive is dissociated from Parliament, as under the system we have, where practically ministers are intimately associated with Parliament. But this is what I desire to point out. In America we have the system of two houses with co-ordinate jurisdiction.

Mr. BAKER: Not quite!

Sir SAMUEL GRIFFITH: Well, for the purpose I am speaking of. When I use the word co-ordinate, I use it with reference to what I said before-that the house representing the states must concur in every law that is passed. We have had in America the system of two houses with powers co-ordinate for that purpose.


Sir SAMUEL GRIFFITH: I say coordinate for the purpose of which I am speaking-that the states must concur as well as the people in the passing of any law. We have on the one hand the system of ministers being dissociated and excluded from Parliament. We have on the other hand, in all the British-speaking communities, the other system-the system where one house is practically predominant, and where ministers have been associated with, and have practically, during the last fifty or sixty years, depended for their existence entirely upon, the pleasure of the Parliament. Now, what is proposed to be done? We propose, as I understand it, assuming that the house representing the states is to have the authority which I think it must and ought to have, to associate with it a system which has never in the history of the world been tried in conjunction with it. We propose to have an executive government having possibly, and having probably, seats in Parliament. How shall we guarantee that the machine will work if we insist that these ministers shall hold their offices in form as

well as in reality, by the will of one house only? Does not the possibility of a very serious deadlock occur here to every hon. gentleman at once? The majority of one house of the legislature will certainly be made up of the representatives of the larger colonies. Probably two colonies in that house will be able to overshadow all the rest.

Mr. PLAYFORD: Possibly one!

Sir SAMUEL GRIFFITH: Possibly one some day; but almost certainly two at no distant date. Now, that majority representing the people of these two states [start page 36] in that house would have the making and unmaking of governments. On the other hand, there would be an independent body in the constitution representing the states. Suppose that independent body in the Constitution representing the states differed from these two states-and I look to more than six or seven states in this territory-suppose they differed from the house of representatives representing two states, there would be certainly a deadlock at once. Such a thing, I believe, occurred in one of the neighbouring colonies not very long ago. I point this out as a thing that may happen. I point out also that the experiment we propose to try has never yet been tried. We must take into consideration the existence of those two forces possibly hostile, even probably hostile, before, say, fifty or a hundred years are over, and we must frame our constitution in such a way that it will work if that friction does arise.

Mr. PLAYFORD: We will have the referendum; we will do it that way?

Sir SAMUEL GRIFFITH: What is the way to do it I am not now considering. But I hope I am not misunderstood in calling attention to that difficulty as likely to arise. I believe myself that the system which we call responsible government is the best that has yet been invented in the history of the world for carrying on the good government of the people, and I hope that it will be instituted in the Federal Government of Australia. But, at the same time, I desire to point out the great possibility-almost probability-that that system, as we have it at the present time, if we insist upon members of the executive being members of the legislature, and insist upon their commanding always a majority in one house of the legislature, may not work. We have to devise a constitution that will work, that will have within its bounds sufficient scope to allow of any development. I would point out, by way of further illustration, that under the Constitution of England, written and unwritten, under the written Constitution of Canada, New South Wales, and, indeed, of all the colonies, except Victoria, South Australia, and Western Australia, and in them to a limited extent, the whole system of the relationship between the executive and the legislative branches might be changed in practice without the change of a word in the written Constitution.


Sir SAMUEL GRIFFITH: I will proceed to show how. It would not be contrary to the Constitution of New South Wales, or of Queensland, or of Tasmania, or of New Zealand, if no member of the Executive had a seat in either house of the legislature. The Constitution would work just as it does work. The ministers would be appointed by the Governor as her Majesty's representative. They would hold office during his pleasure, and if the legislature thought that that was a more convenient way of carrying on the business, it would be carried on in that way.

Mr. GILLIES: And they would play "ducks and drakes" with the business; no one would be responsible!

Sir SAMUEL GRIFFITH: I believe myself that would be the result. But I do not profess to know all that is going to happen in the next fifty or a hundred years. I do not profess to say that our experience in the Australian colonies, or even the experience of Great Britain, is necessarily to be set up against the wisdom of America. I give credit to the American people for having a good deal of wisdom; and although I believe their system is not nearly as good a one as ours, yet some people think that even our system is not perfect, and contains within it the elements of change.

Mr. GILLIES: It has not changed for centuries!

[start page 37] Sir SAMUEL GRIFFITH: The present system, as we have it, has not been in existence for one century or nearly one century. I have had long enough experience as a member of Parliament and as a minister to have seen very great changes in the relationship of ministers to one another, and of ministers to Parliament, in the Australian colonies. I have seen changes-changes occurring from time to time. You do not see the change when it takes place; but if you look back fifteen or twenty years, you can see how different things are in many respects, compared with what they were.

Dr. COCKBURN: That shows the advantage of having an elastic constitution!

Sir SAMUEL GRIFFITH: That is the conclusion I arrive at-that it is well to have a constitution so elastic as to allow of any necessary development that may take place.

Mr. DEAKIN: Capable of being amended!

Sir SAMUEL GRIFFITH: Everything is capable of being amended. But I am addressing myself to the problem I understand we have before us, of a constitution which we hope will work like the American Constitution has worked for so many years, without the necessity of radical amendment. Because, bear in mind the difficulty of amendment. The difficulty of an amendment on a radical question like that would be very great indeed. I am not by any means counselling a departure from the system of responsible government, which I am in favour of, which I hope will be inaugurated, and which I hope will continue to be carried on. But I cannot shut my eyes to the fact that the senate representing the states may entirely differ from the house of representatives representing the people; and that if it is laid down as a principle of the constitution that the Queen's representative is bound to dismiss his ministers when they fail to command a majority in the people's house, then we deliberately, and with our eyes open, make provision for a very serious deadlock occurring, and that at a very early period in the history of the Constitution.


Sir SAMUEL GRIFFITH: I am perfectly aware that this view is new to many hon. members.

Mr. GILLIES: Oh, no!

Sir SAMUEL GRIFFITH: I am perfectly aware that this view is new to many hon. members who have been accustomed to think that the essence of responsible government is that ministers should sit in Parliament, whereas I contend that the essence is that ministers should not be dissociated from Parliament. Our present development of the constitution requires them to sit in Parliament. I hope that will continue to be the development. But I say we are launching in this respect upon an entirely unknown sea. Nobody has ever tried this experiment of a government depending on one house, and the machinery of the state equally depending upon another.

Mr. GORDON: The senate will probably be the better house of the two!

Sir SAMUEL GRIFFITH: I am quite certain that the senate will consider itself quite as good a house as the other house. I believe also that the state legislatures will insist upon its maintaining that position. I hope that no friction of this kind will arise; but I have thought it my duty, at this early stage, to point out the apparent inconsistency, to my mind, of the system of giving equal powers to the states as represented in one house, and of making the executive government depend for its existence upon the other house.

Mr. GILLIES: It must be so, for every house that has got the responsibility of the money must have the control!

Sir SAMUEL GRIFFITH: The hon. gentleman interjects that it must be so, [start page 38] for every house that has the responsibility of the money must have the ultimate control. That I perfectly concede. One house must have the responsibility of originating expenditure, and of originating taxation; and, therefore, to that extent it will have a controlling effect, and no doubt finance is at the root of everything. The government cannot be carried on without money. But there are many things in the administration of government besides finance. For instance, this development might occur, and might be the result of the practical experience of fifty years or a hundred years, or, perhaps, a much shorter time-that some of her Majesty's ministers controlling particularly those matters with which it is specially the function of the house of representatives to deal, should command the support of that house; but that others, administering what may be called more permanent departments, should be independent of it-that there should be, in fact, a combination of the two forms of government; and which of us is wise enough to say that our successors will not be able to improve upon anything which we have devised? Is not that possible?

Mr. GILLIES: Quite possible; but what is not?

Sir SAMUEL GRIFFITH: I am pointing out that we are launching upon an unknown sea. We are trying to lay down two hard and fast lines, which are apparently inconsistent with one another, and insisting that nevertheless they shall both be observed. I ask, therefore, that hon. members will give their attention to this, and that in considering the formation, functions, and tenure of office of the executive, they will endeavour to provide against that contingency, by making such provision that whatever the wisdom of our successors shall find to be best it may be possible for them to do without the extremely inconvenient method of a revision of the constitution in which the federal parliament, as well as all the states, must collectively concur. A difficulty of that kind would arise in a time of great excitement. It is not like the difficulty of making a law. When you want to make a law, and you cannot all agree in making it, there is simply no law made, and you go on as before. But the government of the country must be carried on; you cannot suspend the government of the country while you call a constitutional convention, and get the consent of all the States to the amendment. Therefore, it is necessary to provide for it in our constitution. I have referred to this matter at rather greater length than I should have desired; but it is a matter of very great importance, and it underlies the whole of our work. The relative constitution and powers of the two houses of legislature underlie the whole of what we have to do. We must remember that it is quite new to all of us. We have had no experience of its working. We are bound to put ourselves in the position of men sitting in one house or the other-of men sitting in the senate representing a small state, and feeling bound to exercise a controlling influence as far as it can be exercised; or as men supported by a large majority in the house of representatives, and wishing to exercise the authority that men in that position feel they ought to exercise. We ought to put ourselves in each of these positions and imagine what arguments we should be likely to use under such circumstances. I do not propose to move any amendment to the resolutions now before us, I apprehend that it is desirable, for the present, that the discussion should be somewhat general, although I hope that, before the resolutions are finally put from the chair, we shall have an opportunity, either in Committee of the Whole or in some other way, as by taking the resolutions seriatim, to propose any amendments [start page 39] that hon. gentlemen may think desirable, in order to render them acceptable.

The PRESIDENT: Before the hon. member concludes, I desire to say that it is my intention, on the floor of the House, to move that the Convention resolve itself into Committee of the Whole to consider the resolutions in detail.

Sir SAMUEL GRIFFITH: I have very few words more to say. I trust I have made my arguments clear to hon. gentleman, whether I am right or wrong. I am perfectly open to conviction, but entertaining these views with a greater or less degree of confidence, and entertaining, at any rate, the idea that they are very important matters for consideration, I thought it my duty to bring them forward for the consideration of the Convention at this early stage, because they certainly ought to be fully considered. I shall only indicate in what respect I think these resolutions may be modified, not with a

desire to alter the practical result at which the President aims in the resolutions that he has submitted-not as indicating a desire that the federation should not in practice work upon those lines, because I entirely concur with them, and hope that the Convention will concur with them-but because I desire that the machine may be made one that will work, and of which its framers will not be ashamed. I have indicated that I think the 2nd and 3rd resolutions might be transposed, the coming into operation of the 2nd necessarily following upon practical effect being given to the principle laid down in the 3rd resolution. With respect to defining the powers of the legislature, I would respectfully suggest to the Convention that we should consider whether it would not be better to declare that the house of representatives should have the sole power of originating the imposition of taxation and the appropriation of revenue, leaving to the senate representing the states the power of veto, which they, I believe, will claim upon every matter of legislation.

Mr. GILLIES: But not amendment!

Sir SAMUEL GRIFFITH: Power of veto-that is, amendment by omission, veto in part. That is what I mean.


Sir SAMUEL GRIFFITH: Veto in part, because the system of tacking is absolutely inconsistent with the theory of equal authority.

Mr. GILLIES: Does the hon. member mean that the senate could take one part and leave out the other?

Sir SAMUEL GRIFFITH: Suppose a majority of the house of representatives proposed to spend £1,000,000 or £2,000,000, raised from customs, or perhaps by loan, to establish an arsenal or to establish a very large federal force, and the majority of the states disapproved of it, they ought to be allowed to disapprove of it, whether it was brought in as a separate bill or included as an item of appropriation; that is, I wish that the power of veto should be a real one.

An HON. MEMBER: Would that be veto of the whole?

Sir SAMUEL GRIFFITH: I only wish to make my meaning clear. I know that that power is exercised in some of the colonies of Australia at present, not that I believe in its being done under our present Constitution. I have had the pleasure, or rather the experience, of a fight with the Legislative Council of our own colony when it attempted to omit an item in the estimates, but it became law all the same and during the same session. I do not in the least depart from that; but I am pointing out that we are trying a new experiment; that the states will claim the power of veto, and when we are considering the matter de novo, as we now are-not dealing with one homogeneous community such as we have to deal with in our present [start page 40] colonies, where the Upper House really is, under any constitution yet devised, weaker in practice than the other House, so that the principle works very well when we are considering a thoroughly new system, it does not follow that it would be best to adopt the same system which we have followed up to the present time under quite different conditions. With regard to the imposition of taxation, I would not allow the senate to originate taxation, but I would allow them to veto-to refuse to accept taxation.

An HON. MEMBER: Would the hon. member allow them to do so in detail?

Sir SAMUEL GRIFFITH: To veto in detail. For instance, suppose the house of representatives proposed to impose a land-tax, and, I will say, an income-tax together in one bill, why should not the senate, representing the states, have the power of dealing with each proposal? A land-tax might be in one state or in several states a most just and proper thing, while in other states it might be most unfair and improper. So with an income-tax. It might be very fair, it might be easily collected, convenient, and desirable with respect to one state, while it might be absolutely impossible with respect to

another. Why should not the senate have the power of veto? Why should not the senate have the power of saying, "We will have the one, but not the other"? Both houses would have to concur in the omission. I maintain that the more hon. members think of this subject the more they will see the necessity, if we are to have two houses, one representing the states and the other the people, of allowing the house representing the states the power of veto in detail as well as in the whole, instead of following what is really an artificial growth of comparatively recent years in our own system of two houses in a single homogeneous state.

Mr. GILLIES: That would be a law for one province and not for another!

Sir SAMUEL GRIFFITH: I am sorry that the hon. member misapprehends me. I have not indicated that in any way. All that I have endeavoured to convey is that a law which might commend itself to the majority of the house of representatives as suitable to the states they represented, might be entirely unsuitable to all the other states, and those states, therefore, should have the right of refusing to make such a general law.

Mr. GILLIES: That is exactly what I said!

Sir SAMUEL GRIFFITH: With respect to the executive, the suggestions that I would offer would go in this direction: Instead of providing that the ministers shall sit in Parliament we should say that they may sit in Parliament. I have doubts myself whether we might not also say that their term of office should depend upon their retaining the confidence of the legislature; but it should be provided that they may, not that they must, sit in Parliament. If we do that and do no more, we shall have gone as far as it was ever thought necessary to go in the United Kingdom, as far as was thought necessary to go by the gentlemen who sat in this hall many years ago, and who framed the Constitution which has been the mother of all the Australian constitutions, and which has certainly stood the test of time. They left that Constitution open to further development. It has had further development, and it will have much more development. I ask hon. gentlemen in considering this question to be careful to frame the Constitution in such a manner that, whatever developments the necessities of the times may require, it will be possible to adopt them without the trouble of anything like a deadlock, or the interruption of the executive government of the country. I have been much longer than I intended in addressing the Convention, but I have endeavoured to express my mind as briefly as I could. However, the subject is a large one and must be [start page 41] dealt with fully, and I hope hon. gentlemen will pardon me if I have intruded too long upon their time.

Mr. FYSH: As an exemplification of what I hope will be the great principle which must be established before the work of this Convention shall be closed-the principle that the colonies, at any rate in connection with our senatorial work, shall be equal-I rise now to continue the debate upon the resolution which you have submitted. I make no excuse other than the one which I have offered, except this: that I am aware that in the case of a number of gentlemen who have travelled from all parts of Australasia, and who largely represent the executives of their various colonies, they are here not so much at their own personal inconvenience as at the inconvenience of the executives which they represent. A goodly number of the ministers of the Crown of all our colonies are now assembled in Sydney-some 600 and some 1,200 miles away from their seats of government-and practically some of the executive work of our colonies is at a standstill while we are present here. It is, therefore, almost an absolute necessity that a goodly number of the members of governments must find their way back, at an earlier period than that at which this Convention can close, to their executive duties in their own particular localities. Under these circumstances, I think it is of the utmost importance that there shall not be one day's delay in proceeding with the important business which we have before us. Therefore, although I was desirous to await somewhat the issue of this debate, to endeavour, perhaps, to gather some inspiration from what might be said by various speakers who have for a longer period ruled over destinies somewhat greater than those which I have had the pleasure of presiding over in the smaller colony of Tasmania; yet, when I think that we stand in the hall which is memorable by reason of great difficulties overcome, by spirits with whom I hope we are somewhat kindred-one of whose portraits looks down upon us at the present time-which portrait reminds us of the difficulties which, apparently,

may embarrass the discussion of these resolutions, difficulties many of which have been described to us by the hon. member, Sir Samuel Griffith-when I remember what has been done by the men of old, who framed our present constitutions, which we have been working under for thirty-five or forty years, I am disposed to believe that, embarrassed though we may be by the conflicting opinions I will not say conflicting interests, for when Australia is spoken of we are no longer to have conflicting interests-we shall be able to get over the difficulties arising from those conflicting opinions which may be expressed in this chamber with respect to these various resolutions. I do not propose to follow the line of argument adopted by the hon. member, Sir Samuel Griffith. There will be opportunities of doing so, as you, sir, have told us, in Committee. And if you had not announced that it was your purpose to move that the resolutions be considered in Committee of the Whole, I should have deemed it my duty to have reminded hon. members that subjects so important, so diverse, could not possibly be dealt with by a body sitting as we now are; but that every word of each resolution would have to be weighed and debated. That cannot possibly be done unless the House finds its way into Committee of the Whole. For these reasons I purpose to address myself only to general principles, to what I deem to be the essential portions of these resolutions, treating the matter as if I were asking for or supporting the second reading of a bill, when we debate principles only, and not details. Although a measure may be 100 or 200 paragraphs in length, whatever may be the diverse opinions of hon. members [start page 42] when we go into Committee, it is only with the great principles of the bill which we are supposed to deal when discussing its second reading. Therefore, for my purpose, I may limit my observations to what I regard as the essential portions of the work of this Convention. I feel sure that those essential portions are discovered in the three great points of commercial union, of defence, and what I ought to have taken first-that is, what is known in America as the sovereignty of the states. I doubt whether the general public has any particular interest at the present moment in the method in which you will frame your executive, and in the mode in which your duties will be discharged. But I believe the interest which is now concentrated around this Convention throughout the whole of the Australasian colonies, centres around those three questions which I have named, and it is with respect to those that the great masses of the people are more concerned than they are with any other. They are more concerned, firstly, as to what portion of the rights which they have been enjoying for nearly forty years past it shall be proposed by this Convention to surrender. I am glad that the term "surrender" has been used in the first resolution. It should be indicative to all those whom we represent throughout Australasia, that this Convention is unlikely to try their patience, to try their spirit of justice, in asking them to surrender any rights which they consider to be of vital importance to their local autonomies, that it is unlikely to ask them to surrender any rights which will not be more fittingly discharged by the greater executive of the dominion parliament. If, therefore, we are to explain in connection with these resolutions what we mean by surrender, I would limit my explanation to a very few words. I say that it will be absolutely unnecessary to ask the people of these colonies to surrender to the dominion parliament anything which can best be legislated for locally-anything which cannot be best legislated for by a central executive. Now, these may be far embracing words, but every man who runs may read in connection with an opinion of this kind, because he himself will be able as well as any of us to detect what it is that is best discharged locally. He will know that, with respect to the great future progress of his country, it must be by his voice that the extension of railways and of roads must be continued. He must know that it must be by his will and consent that possibly the education of the people shall be provided; and he must know that, in connection with the various developments of his own province, there can be no interference by an executive which will sit 1,000 miles away, and which cannot, except in regard to some individual members thereof, have so close an identity with the work in which he is engaged, or such a knowledge of the necessities which surround the country in which he is living as those who represent him in the local parliaments. I believe, therefore, that we may limit our explanation of the term "surrender" to these very few words, and that the people may at once feel sure that this Convention is unlikely to ask them to give up any important right; but that its purpose will be to continue in all its harmony, in all its prestige, the position of the local parliaments, and that the dominion parliament, the great executive of the higher national sphere at which we are to arrive, will not in any way detract from it. But they will continue, most likely, under the Constitution under which they live, to have the right of appointing their own representatives to their own local parliaments, and, possibly, to have also in connection therewith their Upper Chamber; and certainly in all matters their voice will be paramount. Under these circumstances, I deem it that our duty in

connection [start page 43] with this paragraph of the resolution will not be a difficult one. We are not likely to disappoint the people; and when we come to questions of detail we shall each be prepared to agree, I have no doubt, most readily, as to what work of the dominion will be best undertaken by the dominion parliament, and what will be best understood and undertaken by the local parliaments. But, turning from this, which I believe to be the crux of the whole position-because it is to the sovereign rights of the states that the people's mind is more directed than to any other matter-if there be any other point which they are considering more deeply, and which affects their interest more deeply, it is that which is opened up by the great question as to the form of our trading between each other, as to whether it is to be as it has been in the past, a question of wasteful competition between colonies-whether we are bound to continue to be aliens to each other, and to tax our very children as they pass from their homes, or whether me are going to establish something which will be akin to the commercial bund of Germany-something which will enable all the goods, all the manufactures, all the arrivals in the various ports of these colonies to pass to and fro through every other port without fear, let, or hindrance. It is in connection with the commercial union of these colonies that the people are more interested in our proceedings, I think, than in connection with any other subject. It is a question which affects not only commercial men, but even the lowest strata of society. Our working-classes are as much interested in the commercial union, which I hope is designed in these resolutions, as those who may be large importers, or who may be supposed to hold more important positions in our community. And when we shall have become a union of commercially-established people, no longer competing with each other in connection with matters where there is a wasteful competition, but shall have realised all the advantages of a great corporation-of a great commercial partnership, then I think will be established in Australasia the greatest good of the greatest number, and the people, the great masses of the community, will have reason to be grateful that this Convention has sat. But there is also the other third important point to which your resolutions so definitely refer-I allude to the question of defence. It is marvellous that we can for so long a period have travelled on our way accumulating wealth, distributing our commerce all over the country, sending our ships into almost all seas, and yet have never established any reliable defence for the whole. I know that a great number of individuals consider the probabilities of any attack upon these shores as very unlikely; but we must always be prepared for the unlikely, for it is the unlikely which too often happens. I hold that we have no reliable forces-there is no cohesion in our existing forces to carry out the great work for which they have been intended, and for which large expenditure is going on year by year. There can be no cohesion where the links are distributed in all corners, and although we, as public men, have sworn allegiance to the Crown, and the people themselves have owned that allegiance, we are not in a position to defend the allegiance which we owe, and irrespective of this fact, since we have borrowed over £170,000,000 from our creditors in all parts of the world, if there be any fear of some desultory marauder ever attacking some of these colonies we shall find commercially, and in connection with the depreciated value of our securities, that we have been living in a fool's paradise, and that we should have been much wiser had we discharged to ourselves, to the old country whose flag we have reared, and to the [start page 44] creditors whose money we have borrowed, the responsibility which rests upon every English community of defending itself from attacks, from whatever quarter they may, come. The hon. member who has just resumed his seat may possibly have borne in mind the examples in connection with the position of the upper and lower branches of the legislature and their relative powers, which have now existed for thirty-five years, both in South Australia and in Tasmania. I should not have ventured to have spoken about Tasmania in this relationship, because it might be said that it was an example which did not bear the importance which I was attaching to it, did I not find that Tasmania has been associated with South Australia in connection with the reading of the same Constitution that she has been living under the same Constitution, and that some of the same difficulties have arisen, and have always been fairly overcome in the end in both cases. I am not prepared to consider-or if prepared to consider, I should consider it with very great concern-as to whether it is advisable or not to remove from what may be termed the senate or the upper house of the dominion parliament, any right which heretofore we had given to our upper house, of veto, whether in respect of ordinary bills or in respect of money bills. We have lived for this period under a right which we have seldom felt to be grievous, and if the right has been exercised by the Legislative Council its existence has only been grievous for a few days; and that which has been resented at the time, and which may have been hurtful to the ministries of the day, has not always proved to be detrimental to

community and to the people as a whole; but the very check which has been exercised by the Legislative Council, I believe I may say of South Australia, as I do of Tasmania, has proved, under many circumstances, to have been the outcome of prudence; and although the legislative councils may not, on the first time of asking, have given the ministers all the taxation which they desired, or have given the representatives of the people in the popular branch of the assembly all the public works which they needed, yet the people have always ruled in the end, and the Legislative Council has after a time given way. We have discovered in these colonies what has been so long ago discovered elsewhere, that, in the end, the popular voice must rule; and certainly we admit the very principle which is the foundation of all our liberties-that taxation and representation must go hand in hand, that where the representation so largely is there you must have the power of the purse. But we do not consider it an uncontrolled power, and we have not felt any injury from the fact that there has, occasionally, been a brake put upon the wheel in connection with our public expenditure, or in connection with our proposals for schemes of taxation. I should therefore view with very great jealousy a departure from this principle-the growth of the practice in connection with which I have watched for so many years-and should expect the mover of these resolutions, in laying down so great a departure as this from what has been the principle, at any rate, in two of the great colonies of Australia-


Mr. FYSH: To be able to give us exceedingly sound data for the purposes and objects which he advocates; and we shall then, in regarding those objects, take care to do what great senators and statesmen of old have done with respect to the constitution under which we live-look well ahead to see that we are not committing ourselves to that unknown sea to which Sir Samuel Griffith has alluded.


Mr. FYSH: Do I understand the hon. delegate from South Australia to say that [start page 45] with respect to the colony which he represents they have not found this practice in the main satisfactory? History only records one very important instance with respect to South Australia where there has been such a diversity of opinion as to lead to a rupture, and what was the result of that great diversity of opinion? If I am right, the popular branch of the legislature did in the end win, and those houses of Parliament which stand as a credit to South Australia to-day have afforded an example of what I have been alluding to. I do not purpose, having said there were three important principles which would govern me in connection with these matters, to follow those points which are so much better dealt with by the law officers of the various governments, whom I am pleased to know are associated with us in this work, but that we ought to have a judiciary which shall be a federal court for the whole of Australasia must be apparent to all of us, whether we are, or are not, largely engaged in trade. Those who have been making the laws of their own colonies, and those whose businesses have compelled the making of these laws, have felt the disadvantages of the incongruity of the bankruptcy acts, and, domestically, we regard our marriage and divorce laws as great incongruities; and when we free our ports there can be no doubt that the regulations as to the navigation of our fleets, and matters connected with our quarantine ports, and various other subjects of that kind, must be a federal concern; but as to whether it may be wise to be so self-contained in Australasia in connection with our judiciary system as not to permit an appeal outside of Australasia must be a matter of which I trust the law officers which are so well representing their respective colonies here will put clearly before the Convention. I lean strongly to the hope that the time is coming in Australasia when we shall be as self-contained in law and in manufactures as we are self-contained in climate and ability to provide for ourselves not only the ordinary and common necessaries of life, but all those luxuries which experience and wealth brings. We are warned by our very wealth and progress that there must be unanimity before this Convention closes its debates. I am glad, therefore, that you, sir, set a spirit of compromise, which I hope will continue day by day to be manifested by every member. I recognise the fact that no great good can be accomplished in a convention of this kind any more than among cabinets and legislators, unless we are prepared to admit that wisdom does not rest with individuals;

but that there is a collective wisdom in the Convention that is gathered together I have great faith, and in it and upon it I rely to overcome all difficulties, even such as those to which Sir Samuel Griffith has referred, so that we may be able to take back to our respective parliaments the Constitution which we are charged to prepare for them, and it will be a very great disappointment, I believe, to every province in Australasia if anything shall occur in the course of our debates, or if any great point shall arise about which we cannot clearly see our way to meet at the table and to effect some compromise upon-a compromise which shall at once be judicious to the opinions of the various hon. delegates, honorable to the whole of them, and satisfactory to the communities which we serve.

Mr. MUNRO: After hearing your very important and interesting speech, sir, and that of my hon. friend, the Premier of Queensland, and also of the Premier of Tasmania, and having these very important resolutions before us for our consideration, I think we shall require at least one night to think over them. For that reason I move:

That the debate be now adjourned.

Colonel SMITH seconded the motion.

Motion agreed to; debate adjourned.

Convention adjourned at 4 p.m.