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1897 Australasian Federation Conference
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Leave of Absence-Personal Explanation-Commonwealth of Australia Bill-Order of Business-Adjournment.

The PRESIDENT took the chair at 10.30 a.m.


Mr. HOLDER: I ask leave to amend my motion by adding, at the end of it, the following words:

And that five days' leave of absence be granted to the hon. member for New South Wales, Mr. Lyne.

Leave granted.

Mr. HOLDER: I now move:

That ten days' leave of absence be granted to the Honorable Sir John Forrest, the Honorable J. W. Hackett, Mr. Hassell, Mr. James, Mr. Leake, the Honorable Sir J. G. Lee Steere, Mr. Loton, the Honorable F. H. Piesse, and Mr. Sholl, Representatives of Western Australia, on account of urgent public affairs in that colony; and that five days' leave of absence be granted to the hon. member for New South Wales, Mr. Lyne.

Sir RICHARD BAKER: I second it.

Question resolved in the affirmative.


Mr. DOUGLAS: Before you leave the chair, Sir, I wish to make an explanation.

[start page 739] I understand that Mr. Wood, a member of the South Australian Parliament, has complained that in making a statement in this House I reflected on his character in saying he adjudicated on a case in which he was interested. I had no intention of doing that. Mr. Wood has supplied me with a copy of the newspaper report, which I will read. At the commencement of the case the gentlemen on the Bench were Messrs. J. Gordon, S.M., R. Wood, the Justice referred to, and F. G. Belcher. The report says:

Mr. J. C. Hamp appeared for the informant, and Mr. N. A. Webb for the defendant. Mr. Webb intimated to the Court that evidence would be produced during the trial which would show that quarrels had taken place in consequence of the action the informant had taken to secure the return to Parliament at the last election of one of the justices on the Bench. He left it entirely to the discretion of the justice as to whether he should sit and hear a case in which evidence of such a nature was likely to be forthcoming. The S.M. said that if there was any justice on the Bench to whom Mr. Webb's remarks might apply he would leave it to him as to whether he would retire or not. [Mr. R. Wood,

M.P., then immediately left the Bench.] The S.M. intimated that the Bench was not properly constituted, and adjourned the case for half an hour to secure another Justice.

I did not wish to accuse Mr. Wood of adjudicating on the case, but said, as reported, that he was on the Bench at the commencement of the proceedings.


In Committee.

Clause 47.-If a member of the Senate or of the House of Representatives accepts any office or profit under the Crown, not being one of the offices of State held during the pleasure of the Governor-General, and the holders of which are by this Constitution declared to be capable of being chosen and of sitting as members of either House of the Parliament, or accepts any pension payable out of any of the revenues of the Commonwealth during the pleasure of the Crown, his place shall thereupon become vacant, and no person holding any such office, except as aforesaid, or holding or enjoying any such pension, shall be capable of being chosen or of sitting as a member of either House of the Parliament.

But this section does not apply to a person who is in receipt only of pay, half pay, or a pension, as an officer of the Queen's navy or army, or who receives a new commission in the Queen's navy or army, or an increase of pay on a new commission, or who is in receipt only of pay as an officer or member of the military or naval forces of the Commonwealth, and whose services are not wholly employed by the Commonwealth.

Sir GEORGE TURNER: In dealing with this clause-I am not certain whether this is the right place-I would like to call the attention of Mr. Barton to section 6 in the Constitution Act of Victoria:

If any person shall, while he is a member of the said Council or Assembly, or within six months after ceasing to be such member, accept any office of profit under the Crown, he shall be liable to a Penalty.

But there is nothing here which prevents a person, who is a member of the Parliament, from accepting an office of profit. The only penalty is that he forfeit his seat. We ought to guard against that, and I shall be glad if the hon. member, Mr. Barton, will look into the matter, and see what can be done to meet the objection which I have raised.

Mr. BARTON: We find that there is a provision of that kind in the Victorian Constitution, but it has neither been inserted in the Bill of 1891 nor in this Bill, and it does not occur in any other Constitution that I know of, though I have not made a thorough search. If this Convention desires to make it impossible for a member of the Parliament to accept an office of profit under the Crown within a definite period after his leaving Parliament, we think it would be better to leave it to an hon. member to move the amendment, because there was nothing in the instructions to the Drafting Committee to that effect.

Mr. FRASER: In Victoria a legislator can accept an office of profit after vacating his seat for either six months or twelve months.

Mr. HIGGINS: A very good provision.

Mr. FRASER: Yes, a very good provision, and it should be embodied in this Bill.

[start page 740] Sir GEORGE TURNER: I will move an amendment to give effect to what it seems many hon. members are desirous of seeing inserted. Clause 47 provides:

If a member of the Senate or of the House of Representatives accepts any office of profit under the Crown, not being one of the offices of State held during the pleasure of the Governor-General, and the holders of which are by this Constitution declared to be capable of being chosen and of sitting as members of either House of The Parliament, or accepts any pension payable out of any of the revenues of the Commonwealth during the pleasure of the Crown, his place shall thereupon become vacant, and no person holding any such once, except as aforesaid, or holding or enjoying any such pension, shall be capable of being chosen or of sitting as a member of either House of The Parliament.

I do not like to move an absolute amendment, because I do not want to prejudicially affect the drafting. What I desire to do is to make a provision so that if any person who is a member accepts office, he shall be liable to a penalty, and if any person accepts office within six months after ceasing to be a member, he shall be liable to some penalty. The object is to prevent the Ministry of the day from bestowing its patronage upon members of Parliament.

Mr. MCMILLAN: What about the office of Agent-General?

Sir GEORGE TURNER: A Judge of the Supreme Court and the Agent-General are excepted. The object is to prevent the Government of the day from conferring a valuable position on an existing member who could resign his seat and next day be appointed to any office of profit. The object of this section can be frustrated under such circumstances, so we should make it so that a person will be rather chary of accepting a position, and probably he will not run the risk of being out of Parliament so long. I will move:

To insert after "Representatives," I either while he is a member, or within six months after ceasing to be a member."

Mr. KINGSTON: What penalty would you provide?

Sir GEORGE TURNER: With us it is £50 a day. Here it appears to be, in a subsequent section, £100 per day.

Mr. BARTON: The next clause gives a penalty.

Sir GEORGE TURNER: I have no doubt Mr. Barton will see that the amendment is put in proper form.

Mr. SYMON: Would it not be better to simply include words prohibiting any member of the Senate or the House of Representatives accepting any office of profit whilst he is a member, or within six months of ceasing to be a member? I do not think you want any penalty.

Mr. KINGSTON: It would be better in a separate clause.

Mr. SYMON: A simple prohibition would do. What is the use of fixing a penalty? It would be simply a question of what the penalty amounted to, for a man to decide whether it was worth his while to take the position.

Mr. BARTON: I think there is a way in which what hon. members desire could be secured without any trouble. "A member" is the governing word, but the amendment goes further, and deals with a man when he ceases to be a member. We might after:

If a member of the Senate or of the House of Representatives,

put in these words-

Or if within six months after having been a member of either House, any person accepts.

Then the cases of Judges and Agents-General could be met by subsequent words.

Mr. REID: I think you had better have a separate paragraph.

Mr. BARTON: As regards Mr. Symon's suggestion I would remind the Committee that this is a disqualifying clause, and it is in the same form that clauses of disqualification have always been, that is to say, any member who accepts an office of profit shall be incapable of sitting.

Mr. HIGGINS: The only penalty is that his place shall become vacant.

Mr. BARTON: The penalty is £100 for each day he sits.

Mr. ISAACS: He does not want to sit.

[start page 741] Mr. BARTON: Quite true. After all, it is a question whether you should make the seat absolutely void or impose a penalty on the person who accepted office. If you impose a penalty on the member there is some reason for dealing in like manner with the person who accepts office within six months of being a member.

Mr. ISAACS: It is only a penalty for sitting in the House.

Mr. SYMON: Leave this clause as it stands, and put in a special clause.

Mr. BARTON: If it is the general view of the Committee that there should be this period of six months during which a person cannot accept such an office, and also that the appointment should be void, or the person made subject to a penalty, then the beat way to deal with the matter would be to frame a new clause. After obtaining the sense of the Committee on these two points, it might perhaps be left to us to draw up a new clause.

Mr. FRASER: Hear, hear.

Sir GEORGE TURNER: That is the better course.

Sir EDWARD BRADDON: We should not forget that there is another side to the question. I admit the force of what Sir George Turner has said, and that it is desirable, if it were practicable without any detriment, to make a provision which should prevent the purchase of a vote in the Federal Parliament by any promise of an appointment. But if we make the provision too stringent we may prevent the Government of the day from making an appointment which would be, absolutely necessary in the interests of the Commonwealth and of its good government. There might be a member of Parliament admirably suited to some post-more fitted for it, in fact, than anybody else available-and yet the Government of the day would be precluded from appointing that gentleman for six months, which might mean they would be precluded from making the appointment altogether.

Sir WILLIAM ZEAL: If such an event as that mentioned by Sir Edward Braddon occurred, it would be competent for the Government to introduce a measure dealing with it.

Mr. ISAACS: Not if it is in the Constitution.

Sir WILLIAM ZEAL: If it is meant to apply to general cases, as it does in Victoria, it should be made to apply to gentlemen aspiring to seats on the bench. If it is a source of danger to appoint members of Parliament to positions of profit under the Crown, is it not a hundredfold more dangerous to appoint a member of Parliament, he being an active partisan, to the office of Chief Justice The

exemption should be carried out in its entirety, and the clause made to absolutely prevent all members of Parliament from accepting offices of profit. I move the addition of words to carry out that object.

The CHAIRMAN: The only matter before the Committee at present is the amendment of Sir George Turner.

Sir GEORGE TURNER: If Mr. Barton will undertake to draft a new clause, I ask leave to withdraw my amendment.

Leave given.

Mr. BARTON: I should like to have some indication from the Committee as to whether the new clause, if it is to be drawn, should take the form of a more veto of the acceptance of such office, or whether there should be a penalty attached.

Hon. MEMBERS: Veto.

Mr. BARTON: And then, whether, its a matter of policy, it is desirable to have a prohibition of this kind at all?

Mr. GLYNN: No.

Mr. BARTON: Because, since I said something about it, Sir Edward Braddon seems to have given some reasons why such a clause should not be inserted.

Mr. GLYNN: Hear, hear.

Mr. DOBSON: I suggest that the [start page 742] amendment of Sir George Turner should be submitted to the Committee. If it is passed, the Leader of the Convention could draft a new clause. I also suggest, having listened to Sir George Turner's reasons, that this required term of six months should be made twelve. If any Federal Ministers want to reward one of their supporters by giving him a lucrative post, the term should be twelve months, because, after the Session » is over, or all the motions of want of confidence are dealt with, six months would not be long enough. The whole thing should be arranged in the way Sir George Turner suggests.

Mr KINGSTON: I am disposed to agree with Sir Edward Braddon's expressed views on this question. I know of no Constitution in which a clause of this kind is embodied. I know the Victorian Parliament has legislated on this matter, and that the South Australian Assembly has passed a resolution on the subject. I suggest that it will be sufficient if we give the Federal Parliament power to deal with it.

Mr. DEAKIN: I cordially indorse what has been said by the last speaker. While the motion of the hon. member appears to be an excellent one, we can all imagine cases in which the provision ought to be set aside, and in which the whole Parliament would desire to set it aside. The Parliament ought to have the power if it desires to make an exception to this rule. Why should it be prevented from doing so if it wishes?

Mr. BARTON: If it is a question of policy it ought to be kept for the Parliament itself.

Mr. DEAKIN: Certainly. And giving the Parliament the power would be ample to meet the case.

Mr. FRASER: That is all very well, but we want to protect Parliament against improper proceedings. I remember a case such as Mr. Deakin refers to, in which Parliament passed an Amending Act making the appointment legal. Therefore I think the object is now to protect the Parliament against wrong-doing like that.

Mr. O'CONNOR: I think we may go a good deal too far in tying the hands of Parliament.

Mr. FRASER: We cannot go too far in doing what is right.

Mr. O'CONNOR: I agree with Sir Edward Braddon, that there may be some case in which in the public interest some appointment may be made in less than six months. I think we may trust the Parliament to look after the purity of administration. It has always done that before. I think, as long as you absolutely prohibit members of Parliament from taking positions, you may leave Parliament to look after the other thing. It is very seldom that you will have so strong a combination in Parliament in such a thing as to support an improper appointment against the public interest.

Mr. FRASER: The appointment would be made by the Ministry, and not by the Parliament at all.

Mr. O'CONNOR: I think we should leave it to the Parliament rather than run the risk of defeating the public interest by a provision of this kind. After all, it is a matter incidental to the carrying out of the powers of Parliament.

Mr. BARTON: It is already provided for.

Mr. GLYNN: I think we may go too far in assuming that politicians may be dishonest. If it applies generally it ought to apply to the judges. We know that in America judges have been appointed for the express purpose of upsetting decisions previously given.

Mr. REID: You could do just the same thing by appointing men who were not members of Parliament.

Mr. GLYNN: What is good for one is good for another. I would support this exception of the judges, because I think the application of such a principle in regard to their appointment would be bad in the extreme. I would propose:

[start page 743] That the words "Of being chosen or," in line 34, be struck out.

A man holding an office of profit under the Crown, and who would be a candidate for election, could either give up his seat or his salary. Why should we impose this restraint upon the discretion of the electors? If a man has a salary under the Crown, they know of it, and if they choose to put him in Parliament knowing of it, let them.

The CHAIRMAN: Does the hon. member Mr. Gordon wish to move his amendment?

Mr. GORDON: Yes.

Sir WILLIAM ZEAL: There is an amendment by Sir George Turner.

The CHAIRMAN: Sir George Turner's amendment has been withdrawn.

Sir WILLIAM ZEAL: I submit with very great respect that it has not been put to the Committee.

The CHAIRMAN: I put it to the Committee, and the amendment was withdrawn

Sir GEORGE TURNER: I withdrew only on the understanding that Mr. Barton was going to prepare a clause to deal with it.

Sir WILLIAM ZEAL: I certainly entirely concur with Sir George Turner's amendment.

Mr. BARTON: I would point out that we must be exceedingly careful lest we be trying too often to legislate for the people we are going to call into existence. Our business is to frame a Federal Constitution -that is all the Statute under which we come here enables us to do. I do not think it was intended we should frame a body of laws to guide the Federation. AS has been pointed out by Mr. Kingston, this is a matter which has been the subject of legislation in Victoria, and might equally be the subject of legislation in the Commonwealth. Every Parliament has the power to legislate with reference to the capacity and qualifications of its members. That is an inherent power of every Parliament; but, in addition to that, there is at the end of clause 50 a final provision giving power to the Parliament to legislate on all matters necessary for, or incidental to, the carrying into effect of any power given to it by the Constitution. Inasmuch as that sub-section exists-if passed, as I think it will be necessary to pass it-then the Parliament of the Commonwealth will be perfectly free to legislate on this for itself. I am speaking of this as a matter of principle. It may or may not be a most desirable thing that, such a provision should exist as a law of the Commonwealth, but it is not for us, every time we think that a provision of law would be desirable, to put it into the Constitution, because that is just the wrong place for it.

Mr. FRASER: It is not a matter of thinking, it is a matter of knowing.

Mr. BARTON: The hon. member may know a thing and other hon. members may think-

Sir WILLIAM ZEAL: It is not a matter of thinking, but a matter of fact.

Mr. BARTON: The whole question of these facts depends on the judgment of the people by way of reason. It seems to me that we ought not to hamper the Commonwealth by too many provisions such as are being constantly suggested.

Mr. HIGGINS: Ought not this clause 47 to be struck out?

Mr. BARTON: I do not think so. It is not the legitimate conclusion, because clauses of this kind have been in every Constitution-

Mr. ISAACS: Not in Canada.

Mr. BARTON: They have been in all Australian constitutions, or most of them. It must be recollected that a provision of this kind is really a re-affirmance of a certain law which has become part of the Constitution in England; a provision of the kind we find already in the Bill. A provision of the kind suggested is not in that category, but simply in the category of. laws which Parliament has made in this place or that for the purpose of having its own views expressed. This is a matter of policy, and, where we find a matter is distinctly one of policy, it ought to be left [start page 744] to the Parliament of the Commonwealth to legislate upon it, otherwise it will be so hampered that it will be difficult to say to what extent its members or electors are free men.

Sir WILLIAM ZEAL: With a view of testing the feelings of the Committee, I move:

That the words proposed by Sir George Turner be added to the clause.

I think that a number of hon. members will agree with me that if it has been found necessary-and it has been proved to be necessary in Victoria-that such a provision should be grafted on the Constitution by a measure passed by the local Parliament, it is essential that it should be included in a Bill framing the Federal Constitution. The object of the amendment is to protect Parliament against itself. I can testify to the fact that it has conduced to purity of administration, and, during troublous times, it has been a great boon. If its insertion is necessary in the case of minor appointments, it is, I repeat, doubly necessary in the case of major appointments, for it is quite possible that Parliament, at the instance of a strong, powerful Government, might he induced to acquiesce in the appointment of a

gentleman to one of the chief offices of the Crown as a reward for political services rendered to that Government. Why should we shirk the question? Why not deal with it now and protect Parliament against itself? At all events, with a view of testing the feeling of the Committee, I move the insertion of the words suggested by Sir George Turner, and will force this proposal to a division.

Mr. BARTON: The words are with. drawn.

Sir WILLIAM ZEAL: Then I will propose them again.

Mr. MCMILLAN: Do you propose that there should be no exceptions?

Sir WILLIAM ZEAL: I do not, but hon. members can express their views, and if this amendment is carried Mr. Barton will, I presume, act upon the instructions of the Convention, and provide a clause in the direction indicated.

Mr. BARTON: The amendment moves by Sir George Turner was withdrawn partly because it was seen that it would not carry out its objects. If inserted in the place where Sir George Turner wanted it, it would only have the effect of disqualifying people already out of Parliament. That would be no efficient way of carrying out the intentions of the amendment.

Sir GEORGE TURNER: I said I moved these words to test the feelings of the Committee.

Mr. BARTON: We must take care that if the words are placed there they will not disfigure the clause in the Bill without the addition of a provision which would be effective. I ask the hon. member to put it in some other way.

Sir WILLIAM ZEAL: This will not affirm in precise language what this Convention endeavors to be effective. I wish to affirm a principle, which can be done by adding the words suggested by Sir George Turner to the clause. Then that will give Mr. Barton an opportunity of drafting a provision which will carry out the objects of the clause

Mr. LEWIS: I do not think these words will carry out precisely what the mover wants. If it is desirable that this matter should be tested, I would suggest that either Sir George Turner or the Drafting Committee should frame such a clause as will meet the object Sir William Zeal has in view.

Sir GEORGE TURNER: I withdrew my amendment under the impression that that would be done.

Sir WILLIAM ZEAL: Those who might be inclined to support, the principle contained in this clause cannot vote for this clause, because it is not framed in such a way as will carry out the objects of the Committee.

Mr. BARTON: I Shall not take the responsibility of doing anything that will disfigure the Bill.

[start page 745] Sir WILLIAM ZEAL: If this resolution is passed the hon. member will understand what are the wishes of the Convention, and it is idle to say that he cannot frame a clause.

The CHAIRMAN: Order. Mr. Lewis is in possession of the chair.

Mr. LEWIS: I hope that Sir William Zeal will carry this, and we will then have an opportunity of discussing the proposed amendment in the proper way, I do not think this is the proper form. Whether we can amend the Constitution in the way suggested by Mr. Barton is a question I should like to have further information on. When the Victorian Parliament did what Sir George Turner now proposes it did so by an amendment of their own Constitution Act. Perhaps Mr. Isaacs will say if I am correct.

Mr. ISAACS: Partly it was and partly it was not. Of course we have power to amend.

Mr. LEWIS: If it is not put in the Constitution Act it is a question to me whether the Federal Parliament will have power to give effect to the proposed restriction without a distinct amendment of the Constitution. It is questionable whether it will have power to prescribe that certain persons are incapable of taking office by an Act passed by the Federal Parliament alone.

Mr. ISAACS: They did so in Canada by 41 Vict., cap. v. of the Dominion Parliament. It was not done, as far as I have been able to discover, by an amendment of the Constitution.

Mr. LEWIS: It shown that we should have a clause which we can further think over, and make up our minds whether we can support it or not. I should strongly urge Sir William Zeal to allow this clause to be passed, and, upon the framing and submission of a clause designed to give effect to our wishes, we will then have it in a form that we can think over, and adopt or reject as the majority thinks fit.

Mr. BARTON: Of course Sir William Zeal will not misunderstand me in this matter. Anything that I have said has been said in a perfectly friendly way.

Sir WILLIAM ZEAL: I am quite sure of that.

Mr. BARTON: I think it would be better to withdraw this amendment. The general intention seems that there should be a prohibition which, if it is good in one case, is good in all, and Sir George Turner should not extend it merely to the Judges and the Agents-General, but we should rather extend it to all persons who may hold offices of profit. If the principle is good it should apply throughout, and if that is the intention of the Convention I think this amendment should be agreed to:

But no person, within six months after ceasing to be a member, shall accept any office under this section.

Sir GEORGE TURNER: He simply vacates his seat.

Mr. BARTON: Members have asked for a distinct prohibition.

Sir GEORGE TURNER: While he in a member or for six months afterwards.

Mr. BARTON: The previous port of the clause deals with that.

Mr. ISAACS: You do not disqualify him from sitting in Parliament.

Sir GEORGE TURNER: That is not sufficient.

Mr. BARTON: It is provided in clause 48 that:

If any person by this Constitution declared to be incapable of sitting in the Senate or the house of Representatives sits as a member of either House, he shall, for every day on which sits, be liable to pay the sum of one hundred pounds.

Mr ISAACS: Only for sitting.

Mr. BARTON: That is a great deal more than he is likely to receive as salary; Are we to provide in the Constitution for every foreseeable contingency, or are we going to make it a Constitution? If we are to make it a Constitution we must avoid dropping into matters of this sort, I think the Commonwealth will be able to take care of itself in such matters.

[start page 746] Mr. PEACOCK: Then we should leave out a lot of clauses.

Mr. BARTON: We went too far in 1891, but for the sake of the Convention we have retained many of the clauses of that Bill. Is that any reason, however, why we should go to an extreme? I wish to point out that if this is a principle which applies at all, it is one that is as applicable to Agents-General as to the meanest officer in the State, and as it operates in that way when pushed to its full application, I think it is one we should not adopt, but, speaking on the drafting aspect of it, this portion of what is aimed at is secured by this amendment. The rest of the clause is not disfigured, and can be amended. This is only a step in the path which hon. members have indicated. Let us test the question on this form of the amendment, which carries the matter to its whole extent. If the Committee does not believe in altering the Bill as proposed in this amendment, it need not alter it in any other part dealing with the subject.

Mr. SYMON: I would point out that it seems to me there is some misapprehension as to what this clause really is. The whole of these clauses are intended simply to deal with the qualification of members to hold their seats, and this clause is intended to be limited in its operation to that particular point. The whole of the sections from 43 to 49 deal with the disqualification of members, and their right to sit in Parliament, and the penalties to which they are subject for sitting while disqualified. The Parliament should regulate its own procedure, and I think Mr. Barton's amendment is only one that will raise the question of establishing an express prohibition. The question is whether the Convention is going to introduce in the Constitution matters dealing with administration and the manner in which appointments may be made, or whether they are going to limit it to establishing the Federal Parliament. If you introduce a clause saying the Federal Parliament Shall not appoint to an office some particular person who has been a legislator, you might just as well introduce provisions prohibiting it from appointing a great number of other persons. You are, it seems to me, instead of confining yourself to the establishment of a Constitution, entering into negotiations for dealing with questions of administration. If you cannot trust your Parliament to deal with that, I think we might resolve to have no Federal Parliament at all.

Mr. PEACOCK: You might drop out a lot of clauses if that be true.

Mr. SYMON: Let us prescribe the qualifications of the members.

Sir WILLIAM ZEAL: What about clause 46?

Mr. SYMON: That clause says that persons holding an office of profit should be disqualified from sitting. But here you are going to declare that the Federal Executive is not to appoint somebody who has been sitting some six months previously. In the same way you may put it that no one should sit who is over 35 years of age, or something of that kind. To deal with such a matter in the Constitution is undesirable. I entirely agree with the propriety of the legislation in this colony which puts a restriction on the power of the Executive to hold out offices as a temptation to members of the Legislature. Nothing could be more desirable than to have a provision like that; but the question is whether we ought to leave it to the Federal Parliament to deal with, or introduce it into this Constitution, and introduce it in a particular portion of the Act where it in not really applicable. We are here fixing the qualification and imposing penalties where the qualifications are not held. Beyond that it seems to be undesirable to go.

Mr. ISAACS: I would like to put my view to Mr. Barton for a moment. The object of clauses 46 and 47 is to prevent members of Parliament from using their public positions for their private benefit. These clauses as they stand do not carry [start page 747] out that object. They leave the man in possession of the position which his membership has obtained. They say to him, "If you accept a position for your personal advantage you must not sit in Parliament any longer."

Mr. GLYNN: But we do not admit that is the object of the Act.

Mr. ISAACS: The object is no doubt to prevent personal interest coming into conflict with public duty.

Mr. BARTON: I think it is to prevent practical bribery.

An HON. MEMBER: What about the Judges?

Mr. ISAACS: I quite admit that the same principle applies to the positions of Supreme Court Judges and to Agents-General as to any other officers. But the section would be incomplete without prohibiting absolutely the conferring of an appointment upon a person while he is a member of the Parliament. The words put by Mr. Barton would prevent an appointment being conferred upon a person within six months after ceasing to be a member, but they do not prevent an appointment being conferred while he is a member. That is the great danger. These clauses would be like locking the stable door after the steed has gone. What would be the penalty under clause 48 for taking an appointment?

Mr. HIGGINS: It is no penalty to him at all to lose his seat.

Mr. ISAACS: this is the position that I want to lay down. We assume that A.B. is a member of Parliament, and he is appointed, while he is in Parliament, to a lucrative position in the State. He is told that he is liable to a penalty of £100 a day while he sits in Parliament. But he says "I do not want to sit in Parliament; I have my appointment and I am therefore subject to no penalty whatever." I do not think that would meet the case. If we are to put a clause in the Constitution at all, we ought to say right out that any attempt to confer an appointment upon a person while he is a member, or with in six months after ceasing to be a member, shall be utterly null and void. In Victoria we have put a penalty in the Act upon a person who takes a position. It is clause 25 of the Constitution Act:

If any person shall, while be is a member of the said Council or Assembly, or within six months after ceasing to be such member, accept any office, or place of profit, under the Crown, he shall forfeit the sum of fifty pounds for every week he shall hold such office, or place, with full costs of suit for any person who shall sue for the same.

Mr. KINGSTON: What year was that?

Mr. ISAACS: I think it was passed in 1883.

Mr. BARTON: I hinted something similar to that, that there should be a penalty attached to the taking of the office.

Mr. ISAACS: But I would carry it much further than clause 48. If it is wrong that a member of Parliament should take an office of profit, we should say that the appointment should be absolutely null and void.

Mr. KINGSTON: Prevent the appointment.

Mr. ISAACS: Yes; I would not allow a man to secure the position and merely ask him to pay a penalty for it.

Mr. BARTON: How would this do?

No person being a member, or within six months of his ceasing to be a member, shall be qualified or permitted to accept or hold any office, the acceptance or holding of which would, under this section, render a person incapable of being chosen or of sitting as a member.

I think it would do if we put in the words:

But no person shall, while he is a member of the Parliament or.

You must put in the words:

While he in a member,

if you prohibit him from taking office after he ceases to be a member.

Mr. HOLDER: There in one point that may be overlooked. I have listened very carefully to the arguments of Mr. Barton, and I agree with him that we are making a constitution, and not legislating for a [start page 748] future Federation. This point, however, seems to me to be one which should be dealt with to-day, for this reason, that when the new Federal Parliament comes into being it will have, within a very few months, an enormous amount of patronage to dispense. There will be a Chief Justice and four other Judges, there will be an Agent-General, there will be an Inter-State Commission of three or five members, and many other important officers of the State who will have to be appointed. One hon. member has referred to "shutting the door after the steed has been stolen." We shall do that with a vengeance if we permit one Parliament to make all these appointments, and then say to its successors: you shall not make even one such appointment a year, or even one in five years.

Mr. MCMILLAN: I think what Mr. Barton says has enormous weight - that we should not put into the Constitution anything that we ought to leave to the Federal Parliament.

Sir WILLIAM ZEAL: You want to punish the small man and let the big than go free.

Mr. MCMILLAN: There are two phases of this question. We may embody in this Constitution only what we understand to be vital matters, but on the other hand we may give direction to Parliament that a certain course should be pursued. I think the general feeling is that the clause should be passed, but that it should be subject to the Federal Parliament afterwards by the insertion of such words as these "until the Parliament otherwise provides." It seems a pity to bind this Parliament and make it necessary to have the roundabout process of a referendum to the people on matters which are purely matters of parliamentary concern.

Mr. DOUGLAS: I should like to know if there is any place, except Victoria, where such restriction is placed upon such appointments. If no other colony has found it necessary to draft such a law, it seems strange that the Parliament to be established under Federation should not have power to make alterations of a character which only experience can point out to them to be beneficial or prejudical. At present we are trying to pass a law of a general character as regards the powers of Parliament, but if we put such a restriction in this Bill, which is really the Constitution of the Federation, we shall not have power, even if we find it necessary, to alter it, except by the amendment of that portion of the Constitution which refers to it. We had better wait and see whether the Federal Parliament will do such an improper act as favoritism of this character, instead of, as it were, looking on the Parliament of the Federation as on what will be a corrupt Parliament about to do corrupt actions. The Parliament itself will be the best judge of this question. If the Ministry of the day attempts to make an appointment of a corrupt character, is it likely that the Parliament of the day will permit it to do so against its wishes? The only proper course for us is to establish in the Constitution certain principles, and leave alone details of matters which only experience can point out as necessary or otherwise. In our own colony, when it was found that certain actions were of a corrupt character, the Parliament, soon remedied the evil. If we put this suggested clause in, we tie the hands of the Parliament for a length of time. Then, Mr. Holder has referred to appointments which must be made in spite of this arrangement; Judges, for instance, who may happen to be members of Parliament. It is much better to let the clause stand as it is.

Sir EDWARD BRADDON: Hear, hear.

Mr. DOUGLAS: At the same time, if we are to have something before us, let it be definite. There are amendment after amendment, and suggestion after suggestion now before us, and no one knows exactly where we are.

The CHAIRMAN: I think we shall get on a good deal quicker if members will confine their remarks to the particular [start page 749] amendment before the chair. The « first » amendment I am going to put is the one by Mr. Glynn.

Amendment (moved by Mr. Glynn)-To omit the words "of being chosen or"-negatived.

Sir WILLIAM ZEAL, having obtained leave to withdraw his previous amendment, said: It has been suggested to me by several members that the words:

Until the Parliament otherwise provides

should be added to the new clause.

Dr. COCKBURN: I hope you will not add it.

Sir WILLIAM ZEAL: Personally, I would prefer the clause as drafted, but if there is a consensus of opinion that the words should be inserted, I am prepared to accept them. I shall press this to a division. My motion is:

To insert a new sub-section to come between subsections I and 2, as follows:-Until Parliament otherwise provides, no person, being a member, or within six months of his ceasing to be a member, shall be qualified or permitted to accept or hold any office, the acceptance or holding of which would, under this section, render a person incapable of being chosen or of sitting as a member.

Mr. KINGSTON: I shall vote for the amendment. I did think at « first » that it would have been better to have left the Federal Parliament absolutely free to deal with the matter, and not to impose any limitation until they had so dealt with it. But I cannot help agreeing with the remarks of my hon. friend Mr. Holder that there will be an immense amount of patronage to be exercised in the « first » instance, and unless we are very careful it will be a case of shutting the door after the steed is stolen. And if there will be one time of difficulty more than another it will be during the « first » year of the Federal Constitution and before there has been any time for the Parliament to legislate on the subject. Under these circumstances I shall vote for the amendment, and if the Federal Parliament sees any reason to alter it they can do so.

Mr. GLYNN: I wonder how many instances of corruption of this sort can be called to mind by hon. members. The assumption is that in order to get the votes of the members of Parliament you put them in an office where their power of voting will be gone.

Mr. O'CONNOR: I have not heard any answer to the arguments used a little time ago by Sir Edward Braddon, that in the public interest we may go a great deal too far in amendments of this kind. I say it is impossible to secure the purity of administration by mechanical devices of this kind, and which may be very easily got over. When the time comes which hon. members wish to provide against, when the Ministry wish to appoint a man to some particular office-take a judgeship-they have only to tell him, "You resign; we will give you this appointment, and we will appoint an acting judge for, six months."

Mr. FRASER: Then they would be voted out of office.

Mr. O'CONNOR: What is there to prevent that being done?

Sir GEORGE TURNER: A man would not take the risk.

Mr. O'CONNOR: A man would not take the risk? I will point out some very strong reasons why we should not put any restrictions of this kind in the measure. I do not think any feeling of false delicacy ought to prevent any member of the legal profession giving expression to his opinions on this matter, and I intend to very freely.

Mr. KINGSTON: Hear, hear. Do.

Mr. O'CONNOR: It must be obvious if you have a limitation of this kind it will have this effect: it will prevent men of great ability and eminence in the legal profession from seeking positions in political life.

Mr. FRASER: Why should the legal profession be exempted?

Mr. O'CONNOR: The legal profession, in the ordinary coarse of things, are well [start page 750] able to look after themselves. I am speaking in the public interest, which demands that you should have on the bench not only men of high legal attainments, but men of broad views and general knowledge, and it would be a sorry day indeed for this Commonwealth if they were restricted in the choice of their judges to men who had followed law and devoted themselves to nothing else. One of the most important qualifications of a judge is that he should have that knowledge of affairs and of human nature which a man acquires in politics, and which perhaps in no other school can be gained so well as in the school of politics. If you pass this, you will restrict your selection to men who have had their ambitions restricted to the narrow groove of following the law and the law only.

Mr. HIGGINS: Would not the same thing apply to the agricultural expert who is farming?

Mr. O'CONNOR: No; it is quite a different set of reasons. If you wish to have a free choice of the best men to put into the Federal Judicature, you should not in the public interest narrow that choice. I think I may appeal to the experience, not only of England, but of these colonies, and may ask whether there is a case in any of the colonies in which it can be said that a man has been placed on the judicial bench who is corrupt or unfit for the position, or who disgraces the administration of justice, and who has been corruptly placed there. No doubt there have been appointments made which may be directly traced to political partisanship, but I defy any man to say that-taking those appointments as a whole-any appointment has been made of a man who is incapable of fulfilling the position properly. Surely if this is to be government by the people for the people, and if we are to hand over to the will of the democracy which governs this Constitution the power of deciding bow it is to be worked, surely we must leave them to judge and to watch over the purity of the administration. And it that administration has been maintained pure for so many years under our system of responsible government, surely we ought not to place these mechanical restrictions on the action of the Executive, which will result in narrowing the choice of the men capable of filling these positions. If we attempt to go too far in these kind of mechanical restrictions, we shall find ourselves restricted in the choice of the best men to fill these positions. I quite agree with many things that have been said by Mr. Isaacs with regard to the provisions in the Victorian Act. I think it might be very well that the Parliament, if it thought fit, should pass some Act of that kind with any limitations they might think proper to make. But the Parliament is the best judge of that.

Mr. ISAACS: I agree with you.

Mr. O'CONNOR: If the Parliament of the Federation find it necessary to make any provision of this kind it might be well to give them power to do it. But do not let us beforehand, without knowing anything of the conditions under which it may be necessary to make these appointments, tie their hands under this Constitution more than we tie the hands of ordinary local Parliaments. We trust laws

to the people of this Commonwealth; then let us trust to the people the administration of their own affairs.

Mr. FRASER: The objection raised by Mr. O'Connor does not apply to members of the present Houses of Parliament. It only applies to members of the Federal Parliament, and there will be any number of men eligible for the positions in the local Parliaments. that being so, I do not see there is any great danger.

Mr. O'CONNOR: You shut them out from positions in the Federal Parliament.

Mr. FRASER: Members of the local Parliament are eligible for appointments and it is only the members of Federal Parliament who are debarred in this respect.

[start page 751] Mr. BARTON: Does the hon. member wish to turn these members into provincialists instead of federationists?

Mr. FRASER: There is a great deal of force in Mr. O'Connor's argument. If the Ministry of the day, in the Federal Parliament, choose to single out a gentleman qualified for the position of Chief Justice, he has only to resign his place in Parliament, remain out of the Legislature for sit months, and the country and Parliament will then acknowledge that the appointment is a legal one. Justice will continue to be administered during the six months.

Mr. MCMILLAN: You want the judge to give six months notice of his death.

Mr. FRASER: That is only small talk.

Mr. MCMILLAN: How would you fill up the gap?

Mr. FRASER: There is no gap.

Mr. REID: The king is dead; long live the king.

Mr. FRASER: The administration of justice is going on all the same, and it is easy to fill a vacancy temporarily.

Dr. COCKBURN: A judge often goes away for a year now.

Mr. FRASER: Some go away too often; at least, that is the case in our colony.

Mr. O'CONNOR: Would you not call that a device for getting round the Act?

Mr. FRASER: The Government of the day will say they are going to appoint John Smith to be Chief Justice of a colony, and they will stipulate that after six months have expired the appointment will be made. If Parliament and the public approve of it, what wrong can there be in that?

Mr. BARTON: That is a "Sentimental Tommy's" way out of the difficulty.

Mr. FRASER: It the thing were done clandestinely neither Parliament nor the country would support it, and the probability is that the Government attempting such a thing would be turned out of office,

Sir EDWARD BRADDON: There is a certain amount of absurdity in this amendment.

Mr. FRASER: On whose side?

Sir EDWARD BRADDON: On your side distinctly, inasmuch as it seeks to impose a restriction only upon the « first » Federal Government, where such restrictions would be least necessary, the « first » Federal Government having immediately to make appointments before it had held, office for any length of time, and before Parliament had relieved it from these restrictions. That Government having been in office only a short time, would not have found it necessary to apply this political device against which Sir George Turner's amendment seeks to operate. If eminent men who happen to be in Parliament are to be excluded from holding appointments in the « first » instance, ie., the appointments effected by the « first » Federal Executive, this will in all probability exclude a large number of eminent men from that Parliament -men who but for that would have sought election and would have been elected-

Mr. FRASER: There are plenty of eminent men out of Parliament.

Sir EDWARD BRADDON: I am not talking about men out of Parliament, but of lawyers in Parliament, for instance, who may think that they are entitled to a judgeship under the Federal Parliament. There might be throughout the colonies half a dozen men who might consider that they would make capable High Commissioners, and they would all stand out by reason of this provision. They would prefer to remain in private life rather than, by entering the Legislature, debar themselves of the worthy object of their ambition; and, inasmuch as it is only a partial preventive, as it is only applicable until otherwise ordered by the Federal Parliament, I think we might avoid it altogether and rather place that confidence in the Federal Parliament and Executive that they, at any rate, are [start page 752] entitled to, until they show by their actions that they are unworthy of it.

Mr. REID: I think if we are going to legislate for the Commonwealth, instead of legislating for the establishment of the Commonwealth, our discussion will be endless. If any abuses arise in the Commonwealth it will be perfectly competent for the Parliament to set them right, and if no abuses arise I think it would be a pity to limit the choice of the Executive, especially with regard to the highest offices of the State. Whilst I do not at all say that eminent lawyers or eminent men would remain out of the Federal Parliament if such a provision were inserted in the Constitution, I do say that circumstances might arise in which it might be a positive calamity that such a provision existed in the Constitution. know that in our colony it has been found difficult enough to secure the services of the best men for the highest offices in the State. I remember well a case in which the Chief Justice died most unexpectedly, and there was the greatest difficulty in obtaining the services of a fit person to take his place. Nearly every eminent lawyer was in Parliament, and everyone desired to remain out of the Chief Justiceship, and the eminent man who is now Chief Justice was in possession of a practice worth £10,000 a year. He was a member of the Council, and was the most useful member the Council ever had. He at « first » refused the position, but was afterwards persuaded to make the sacrifice of that great income while in the prime of his life to take the office at £3,500 a year. No man will go into an exalted office by a side door, and if he would he would be unworthy of the office. If abuses arise in the Commonwealth they may call for some speedy enactment of the kind Sir William Zeal desires to make, and we might well leave the matter at present to the Commonwealth to prevent any such abuse. I feel that it would be a mistake to put this amendment in the Constitution.

Sir WILLIAM ZEAL: With reference to what Mr. Reid has said, there is great force in his contention, and it would be much intensified if the practice in the neighboring colonies bore out his argument, but I point out that in Victoria out of the six judges constitnting the Supreme Court Bench only one has been a parliamentarian. I read the names of those judges who have not been members of Parliament:-Mr. Justice Williams, Mr. Justice Holroyd, Mr. Justice A'Beckett, Mr. Justice Hodges, and Mr. Justice Hood. The exception is the present Chief Justice, Sir John Madden. Now, I say that shows clearly you have an ample choice outside of Parliament. You may not in small colonies, such as Tasmania, represented by Sir Edward Braddon, where there are not many lawyers, be able to find efficient men, but in the larger colonies this difficulty would not arise. There is no need to place such an argument before this Chamber. If a man supplying a ton of coal to the Federal Government is disqualified from being appointed to a minor office, surely a member of Parliament who probably is

an active supporter of a Government is ineligible to hold a higher office. If the hon. member is prepared to expunge the exemption clauses I will withdraw my amendment. We must enact laws to ensure the purity of Parliament.

Sir GEORGE TURNER: The strong objection is that eminent men, especially in the legal profession, would be prevented from taking seats in the Parliament. That is provided for in the words

Until Parliament otherwise provides.

If the Government of the day had an eminent man in Parliament whom they wished to appoint to a position they would bring in an Act of Parliament, and if Parliament thought it wise in that instance they would pass the Act.

Mr. REID: What eminent man would submit himself to be discussed in a Bill?

Sir GEORGE TURNER: If it is wise to say a member of Parliament shall not [start page 753] accept a position, is it not wise to say that a man for six months after ceasing to be a member shall not take it? If the difficulty arises that we cannot get a man outside, the Government of the day will have to go down to both Houses and say, "We think this is an appointment which ought to be made," and if the Parliament and people agree no harm will be done.

Mr. REID: Then the appointment of a Chief Justice will become the question of a political discussion.

Mr. GRANT: I agree with Sir William Zeal that in a matter of this kind we should not allow the lawyers to have any monopoly in obtaining appointments under the Crown. All the argument seems to turn upon the privileges of the lawyers, and I think we should not make an exception of them, as is suggested. With regard to the appointment of judges, which seems to oppress them most, I think it would be an admirable arrangement if the nomination of judges were made six months prior to their appointment. Many appointments have been made of an objectionable nature, and although they may not have been corrupt, and though the Government could not be charged with corruption, they have made appointments that have been thought objectionable. Therefore it would be far better to carry the amendment, and at a future time it may be thought advisable to make it a sine qua non that the appointment of judges be made six months before they enter into their office.

Mr. BARTON: No one has proposed to make an exception here in favor of the lawyers. If the hon. member is under that impression, and gives his vote and supports the amendment an account of that impression, he will be voting without having realised what the amendment is. The amendment is placed in the present form in order that no exception shall be made in favor of the lawyers, and this form is opposed because the Executive should not have its hands tied in such cases as the appointment of judges and Railway Commissioners. We should not have an exception made as in the Victorian Act, because that excepts them from the purview of such a law as this. That I wish to make clear, and no speech has been made in this debate which puts forward any claim in favor of lawyers. Judges have been selected as an instance because it happens to be a singular example of how a provision such as this would miscarry, for it would either prevent distinguished men-the most eligible for the position-from being selected, or it would result in the subterfuge of getting round the Act, which would be consented to only by lawyers who would be unworthy of such positions. The Executive of the Commonwealth are, in a constitutional sense, the guardians of every right and privilege of the people, and being the constitutional guardians of the people, their right in the choice of appointment to offices high or small should not have an encumbrance placed in its way, because the encumbrance costs a great deal more than it is worth in the loss of services of men the best fitted to occupy the positions, or in the alternative, in a subterfuge which would only be resorted to by men who would be unworthy of such positions.

Question-That the sub-section proposed to be inserted be so inserted-put. The Committee divided.

Ayes, 19; Noes, 18. Majority, 1.


Brown, Mr. Howe, Mr.

Carruthers, Mr. Isaacs, Mr.

Cockburn, Dr. Kingston, Mr.

Deakin, Mr. Moore, Mr.

Fraser, Mr. Peacock, Mr.

Gordon, Mr. Quick, Dr.

Grant, Mr. Trenwith, Mr.

Henry, Mr. Turner, Sir George

Higgins, Mr. Zeal, Sir William

Holder, Mr.

[start page 754]


Abbott, Sir Joseph Berry, Sir Graham

Barton, Mr. Braddon, Sir Edward

Clarke, Mr. McMillan, Mr.

Dobson, Mr. O'Connor, Mr.

Douglas, Mr. Reid, Mr.

Downer, Sir John Symon, Mr.

Fysh, Sir Philip Taylor, Mr.

Glynn, Mr. Walker, Mr.

Lewis, Mr. Wise, Mr.

Question so resolved in the affirmative.

Mr. BARTON: A verbal amendment will now be necessary. I move:

To insert after "officer" in the second line of sub-section 2 the words "or member."

Sir GEORGE TURNER: I desire to ask the Committee whether this particular sub-section should remain at all. I should be very glad if we could get an expression of opinion from Mr. Barton as to

why this particular exception should be made. We may be told it was made in the Bill of 1891, but it seems to me to be most extraordinary that we are going to say that persons who occupy positions in the Queen's navy and army are to be at liberty to be exempted altogether from the provisions of this section. Why should any distinction be made in their favor when we do not make it in favor of persons in the public service, or who have been in the public service, or similar classes of persons who might be mentioned?

Sir JOHN DOWNER: We do not pay them.

Sir GEORGE TURNER: The effect will be that a person occupying the position of Admiral or General may hold a position under the Federal Parliament.

Mr. WISE: It also applies to local officers.

Mr. BARTON: No; if you strike it out it would.

Sir GEORGE TURNER: In Victoria we say:

No person occasionally employed.

That is our clause applies to regular officers who get salaries for what they do.

Mr. BARTON: Will this part of the subsection cover it?:

And whose services are not wholly employed by the Commonwealth.

Sir GEORGE TURNER: I have no objection to that. I do not wish in any shape or form to shut out those who are volunteers, and simply receive some small emolument to enable them to pay for their uniform and expenses, but I do object to permanent officers who are really servants of the State, having the privilege of sitting in Parliament when we debar so many other classes.

Mr. BARTON: This refers to the Queen's army and navy as distinct from any force of the Commonwealth.

Sir GEORGE TURNER: But the General or the Admiral who would be here commanding and controlling our army and navy would come under the description of being officers of the Queen's navy and army. Perhaps if Mr. Barton would explain to my dull comprehension what the clause really means, I may see my way clear to support it; but I am strongly opposed to it as I now understand it.

Mr. BARTON: The reason of this clause is not hard to see, but it is a clause which reads in a rather difficult way. It is practically as it stood in the Bill of 1891. The reason that persons in receipt only of pay, half-pay, or pension, in the Queen's navy or army, are exempted is that they are not holding an office of profit under the Commonwealth at all, but their pay comes from the Imperial Government. It is obvious that there is no necessity whatsoever on the ground of interest to exclude them from having positions in the Parliament of the Commonwealth, because they are not servants of the Commonwealth, and have no interest whatever springing from the Commonwealth such as under the previous branch of the section disqualifies anybody.

Sir GEORGE TURNER: Then this is not necessary.

[start page 755]

Mr. BARTON: Yes, it is; because it might otherwise be read to apply that way. The hon. member will well remember the case of Sir Bryan O'Loghlen, whose election for County Clare was upset on the ground that, while he was a Minister of the Crown in Victoria, he was holding an office of profit

under the Crown. That case shows the necessity of these exceptions. Then those are exempted who receive a new commission in the Queen's navy or army, or an increase of pay on a new commission. That covers the case of those who receive a fresh commission, who happen to have been a member of the Queen's army drawing pay, half-pay, or pension, or who receive an increase of pay, supposing they are only in receipt of a half-pay or pension. But they are still persons employed under the Government of the Queen, and not under the Government of the Commonwealth. Then the remainder of the clause exempts anyone:

Who is in receipt only of pay as an officer or member of the military or naval forces of the Commonwealth, and whose services are not wholly employed by the Commonwealth.

If he belongs to what is called the permanent force he will be disqualified, because he will be in receipt of an ordinary office of profit under the Commonwealth. For instance, take the case Sir George Turner put, of a general commanding the local forces. He has an Imperial commission, but beyond that he in receiving pay from the Commonwealth, and would be ineligible. Take the officers of his staff, who are also employed by the Commonwealth; they are ineligible. Take the men under them; they would be employed in the regular forces, and would be in receipt of pay under the Commonwealth, and so ineligible. But as regards the members of what is usually known as the volunteer, or the militia, or the partially paid forces, it was considered reasonable in the 1891 Bill to exempt them, and I think it is reasonable to exempt them now.

Sir GEORGE TURNER: No one objects to that.

Mr. BARTON: The main point is that we exempt persons in receipt of pay, half-pay, or pension, or commission in the Queen's service, apart from the Commonwealth, on the ground that as they do not draw their pay from the Commonwealth, they have no interest against the Commonwealth.

Mr. KINGSTON: Have you that provision in New South Wales?

Mr. BARTON: I think we have, but I will reply to that question in a minute.

Sir JOHN DOWNER: They have it in Queensland.

Mr. Barton's amendment-to insert the words "or member" after "officer" in the second line of sub-section 2 - agreed to.

Mr. GORDON: I think it is very unfair to exclude from the operation of this clause pensioners of the Queen and not pensioners of the Commonwealth. There is no connection between political and military services, and I fail to see why pensioners of the Commonwealth should be under any disability. I move:

In line 40, after "pay" to insert "or pension."

Mr. BARTON: I can quite see the point of the hon. member, but we have to read, the remainder of the clause, which includes:

And whose services are not wholly employed by the Commonwealth.

Sir GEORGE TURNER: Suppose a man has an accident and he is given a pension, would he be then debarred?

Mr. BARTON: I am putting it from the point of the effect it will have on the clause. It would appear that it would only apply to military cases where the individuals might be in the employ of the Commonwealth. That seems to make the clause self - contradictory if we make the amendment. If the

hon. member will think over it and prepare an amendment and hand it to me it may be looked at on recommittal.

[start page 756] Mr. GORDON: I will withdraw my amendment.

Leave given.

Clause as amended agreed to.

Clause 49.-The Senate and the House of Representatives may each of them from time to time adopt standing rules and orders as to the following matters:

I. The orderly conduct of the business of the Senate and the House of Representatives respectively:

II. The mode in which the Senate and the House of Representatives shall confer, correspond, and communicate with each other relative to votes or proposed laws:

III. The manner in which notices of proposed laws, resolutions, and other business intended to be submitted to the Senate and the House of Representatives respectively may be published for general information:

IV. The manner in which proposed laws are to be introduced, passed, numbered, and intituled:

V. The proper presentation of any proposed laws passed by the Senate and the House of Representatives to the Governor-General for his assent: and

VI. The conduct of all business and proceedings of the Senate and the House of Representatives severally and collectively.

Mr. WISE: It will be necessary to make an addition here to give full effect to section 8. By section 8 the two Houses have full power to define the privileges, immunities, and powers of the Senate and House of Representatives. In section 49 to give effect to that there ought to be a clause to this effect:

Maintain, regulate, and exercise their respective powers, privileges, and immunities.

Mr. BARTON: We have considered that, and I do not think it necessary.

Sir JOSEPH ABBOTT: The clause as it now stands clearly limits the Federal Parliament in the matters therein mentioned. The Constitution of New South Wales limits the power of that Parliament to pass standing orders best adapted to the ordinary conduct of the Council and Assembly respectively. On a recent occasion a member was addressing the Chamber, and a person in the gallery began throwing stones at him on the floor of the House. The gentleman addressing the chair was a labor member, and he was reproving another person for having thrown stones at the labor party.

Mr. BARTON: That is a little nearer here than New South Wales.

Sir JOSEPH ABBOTT: And a person in the gallery immediately said, "You want a stone at your head," and he thereupon threw two stones into the Assembly. It struck me-

Mr. PEACOCK: What, the stones struck you?

Sir JOSEPH ABBOTT: No; they did not strike me. But it struck me as I sat there presiding over that Assembly as an extraordinary thing that the Parliament there could not punish the person guilty of

such an outrage. We had to hand him over to the police, and he was brought up at the Police Court and fined twenty shillings. It weakens the power and it weakens the influence of Parliament that it cannot control disorder within its own doors and within its own boundaries, and if we accept these six provisions we limit the power of Parliament to make standing orders for the purposes indicated there. Under the eighth section of the Bill hon. members will see:

The privileges, immunities, and powers of the Senate and of the House of Representatives respectively, and of the Committees and the members thereof respectively, shall be such as are from time to time declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of the Committees and members thereof respectively, at the establishment of the Commonwealth.

But viewing this forty-ninth clause in its restricted form, it appears to me that if we attempt to pass Standing Orders we can only pass Standing Orders in accordance with that section. I therefore move:

That all the words after "as" in line 4 be omitted to the end of the clause in line 21, with a view of the insertion of the words "as they or each may deem to be necessary, and all such rules and orders shall have the force of law."

Perhaps it might be as well to put in [start page 757] what is put in the other constitutions of colonies, namely:

Upon being assented to by the Governor. Mr. BARTON: I do not like that.

Sir JOSEPH ABBOTT: I am not particular about that, but I think at all events the Federal Parliament ought to have power to make its own standing orders for the purpose of preventing disorder. When I say this I do not suppose the Commonwealth Parliament would attempt to exercise control with regard to people out of its own doors. But within our own dominion we ought to be absolute. If we summon a witness in any of our local Parliaments to the bar of the House, he can decline to give evidence, laugh at us, and walk away. The case I have just mentioned shows the necessity of Parliament having control over any disorder.

Mr. TRENWITH: Anything to stop them throwing stones at labor members.

Sir JOSEPH ABBOTT: In Victoria they took the matter in a wholesale manner, and passed an Act of Parliament declaring that the Victorian Legislature had all the powers, privileges, and immunities of the House of Commons. There was no mincing of matters there, and it was in consequence of the Parliament of Victoria having arrested a man, and it having been decided that they had no power to do so, that they immediately declared they had all of the powers of the House of Commons. The man, I think, was connected with Goldsbrough's Company, and named Glass. He did something, and the Parliament arrested him, brought him to the bar of the House, and it was declared that they had no power to do so. In all the decisions of the Privy Council in reference to the powers of Parliament, the Privy Council has invariably declared that Parliament has no power outside the very words of the Constitution Act. In the own of Hampton and Fenton, I think, in Tasmania they had the audacity to tell a great colony like Tasmania that so far as it was concerned it had no greater powers than a municipality.

Mr. BARTON: The Speaker only had the power of a chairman of a public meeting.

Mr. DOUGLAS: Regarding the case alluded to by the hon. member, I happened to be present when the decision was given. The Privy Council did not declare that the colony had no power, but that any colonial Government, being under a Statute, would have no power beyond that Statute. The result was that the Tasmanian Parliament passed a law giving the powers to which the hon. member has made reference.

Sir EDWARD BRADDON: I think that the amendment which the hon. member has proposed must be considered in connection with clause 8, page 4 of the Bill, which provides:

The privileges, immunities, and powers of the Senate and of the House of Representatives respectively, and of the Committees and the members thereof respectively, shall be such as are from time to time declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of the Committees and the members thereof respectively, at the establishment of the Commonwealth.

If the hon. member's amendment is to include the power of punishment it will scarcely be necessary. The effect of the decision of the Privy Council to which my hon. friend has alluded must be read in connection with the Constitutions of the several colonies, which were affected at the time of the pronouncement of these decisions. In New South Wales, and I think in Tasmania, what exists at the present time is a Legislature as distinct from a Parliament. A Sovereign Parliament has punishing power. A Legislature which is created by Act of Parliament, and with the equivalent powers conferred upon it, as they are conferred by section 8, has, in the case of New South Wales and Tasmania, no power except such as can be gathered from the necessary implication of the words of the Constitution. In the present instance we have passed a clause which states that the [start page 758] privileges, immunities, and powers of the Federal Parliament shall be those declared by the Parliament, and until a declaratory Act is passed the privileges, immunities, and powers of the House of Commons will be accepted. The power of punishment exists in the House of Commons, and the same power would exist in the Parliament of the Commonwealth under clause 8. An outrage committed within the walls of the Federal Parliament could be punished in the same way as in the House of Commons. If a man ventured to throw a stone into the Imperial Parliament, though unfortunately the thrower is not always caught, it would be contempt of Parliament, and that would be a matter to be dealt with by the Commons according to the powers, privileges, and immunities it possesses.

Sir GEORGE TURNER: Has not the House of Commons power to make Standing Orders?

Mr. BARTON: Yes.

Sir GEORGE TURNER: Then where is the necessity for this clause?

Mr. BARTON: The necessity for it does not arise out of the powers of the Standing Orders, which are merely regulations for the conduct of the business within the House, but out of the power of punishment in cases where contempt is exercised by persons within the walls of Parliament. If, for instance, a person throws a stone and the Sergeant-at-Arms can catch him he can be brought before the Parliament and can be imprisoned or dealt with otherwise for contempt. Under the operation of the clause similar action can be taken by the Federal Parliament, and that goes far enough. It does not require Standing Orders to deal with the powers, privileges, and immunities of Parliament. They exist, and if you made Standing Orders you would really only limit them. Under the Bill we have taken the powers, privileges, and immunities possessed by the House of Commons.

Sir JOSEPH ABBOT: Then why do you want clause 49?

Mr. BARTON: I have already explained that, but I will return to it if my hon. friend wishes. I say in the meantime you have already taken the powers, privileges, and immunities of the House of Commons, and there is no necessity to pass Standing Orders with reference to them. They do not need definition in the Standing Orders; they are not the subject of definition in the Standing Orders; they are totally different in their whole circuit to the Standing Orders which relate to the conduct of the business of each House and its transactions with the other House. That is not a question of the powers, privileges, and immunities of the House of Commons, which exist independently of the Standing Orders. They have a historical application in the House of Commons, and they can be applied to the Federal Parliament.

Mr. TRENWITH: Could they not make Standing Orders?

Mr. BARTON: The Federal Parliament, of course, will have power to make Standing Orders for the regulation of its internal business.

Mr. TRENWITH: If we adopt clause 49 do we not restrict the power of the Federal Parliament with regard to any Standing Orders they may make?

Mr. BARTON: No. You do not restrict them because you have the clause in the most general terms. My hon. friend wishes the clause to read:

The Senate and the House of Representatives may each of them from time to time adopt Standing Orders as they or each may deem to be necessary, and such Standing Orders shall have he force of law.

That is altogether too wide, as the Standing Orders would then have the effect of law outside the House.

Mr. PEACOCK: Hear, hear. That is the point.

Mr. BARTON: It is the point to which I think the hon. member was anxious to come. What we have done is to adopt a clause giving the Federal Parliament power to pass Standing Orders for the con- [start page 759] duct of their business, and so that there should be no doubt the power has been taken in the widest possible words. The House of Commons does not make its Standing Orders by reason of its powers, privileges, and immunities, but by virtue of its inherent powers as a sovereign Parliament. The Standing Orders are for the internal regulation of the House of Commons, but my friend would like to say that the Federal Houses may make Standing Orders for any matter it may deem necessary. This would have the effect of passing laws without the royal assent. I ask my friend if the clause as it stands is not sufficient.

Mr. HIGGINS: I am strongly of the opinion that the amendment is too wide. Section 8 gives this Parliament all the powers, privileges and immunities which the House of Commons has and members also, and we want no more than that. Clause 49 merely makes assurance doubly sure by providing that each House of Parliament shall make Standing Orders for the conduct of its own business, and if the amendment be carried as proposed it means that one House of Parliament is able to make laws although the Constitution means that both Houses must concur in making laws. If one House can make laws it will have a very important bearing on the liberty of the subject and the liberty of the press. The words in the amendment are:

As each of them may doom to be necessary, and such Standing Orders shall have the force of laws.

There is no question which comes up more than that of libel, and it is important to see that one House of Parliament shall not make any law affecting the freedom of the press in referring to the conduct of members. Any such law ought to be framed by both Houses; but the effect of this is that one House of Parliament is able to make laws to alter the law of libel and such matters. I think the Speaker of New South Wales will see there is no need for this.

Sir JOSEPH ABBOTT: I do not agree with Mr. Barton, when he states that this House of Parliament will have inherent powers. The Privy Council has frequently declared that colonial Parliaments have no inherent powers whatever. They only have the powers given to them by the Constitution Act. I think that with clause 8 there is no need for clause 49.

Mr. PEACOCK: They have not a clause like clause 8 in their Constitution.

Sir JOSEPH ABBOTT: Then where is the necessity for clause 49? Mr. Higgins says all kinds of things might be done with regard to the press. I have such a regard and love for the press that I cannot realise that Parliament would do anything to injure that great body. But the hon. member forgets that the eighth clause gives Parliament power to do what it likes with the press.

Mr. HIGGINS: But both Houses.

Sir JOSEPH ABBOTT: No. Clause 8, which has been passed, provides that the:

Privileges, immunities, and powers of the Senate and of the House of Representatives respectively, and of the Committees and the members thereof respectively, shall be such as are from time to time declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom.

No one knows what the powers of the House of Commons are. It is a fact that within the last thirty years they have given up the practice of summoning to the bar members of the press for matters of libel. The hon. member who is so anxious and careful about the press-

Mr. HIGGINS: And the outside public.

Sir JOSEPH ABBOTT: I ask the hon. member who is in charge of the Bill whether there is any necessity for clause 49, having regard to clause 48. I am anxious that the powers of Parliament should be limited to within its walls.

Mr. GLYNN: Undoubtedly the effect of the amendment would be to deal with the outside public-that power which does [start page 760] not exist in the House of Commons. In Stockdale v. Hansard it was held that the courts of law were not precluded by a resolution of the House of Commons from inquiring into the legality of the act complained of, and in delivering judgment in the Court of Queen's Bench, Patterson (Justice) drew a distinction between powers -especially the power of invading "the rights of others"-and privilege. These powers are matters of common law in England, and are liable to be restrained by the Court. Under the proposed amendment, the House of Representatives could pass a resolution that would have the force of law to an extent denied to be a similar resolution in the House of Commons.

Sir JOSEPH ABBOTT: In deference to the opinion expressed on the other side, I am prepared to withdraw my amendment.

Leave given.

Clause as read agreed to.

Part V.-Powers of the Parliament.

Clause 50.-The Parliament shall, subject to the provisions of this Constitution, have full power and authority to make laws for the peace, order, and good government of the Commonwealth, with respect to all or any of the matters following, that is to say:

I. The regulation of trade and commerce with other countries, and among the several States:

II. Customs and excise and bounties, but so that duties of customs and excise and bounties shall be uniform throughout the Commonwealth, and that no tax or duty shall be imposed on any goods exported from one State to another:

III. Raising money by any other mode or system of taxation; but so that all such taxation shall be uniform throughout the Commonwealth:

IV. Borrowing money on the public credit of the Commonwealth:

V. Postal and telegraphic services:

VI. The military and naval defence of the Commonwealth and the several States and the calling out of the forces to execute and maintain the laws of the Commonwealth:

VII. Munitions of war:

VIII. Navigation and shipping:

IX. Ocean beacons and buoys, and ocean lighthouses and lightships:

X. Astronomical and meteorological observations:

XI. Quarantine:

XII. Fisheries in Australian waters beyond territorial limits and in rivers which flow through or in two or more States:

XIII. Census and statistics:

XIV. Currency, coinage, and legal tender:

XV. Banking, the incorporation of banks, and the issue of paper money.

XVI. Insurance, including State Insurance extending beyond the limits of the State concerned:

XVII. Weights and measures:

XVIII. Bills of exchange and promissory notes:

XIX. Bankruptcy and insolvency:

XX. Copyrights and patents of inventions, designs, and trade marks:

XXI. Naturalisation and aliens:

XXII. Foreign corporations, and trading corporations formed in any State or part of the Commonwealth:

XXIII. Marriage and divorce:

XXIV. Parental rights, and the custody and guardianship of infants:

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

XXVI. The recognition throughout the Commonwealth of the laws, the public acts and records, and the judicial proceedings of the States:

XXVII. Immigration and emigration:

XXVIII. Influx of criminals:

XXIX. External affairs and treaties:

XXX. The relations of the Commonwealth to the islands of the Pacific:

XXXI. The control and regulation of navigable streams and their tributaries within the Commonwealth, and the use of the waters thereof:

XXXII. The control of railways with respect to transport for the military purposes of the Commonwealth:

XXXIII. Matters referred to The Parliament of the Commonwealth by The Parliament or Parliaments of any State or States, but so that the law shall extend only to the State or States by whose Parliament or Parliaments the matter was referred, and to such other States as may afterwards adopt the law:

[start page 761] XXXIV. The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States concerned, of any legislative powers which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:

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

Sub-section 1, as read, agreed to.

Sir GEORGE TURNER: Subsection 2 raises some difficult points which I understood were to be referred to the Drafting Committee for consideration. This clause gives full power and authority to make laws with regard to certain matters, and provides that the law with regard to bounties must be uniform. In various colonies, particularly in Victoria, and more recently in South Australia, the Government has thought wise to encourage production by giving bounties. We have for several years been expending money for the purpose of assisting in the freezing of certain articles which are exported by this means. We have built up a trade. We hope also to build up a trade with regard to the dairying industry. We are at present endeavoring to establish the sugar-beat industry under an Act of Parliament which has authorised us to give bonuses to the extent of £50,000 to the companies, but not to exceed altogether £100,000. It seems from the Bill, however, that as soon as a uniform tariff is passed the whole of these bounties will have to cease. While it may be wise that Parliament should take control of the granting of these bonuses, I want it to be clearly understood that no bounties or arrangements existing at present shall be jeopardised.

Mr. BARTON: After the passing of the uniform tariff?

Sir GEORGE TURNER: No agreements or arrangements at present should be interfered with.

Mr. BARTON: Do you want the power perpetuated?

Sir GEORGE TURNER: In regard to the sugar-beet industry, we have actually entered into an agreement within the last few days.

An HON. MEMBER: That is an advance.

Sir GEORGE TURNER: It would come under the expression of bounties. I want to have existing contracts protected. It is a question that can fairly be discussed whether we are going to take away

from the States their rights, for the purpose of assisting to increase the exports from the Commonwealth, of giving these various bounties. The effect of this and other clauses may be to prohibit a States Parliament from granting any bounty-a bounty which might be not so much to compete with persons within the Commonwealth, but to enable persons who desire to produce for purposes of export to do so. We should carefully consider this, because it might be a serious thing to prevent trade beyond the continent, which a little help to our producers would bring about. Then, too, I should like an expression of opinion on the words:

No tax or duty shall be imposed on any goods exported from one State to another.

What is the meaning of the words:

Tax or duty?

We, in Victoria, have a harbor trust in control of the harbors and wharves, and they make charges, just as in done in the other colonies. Later on we provide for a uniform tariff, and that trade and commerce between the colonies shall be absolutely free. If the meaning is that our harbor trust shall not be able to impose duties that it does now on commerce coming from the other colonies or other parts of the world, we will seriously jeopardise that body. Take away what is its [start page 762] largest source of revenue and you will leave it practically insolvent.

Mr. MCMILLAN: Is not your tax equal to a Wharfage rate?

Sir GEORGE TURNER: I want to have it perfectly clear that the effect of the words "no tax or duty," construed in conjunction with the other section which says that the trade between the colonies shall be absolutely free, will not be to prevent the various charges I have mentioned.

Mr. BARTON: I would ask Sir George Turner to look at clause 92, and see whether it would accomplish his object if there were an addendum which said that:

No contract nor anything done under a contract made before the establishment of the Commonwealth shall be affected.

Sir GEORGE TURNER: It is a matter that requires serious consideration, because I feel certain none of us desire to do anything that will interfere with existing contracts,

Mr. BARTON: Look at sections 105 and

Sir GEORGE TURNER: Clause 106 says:

A State shall not, without the consent of the Parliament of the Commonwealth, impose tonnage dues.

Mr. BARTON: It is not a wharfage rate.

Mr. SYMON: Tonnage is a tax.

Mr. DEAKIN: I do not wish to interrupt this discussion, but I wish to make an alteration in the « first » portion of the clause, prier to the « first » sub-section.

The CHAIRMAN: That can only be done now by the unanimous wish of the House.

Mr. BARTON: It might be better to put that question when the whole clause is put.

The CHAIRMAN: That would be the better way.

Mr. DEAKIN: I will wait till then.

Dr. COCKBURN: The point raised by Sir George Turner is one of great importance. It will not be sufficient only to protect what has been done in the past by various States in fostering the export trade, but it will be necessary also to continue those rights to them in the future. Sir George Turner has mentioned several very important industries which are being fostered in this way by the colony of Victoria, but he might have made the list still longer. If anything is going to be done to prevent the State from assisting the export trade a very severe blow will be struck at the agricultural industry generally. Perhaps it is just as well that the Federal Parliament should have the right to give bounties equally throughout the States, go I do not know that this clause is the best place in which to make the necessary amendment, but this clause read together with clause 82 will not only give the Federal Parliament the right to give these bounties, but will absolutely preclude any State Parliament from doing the same thing. We ought, I think, to make the powers concurrent, and might call in the services of the Inter-State Commission, to which body the question of any bonus given by a State Parliament-so as to derogate from the principle of freedom of trade, or to give undue advantage to one State as against another-might very well be referred. As Sir George Turner -has said, it is well that the Federal Parliament should have the power to give a bonus which should -obtain equally throughout all the States, but it to not likely to give bounties in the early stages of industries, because in each ease the industries will arise « first » ; fit some part of the Commonwealth before they become general to the whole of Australia, and so the necessity of giving a bounty will be felt most in that portion of Australia where they « first » take. toot. An export industry will have to reach a very flourishing stage before I it' can enlist the sympathies and secure the assistance of the Federal Parliament. In South Australia we have an export department in which as far as possible we [start page 763] endeavor to make the rate charged cover the cost of services rendered, but it cannot do that in every case, because when an industry « first » starts there must necessarily be some initial loss. Under the clause which puts the giving of bounties exclusively in the hands of the Federal Parliament any enterprise of this sort carried on at a loss, however small, would probably be regarded as equivalent to giving a bounty. In pioneering an industry a man makes a road which all can travel, and it will be very unfair to say he shall not have some hell) from the community which will benefit by his enterprise. If no assistance is offered no pioneers will come forward.

Mr. REID: This is one of those subjects on which we might spend a day or two, but on which I think it is quite unnecessary to do so. If we are prepared to leave thousands of vested interests and industries which are affected by the tariff to the wisdom and justice of the Federal Parliament, surely these infinitely smaller questions can remain in the same position. especially when we recollect that, in the case of exports, there is an almost uniform practice prevailing throughout the whole of the colonies. New South Wales is exactly on the same track as Victoria and South Australia. and we are all pursuing, whether freetraders or protectionists, a similar policy. I think it will be safe therefore to leave this matter to the Federal parliament.

Sir GEORGE TURNER: As soon as they pies a uniform tariff all our existing bounties have to cease.

Mr. REID: As soon as they pass a uniform tariff perhaps all sorts of things will happen. But we have to face the contingency. We will have to trust the wisdom and justice of the Parliament, and if we confide the infinitely greater, surely we may confide the infinitely less. In supposing a case such as Sir George Turner has mentioned, where one colony may be in a difficulty, we must trust to the Federal Parliament to have due thought for the difficulty brought about, and endeavor to deal with it in some equitable manner.

Sir GEORGE TURNER: The Constitution says that when the uniform tariff is framed all bounties must cease, and so they will not be allowed.

Mr. REID: Yes; but that uniform tariff may contain certain provisions which will safeguard everything in that way. It may be the place in which to do it. It must not be forgotten that this clause 50 does not give the Commonwealth exclusive power.

Sir GEORGE TURNER: A later clause does.

Mr. PEACOCK: Clause 82 is the one.

Mr. REID: It seems to; but it is open to doubt. We know that in the ordinary course of legislation, such as contracts-

Mr. BARTON: It does not interfere with contracts already entered into.

Sir GEORGE TURNER: We have laws-Acts of Parliament-offering bounties.

Mr. REID: But so long as the law has not been acted upon no harm is done. If it has been acted upon, a contract will have been entered into, and the Parliament in dealing with it will use those principles of practice and equity which every other Parliament that I know of has always shown. We must have uniformity. Those interests arising out of exceptional contracts will have to be taken into account; but since we are swallowing the camel we need not strain at the gnat.

Mr. BARTON: I would ask my hon. friend Mr. Isaacs to oblige me by looking into the point as to whether, seeing, that the bounties will cease under this Act, a contract entered into for a bounty by a State must also cease-that is, would he give an ex post facto reading to the clause?

Mr. FRASER: With respect to Sir George Turner's reference, there are contracts in our colony. We have spent enormous sums of money in providing for new industries, and it would be very [start page 764] unreasonable to think that we could not make fair charges for that expenditure.

Mr. KINGSTON: Services rendered.

Mr. FRASER: For services rendered. The bounties that are now being given, and are under promise to be given, should be protected. But I do not think any further provision should be made, because we are yielding to the Federal Parliament the right to establish Customs duties and bounties. It is not to be thought of that the Federal Parliament will not do its duty to the nation, because it would be impossible for the local Parliaments and the Federal Parliament to be doing one and the same thing. The local Parliaments will under this Bill waive their rights to give bounties, and the Federal Parliament must of course be assumed to assist in all matters for the national good. Therefore I agree with my friend Mr. Reid that you cannot have the States doing what we are going to vest in the Federal Parliament. Surely the Federal Parliament will in every way possible assist those industries which are indigenous to the various States. It can easily be arranged. A sum of money-say half a million sterling-can be applied for the purpose, and equally distributed over the whole colonies. Moreover, I suppose that each colony can apply some of the proportion of Customs duties that it will get to support its industries. Further than that I do not think the clause ought to go.

Mr. HENRY: I rise for the purpose merely of saying that it should be made quite clear what the position of the various harbor trusts is under this section. I am entirely in accord with the view put forward by Mr. Reid in reference to the necessity of having uniform bounties, that the Federal Parliament should be the sole body to deal with this question of bounties. We must trust to the Federal Parliament that every protection shall be afforded to the various industries affected by bounties. I, should like the position of the harbor trusts in reference to wharfage rates to be made quite clear, because many wharfage rates may be imposed which will really be protective.

Mr. REID: If they put on two scales of rates. one for the produce of the people of their own colony, and another for the produce of the people of a different colony, they would be acting illegally, as interfering with the equality of trade.

Mr. HENRY: Then the Melbourne Harbor Trust might charge 5s. per ton on potatoes, but they must levy that charge equally on the Warrnambool producer and the Tasmanian producer.

Mr. REID: It must be uniform.

Mr. HENRY: I am entirely in accord with the view that the rates must be uniform, and that the necessary rates must be levied on imports from foreign parts. So long as it is made quite clear that the wharfage rates of the various harbor trusts should be uniform I am quite content.

Mr. TRENWITH: Surely they can charge rates in proportion to the accommodation they give.

Mr. HENRY: I am well aware that under existing arrangements wharfage rates sometimes really become a protective duty. But so long as the rates are uniform I am quite content.

Mr. ISAACS: After providing that the duties of excise and customs and bounties shall be within the purview of Parliament, sub-section 2 of this clause states:

No tax or duty shall be imposed on any goods exported from one State to another.

That contemplates that you put a duty on goods of the State going from one State to some place that is not a State. I have some doubt whether that is right. The Commonwealth might put a duty on, say, Tasmanian apples going to England, and why should that be so?

Sir EDWARD BRADDON: Hear, hear.

Sir GEORGE TURNER: You, have struck the right quarter now.

Mr. ISAACS: I am glad I have touched a responsive chord in my hon. friend's breast.

[start page 765] Mr. BARTON: Sidere mens eadem mutato.

Mr. ISAACS: The American Constitution provides in article I., section 9, sub-section 5:-

No tax or duty shall be laid on articles exported from any State.

Why should the Commonwealth have the power to put an export duty on articles imported from any one particular State?

Mr. GLYNN: Do you not want it to have that power?

Mr. ISAACS: I do not see why they should have the power to put an export duty upon goods of any particular State going abroad. That is not the purpose of Federation at all. I should like to hear the reasons for this innovation from the American Constitution as it seems to be an arbitrary power given to the Federal Parliament.

Mr. MCMILLAN: It is in the Bill of 1891.

Mr. ISAACS: Yes. I am aware that it is in that measure.

Mr. WISH: The reason for framing the clause in this way was to allow to the Federal Parliament absolute discretion in handling the fiscal policy. I am entirely with the hon. member, because, as a freetrader, I can see no more reason for the imposition of an export duty than I can for an import duty.

Mr. ISAACS: It is not a question of freetrade and protection, but of interference with the States.

Mr. WISE: I am willing to support him if he will move an amendment that no export duty shall be levied.

Mr. GLYNN: Of course this is a necessary right which must be vested in the Federal Parliament. It is quite as objectionable, from a freetrade point of view, to impose an export as an import duty. If the power is given to the Common wealth to impose import duties which it is alleged are to encourage lines of production within a particular State, and if that is right, then a similar power must be vested in regard to export duties.

Mr. BARTON: Do I understand Mr.

Isaacs to urge that instead of providing:

That no tax or duty shall be imposed on any goods exported from one State to another,

we should provide that the Commonwealth shall not levy an export duty, and leave it in the American form so that no tax or duty shall be levied on any goods exported, also that there should be a prohibition against the States from doing so?

Mr. KINGSTON: The object is only to prevent the Commonwealth doing any. thing to interfere with intercolonial freetrade, and it is just as well to say that you shall not impose any duty on goods exported from one State to another as it is to say that you shall not impose a duty on goods imported from one State to another. It is as broad as it is long. I think we undoubtedly understand that the hon. member may make it clearer by adding his amendment, but what is the good of tying the hands of the States themselves, if you allow the Commonwealth to interfere with the freedom of trade?

Sir EDWARD BRADDON: I hope that the Committee will not agree to the introduction of a duty which is foreign to our policy.

Mr. MOORE: Wharfage rates have been imposed before now which have been tantamount to a duty.

Mr. BARTON: Mr. Isaacs has not moved an amendment to the provision which reads:

That no tax or duty shall be imposed on any goods exported from one State to another.

That is a prohibition against a State levying duties on goods imported from another State.

Mr. ISAACS: I did not say that it was not.

Mr. BARTON: Then the hon. member thinks that the Commonwealth should be prevented from levying any export duties on goods exported from the Commonwealth to any foreign port?

Mr. ISAACS: Yes; I am in doubt about this. I wanted to know from any [start page 766] hon. gentleman why the American form was departed from, because I understand and fully sympathise with the desire that there should be absolute freedom of trade between the colonies. That is already provided for, but this is a curious expression. What we want to do is to prevent any duties being laid on goods going from one State to another, but to use the word exported in this connection raises some doubt in my mind. In the American Constitution it is provided that no tax or duty shall be laid on any

article exported from any State. This Constitution says from one State to another. That leaves it open to the Commonwealth Parliament to put a duty on goods going from one State outside the Commonwealth altogether, and the point raised by Mr. Kingston is that if you say you will put a duty on articles exported it is equal to saying you will put a duty on articles imported. That may not be quite right, for exported from New South Wales may not be the same as imported into Victoria. I am not quite persuaded what the object of these words were. They are in the 1891 Bill, and I am not quite satisfied why the change of verbiage has been made.

Mr. BARTON: I think I can explain. If the hon. member looks at section 9 of the United States Constitution he will see there are certain prohibitions on the Commonwealth, that is to say certain immigration shall not be prohibited by the Congress, that the privilege of the writ of habeas corpus shall not be suspended, and that no Bill or attainder or ex post facto law shall be passed. Then clause 5 says:

No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another.

Go from that to the next:

No money shall be drawn from the Treasury, but in consequence of appropriation made by law; and a regular statement and account of the receipts and expenditure of all public money shall be published from time to time.

Then further:

No title of nobility should he granted by the United States.

This is a series of prohibitions on the Commonwealth to prevent them from doing anything in derogation of freedom or freetrade between the States. The words are:

That no tax or duty shall be laid on articles exported from any State.

The succeeding words seem to illustrate the whole matter:

No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on Imports or exports shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

That is a prohibition against the States, as the former is one against the Commonwealth; but, taking the whole of the section altogether, clause 5 of section 9 may act as a prohibition on the States as well as the Commonwealth. What is the meaning of the words:

No tax or duty shall be laid on goods exported from any State.

It is made clear by the following words. They are all for the preservation of interState free-trade, and it is clear therefore that whether it is the Commonwealth or the State that is enjoined, the tax or duty prohibited is a tax laid on goods exported from one State to another, because it is inter-State freetrade that is the whole subject of the prohibitory clauses in the American Constitution. If hon. members will look through these clauses and those connected therewith they will see clearly that that is the object. It is meant that a tax or duty shall not be laid as a tax or duty on articles exported from one State to another. It is with the Commonwealth to take its own course with regard to articles exported from the Commonwealth, whether they levy these duties or not. In this connection let me

give an instance. Many years ago in New South Wales-I think it was in 1881-it was [start page 767] proposed to levy an export tax upon wool, coal, and cattle exported from New South Wales. The Ministry which proposed it was a freetrade Ministry. Two conditions arise under an export tax. One is that the article upon which an export duty is levied is an article which the community produces in common with other communities. In that case the price of the article is not increased by the amount of the duty of the export for the reason that that article of export his to enter into competition with articles similarly produced elsewhere. In such a case the tax falls on the producer. On the other hand, in cases where the exporting community has a monopoly the increased price of the tax has to be paid-if I may use such a comprehensive term-by the foreigner, so that the producer of the State is not taxed. In the one case therefore the export tax may operate as a very great limitation on freetrade, and in the other case it has no such limitation at all. In the one case the whole of the extra cost is paid by the persons in the country which imports from the Commonwealth. The Commonwealth will choose its own fiscal policy, and it is quite clear that the Commonwealth should not be prohibited from levying such duties of export as it may choose. It is clear that the prohibitions laid down in the American Constitution mean that the Commonwealth or any State should not be allowed any interference with intercolonial freetrade, and the intention is made quite clear in this Constitution, as in the American Constitution, by an express prohibition on a State from doing the same. The authority which is prohibited from levying duties of exports upon goods passing from one State to another is probably the Commonwealth itself. I think, taking that into account, that the words:

Exported from one State to another

have been inserted as in the 1891 Bill to make it clear, and not to leave the meaning loose, only to be controlled by the remaining words of the section, and to make the obvious meaning quite clear to him who reads.

Sub-section 2 as read agreed to.

Sub-section 3 as read agreed to.

Sub section 4 as read agreed to.

Sub-section 5,

Postal and telegraphic services.

Mr. HOLDER: I move as an amendment to add to this sub-section the words:

Without the boundaries of the Commonwealth.

My purpose is to exclude from the control of the federal authority all telegraphic and postal matters within the boundaries of the Commonwealth. I indicated at an earlier stage what my object was in doing this. Whether profit or lose is sustained in carrying on the services will make no difference to South Australia, because the accounts will be entirely federal in character, and debits or credits will be made to the individual States. It seems to me that postal and telegraphic matters are matters of purely local concern, and that to transfer them to the federal authority would be a great mistake. The effect would be to bring about centralisation in its worst form, and cause great detriment to outlying districts. I might refer to Western Australia, where such large developments have been recently seen. How would it have been possible for a Central Government, so far removed from the centre of operations, to have adapted itself stage by stage and week by week to the growing developments so well as the local authority did? In a matter such as posts and telegraphs we would save time and expense, and the public interest would be consulted in every possible way if the management were in the hands of the local authority. I am willing to hear what has to be said on the other side as to the advantage that is to, be gained by handing over the control of local affairs to a

central authority, but I am afraid any advantages arising from the transfer will be greatly overbalanced by the advantages of eaving things as they are.

[start page 768] Mr. BARTON: I hope the Convention will not accept the amendment, which would only leave the Commonwealth charge of external mail services and of cables and other communications outside the bounds of the Commonwealth. The hon. member would, however, saddle the Commonwealth with the subject of transcontinental communication, which has been carried on without the bounds of the Commonwealth.


Mr. BARTON: I was wrong. None of the telegraph lines within the bounds of the Commonwealth would be taken over. The hon. member would saddle the Commonwealth with the question of ocean mails and cables, and would leave in the hands of the various States the various postal and telegraphic services, including the transcontinental service.

Sir GEORGE TURNER: You would have two controls.

Mr. BARTON: There will be two portions of one system. Anyone who telegraphs from one portion of the Commonwealth to England or America is using one entire system. His telegram may go from Coolgardie to Adelaide, from Adelaide across the Transcontinental wire, and then by the Eastern and Australian Telegraph Company's cable; so that he is using what really amounts to one system. And the same thing can be said of the postal service as a whole. Is it advisable, even for the purpose of economy or the preservation of State rights, that these systems should not he directed as one? A person expecting a cable from London may be assured that the cable service is in good order, yet he may be inconvenienced by a break occurring in the Transcontinental line which, ought not to have happened.

Mr. HOLDER: We have kept it in good order for twenty-five years.

Mr. BARTON: I am not complaining of anything that South Australia has done in this way. But if a person sending a long distance message expects to get an answer, then with respect either to the message or to the answer, he may be in a very queer position unless the whole responsibility rests with the Commonwealth of keeping the whole system as clear as possible. If the colony is to retain its own particular postal and telegraphic service, and the Commonwealth to be in charge of external questions with regard to posts, telegraphs, and so on, then we may have this peculiar condition of things: that there may be cause of complaint with respect to the external services under the charge of the Commonwealth, or with respect to the internal services which are sub-divided among six States, so that there may be a responsibility divided among as many as three different divisions. It would be preferable to make the Commonwealth responsible for the whole service, for by that means you would much more clearly conserve the interests of every member of the Commonwealth.

Mr. CARRUTHERS: The hon. member has pointed out a very good argument with regard to the telegraphic communication, but it fails entirely so far as his attitude to this Bill is concerned when applied to postal communication. He is quite prepared to let the postal communication be carried on by divided responsibility. We have not got the telegraph wires to carry the mails, but we have railways under State control to carry them; so that if he sees no objection to that portion of the State business which carries postal matter being under divided control, he can surely have very little objection to the telegraph wires being under State control. I should have been in favor of getting this sub-section into the Bill if the Convention had been agreeable to take control of what I consider to be analogous to our postal and telegraphic communication-I mean our railway communication. It is just as important that the Federal Government shall have the care and management of the vehicles which carry human beings and their goods as that it should have the care and [start page 769] management of the vehicles or ways which carry letters and telegrams. But I see very little chance of carrying a

proposal of that kind, and therefore my vote is to be given with a view to preserving the consistency of this Bill having regard to other matters. I do think that there is a great danger in providing for the Federal Constitution to take over too many matters at the onset. I fear that there is a great danger that we shall over-weight Federation at the onset, and we shall have people voting against the Constitution because as regards the particular matters they deem important we are giving up too much of the right to govern themselves. I do say this: why should the Federal Government interfere in local postal matters? What interest would the national Government have in the carrying of letters from Adelaide to Glenelg, or from Adelaide to Hindmarsh, or from one street in Adelaide to another street in Adelaide? These are matters of purely local concern, and you cannot dignify them to a position of national importance. Moreover, I fear that by overloading Federation with these minor and local concerns, you bring in that which has tended so much to degrade public life in America, log-rolling and corruption. If you give over the telegraph and postal business you thereby hand to the custody of the Federal Government all the local appointments-the appointing of the postmasters, clerks, and other officers, who do not do national, but the purest local business; and you at once raise up a large army of civil servants, the influence of which we want to dissociate from our national life. If possible, we should elevate the position of our Federal Legislature above subjects of purely local concern, and what need is there to thrust these matters into a great national undertaking? The hon. member's proposal allows us to go just as far as we ought to go in this business. When this becomes a matter of national concern, let the national Government do the work, but the Federation should not do things which are best done locally. What cannot be done best locally should be handed over to this common executive. It is proposed to have an Inter-State Commission, which will deal with those matters where our railways, or our public arteries-our roads, or rivers-come into conflict. The idea is that the rival interests of one State against another should be adjusted and controlled by such a Commission. It is very easy to let this matter of posts and telegraphs outside the boundaries be regulated by this Commission. They need not take active management, but they could provide regulations which would have the force and effect of federal laws governing the various bodies. I do hope that in this matter there will be a division taken, so that those who are inclined to overweight the Federation with minor matters may vote for it, and those who are inclined to leave to the Federation clearly-defined national interests, may give their votes in that direction. I hope a division will be taken which will test this and many other matters. I have given notice of similar amendments, but I shall not persevere with them if Mr. Holder's amendment is lost.

Mr. DEAKIN: As I understand the remarks of my hon. friend Mr. Carruthers, he admits the wisdom of transferring the telegraph service to the Federal Government, but contests the wisdom of handing over the post offices. Do I understand the hon. member's position correctly?

Mr. CARRUTHERS: No. My hon. friend Mr. Barton pointed out that with regard to telegraphs it was, not wise to let these lines be under the control of the various States, and I answered him by pointing out that with regard to postal business he was prepared to let the railways which carried the mails be under the control of the various States.

Mr. DEAKIN: The hon. member's argument was then simply an answer, not an argument, on the main question. It is not essential to the principles on which the

[start page 770] Federal Government is to be established that either the post office or the telegraph service should be transferred to the national Government. But I submit that the post and telegraph office in both its branches comes « first » in the long list of services in which it is evident there are national interests to be dealt with rather than State interests. It is no imputation upon the existing post offices of the various colonies that one has sometimes been more prosperous than the other; that fact to my mind is chiefly due to the different policies pursued in the different colonies. If the other colonies had thought fit to pursue with regard to their post offices the policy of the South Australian Government they could have shown large surpluses. But they have chosen to use their post and telegraph offices not merely to earn profits, but as a means of opening up new districts. To my mind there is no reason why the post and telegraph service should not in every colony pay well for services rendered there and over the

entire area of the Commonwealth. But the question naturally arises whether these services should be essentially local services. Surely if there are State undertakings which require to be administrated geographically and without reference to the arbitrary limits which separate State from State, the carriage of letters and the transmission of telegraphic messages are those interests.

Mr. CARRUTHERS: Outside State boundaries?

Mr. DEAKIN: Within or without State boundaries. How can it be said that South Australia is more competent to administer the postal affairs of its Northern Territory than they would be administered from a central capital? Or how can it be said that the European mails for the extreme west country of New South Wales could not be better dealt with by the use of railways and means of transport through South Australia? Looking at the postal and telegraphic business of the continent of Australia from a purely business aspect, from the practical side of affairs, it appears to me that we are more likely to have satisfactory and complete communication if it be regarded as one whole and worked from the most convenient centres, without regard to State limitations. I say in answer to Mr. Holder that his illustration in regard to Western Australia proves nothing if we may rely upon American experience. If there has been one great federal success it has been the American post office, and if there is one regret in their politics it is that the American telegraphic service is not also in the hands of the Government. The telegraphic service is in private hands, and the regret is widespread. I can say, from a short experience of some of the least settled and most distant territories of the West of the United States, that the postal communication there is much more complete than I have been accustomed to find in outlying districts of these colonies under their present State management. The National Government at Washington, 3,000 miles away, separated by a whole continent, has proved itself more liberal in its treatment of the people of the Far West than have the Governments of Australia proved themselves in regard to our back block settlements. In America the post office has been a great administrative, financial, and popular success; and any man who would propose to-day to hand that service over to other than to State administration would find that his proposition was short-lived. We may have greater difficulties to surmount than they have, but there is no reason why the Commonwealth of Australia should not also achieve a conspicuous success in this direction. The arguments used by my hon. friend Mr. Barton with regard to the difficulties arising from a divided control of the telegraph wires appear to be conclusive. It would be almost impossible to make arrangements as perfect and as economical for either postal or telegraphic services [start page 771] within Australia if you retain State boundaries, and it will certainly be more difficult to make arrangements for the extra-Australian services if you are called upon to consider State claims and demands, instead of only considering the real practical wants of the localities immediately concerned. It appears to me a desirable thing as a matter of practical business to transfer both of the services to which I have alluded to the Federal Government. We shall not place too great a burden on the federal authority, and the whole population will be better served than they now are or than remote districts can be by State authority. Placing the means of communication in the hands of the Federal Government will probably permit of that universal reduction of postage and cable rates which is one of the « first » demands of the commercial interest throughout Australia. The experience of our own colony is that the present cable rates are almost prohibitive. but by a satisfactory combination of the cable and postal services, with unity of administration, we shall be able to secure an immediate reduction in those charges, as well as in postal rates, and give the people of Australia better services than those they now possess.

Sir PHILIP FYSH: Every postal conference that has been held for years past has tendered a report suggesting that the postal and telegraphic services should be federated. Year by year conferences are necessary in order to keep ourselves in touch with what is going on and to keep pace with development. The clause of the 1891 Bill, transferring the control of post and telegraph offices, was largely for the reason that the losses amounting to £200,000 per annum, incurred by some States were for the benefit of the whole, and therefore should be of federal concern. That state of accounts has since altered, and South Australia, in 1891 the chief loser, and Tasmania, also an important loser, have both since secured profit in these departments, but much services as posts and telegraphs have by means of the postal conferences of postmasters annually, and by their reports, sought to establish

uniformity, and tended strongly to support this federal purpose. The cost of cable subsidies has already been divided intercolonially, and the completion of federal services will tend to support the "United Australia" purpose of the people. Nothing has a greater tendency to perfect your union than one postage stamp for Australasia. Uniform postal rate is also desirable; whereas in Tasmania, in a given radius from the General Post Office, the rate is one penny, in South Australia and Victoria twopence is uniform, whether across the street or to the end of their territorial limit. Mr. Deakin's reference to extra-colonial or over-sea services will remind representatives of the fact that the federal authority will, if only oversea services are of federal concern, as Mr. Holder suggests, pay the contractors, and that the revenue will be collected by the local or State authorities. The details of departmental works, such as the pay of postmasters and opening new offices in outlying districts, will by federal authority be settled upon the recommendations of the Local or State Secretary of the department in the Federation. To be compelled at the present moment to supply ourselves with Adelaide stamps, or if you are travelling in Tasmania with Tasmanian stamps, if; always inconvenient to that section of the public which is of a migratory character. We have also to consider that as far as our revenues are concerned they come in unequal proportions from the various contributors. In Tasmania we give in the city and suburbs the advantage of a penny service; but here, and I think in Victoria also, they have the same rate in the city and suburbs as throughout their territory, and I think if the federal spirit is to be generated by a Constitution of this kind, and if we wish to continue the belief that we are one people, we will do much in, this direction by providing a uni- [start page 772] form postal and telegraphic service. Under these circumstances our various conferences have invariably tended in this direction, and hence during the last few years we have pooled all our cable subsidies. It was only natural that we should so pool them, as we in Tasmania were bearing more than our share, and we recognise that South Australia was giving to the people of Australia a large amount of work for which she was inadequately recompensed. We have reversed the position, and we are no longer losing by the postal service as we were in 1891. South Australia and Tasmania have altered their positions, but that is no reason that the remainder, now that our total loss has been reduced to about £80,000, should not pool the service which brings in contact every home throughout Australia. Then you have the money order system also, under which commission is charged in each colony, but if it were pooled, we would be able to distribute the money of a majority of our people at a lower rate than we do at the present time, which is within the scope of some future Treasurer or postmaster to propose. This advantage can be better secured to the people generally by Federation than it otherwise can be, and therefore I hope that we will respect the opinion of 1891.

Dr. COCKBURN: The proposed amendment will keep the administration of our postal services in the same position as now. By co operation the colonies have already a federal service in regard to extra-colonial matters. The federal authority may well continue that work, and the local services remain in the hands of the States. I would like to say that this is not a question of revenue only, although some of the speakers have made a great point of that phase of the subject. The extension of the postal and telegraphic system is generally connected with the development of the country. It is a question also of opening up markets, a wheat market, for instance, cannot spring into existence unless it is provided with an adequate telegraph service. The States can better look after these local matters than the federal authority can administer them from a distance. The hon. member Mr. Deakin has mentioned the Northern Territory and some portions of New South Wales. I am not prepared to say that the administration of the post office in the Northern Territory would not be better if the seat of authority was closer to the services rendered, but if any want of good administration due to distance has occurred, would not the evils be multiplied a thousandfold if the greater part of Australia was managed by an authority a still further distance away? Taking over the telegraphs means taking over the telephones, and I think that matter is purely a local one which can be most satisfactorily managed locally. Telephones are local of necessity.

Mr. DEAKIN: You can already speak from one colony to another, and probably further by-and-bye.

Dr. COCKBURN: The hon. member has pointed out that the Americans would be pleased to have the telegraph services under any sort of State control, but not necessarily federal. With regard to the

post offices, I think he is also correct when he speaks of the general opinion in America, but is there not an argument which may influence the desire of the Americans to continue their present system of federal control of the post offices? Is not the possession of the post offices and the patronage appertaining to them one of the strongest instruments in the hands of party government there? The parties in America could not carry out their campaigns without the advantages which the control of the post offices places in their hands. I think we should keep this patronage and the temptations attending it out of the hands of the Commonwealth. We know that the manner in which postal appointments are made in America is a grave reflection on the whole people. I think the best way is to add to the clause the words of the amendment, and thereby [start page 773] we shall combine the advantages of a federal and a local administration of the post office.

Mr. WISE: I do not rise to continue the debate, but merely to ask as a matter of order that I may be allowed to move an earlier amendment, because, if this amendment is dealt with, I shall be precluded from doing so.

Sir GEORGE TURNER: Finish the debate on this.

Mr. WISE: I have the concurrence of the gentleman in charge of the Bill for doing this. I propose to omit all the words after the word "Postal," and to make the clause read as follows:

Postal, telegraph, telephone, and other like services within and beyond the Commonwealth.

If I move that it will be open to the hon. gentleman moving the present amendment to strike out the words "within and." It is necessary as a matter of drafting, to carry out this to meet the views of Mr. Holder, who moved the present amendment. Unless there are express words implying that this is outside the Commonwealth they will not know its limits. If we want the Commonwealth to have power to deal with cables, there must be express power to enable them to go beyond the Commonwealth.

Mr. HIGGINS: What are you intending to cover by the words "other like services?" Do you mean the railways?

Mr. WISE: There might be a long distance telephone or phonograph. Mr. Peacock's laugh might then be heard in London. (Laughter.)

Sir GEORGE TURNER: We have his laugh here. Do not put him further on.

Mr. WISE: If Mr. Holder moves to omit the words "within and" it will come to the same thing. I am sure these words are necessary to enable Mr. Holder to carry out his object.

Mr. SYMON: It is a little complicating the present issue to introduce telephones. Some of us would be rather caught by the insertion of these words in deciding upon the amendment by Mr. Holder. The introduction of telephones raises a distinct issue. It would be better to put them separately.

Dr. COCKBURN: On behalf of my hon. colleague Mr. Holder, I will ask leave to withdraw this amendment, so long as it is not intended in any way to obstruct it.

Amendment temporarily withdrawn.

Mr. WISE: Then I move:

To insert after "telegraphic," "telephonic and other like services."

I will not discuss this. Telephones are worked with telegraphs in every colony, and it would be a great inconvenience to separate them.

Mr. SYMON: I should like to hear the views of Dr. Cockburn on this question, as some of us are not familiar enough with the subject to say whether there can be a detachment of the services.

Mr. DEAKIN: They must go together. Mr. WISE: They use the same wires. Dr. COCKBURN: I do not think it is possible to separate them.

Amendment agreed to.

Mr. WISE: I now move to add to the sub-section:

Within and beyond the Commonwealth.

Sir GEORGE TURNER: What is the object? Would it not apply to many other powers that we are to give.

Mr. SYMON: I think these words are scarcely required. There could be nothing more comprehensive than the words we have just adopted.

The CHAIRMAN: I will put Mr. Holder's amendment « first » .

Mr. REID: This attempt to separate the post and telegraph services will, I think, be disastrous. It is impossible to work these two services by, two different departments. How is it possible to put on the Commonwealth the necessity of having a department to deal with one part only of the business.

[start page 774] Instead of simplifying the post and telegraph services of the colonies it will only complicate them. One of the strongest reasons for including the post and telegraph services within the Commonwealth is that, instead of having seven Ministerial Post and Telegraph Departments and seven staffs for the Australian colonies, the whole business can be managed under one federal head. If there is an argument in favor of federalising any service, it applies more strongly to this than to any other I can think of. There are certain side complications which will entirely disappear under federal administration. When one speaks of the colony of New South Wales having a loss on the postal service, and another colony having a gain, that simply arises from separate administrations and separate laws; laws under which, in New South Wales, we allow newspapers to go free, and laws under which in other colonies they do not; laws under which, in New South Wales, we allow one penny stamp over a fifteen - mile radius in all populous localities throughout the colony, and laws in other colonies under which they charge twopence to send a letter from one side of the street to another. Under a federal administration the charges will be regulated on a uniform basis, and all these inequalities will disappear. Why are we putting in various clauses to prevent unequal intercourse between the colonies in matters of trade if we do not put in these clauses which will prevent similar evils in connection with the posts and telegraphs of Australia? You could carry on most offensive State wars with these post and telegraph rates. It is essentially a matter of common concern which could be more economically administered by the Commonwealth. Although I always attach the greatest importance to the views of Mr. Carruthers, and we are generally found acting together, I must say on this occasion I feel it would be impossible to carry out the ocean transit of mails with one department, and local affairs with another. From my point of view there should be only one Post and Telegraph Department for Australia, only one executive head for Australia, and I believe that under that system the interests of the people of Australia will be better and more economically served.

Mr. DOUGLAS: I hope the clause as it stands, will not be carried. I agree with Mr. Carruthers as to the necessity for local legislation. The arguments used by Sir Philip Fysh have induced me to rise now. All over Tasmania we have one postage, with the exception of the immediate vicinities of large

towns, and they have another different one. You, in South Australia, also have a system of your own. Why should these things be interfered with by a general arrangement of this sort? At the present moment all these matters are in two classes-one the outside connection with Great Britain and other countries, and the other, local communications. In Tasmania and in other communities also, I suppose, there are numbers of small post offices where the annual payment of those in charge does not come to more than perhaps £5 or £6 a year. Why should such small matters as these be interfered with by the Federal Government? In all portions of Tasmania and other colonies new places are day by day rising up, and is postal and telegraphic communication with them to be delayed until the consent of the Federal Government is obtained?

Dr. COCKBURN: Send deputations to the mainland.

Mr. PEACOCK: That will soon kill deputations.

Mr. DOUGLAS: At present the local authorities properly have to deal with such matters, and they ought not to be handed over until there is absolute necessity for it. Connection with outside countries can be regulated easily enough. It is all nonsense to make a bogey of keeping accounts. Other accounts will have to be kept in a separate way, and why should not this one? Better give up everything at once; we are [start page 775] diminishing the Power of the local Parliaments wherever we possibly can, apparently. I think we had better stick to the arrangements we have at the present time.

Sir EDWARD BRADDON: I think Mr. Douglas is unnecessarily alarmed as to the effect of this provision. If the administration of these systems by the Federal Government is satisfactory and efficient there will be a great measure of decentralisation about it. To a very considerable extent the conduct of local postal and telegraphic services will be left to the local officials.

Mr. REID: Hear, hear.

Sir EDWARD BRADDON: The local officials will be allowed a free hand in that respect.

Sir JOHN DOWNER: Hear, hear.

Sir EDWARD BRADDON: As to the extension of the postal service for a few miles, or the opening of a new office, anyone administering that department, if he were a capable administrator, would take particular care that such matters were left entirely to the local authorities.

Mr. MCMILLAN: And recommendations would always be accepted.

Sir EDWARD BRADDON: I am in favor of the inclusion of these matters in those which shall be of federal concern, although Tasmania has to lose by it. We are making a profit out of our post and telegraph system as a result of good administration, and we are ready to make a sacrifice. But Tasmanians ought to be satisfied with having the postal and telegraph services through Australia conducted by a federal administration, inasmuch as the federal capital will be in Tasmania, and we shall have the Government quite close. (Laughter.)

Mr. DEAKIN: Do you want the capital in Tasmania as well as Tattersalls?

Question-That the words proposed by Mr. Holder to be inserted be so inserted-put. The Committee divided.

Ayes, 5; Noes, 30. Majority, 25.


Carruthers, Mr. Gordon, Mr.

Cockburn, Dr. Kingston, Mr.

Douglas, Mr.


Abbott, Sir Joseph Howe, Mr.

Barton, Mr. Isaacs, Mr.

Berry, Sir Graham Lewis, Mr.

Braddon, Sir Edward McMillan, Mr.

Brown, Mr. Moore, Mr.

Clarke, Mr. O'Connor, Mr.

Deakin, Mr. Peacock, Mr.

Dobson, Mr. Quick, Dr.

Downer, Sir J. W. Reid, Mr.

Fraser, Mr. Symon, Mr.

Fysh, Sir Philip Taylor, Mr.

Glynn, Mr. Turner, Sir George

Grant, Mr. Walker, Mr.

Henry, Mr. Wise, Mr.

Higgins, Mr. Zeal, Sir William

Pair.-Ayes, Mr. Holder; Noes, Mr. Brunker.

Question so resolved in the negative.

Sub-section, as amended, agreed to.

Sub-section VI., as read, agreed to.

Sub-section VII., as read, agreed to.

Sub-section VIII., as read, agreed to.

Sub-section IX., as read, agreed to.

Sub-section x.-Astronomical and meteorological observations.

Mr. REID: It does seem to me that this is really going to some extravagant extreme. Surely we are going to allow the observers of all the colonies to go on peacefully examining these heavenly mysteries without bringing a Commonwealth law down upon them to regulate them and their observations. It seems to me it is a fanciful item-

Sir GEORGE TURNER: Would you mind adding the words "outside the Commonwealth"?

Mr. REID: That would make it a little more sensible. The notion of observations of this kind being brought within the laws of the Commonwealth seems to be altogether too ridiculous.

Sir JOSEPH ABBOTT: I am not going to let this godchild of mine die a natural death. It is very desirable that we should have uniformity throughout

[start page 776] Australia with regard to these things. I am not so much wedded to the astronomical, but, in regard to meteorological observations, it is most essential that there should be uniformity throughout Australia. On a former occasion I pointed out that one of our best observers, Mr. Wragge, was very anxious we should have these observations in Tasmania. There was no obligation on the part of the Tasmanian Government to establish these observations on Mount Wellington, but there is a general consensus of opinion among the best men that these observations would be invaluable to Australia. Why should the Government of Tasmania be called upon to meet an expenditure of this kind when it is admitted by the best men in Australia and elsewhere that these observations would be of more value to Australia than they could be to Tasmania, which happens to be the position from which they could be taken? If there is anything which ought to be the subject of a Commonwealth law, it is these observations, which will undoubtedly prove of great value to shipping and other interests of Australia.

Mr. GRANT: I regret that the Premier of New South Wales should have taken the view he did of this matter.

Mr. REID: Another inquisition.

Mr. GRANT: With regard to the astronomical observations, it is very important that they should be under federal management. Take the case of the United Kingdom at the present time. There we have an observatory at Greenwich which I apprehend is the chief northern observatory of the empire. There is an observatory in Dublin, and another in Edinburgh, both admirably managed institutions, but we do not hear of them conflicting with the observatory at Greenwich, which maintains the paramount position in the United Kingdom. The same is the case with the Washington observatory of the United States. So also we should have an observatory in the Commonwealth which should rank before the other observatories. It commends itself to our intelligence that there should be a federal observatory, to take precedence over other observatories. I think there are obvious reasons that the meteorological observations should be placed under one general control, and I trust that the Convention will not object to the clause as it stands.

Sub-section, as read, agreed to.

Sub-section XI., as read, agreed to.

Sub-section XII.-Fisheries in Australian waters beyond territorial limits and in rivers which flow through or in two or more States.

Mr. CARRUTHERS: I thought at « first » of moving the omission of the whole of this sub-section, but there may be hon. members who are not in favor of the elimination of the whole of the words. I propose to test the sense of the Committee by moving:

That all words after "limits" be struck out.

I think this sub-section is unduly interfering with what is purely a State question, and if the clause is allowed to Stand, it may give rise to a vast amount of local friction. If you concede the rights of the Federal Government to legislate with regard to fish, you must provide similar legislation with respect to game, because the game like the fish, travel from one colony to another. Any legislation introduced with reference to things in the water and on the land must be also made to apply to things in the air. What is aimed at is to give joint control to the people of South Australia of fish in the Murray river and her tributaries. But, supposing the Federal Parliament will pass a law with regard to the Murray fisheries, what Federal officer is to carry out that law? Is the Federal Parliament to have officers posted at short intervals up the river? If the matter be left to State supervision and State legislation, we should have the State policemen and officers employed, and a more satisfactory control would be established than if the Federal Parliament interfered. We, in New South Wales, are just as [start page 777] much interested, and, perhaps, more so, than the people of South Australia, and we have passed laws regulating inland fisheries, while we have officers to see that these laws are enforced. The moment you let the Federal Parliament make laws which prevail over the State laws, you take away local authority, which should look after matters of purely local concern.

Mr. GORDON: As I believe I am responsible for this sub-section, I wish to say a word in its defence. I think it is recognised in every civilised country, that the fisheries are an important factor, as a wealth producer, much more so than the feathered game of which Mr. Carruthers has made so strong a point. It would be useless for one colony alone to make regulations as to the time of fishing, and the size of the fish which may be netted, and, therefore, it seems to me a most important thing that uniform legislation should be adopted.

Mr. REID: What rivers do you refer to?

Mr. GORDON: The Murray and the Darling principally.

Mr. REID: You might mention the Clarence river and a few others.

Mr. PEACOCK: The Torrens!

Mr. GORDON: There are a few other streams in New South Wales, but these are the great rivers in connection with which the Federal Parliament could make regulations regarding the fisheries.

Mr. REID: The desire of Mr. Gordon to assume control of New South Wales is no new desire, as ever since he appeared at a Convention he has been endeavoring to annex as much of New South Wales as he possibly can. In another subsection he wishes to take over a great part of Queensland, but that is a mere detail. We have very little water in New South Wales, and what we have we wish to keep. I have no objection, as far as water flowing between two States is concerned, to the Federal Parliament having the control, as it would put an end to difficulties which arise between two colonies at present in connection with the waters and the fisheries, but I must repudiate any idea of the Commonwealth assuming power over a river which is wholly in one colony, I do not think that any other colony would like the Commonwealth to assume control of the rivers within its boundaries, and what they would not like themselves, I am sure they would not force on New South Wales. I understand Mr. Gordon is not satisfied that we give him free trade over our borders, but in a spirit, which looks like ingratitude, he is trying to take from us something which he has no right to take. Whilst I am perfectly prepared to give the Federal Government authority over waters flowing between two States, as that would remove a great deal of difficulty, we must draw the line between waters flowing between two States, and water flowing entirely in one colony.

Sir JOSEPH ABBOTT: I would suggest that Mr. Carruthers should withdraw his amendment to enable me to move:

That the words "or in" be struck out.

It will be competent for him to move his amendment afterwards.

Sir GEORGE TURNER: No, you cannot go back.

The CHAIRMAN: I would point out that if we amend the clause by striking out the words "or in," Mr. Carruthers' amendment cannot be put.

Mr. FRASER: I think we should confine ourselves to the 1891 Bill.

Mr. BARTON: It Mr. Reid's view were carried out there might be a difficulty, because the whole course of the river would be covered. His view would be better carried out by saying:

Rivers, which are the boundary between two or more States.

Mr. KINGSTON: I hope we will make some provision on this subject, for there have already been difficulties in the matter. I remember having had a letter from Sir George Turner on the subject. They were desirous of preserving the fish in the River Glenelg, and he pointed out [start page 778] that whilst they were trying to prevent poaching-

Mr. FRASER: Netting.

Mr. KINGSTON: Or the use of illegal instruments in their portion of the river, South Australia was not exhibiting the same industry in the protection of the fish in the portion of the river in this colony, and he desired the appointment of a federal officer who would look after the interests of both and see that the fish were not exposed to any more risks in one colony than the other. We ought to do something in this matter. Our fisheries are important, and if one colony is careless it will not only endanger the fisheries of that colony, but probably the fisheries of the other colonies. I think the clause recommended by the Constitutional Committee should be adopted by this House.

Mr. O'CONNOR: The suggestion is to provide for a river flowing through two or more territories, and to protect the fish which are travelling up and down from one colony to the other. The question is whether we should give this power to the Federal Parliament at all. I think this power is much better left in the hands of the States. It means giving power to deal with the waters all through the separate States, because it means every part of the river.

Mr. KINGSTON: Only for fishery purposes.

Mr. O'CONNOR: It may be a difficult thing to have the question raised whether the water in a river was not being so diminished by irrigation, or manufactures that the fish could not live in it. I think it would be better to leave things as they are.

Mr. BROWN: Could not the question be dealt with by sub-section 33:

Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to the State or States by whose Parliament or Parliaments the matter was referred, and to such other States as may afterwards adopt the law.

I think it is one of those matters which should be dealt with in that way rather than in the way proposed. I mean as to the control of fisheries in rivers which flow through or in two or more States. As to fisheries in waters beyond territorial limits, I think they should be left as in the Bill of 1891.

Amendment agreed to; sub-section as amended agreed to.

Sub-section 13 as read agreed to.

Sub-section 14 as read agreed to.

Sub-section XV.-Banking, the incorporation of banks, and the issue of paper money.

Mr. ISAACS: Anticipating another subsection, I notice that insurance, including State insurance, is to be dealt with by the federal authority. As regards banking, I believe in South Australia there is a State bank. It will be a question to seriously consider whether the Commonwealth is to deal with purely private banks, and not State banks. I understand that it is intended to have uniformity of legislation in banking matters throughout the whole of the Commonwealth, that financial institutions shall know exactly what laws they have to comply with, and that the laws shall apply equally over the various parts of the Commonwealth. But where a State Bank carries on business purely in its own State, I desire to know why that should come under the operation of the Commonwealth?

Dr. COCKBURN: I am glad that this matter has been called attention to. It is a very serious one to those colonies which want to go ahead.

Mr. GLYNN: How is that?

Dr. COCKBURN: Because the federal authority may take the power out of the hands of a State to carry on the business of banking. This would be a concurrent power, and in its exercise in such a matter as the issue of notes, for instance, it would be very easy for the Federal Parliament by implication to compel any State to discontinue it. It [start page 779] might also explicitly forbid the States to undertake it. A hostile majority in the Federal Parliament, which might be Conservative, might readily do this. The exercise of concurrent powers is a difficult question in a Federation. We should carefully scrutinise this power before giving it over to the federal authority.

Sub-section as read agreed to.

Sub-section XVI.-Insurance, including State insurance extending beyond the limits of the State concerned.

Mr. HIGGINS: I desire to understand whether by the word "State" here is meant a particular colony, or is it used in the general sense-the State as distinct from the individual? I apprehend that the word "State" means a particular colony, but I confess I do not understand the meaning of the term.

Mr. O'CONNOR: This is a new subsection. It proposes to include insurance, and I think it is a very desirable inclusion amongst the list of powers. However, it involves a principle. The part the hon. member referred to is for this purpose: It was suggested that colonies might undertake State insurance, as was done in New Zealand, and it was held that State insurance should not come under the general laws. From that view I entirely dissent; but this clause was drawn in accordance with the views of the Constitutional Committee. The hon. member will see, therefore, that the words "State insurance" simply indicate that whereas a State within its own boundaries should have control of all its insurance business, and the regulation of its insurance under any State system, so far as it deals with the people within its own boundaries, any part of its system that proposes to deal with people beyond its boundaries should come under the general laws. "State" is used to designate colony. I should support the hon. member if be moved to strike out:

Including State insurance extending beyond the limits of the State concerned.

Mr. ISAACS: It would include all insurance then?

Mr. O'CONNOR: Yes; and I think it ought to. If a State chooses to go into the business of insurance-I do not say it is wise or not-I do not see why any departure should be made as to the uniformity of laws with regard to insurance. The State should be subject to the same limitations as the

individual if it goes in for State insurance. It would be absurd to say it should not. Supposing every State adopted a system of State insurance, according to this exception each State would be able to adopt a different method, so long as it kept within its own boundaries, and you might have five different Systems of insurance outside the general law.

Mr. ISAACS: Is that not States rights?

Mr. O'CONNOR: No; because you start with the proposition that general insurance laws must be the same throughout the colonies.

Mr. SYMON: The object of this, I understand, is to exercise a federal control over any State undertaking the business of insurance outside its own boundaries. I agree, and most people will too, that if a State enters upon a commercial undertaking it should have no privileges and exemptions from which ordinary individuals are not free; but the language used here seems to be open to the criticism of Mr. Higgins.

Mr. WISE: By keeping it in you give special privileges within its boundaries.

Mr. SYMON: To that I do not object. If South Australia chooses to establish a System of State insurance, I do not see why she should not within her own limits. It affects her own subjects only, and we should diminish the rights of self-government if we decided otherwise; but if South Australia opens agencies in Victoria, then the federal law should be able to say, "If South Australia chooses to enter into commercial rivalry with those companies outside her own territory, she [start page 780] should be subject to the conditions imposed in other countries." I think that is the extent to which this provision was intended to go.

Mr. O'CONNOR: Hear, hear.

Mr. SYMON: It seems tome that these words:

Including State insurance extending beyond the limits of the State concerned

ought to be, in the sense in which they they were inserted-

Mr. HIGGINS: Struck out.

Mr. SYMON: No; retained. But I doubt with Mr. Higgins whether they exactly and clearly give effect to that sense. I suggest some verbal modification such as the following:

Including any business of State insurance extending its operations beyond the limits of the State adopting it.

Mr. O'CONNOR: Hear, hear. That would be better.

Mr. SYMON: The words:

State concerned

are a little ambiguous.

Mr. HIGGINS: I agree thoroughly in principle with Mr. Symon as to his intentions, but I would suggest that what is wanted here is an excluding phrase, and not an including phrase. Insurance covers all kinds of insurance. You want an excepting phrase. "Insurance" will be the general expression, and then will follow:

Except State insurance confined to the limits of the particular State.

Mr. SYMON: That is the better way.

Mr. KINGSTON: Put it this way:

Excluding State insurance within the State limits.

Mr. GLYNN: We ought to be careful as to how we restrict the operations of State insurance. In 1869 New Zealand State insurance was established, and now, as a matter of fact, a very large business is carried on by the Government of New Zealand beyond the limits of that colony. According to the statistics of 1891, the position of New Zealand State Insurance in Australia was second only to that of the Australian Mutual Provident Society.

Mr. FRASER: The New Zealand Government do not go beyond their own limits.

Mr. GLYNN: They do. Policies are taken up elsewhere. And we ought to be careful how we attempt to confine the business of the New Zealand State insurance to that colony, because Australian insurance companies do large business in New Zealand, and the New Zealand Government may retaliate by excluding them. In 1891, out of 56,000 policies in force in New Zealand, the Government held 29,256, and the Australian Mutual Provident 16,761. If you impose a federal law, restricting the operation of State insurance without the limits of that State-

Mr. HIGGINS: That is not intended. The intention is to have the federal law only to apply to insurance which is general over the colonies.

Mr. GLYNN: You can impose a restriction upon New Zealand in carrying on business within the limits of the federal power.

Mr. O'CONNOR: Why should New Zealand State insurance be in any different position from the insurance of any company?

Mr. GLYNN: The present law extends to New Zealand State insurance. If you impose a special law upon State insurance, the result will be that New Zealand will probably impose a company law in New Zealand.

Mr. FRASER: I do not think, notwithstanding what Mr. Glynn says, that the New Zealand Government Insurance department is doing any business outside of New Zealand, with the exception of receiving premiums.

Sir PHILIP FYSH: Only that their policyholders travel.

Mr. DEAKIN: They only receive the premiums here.

[start page 781] Mr. FRASER: If a policy-holder goes to Kamtschatka, of course the premiums will be paid to the department all the same.

Mr. DEAKIN: Is that near Oodnadatta?

Mr. FRASER: Yes, I suppose. I think it would be grossly unfair to allow a State to extend its operations in life or any other insurances beyond its own limits. A department might be as rotten as possible, and carry on a huge business at great risk, and nobody would be able to control it. I think it is the duty of the Federal Parliament to make a law for the whole Commonwealth, giving a State

power to establish an insurance department within its own borders; but to give a department the liberty of going outside its borders would be as absurd a thing as could be allowed.

Mr. WALKER: I would like to move:

That all the words after "insurance" be deleted.

The CHAIRMAN: You cannot do that. An amendment has been made by Mr. Higgins.

Mr. HIGGINS: I do not want to embarrass Mr. Walker if he has an amendment which ought to be discussed, but I cannot see at present how my amendment may fit with his. My idea is this: That the Federal Parliament should be allowed to deal with all insurance matters, with only one limitation. I would refrain from dealing with State insurance in the colony establishing it, but if that colony extends its operations to other colonies, I do not see why it should not be treated like an ordinary company.

The CHAIRMAN: As a matter of procedure, Mr. Walker wishes to make no exceptions at all. He therefore proposes to strike out all the words after "insurance."

Mr. HIGGINS: Of course, if it will help him to have the question discussed, so long as it is understood that my amendment is to be submitted, I am quite agreeable.

The CHAIRMAN: I would point out that you cannot do that afterwards.

Mr. HIGGINS: Well, I must press it then.

Sir GEORGE TURNER: I might point out that those who are desirous of striking out the words might do so without proposing that some other words be inserted. It would then leave a blank to be afterwards filled.

Mr. HIGGINS: I agree to that.

The CHAIRMAN: Mr. Higgins proposes to strike out the word "including," with the view of inserting something else.

Mr. FRASER: I do not quite understand what this will lead us to.

The CHAIRMAN: It will lead to a blank which the Committee mayor not fill up.

Mr. KINGSTON: I understand that if the word "including" is struck out Mr. Higgins will afterwards move to insert:

Excluding State insurance within State limits.

Sir GEORGE TURNER: Then if you propose to put in the words, that means striking out the lot.

Mr. FRASER: I am more in favor of striking out the whole lot.

HON. MEMBERS: Then vote against it. Mr. FRASER: I am anxious that others should do so as well as myself.

HON. MEMBERS: We will.

Mr. HIGGINS: I think my friend is under a misapprehension as to this. I am limiting insurance matters for the Federal Parliament to have control over. I propose to exclude certain matters from

federal control. The expression then will be to the effect that the Federal Parliament is to have power to make laws for insurance, but it is not to have power to make laws as to insurance effected within the limits of a colony by that colony. Then I think that my friend will be in favor of my view that the word "excluded" ought to be inserted.

Mr. WALKER: I am sufficiently old-fashioned to consider that insurance is a business, and I therefore want law to apply to all insurance companies, whether State insurance companies or otherwise. I intend to vote against any amendment.

[start page 782] Amendment-striking out all words after "insurance"-agreed to.

Mr. HIGGINS: I now move:

To insert "excluding State insurance not extending beyond the limits of that State."

Amendment agreed to; sub-section, as amended, agreed to.

Mr. HIGGINS: Now I want to add as a sub-clause the words:

Industrial disputes extending beyond the limits of any one State.

It seems to me that having just dealt with insurance, extending through the various colonies, and having very recently dealt with banking, &c., this is the right place to add the words mentioned. Of course the object is to enable the Federal Parliament, if it think fit, to-create Courts of Conciliation and Arbitration, but I do not want to ask members of this Convention to approach the matter and say that there should be Courts of Conciliation or Arbitration. We cannot tell what is in futurity, and I want simply to give the Federal Parliament a power to establish these courts if it think fit. Therefore there will have to be an incidental alteration in the judicature part of the Bill, so as to enable the Federal Parliament to create a court for the purpose. It may be said, "Leave the industrial disputes to the States"; but it is well known that these disputes are not confined in their evils to any one State If there is a shipping dispute in Sydney it is sure to be felt in Melbourne; if there is a coal dispute in Newcastle it is sure to be felt at Korumburra. Any one State is unable to cope with the difficulty. If it should hereafter be found expedient to have a Court of Conciliation and Arbitration, it must be a Federal Court which can extend its power over the whole Federation. As Australia is so isolated from the other countries of the world by sea, it would be eminently apt to have a Federal Court of Conciliation and Arbitration for the purposes of Australia. I shall therefore move the addition of the sub-clause I have read.

Mr. KINGSTON: I hope we will give some power to the Federal Parliament to legislate in matters of this kind. It is a question in which I have taken some interest. When « first » I attempted to deal with it I thought that for the purpose of making any effectual provision on the subject federal legislation was necessary on account of the extent of the disputes which occurred in industrial matters, and upon which local legislation, confined to provincial limits, is not competent to deal. The opinion I affirmed is borne out by a variety of cases. If you had federal legislation dealing with this matter, you could establish courts which would exercise a wider jurisdiction and command greater respect and confidence than can be hoped for under any system of provincial legislation. Something has been done here-perhaps not as much as we would wish-and in New Zealand; and I was pleased to notice from the remarks of the hon. the Premier of that colony, Mr. Seddon, that he calculated that through the efforts of the tribunals and the officials appointed under legislation he has been able to carry, as much as a million pounds sterling has been saved to the colony of which he is the chief executive officer. I do not think we can over-estimate the importance of a matter of this sort. We at great pains provided tribunals dealing with disputes between individuals, but the magnitude of the issues involved in an industrial dispute like the shearers' strike, the maritime strike, or the Broken Hill strike, seemed to exceed altogether the whole interests involved in the individual differences to which I have called

attention. I would like my hon. friend Mr. Higgins to have moved his amendment in a somewhat larger form, and make it a subsection which would read:

Conciliation and arbitration for the prevention and settlement of industrial disputes.

I think for a variety of reasons that this is preferable. It would be larger, and give more extended and effectual power to the Federal Parliament to deal with the question. As long as the prin- [start page 783] ciple is affirmed that whilst the States may do what they deem best in this direction, we think it only right and proper to give to the Federal Parliament the power to do what it considers desirable, and in such a manner as appears to be necessary to assist local efforts in the interests of peace, and to prevent as far as possible these industrial troubles and differences which we all so much deplore, it is immaterial in which shape it is put, and I trust that so long as we carry and affirm the principle neither my hon. friend nor the Drafting Committee will hesitate to put it in the Bill.

Sir GEORGE TURNER: Would it include the settlement of strikes and disputes in hospitals-I mean federal hospitals? (Laughter.)

Mr. KINGSTON: It would give power to look into matters of that sort if the Federal Parliament thought that its attention could be wisely directed to them. On questions of that sort a provincial government has been capable of dealing with some of these matters. Still, as regards the greater matter of industrial disputes, I do not think that anyone who has noted what has taken place during the last few years can come to any other conclusion than that we should be acting wisely in giving the Federal Parliament the greatest power to legislate as they may think fit under the circumstances.

Mr. MCMILLAN: It seems to me that we must decide whether we will give this power to the Federal Government or leave it to the States. The object of Federation is, while federating on common matters, not to interfere with the industrial and local life of the States. This is a proposition which goes a step too far, as you are giving a distinct power to override the States legislation. Is the power simply to be exercised with the consent of the States, or is it to be an overriding power.

Mr. KINGSTON: It is a power which the Federal Parliament may exercise.

An HON. MEMBER: If they make any law it will override any local law.

Mr. KINGSTON: Only where it is inconsistent.

Mr. MCMILLAN: I have no legal knowledge to guide me, but it seems to me that everything that we put among these sub-sections is practically a power which necessarily overrides every other power, and therefore there is no doubt that while in some trade disputes their ramifications extend throughout the different colonies, still they are to a great extent local matters of dispute.

Mr. HIGGINS: It will only apply where the dispute extends outside the limits of one colony.

Mr. MCMILLAN: Here again I am met by my want of legal knowledge; but it seems to me that it is a difficult thing for the Federal Government to interfere, even where the ramifications of the disputes extend beyond the limits of a colony, without the consent of the States. I think there are sufficient powers in this Bill to enable some conjunction of interests between the Federal Government and the States in matters of this kind being effected; but I do not think that there should be any power included in this Bill which will so interfere with the local industrial life of any State as practically to dictate to the State with regard to trade disputes.

Sir JOHN DOWNER: I confess I do not understand the clause, nor do I see what it means.

Industrial dispute extending beyond the limits of one colony

are the words used, but how can that happen?

Mr. HOWE: A maritime strike affects the whole national life.

Sir JOHN DOWNER: It does not extend beyond the limits of a State. The dispute is complete in itself in each State. Because there is the same dispute in other colonies, it does not create a dispute extending beyond the limits of the State. Each dispute is a dispute complete in itself [start page 784] in each State, and each State will have power to deal with it. Such a provision I think will be a fertile source of dispute. As far as the words are concerned, they appear to be simply meaningless, and I cannot conceive any dispute which in itself can extend beyond the limits of the State.

Mr. CARRUTHERS: How about a dispute with the masters in one State and the men in another, as in the shipping trade?

Sir JOHN DOWNER: That is not a dispute extending beyond the State. It may be a very difficult thing to work out, but if it is to be done at all-and I can see great difficulty in doing anything with it, because it will be extending the limits of the Commonwealth legislation to a most dangerous degree, which I think all the colonies will not be prepared to accede to-it will be a departure from the proposition that there must be a formula in which you can give the jurisdiction. These words, I submit, will not do it, because the dispute will be a dispute in the State alone, and will not extend beyond it.

Mr. HOWE: I rise, as one of the laymen, in fear and trembling to give my opinion against those of the legal luminaries here. A maritime dispute may affect the life of the nation. We have before seen the whole commerce paralysed by these disputes, and if we give the telegraphic departments to the federal authority why not give them authority to settle a national dispute which is endangering the commercial enterprise and industrial life of the whole community. I am with Mr. McMillan on that point, and if these words will not accomplish their object I want Sir John Downer to find words that will.

Mr. DEAKIN: I am entirely with my hon. and learned friend Mr. Higgins in the amendment he has moved so far as he has indicated his purpose. I had the pleasure in 1891 of supporting the Premier of South Australia when he made a similar proposition. It is a cause in which he has taken a continuous and active interest ever since. Some of the difficulties which confront Sir John Downer confront me, although I see the problem from another point of view. This sub-section would give concurrent federal power in dealing with industrial disputes when they extend beyond the borders of a single State. The granting of such a power is desirable, properly belonging to a Federal Government, because the disputes may be extended over large areas, and if they are to be dealt with as a whole they must be dealt with by the Federal Parliament. Concurrent legislative power here differs from the concurrent power usually given in other respects in this Bill. A dispute might arise in South Australia, where there is a law now on its Statute-book dealing with industrial disputes. So long as that dispute remained in South Australia it would be dealt with under that law. The federal authority will also have a law perhaps different in its provisions, in many respects, from from the law in South Australia. Directly the dispute in Adelaide overflowed to Western Australia or the Wimmera the power of the State law would cease and the power of the Federal law, which is a different law, would begin.

An HON. MEMBER: So it ought to.

Mr. DEAKIN: Yes; but it will be difficult to determine the moment of overflow even if you can determine the point of overflow. We can scarcely say it there is to be a law in each State that the federal law must not differ from some, if not from all, of these. Consequently it will be a curious problem in relation to penalties and observances for those concerned to know the moment when they have passed from under the dominion of the State law to the dominion of the federal law. That is the great difficulty to settle. Although I am prepared to support the motion of the hon. member, I see grave difficuties in this proposal which [start page 785] is to retain the State law and federal law upon

the same question as both may have to be applied in times of emergency and urgency. If you had merely left power to the State to legislate on industrial questions until the Commonwealth Legislature intervened, then the situation would be comparatively simple. But I know that neither of my hon. and learned friends desires that. They both desire to retain for their Several States for all time the privilege of controlling industrial disputes within their own borders. But then they are confronted with the difficulties to which I have referred, and upon which I would desire the Drafting Committee to throw some light so as to enable a determination to be come to. As to the time difficulty, I suppose it could be determined by proclamation of the Federal Parliament that a particular industrial dispute had ceased to be a State dispute, and had become federal. But the hon. member wants to obtain more than that. He wants, if possible, to graft a federal law upon the State law in such a way that the federal law should only be applied where the State law cannot be applied. If South Australia and Victoria had each a law enabling them to deal with a dispute, it might be advisable that each State should deal with it. It might be better that the dispute on the Victorian side should be dealt with according to the Victorian law, and that it should be dealt with on the South Australian side according to the South Australian law. But where the States altogether find themselves unable to cope with an intercolonial struggle, it seems to be highly desirable that there should be provision for federal action. I hope the hon. gentlemen will indicate to the Drafting Committee how they are going to distinguish between those two separate spheres of action.

Mr. FRASER: This proposed provision will be adding another difficulty, and the worst of all. Suppose we pass a clause giving the federal authority power to settle disputes in a certain way, we will override the local law. The law of the colony may be quite different, or there may be no law at all. Therefore you must get the consent of the State to assimilate its local law with the federal law before you can effect your purpose. You load the Federal Constitution enormously by adding difficulties like these. All that is necessary is to give the Federal Parliament authority to deal with it as best it can when it is constituted.

Mr. KINGSTON: That is all we are asking.

Mr. FRASER: If that is really all, I have misunderstood the purpose of the amendment. I want to be clear. I understand if you pass this amendment it would override the present local law.

Mr. SYMON: So it will.

Mr. KINGSTON: It will not.

Mr. FRASER: I am beginning to learn upon whom I can rely, and I am prepared to take my friend Mr. Symon's opinion as conclusive. Leave well alone. Let the Federal Parliament deal with it. It represents the whole of the people.

Mr. KINGSTON: That is what we propose to do.

Mr. FRASER: I would go any length in the direction of conciliation; but we may do a great deal of harm by overloading the Federal Constitution. This was not in the 1891 Bill, and I hope Mr. Higgins will not insist on his amendment now.

Mr. WISE: It would not be fair to criticise the language of this amendment too closely, but I entirely agree with the observations that have been made by Sir John Downer and Mr. Deakin, that the amendment as now drawn is very unsatisfactory. The language is either too large or too limited. In one sense it is hard to say that any industrial dispute is a dispute outside the limits of the colony. I agree with Sir John Downer that it is impossible to say when any dispute extends outside the limits of a colony, because a dispute is always in one colony although it may be going on in every colony. In [start page 786] another sense every dispute extends outside the limits of a colony.

An HON. MEMBER: Indirectly.

Mr. WISE: Sometimes, and sometimes directly. I rose rather to call attention to another aspect of the question. If the effect of the amendment is really to provide for the possible establishment of a Federal Court of Conciliation, I am at one with that object; but the essential part of the language used in the amendment-I am not criticising casual expressions-indicates a much wider object, which would turn this power into a weapon of very great danger. It would, I think, deprive those concerned in these industrial disputes, whether as masters or employes, of one of their greatest safeguards. There is no matter which the industrial population of Australia would more desire to confine to the local Parliaments, where they can make their influence upon members felt, than matters affecting industrial disputes. To give the Federal Parliament power to make laws affecting industrial disputes gives them authority to regulate by penalties every detail of the industrial life of every trade in the colonies.

Mr. MCMILLAN: Hear, hear.

Mr. WISE: Surely that cannot be desired or intended. There is no matter in which varied local development it; more necessary or desirable to a State than the development of its industrial conditions, and the industrial conditions in every part of this continent in years to come may, and probably will, very largely develop.

Mr. HIGGINS: Will you not trust the Federal Parliament with the same powers as the States?

Mr. WISE: Will the working classes of this country be prepared to surrender the right of local self-government over industrial disputes?

Mr. SYMON: Hear, hear.

Mr. HIGGINS: That is not my question. Will not the Federal Parliament be equally to be trusted as the States

Mr. WISE: I do not think the Federal Parliament or any centralised authority will be as competent as a local authority to deal with the necessary local conditions of trade.

Sir JOHN DOWNER: Hear, hear.

Mr. HIGGINS: This is not local.

Sir JOHN DOWNER: What is not?

Mr. WISE: If these States develop, especially if the different colonies become split up, as many of us hope and anticipate they will, we may have one State with a very stringent law against what is now termed "blacklegging"; we may have another State, with very stringent laws in the interests of the employers, and of an altogether different kind. Is the Federal Parliament to have the power of overriding either class of laws at the dictation of persons in quite other parts of the continent, who know nothing of the local and industrial conditions which gave rise to that development in that part? I strongly oppose the proposal.

Mr. SYMON: I think Mr. Higgins will feel that his amendment, as proposed, will not exactly give effect to his views on this subject.

Mr. HIGGINS: If my hon. friend will allow me, I think I can save time by explaining that I do not adhere to the exact form of words of my amendment. I thought it better to have the question raised in substance by the ordinary popular phraseology, but I have been met on every side by small points as to whether this or that ought to be accepted. As long as it is decided that the Federal Parliament is to have power to make legislation with regard to industrial disputes, provided they extend over more than one colony, I have no objection to have these words improved. I however, find it difficult to

improve them myself on the spur of the moment, but the task of deciding exactly when there is overflow of a dispute from one colony to another will fall upon the shoulders of the Federal Parliament and not upon us. It is very difficult to tell exactly when night ends and [start page 787] day begins, or when high tide ceases and low tide begins. But, admitting all these difficulties, I think we ought not to deprive the Federal Parliament in such manner, in such time as it thinks fit to deal with widespread industrial disputes. I do not think we ought to deprive it absolutely for all time. Unless there is some clause of this sort put in, the Federal Parliament will be absolutely incompetent to deal with it.

Mr. WISE: If a clause were put in, the Federal Parliament would have power to fix a uniform rate of wages all through Australia in any particular trade.

Mr. HIGGINS: If that is so, and if the hon. member has great confidence in the popular character of this Parliament

Mr. WISE: I prefer local authority.

Mr. HIGGINS: If the hon. member has confidence in the popular character of this Parliament, I do not see that there is much to fear of a uniform rate of wage being fixed below what it ought to be.

Mr. WISE: Suppose they take the Victorian standard. How will our workmen like that?

Mr. HIGGINS: I do ask hon. members on this matter to meet me in substance. Are they in favor of power being given to the Federal Parliament to establish Courts of Conciliation and Arbitration?


Mr. HIGGINS: That is a fair issue, and I hope we shall meet on a fair issue. I hope that we shall not be put in fear by the criticisms of Sir John Downer, who has pointed out with legal acumen that it there in a dispute you must have two to quarrel. You might have 100 men in the shipping trade in Sydney and 100 in Melbourne quarrel. ling with the same company, and they might say they would not work for a certain wage. Let the Federal Parliament deal with such a matter. Sir John Downer says it is impossible for the Federal Parliament to define what is an intercolonial labor dispute. Surely we are not here to haggle over quibbles. Suppose an industrial dispute is confined to New South Wales. I meet that at once by saying that I do not propose to deal with a dispute like that; but when a dispute is so widespread that a State cannot possibly deal with it, let the Commonwealth deal with it.

Mr. SYMON: My hon. friend interposed his speech as a kind of parenthesis to the speech which I had begun: but I take up the story where I left it off.

Mr. WISE: I call attention to the state of the House.

The CHAIRMAN: According to the Standing Orders I must report it to the President.

Mr. WISE: I withdraw it then.

The CHAIRMAN: You cannot withdraw it.

After the matter had been reported to the President, the Committee was re-constituted.

Mr. SYMON: I was about to say that I hope in the very few observations I shall make on this amendment proposed by Mr. Higgins, I shall not do so in the spirit of that minor criticism to which be alluded, because I do not think myself that it is possible to exaggerate the importance of the subject. I do not think that my hon. friend said one word too much in referring to the difficulties and to the widespread influence of these industrial disputes when they arise. Nor do I think he and other

speakers who followed him exaggerated one particle when they alluded to the very grave and really calamitous evils which follow in the train of many of these industrial disputes. But the difficulty I feel, whilst conceding these principles, is that « first » of all pointed out with so much force by my hon. friend Mr. Deakin, and secondly those others pointed out with force by my hon. friend Mr. Wise. The substance of the amendment, putting aside the language of it altogether, is that the Federal Parliament is to be given unrestricted power of legis- [start page 788] lation in respect of industrial disputes, where those industrial disputes overflow, or exercise an influence beyond the limit of a particular State. Now, venture to say, « first » of all, that an industrial dispute is really a matter of local concern. In its essence and in its origin it is a matter of local concern. And, undoubtedly, if there is one thing more than another which ought to be preserved to the individual States it is the power of dealing-by means of conciliation, or by means of any other method that can be adopted-with those terrible evils which sometimes flow from these disputes, without Interference, by the federal authority. That seems to me to be an unquestionable principle, and we ought not to give to the Federal Government the right to interfere with the self-government of a State in this respect. Then if we did give it that power, just think of what it involves. It would not be limited to the establishment of a court or tribunal of arbitration or conciliation. If it is to be limited to empowering the federal authority to establish tribunals of arbitration that is one thing, but I am not dealing now with the language of the amendment, which-as Mr. Higgins himself admits- is not very apt, but I am dealing with the substance of it, which confers on the federal authority power to legislate in every way on industrial disputes. That would involve-as my hon. friend Mr. Wise pointed out in a question which he addressed to Mr. Higgins-the settlement of a uniform rate of wages applicable to the whole five or six, or it may be, if the continent was further divided into provinces, of the seven or eight different provinces of the group where local conditions might govern and differentiate the rate of wages in the different trades. For instance, if you have regard to trade in a tropical part of Australia, you could scarcely apply the same rates of wages as you would in South Australia. Then, again, you will be handing over to the federal authority a two-edged sword, which might operate with equal danger in the interests of the workmen as in the interests of the employers. It would entirely depend upon a majority of the members in the Federal Parliament as to which way that power would be exercised. If the majority were leaning in one direction legislation might go that way; if a majority were leaning in another direction the legislation might be directed accordingly. -It would be impossible to see the end of it, and I submit that it is outside the federal ambit for us to legislate in this direction. The point taken by Mr. Deakin appears to me to be insuperable. How is this court to act? Are its functions to be limited to a particular State where the industrial dispute occurs, or is it to travel outside the Commonwealth? There is no limitation. The way you get the test would be by asking whether it escapes beyond the limits of the particular colony affected by the trouble or whether it remains within.

Mr. HIGGINS: The Commonwealth has no jurisdiction beyond its own limits.

Mr. SYMON: The test my hon. friend would put would be as to the jurisdiction of this tribunal, and as to whether the dispute affected some country outside its own particular limits. Then if you treat it federally, how is the jurisdiction to be exercised as to the conditions of one colony to another? There can be no industrial dispute in New South Wales or Victoria without the ramifications of the organisations of employers or employes being utilised for the purpose of putting pressure-I am dealing with the matter now with perfect moderation and treating it as applicable to both sides-to bear in one colony or the other, to affect one side or the other. That would create intense bitterness in the particular colony affected. That might happen if there was to be a strike or a lockout. I assure you I look at this thing in a most disinterested manner. You might have such a state of tension developing as would produce something like a civil war. We know the difficulties which arise in con- [start page 789] sequence of the sense of injustice which may be generated either on one side or the other, and the side which feels the injustice may consider it beyond the relief of any court; and if you give power, whether by means of a court of arbitration or of conciliation, you are importing into the Federation an element which may result in bitterness between the federal authority and the States when you should promote at all hazards harmony. Above all things let us preserve to each State its own jurisdiction in this matter; let us promote conciliation, but do not let us impose upon the federal authorities anything which by any possibility will create occasions of difference between the State and

the federal authorities. In regard to taking over the railways, I thought the Inter-States Commission would be unadvisable as compared with taking over the railway altogether, because It might give occasion for bitterness, and the difficulty was insurmountable. There, however, I do not think the difficulties are insuperable. As Mr. Kingston has pointed out, we have had efforts made that should be commended with the view of dealing in a harmonious and conciliatory spirit with difficulties which we all deplore and which, unfortunately, often arise. I say: leave them to the States to deal with, because it is a matter of home jurisdiction, or home rule. If we have a dispute in any trade it is a local matter, but if for some reason, or in pursuance of some particular policy, it is extended into some other State let us ask the other State to deal with it as a matter of home jurisdiction.

Mr. DEAKIN: You would not object to the Federal Government dealing with it as far as two colonies are concerned?

Sir JOHN DOWNER: They can surrender it to the Federal Government.

Mr. SYMON: I am only dealing with the position as it now stands. If two States find themselves overwhelmed and unable to deal locally with any Industrial dispute, and desire the aid of the federal authority, I should be prepared to consider any scheme with that object, and if it were workable to give it every favorable consideration, but I doubt very much whether such a scheme would be found to be practicable.

Mr. HIGGINS: There are some disputes which cannot be dealt with by one State alone.

Mr. SYMON: I think that every dispute is local to the State in which it originates.

Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place where the contract was made.

Mr. SYMON: No doubt. There is another point I wish the hon. member to consider. You are not going to interfere with the laws of the States dealing with contracts. If the Federal Parliament deals with disputes it will be hampered by the varying laws relating to master and servant which may exist in the different colonies. If an industrial dispute in several colonies were treated as one it could not be dealt with as an ordinary dispute, but the laws of each separate State would have to be taken into consideration. Now that would be, I think-so it strikes my mind at present-a difficulty hard to be overcome. At any rate, what I am dealing with is rather the general proposition that is put in this amendment, not the language of it, but the general proposition, and if you are to give the Federal Parliament power to deal, as my honorable friend puts it, with industrial disputes -I will leave out the subsequent verbiage-I for one cannot see where the limit of its operation will come in. You give it a weapon which might be used according to the dominant majority in the Federal Parliament for the moment in a way we would not like. You are intensifying the possibilities of bitterness-that is to say, if they avail themselves of this power-without seeing the benefit that is likely to arise. I desire to emphasise the [start page 790] observation made by Mr. Deakin. It would be impossible to say at what time

the overflow into the adjoining State begins and ends. If the Federal Parliament is to decide-

Mr. FRASER: The judiciary.

Mr. SYMON: I do not think it would be the judiciary. We lawyers do pour oil on troubled waters, but that is rather in a tribunal of contest than a tribunal of conciliation. This matter should be in a separate enactment dealing with this by itself. I ask my hon. friend whether it would not be better to withdraw this and frame an independent section dealing with it from the point of view of arbitration, The difficulties, and I may say dangers seem to me very much greater than any possible gain, and we should be unable to impose restrictions on the Federal Parliament which would do justice to both sides and all parties concerned in any dispute.

Mr. KINGSTON: I sympathise with the remark which fell from Mr. Fraser, who suggested that a matter of this sort might come under the Federal Judiciary. We do not ask so much as that. We do not ask that there should be, as part of the Constitution, an elaborate and highly-paid court permanently constituted for the purpose of contesting to the bitter end any issues placed before it by a noble and much-maligned profession. We do, however, ask that in the interests of the State the Federal Parliament should be clothed with the authority. if it sees fit, to call into existence tribunals which will prevent industrial disputes of the highest magnitude, which will conciliate the parties at the earliest possible stage, preventing huge loss to the parties. concerned and even greater loss to the community. I contrast two things-an elaborate creation for people who would cut one another's throats and whose interests may be a matter of purely trivial personal concern, and the attempted denial to a Legislature the power to create a tribunal which would prevent huge industrial troubles and injury to State and Commonwealth. Where we contrast the treatment of the less important matters, it seems to me from a public point of view, with the more important matter now suggested, we have little cause for encouragement. I would like to say to Mr. Fraser that all we are asking is that the Federal Parliament should have power to deal with this matter if it sees fit.

Mr. FRASER: And override the local Parliament.


Mr. FRASER: There is a dispute at once.

Mr. KINGSTON: So there maybe over other clauses we have passed, small and large, as regards the appointment of a postmaster, or the granting of extra postal services, for instance.

Mr. HIGGINS: And Customs officers.

Mr. KINGSTON: Yes. No longer shall they be under control of the State. Take another matter-marriage and divorce. No longer shall the relations between a man and his wife be within the State control. Laws may be made on the subject by the State, but the Federal Parliament, if it pleases, shall have power to override them. The laws of marriage and divorce are proposed to be handed over to the Federal Parliament by this particular clause, and just in the same way with the power of creating tribunals for industrial conciliation. Until the Federal Parliament acts the State's powers are absolutely untouched. So with reference to this matter of industrial conciliation. On a matter of this sort we hear a great deal about the advantage of industrial peace. Surely we have had enough trouble in our provincial Constitutions in the absence of means to secure it. When we are laying the foundation of a Constitution, are we going to leave it that, though the Federal Parliament may desire to legislate in a matter of grave Commonwealth concern, they cannot touch it. Are they to have no power whatever? Take the late mari- [start page 791] time strike. Are they to be absolutely powerless, to stand by and see the industrial machinery of Australia thrown out of gear without the possibility of rendering help to prevent trouble. It seems to me that if the Federal Parliament is to be trusted, surely it may be trusted in a matter of this sort. We are not confining ourselves to the question of the precise terms of the amendment proposed by Mr. Higgins. What I understand the hon. member desires is this: that the Federal Parliament if it sees fit should have the right to legislate for the purpose of calling into existence a tribunal which shall endeavor to prevent industrial strife by trying to reconcile the disputing parties, and if necessary making an award, declaring on which side the right may be. I would like to tell Mr. Deakin, having had to some extent to consider this question in connection with a Bill we now have on our Statute book, that I do not think there will be the slightest trouble as regards defining where the State should deal with the question and where the Commonwealth should step in. In our local Parliament we were faced by the question, to some extent because it was necessary to consider whether we should not have two sorts of boards, one to deal with matters of general concern for the whole provinces State board-and the others local boards to be constituted in a variety of ways in different localities to deal with matters simply of local concern. We made provision accordingly, the State board dealing with troubles of general application, and the local boards confining themselves to matters of local importance. A provision was made that when a dispute arose

the question of which board it should be referred to should be decided by the chief industrial officer, the President of the State Board of Conciliation. He would investigate matters and on his recommendation a proclamation would be issued by the Governor, thus doing away with the possibility of clashing, declaring which tribunal should deal with the matter. So it seems, in regard to the suggested clashing as to the matters which should be dealt with by the Federal Board, or the State Boards, this can be avoided by giving the chief federal industrial officer power to look into the matter and report to the Executive Council if necessary, and on his decision the proclamation could be issued. If it is a matter of provincial concern it could be remitted to the State authorities, either to be dealt with there by the State board or a local board as thought fit, and if the matter is of general interest to the Commonwealth it could be sent to the federal board. Further, any future developments might be provided for by a power to the chief industrial officer to further investigate the matter, and, if necessary, remove it from the jurisdiction of the board to which it was originally sent, and send it to the board of the Commonwealth or vice versa.

Mr. HIGGINS: That is for the Federal Parliament to arrange.

Mr. KINGSTON: Just so. As regards the question of form, I would prefer, if Mr. Higgins thought well, instead of taking the power in the limited form he suggests, to make it read:

Conciliation and arbitration for the prevention and settlement of industrial disputes.

If a provision of that sort were in the Bill, what it would accomplish would be this: power would be given to the Federal Parliament-whom we are told on so many occasions we ought to trust, because it will be constituted of the very best men in Australia-if it thought fit, to legislate on those matters, and I do not think that in the interest of either State or Commonwealth a power of this sort should be denied.

Sir EDWARD BRADDON: I have the very highest possible opinion of the influence for good of boards of conciliation in matters of industrial dispute, in spite of the fact that in South Australia, I believe, they have been a positive failure, But what we have to consider in framing this Constitutional Bill is that we shall [start page 792] not load the Federal Parliament with duties and obligations which can be better fulfilled by the local Parliaments of the several States. I think if we introduce anything of this sort into our Constitution it can only have the effect of increasing rather than diminishing the difficulties in regard to these industrial disputes. It would have the effect possibly of interfering with trades unionism in some of the colonies, and of interfering largely with both employer and employes; and I think that should be in every possible way avoided if we can possibly do so. There is no occasion for our committing to the Federal Parliament or Government any matter whatever that the States can better deal with. These industrial matters, I think, are distinctly more within the province of the States to deal with than of the Federal Parliament.

The Chairman had put the question and declared it carried, when Mr. Higgins, who had been sitting on the opposite side of the House, crossed over to his place and began to speak.

The CHAIRMAN: I have put it.

Mr. KINGSTON: Mr. Higgins was on his feet.

Mr. BARTON: He has already Spoken twice.

The CHAIRMAN: Four times.

Mr. HIGGINS: If the Leader of the House thinks that my delay in speaking in consequence of having to pass over from one side of the House to the other should preclude me from speaking now, I shall sit down.

Mr. BARTON: I do not wish to curtail the hon. member's right to speak. I was only thinking of the time at the disposal of the Convention. I have myself a great deal to say about this question, but as a member desiring to save time I have refrained from speaking, and I do not want to see a member who has already made one or two speeches on it make another after the question has been put.

The CHAIRMAN: Strictly speaking the question has been put.

Dr. COCKBURN: Many of us did not cry out when you put it, so as to give Mr. Higgins a chance to speak.

The CHAIRMAN: If there is a general wish that the hon. member should speak, he may do so.

Mr. BARTON: I do not want to enforce my objection if the hon. member is particularly desirous of speaking.

The CHAIRMAN: I shall put the question again. For the question say "Aye"?

Mr. HIGGINS: About three minutes have been wasted by that little difficulty. This matter is very simple. The principal objection to this proposal is from Mr. Symon, who says all industrial disputes are local. If they are, then there certainly can be no harm done in providing for cases where the disputes are not local. But to speak of all industrial disputes being local is absurd in the face of the fact that our maritime disputes spread through all our ports.

Mr. SYMON: Their origin is local.

Mr. HIGGINS: It is not a question of origin. Everything has an origin; even a river "extends," and I am speaking of things extending to a larger area. I say, therefore, if it is admitted that all industrial disputes are not confined to a particular colony, it is a mere question of detail to ascertain when a dispute commenced within a colony and where it extended beyond that colony. I am prepared to accept the suggestion of my hon. friend the President to have before the words "industrial disputes," these words:

"Conciliation and arbitration for the prevention and settlement of" industrial disputes.

I would prefer, personally, to have the words end there, but in order to obviate the fear which some members entertain that this may enable the Federal Parliament to interfere in disputes purely local, I think it better to put in the words I had originally at the end of my previous amendment:

Extending beyond the limits of any one State.

[start page 793] The whole thing would then read:

Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

If it is in order, I ask leave to withdraw the « first » amendment and I move this.

Leave given.

Question-that a new sub-section containing the proposed words be inserted-put. The Committee divided.

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


Berry, Sir Graham Higgins, Mr.

Clarke, Mr. Isaacs, Mr.

Cockburn, Dr. Kingston, Mr.

Deakin, Mr. Peacock, Mr.

Gordon, Mr. Quick, Dr.

Henry, Mr. Turner, Sir George


Abbott, Sir Joseph Grant, Mr.

Barton, Mr. Lewis, Mr.

Braddon, Sir Edward McMillan, Mr.

Brown, Mr. Moore, Mr.

Carruthers, Mr. O'Connor, Mr.

Dobson, Mr. Reid, Mr.

Douglas, Mr. Symon, Mr.

Downer, Sir John Taylor, Mr.

Fraser, Mr. Walker, Mr.

Fysh, Sir Philip Wise, Mr.

Glynn, Mr. Zeal, Sir William

Question so resolved in the negative.

Sub-section 17, as read, agreed to.

Sub-section 18, as read, agreed to.

Sub-section 19, as read, agreed to.

Sub-section 20, as read, agreed to.

Sub-section 21, as read, agreed to.

Sub-section 22: Foreign corporation and trading corporations formed in any State or part of the Commonwealth.

Sir GEORGE TURNER: With regard to this clause, we have already given power to deal with the question of banking, and we are now giving power to deal with foreign corporations and trading

corporations. I fail to see why we should limit the sub-section to trading corporations. There are financial institutions which are not banking institutions, and if we are going to give the Federal Parliament power to legislate with regard to banking, and with regard to trading corporations, we should go a step further and give it power also to legislate with regard to financial institutions.

Mr. BARTON: I do not know.

Sir GEORGE TURNER Building societies.

Mr. BARTON: I think the present wording of the sub-section covers as nearly as may be the intentions of the Constitutional Committee, and really for the amendment, which is a desirable amendment, in the sub-clause as it stood in the Bill of 1891, we are indebted to my hon. friend, Mr. Isaacs, who put it in its present form.

Mr. ISAACS: I suggested the word for temporary consideration.

Mr. BARTON: I Should like to be favored with any arguments in favor of the suggestion.

Mr. DEAKIN: We recently passed a law in our colony which placed a strict limitation on the meaning of the word "banks," excluding from it particular kinds of financial companies which had hitherto been called banks, or treated as banks.

Mr. BARTON: You mean that kind of financial company that went down so often.

Mr. DEAKIN: We distinguish them from banks on the one hand and trading corporations on the other. We want to include all limited companies because the class of companies I am speaking of deal with lands and with deposits, and they require to be carefully regulated.

Mr. MCMILLAN: You want to include everything outside private companies.

Mr. DEAKIN: Especially land and finance companies which caused so much litigation in the past.

Mr. Symon: In the original Act corporations simply are mentioned. Why this difference?

Mr. BARTON: The reason of making the difference was this: It having been seen that the word "corporations," as it existed, covered municipal corporations, [start page 794] the term was changed to "trade corporations."

Mr. SYMON: Why not simply use the term "company"? If you use that word it will be well enough understood.

Mr. BARTON: Why not adhere to "corporation"? That governs everything under the Companies Act.

Mr. SYMON: Why not leave out the word "trading"?

Mr. BARTON: Or add the word "financial"?


To insert the word "financial" before "corporation."

Mr. BARTON: Would it not be better to make it thus:

Any trading or financial Corporation.

So as to separate that branch from foreign corporations?

Sir JOSEPH ABBOTT: I will consent to that and move:

To insert after trading "the words or financial."

Amendment agreed to.

Sub-section as amended agreed to.

Sub-section 23 as read agreed to.

Sub-section 24 as read agreed to.

Sub-section 25 as read agreed to.

Sub-section 26 as read agreed to.

Sub-section 27 as read agreed to.

Sub-section 28 as read agreed to.

Sub-section 29 as read agreed to.

Sub-section 30 as read agreed to.

Sub-section 31-The control and regulation of navigable streams and their tributaries within the Commonwealth and the use of the waters thereof.

Mr. WISE: I was not on the Constitutional Committee, and when I heard that this clause had been moved by Mr. Gordon, I took it for a joke.

Mr. GORDON: I have an amendment to move. Will you allow me to do so?

Mr. WISE: Certainly; but I would suggest that it should be struck out altogether.

Mr. GORDON: I move:

To strike out the words "navigable streams and insert instead thereof the words "navigation on the Rivers Murray, Darling, and Murrumbidgee."

Mr. REID: What have you to do with the Darling?

Mr. GORDON: I propose to show the hon. member. I am responsible for this subsection, and so far from it being a joke, I consider it a very serious and important intercolonial matter.

Mr. REID: You will want the Blue Mountains next.

Sir GEORGE TURNER: They will want Reid next, and that will be worse.

Mr. GORDON: I recognised that the clause as it stood was somewhat too large in its scope, and as I have no desire to cloud the real issue by raising points about which there may be some needless debate, I have moved this amendment in view of keeping the discussion absolutely to the point about

which there must be discussion. So far from the question being a joke, as some hon. members from New South Wales would like to make it appear-

Mr. Wise: I am sorry it is not.

Mr. GORDON: I regard it as a most serious intercolonial question, and one which must be settled if we have Federation. It would be fatal to leave this question unsettled. Apart altogether from the question of Federation, it is almost disgraceful to the colonies concerned, except South Australia, who has always been willing to confer, that this matter has not yet been made the subject of convention. Of course I shall have to answer the question put by Mr. Reid and Mr. Carruthers, "What have you to do with our rivers?" That is founded on the theory that the Government of the country through which a river flows is the sole owner of the river, even though its course is continued through other countries, but that theory of law has been exploded for many years past. It is not true that these rivers belong to either South Australia, [start page 795] New South Wales, or Victoria. They are the property of all the people of these colonies. I say that the contention that the country through which a river runs is necessarily the owner of the waters has been for years exploded in all civilised countries. It is a contention which will not stand examination, and "is opposed to the progress and destiny of mankind." These are not my own words. I am using the words of an eminent writer, and when my hon. friends raise this narrow argument, and seek to lock up to one colony a great national fertiliser and channel of communication, they are raising a contention which has long ago been discredited. As a matter of fact, there are scarcely two civilised countries in the world which have not made conventions about the rivers running through their territories, even, although, as in Europe, these countries are armed to the teeth against each other. There is no single river in Europe with respect to which a convention has not been made.

Mr. BARTON: Does that refer to their use for navigation,?

Mr. GORDON: I am prepared, to meet the catchy argument of my friend, and will deal with it later on. Pitt Cobbott, Professor of Law in the University of Sydney, after stating the argument of strict law, says:

But though in strict law each State could thus appropriate and regulate waters wholly within its territory, the use and navigation of most of the more important navigable rivers that traverse the territory of different States, have now come to be generally regulated by treaty or convention.

I have other authorities here by the dozen.

Sir GEORGE TURNER: We will take your word for it,

Mr. GORDON: This writer summarises the law with regard to rivers flowing in or between two or more countries. In the abstract, he says it river is the property of the country through which it flows, although the boundaries of it belong to both. He proceeds to show that this strict law is in violation of natural justice, and that conventions made in Europe, and now recognised as the public law of the world, have restored that natural right to its proper position. He speaks, you will see, both of the use and the navigation of rivers then he goes on:

So far as European rivers go it was provided as early as 1814 and 1815 by the treaties of Paris and Vienna: (1) That the navigation of rivers bordering on or passing through several States should be free to their mouths. (2) That, subject to this freedom of navigation, States might exercise rights of sovereignty over rivers traversing their territories, but storehouses and stations for transhipment were not to be established, nor were those already in existence to be preserved, except so far as they was of use for navigation or commerce. (3) That navigation dues should be independent of the quality and nature of goods transported, and should not exceed the maximum fixed in June, 1815. (4) That the police regulations relating to navigation should be uniform and should not be changed by one State without the consent of others.

Sir WILLIAM ZEAL: The Darling does not go through one State.

Mr. REID: The waters of the Murray do.

Mr. GORDON: The waters of the Murray are fed by those of the Darling and Murrumbidgee, and they all flow into the sea in South Australia.

Mr. REID: Do not you know that the great rivers in Europe running through different States are fed by hundreds of rivers over which there is no general control?

Mr. GORDON: There are no tributaries of such importance and value as the Darling and Murrumbidgee. I will trouble hon. members with a little history which will show how acute is this question, how necessary it is that it should be settled, and how absurd it would be to enter into Federation unless it is settled. In 1887 a Commission was appointed by South Australia to deal with the question of the navigation and riparian rights of the River Murray. My hon. friend Mr. Glynn was a most valuable member of this Commission, and the Hon. Mr. Howe was another member. I will read a few [start page 796] extracts from the progress report of the Commission. This recital is necessary to show how acute the position has become

In order to a mutual recognition of their several riparian rights, from time to time it has been proposed, and even urged, that a conference should take place between authorised representatives of South Australia, New South Wales, and Victoria; but up to the present no such conference has been made possible, though the Victorian Government has expressed itself as distinctly favorable to such an arrangement.

In order to a clear perception of the aspects of the question as it now stands, your Commission present the following summary of the facts:-Correspondence respecting the Murray dates back many years; and prior to May, 1886, this suggestion for a conference on riparian rights and Murray improvements was regarded by the three Governments as desirable, the Victorian Government being understood to promise that no such conference should be held without a proper representation of this province. It, however, transpired that in May, 1886, a conference-or something of that nature-took place in Melbourne between commissioners of Now South Wales and Victoria, at which resolutions were pawed relating to and apportioning the waters of the Murray in a way that threatened serious consequences to the trade and riparian rights of South Australia, although this province was not represented at such conference, nor had been invited to send any representative. The then Premier, Sir John Downer, made a strong protest against this procedure, which elicited explanations and a disavowal of any attempt to interfere with the riparian rights of South Australia. This Government pointed out then the extreme desirability of holding at once a formal conference for dealing with the whole matter, at which each of the three colonies should be represented. The Victorian Government at once assented, and suggested that such conference should be held at Adelaide. Subsequently this Royal Commission was appointed, and the Governments of the other colonies were apprised of the fact. At one of the earliest meetings of the Commission a resolution was passed requesting this Government to earnestly press the importance of such conference being at once hold, and the Hon. the Premier (Mr. Playford) in April, 1889, forwarded to the Governments of New South Wales and Victoria a review of the correspondence, and strongly urged an agreement for the proposed conference. The Victorian Government once more expressed its acquiescence, but no reply was received from the Government of New South Wales. On the 20th May direct application was made to Sir Henry Parkes for a reply, and a month later that hon. gentleman promised to write fully in a few days. No communication, however, was received; and on the 23rd July he was informed that this Government still awaited his promised reply. The hon. gentleman then intimated by telegram that the question was receiving special consideration, and that he would communicate the views of his Government in relation to it in a short time. A very long period, however, elapsed without this direct assurance being fulfilled, and once again was forwarded a respectful request that the promised reply should be sent. In response to this Sir Henry Parkes definitely replied on the 6th of September, 1869,

stating that he would write in the course of a week. No communication was received, and on the 18th of that mouth the Honorable the Premier (Dr. Cockburn) found it necessary to intimate to Sir Henry that this Government still awaited his reply. From that date no reply, an promised, to the communications mentioned has been received from the Government of New South Wales, though the letter, dated 6th March, 1890, set forth in Appendix J, mentioning the appointment of Mr. McKinney, and stating the position taken by the Government of New South Wales on the question of riparian rights, was received by the Premier, and has been forwarded to the Commission. It will, from, the foregoing, be perceived that this Commission has been unable to perform one-and perhaps the most important-of the duties assigned to it by your Excellency, all endeavors to bring about an intercolonial conference on riparian rights having been foiled by the unresponsiveness of the New South Wales Government.

These representations in themselves might not have amounted to very much, but they were supported by the most, startling facts which came to the knowledge of South Australia.

Mr. REID: One of the startling facts was that we had been snagging the River Darling at our own expense for your benefit.

Mr. GORDON: I shall give information which will show that my hon. friend is not quite fair. A conference was held with representatives from New South Wales and Victoria without any invitation being extended to South Australia, though it had been understood that she would be invited.

Mr. REID: Why go in to ancient history? Let the thing be settled on its merits.

Mr. GORDON: We know the hon. member would be glad to shirk it.

[start page 797] Mr. REID: I do not want to.

Mr. GORDON: If he will promise to support me I will not go on.

Mr. REID: The history of ten years ago does not affect the merits of your amendment.

Mr. GORDON: It shows the necessity for the amendment. It is not as if we did not know the intention of New South Wales regarding the use of the waters of these rivers. We have heard in the most pronounced way that they intend to do an injustice. It is a most acute dispute, and we ought to settle it now when we are making an intercolonial agreement.

Mr. REID: If my hon. friend will permit me to interrupt him, I should like to say a word about one point on which I do not wish to be misunderstood. So far as any waters, no matter where they come from, between two States are concerned, I think that the two colonies should have control over the navigation. My point is with reference to a river the whole course of which is in one colony. I agree with the hon. member as to the Murray, which flows between Victoria and New South Wales and then into South Australia, that its navigation should be controlled by the two colonies between which it runs, but as to rivers which are only in one colony, such as the Yarra, the Clarence, the Derwent, the Tamar, or the Darling, that colony should have the control over them.

Mr. GORDON: I have quoted from the report of the River Murray Waters Commission a statement showing how ineffectual their efforts were to procure even a conference upon this question with the colonies of New South Wales and Victoria, and that not only were their efforts in this direction unsuccessful, but that after a promise by Victoria and New South Wales that a conference would be held to which South Australia would be invited, a conference was held behind the back of South Australia, between commissioners representing the colonies of New South Wales on the one hand and Victoria on the other. I would like very briefly to show what those gentlemen said was right to be done with the waters of the River Murray. I shall not go into details, but I shall give one item of

figures. They proposed to divert 244,500,000,000 cubic feet of water per annum into Victoria and New South Wales. These were no vague assumptions; they were definite proposals to use the water of the river to that extent, and the result would have been, according to the calculations of our Conservator of Water, that the River Murray within South Australian boundaries would be dry in such years as 1884-5, and reduced to the average of summer level during the whole of such a year as 1886. It is almost incredible that those gentlemen should have coolly proposed behind the back of South Australia, schemes of irrigation which would have resulted in the River Murray, within the territory of South Australia, becoming dry. At that conference it was resolved:

That the waters of the tributaries of the Lower Murray, except such proportion thereof as shall under the direction of the trust be required as compensation water for the main river, may be diverted and used by the respective colonies through which they flow.

The whole of the waters of the Upper Murray and its tributaries, and the whole of the waters of the Lower Murray, shall be deemed to be the common property of the colonies of New South Wales and Victoria, and, subject to the reservation of such compensation water as the trust may from time to time determine, each of the said colonies shall have the right to take and divert one-half of such water at such point on points as may, with the sanction of the trustee be fixed on as most suitable for the requirements of such colony: Provided always that the totals of the quantities diverted by the two colonies when the whole surplus (after providing compensation water as above) is utilised shall be equal. Those resolutions have, however, not been confirmed by the respective Governments.

Thus these gentlemen calmly decided, as I have said, to divide up between New South Wales and Victoria what would be in dry years practically the whole of the waters of the River Murray.

[start page 798] Mr. BARTON: To what extent have those reports been acted upon?

Mr. GORDON: I am stating only the fact that these commissioners made such suggestions. Proposals made by such a body must be seriously considered.

Mr. BARTON: They are no menace to you.

Mr. GORDON: They are, indeed, a permanent menace to us. These were officers appointed by Governments to consider this matter. They were scientists and experts; they suggested definite schemes; and, notwithstanding the fact that long after this, and repeatedly after this, representation has been made to the Governments of New South Wales and Victoria-especially-to the Government of New South Wales-these Governments have never given the slightest intimation that they do not consider these schemes proper to be carried out, or that they do not intend to carry them out.

Mr. BARTON: In what year were those recommendations made?

Mr. GORDON: I do not know that I can give the year just at this moment; the report is not dated.

Mr. BARTON: I think somewhere between 1887 and 1890.

Mr. DEAKIN: It was in 1886.

Mr. BARTON: It has not been touched since.

Mr. GORDON: The hon. member seems to know little of what is going on in his own colony. I know from gentlemen in New South Wales that these schemes are still being recommended. Who can say we are not justified at being alarmed at the menacing suggestions which will leave the Murray absolutely dry within our boundary? Mr. Jones, our Conservator of Water, who states that fact with the grave reticence of the cautious official mind, concludes as follows:

When it is remembered that at what is known as summer level in the river between the boundary and Morgan the discharge of the river is about 120,000 cubic feet per minute, the assumption that from 20,000 to 30,000 cubic feet per minute for five months in the year is an equitable "compensation water" is, to say the least, startling. Such a discharge would reduce the depth at many parts of the river to less than one foot. It would thus appear that the irrigation schemes proposed or under consideration in New South Wales and Victoria are designed to take all the waters of the Murray and Murrumbidgee in low years, except a very small quantity passed down which will probably be insufficient for navigation, and keep the river in South Australia throughout most of the year down to or below what is known as summer level.

That is the conclusion of an entirely unprejudiced and highly competent authority. Of course I admit that these schemes have not yet been acted upon, but they have never been repudiated. It has been represented to the New South Wales and Victorian Governments how South Australia was threatened by these schemes, and anxious and urgent requests for conferences have been since then made, but absolutely without satisfaction. Here are a few words from the progress report of the Commission a year after the report which I previously quoted:

It is with very great regret that your Commissioners have to report that upon the most important part of the inquiry-that relating to a settlement between the colonies interested of the question of mutual riparian rights-they have been utterly unable to make the slightest advance, despite their strenuous efforts. The aim has been to obtain, in amicable conference with authorised representatives of the colonies of New South Wales and Victoria, an equitable agreement as a foundation for legislative action in each colony. For several years past this Government has sought in every possible way to promote this arrangement, and your Commissioners have been anxious to assist in securing so desirable a result. But the numerous communications forwarded by the South Australian Government pressing the subject upon the attention of the Governments of the other colonies have unhappily wholly failed in effecting their purpose. The Government of New South Wales, your Commissioners are led to understand, has with official terseness barely acknowledged the communications, and where fuller replies have been promised has omitted to send them. The Royal Commission has been dissolved, and the conservation of the whole river system, your Commissioners are informed, has been placed in the hands of one Government official, The [start page 799] Government of Victoria has always been prompt in its profession of great readiness to concur in the appointment of a conference, but has carefully abstained from taking any decisive step that would tend to secure such a meeting of representatives; indeed the Royal Commission of this latter colony. has recently, in very courteous but not less effective terms, declined to meet informally in a friendly interview a committee from your Commission, such meeting having been designed to arrange for an official conference between the representatives of the three colonies at a time and place found convenient.

Your Commissioners would lay stress upon the fact that whilst the Government and this Commission have been endeavoring to obtain a conference on this important subject large irrigation schemes in the other colonies have been energetically pushed forward, and your Commissioners are justified in expressing their strong conviction that the results of the withdrawal of such large supplies of water from the national highway-the Murray-must prove highly detrimental to the interests of this province.

And then Mr. Glynn adds a note to that report which so concisely summarises the legal position that I cannot refrain from quoting it.

The water rights of the province to be preserved depend a good deal upon the extent of their recognition by the other colonies. What they are according to the principle of international and private law-the analogy of which should guide us in defining them-may be clearly stated, but the mere statement of the colonies' respective rights in the river, unless made the basis of an agreement for the mutual exercise and respect of them, would be of little use There is no tribunal to which a colony, on breach of its water rights, can appeal for a remedy, so that the rights are legally ineffective.

Mr. Glynn goes on to state what really should be made the subject of this arbitration, viz.:-

(1) Generally, the mutual rights and equities of the riparian colonies in and to the River Murray and its tributaries:

(2) Particularly, the minimum quantity of compensation water that should be allowed to flow into or pass by each colony for each month of the year, both before and after the construction of looks, or other conservation works on the rivers:

(3) Subject to clause 2, the proportions in which New south Wales and Victoria should share for irrigation purposes the waters of the river flowing between their territories

That is a fair statement of the points by one who has carefully studied this question. These considerations were urged again and again on the Governments of New South Wales and Victoria, and finally, thoroughly disheartened by all their efforts, the Commission threw up the work in despair.

Mr. BARTON: What date was that Commission?

Mr. GORDON: The final report was in 1890, and it was only ordered to be printed by the House of Assemble in 1894.

Mr. BARTON: Was that after the general report which my hon. friend has spoken about?

Mr. GORDON: Yes; I am quoting the reports in their order. Between the times of all these reports the Commissioners never failed to urge on the other colonies the necessity for a settlement of this question. They knew, of course, what the result would be to the waters of the Lower Murray if these irrigation schemes were carried out, and they persisted in their representations to the other colonies. But in 1890, as I have said, utterly disheartened by their failure to secure even the courtesy of a reply from New South Wales and the courtesy of anything more than a mere "put off" from Victoria, the Commissioners resigned their commission. They refer to their unsuccessful attempts to secure a conference and say:

As we considered such a conference indispensable to a proper inquiry into, and report upon, the question submitted to us, we endeavored, as previously mentioned, to impress upon the Governments of the other interested colonies the expediency of holding one, but, in the case of New South Wales, without success. The disinclination of that colony to meet us has led to the consideration of the proposal for a conference being deferred from time to time; and we cannot see that the last communication, dated October 27th, 1892, received by this Government from the Honorable the Premier of New South Wales, Sir G. R. Dibbs, K.C.M.G. (a copy of which is enclosed), contains such an assurance that the question of A conference is being seriously considered [start page 800] as would justify us in postponing the presentation of this our final report.

Mr. BARTON: Is that in the report of 1890?

Mr. GORDON: I am not quite sure about that. It was printed in 1894.

Mr. BARTON: It was made in 1890, you said?

Mr. GORDON: This last report is evidently in 1893, but it is not dated.

Mr. GLYNN: The report was presented in June, 1890.

Mr. BARTON: If there is anything from Sir George Dibbs in it he could have only acted for the Government between January and March, 1889.

Mr. GORDON: There is a letter appended from Sir George Dibbs, dated Colonial Secretary's Office, 1892, so that this report must have been presented in 1893.

Mr. GLYNN: They suspended proceedings for a while and presented their final report after.

Mr. GORDON: The report refers to the unsatisfactory letter from Sir George Dibbs, dated October, 1892, and continues:

Your Commissioners, under these circumstances, feeling that they have exhausted all the means at their command to bring about a satisfactory intercolonial agreement in respect of the waters of the River Murray, beg to be relieved of any further responsibility.

There is thus ample evidence that since 1887 the colony of South Australia has been entreating the other colonies to adopt that procedure which every other civilised European nation has adopted.

Mr. BARTON: You are dealing with the rights of navigation.

Mr. GORDON: Yes, and the use of the water also.

Mr. BARTON: In the quotation you read from Mr. Pitt Cobbett's book were you not dealing only with navigable streams?

Mr. GORDON: The quotation refers to the navigation of the streams and their use. The contention that only navigation and not also the use of the water should be the subject of convention is a mere lawyer's quibble, as I shall be able to show.

Mr. BARTON: That, perhaps, will not be distasteful to the hon. member.

Mr. DEAKIN: The use of streams in Europe differs from their use in a country like this.

Mr. GORDON: The navigation and use of these rivers is a question of international law. I am speaking from memory now, but I think it is either Kent or Wolseley who says that it is considered discreditable if any civilised nation refuses a convention on such a matter of mutual interest as this. Hon. members who have not been privy to the circumstances of this dispute, who have no personal interest in it, or are not influenced by any local bias-I am afraid some hon. members are blind to the justice of the case-will say: I am sure that this matter must be settled if we are to have Federation. It would be fatuous to enter upon an agreement, unless some settlement of the question is arrived at or some tribunal appointed to settle it. I think I have clearly shown that there is nothing in the argument that the other colonies-South Australia, for instance-has no right to make any interference with the river which has its rise in New South Wales and flows into South Australia. The conventions of all civilised nations show that a mutuality of property exists with regard to rivers which flow through more countries than one. I have been met by Mr. Barton with the argument that I can find instances of mutual arrangement with regard to navigation, but none with reference to irrigation. That, as I replied, can only be characterised as a mere lawyer's quibble.

Mr. BARTON: That is to say that you keep a river open to take another man's water out of it.

Mr. GORDON: In the treaty of Washington-

Sir JOSEPH ABBOTT: What has that got to do with the Murrumbidgee?

[start page 801] Mr. GORDON: I hope to educate the non. member a little on this question. The following is an article of the treaty of Washington:

The Government of Her Britannic Majesty engages to urge upon the Government of the Dominion of Canada to secure to the citizens of the United States the use of the Welland, St. Lawrence, and other canals in the Dominion on terms of equality with the inhabitants of the Dominion.

What the precise terms were the treaty does not say. But they were terms of equality, and the treaty supports my contention that we have examples of conventions giving equality of interests to the countries through which waters flow-equality of use. Probably the reason why I am unable to adduce any other instance besides this of a mutual arrangement for irrigation is this, that the great volume of American and European rivers renders any arrangement on the question unnecessary. They are rivers down which large volumes of water flow permanently, and there is more than enough water for all. But with us the question of the use of the water is vital, absolutely vital, and I contend that the claim of a mutual use for irrigation is founded on the same principles of natural justice that promotes and procures a convention with regard to a mutual arrangement for navigation and improvement. The Danube Convention includes arrangements for the mutual improvement of the river, as well as for navigation. What principles does this Convention rest on with regard to rivers running through contiguous territory? I contend it is this: that running as they do through great lengths of the earth's surface and being necessary to all the countries through which they run, they equally belong to all. I contend that principle cannot be disputed. On the same principle rents the riparian rights of individuals. It is as just to say that one riparian owner can stop the stream from flowing to the owner lower down as to say that one nation can take the water from a stream which is running to a nation lower down. There is no difference. Can any lawyer contest that proposition?


Mr. GORDON: The principle upon which this contention rests is, I think absolutely sound, that no nation has any right to divert or seriously diminish the flow of a river running to another nation. The only difference is that individuals are in a forum where that principle can be enforced, whereas the final reference, if nations cannot agree, is the arbitrament of war. But the principle of justice remains the same.

Sir WILLIAM ZEAL: What if it can be shown that we have doubled the resources of the river?

Mr. GORDON: If the hon. member can show that, I will say Victoria has laid the Australian continent under a load of obligation. Still, if she has conferred such a benefit upon her neighbors, it is one in which they are entitled to share.

Mr. SYMON: We only want as much water as will maintain the navigability of the river.

Mr. GORDON: We want a little more. We make a claim for a fair proportion of the water of the Murray for irrigation.

Sir WILLIAM ZEAL: We have doubled the quantity.

Mr. GORDON: If the hon. member's colony has done that it is, as I say, one more addition to the obligation under which the neighboring colonies lie to the colony of Victoria. That, however, is another question.

Sir WILLIAM ZEAL: You want all the advantage and want not to pay for it.

Mr. GORDON: I am answering the argument that no case can be shown, except the one I have quoted, for a mutual right to waters for irrigation.

Sir GEORGE TURNER: That case does not show it.

Mr. GORDON: I think it shows that such an agreement was recommended by the Treaty of Washington.

[start page 802] Sir GEORGE TURNER: That is only for purposes of navigation.

Mr. GORDON: It stipulates for equality of use of the waters. My contention is that navigation and irrigation stand on the same footing as regards the justice of the case. In Europe, the necessity for joint control in the interests of all is generally expressed to be confined to the improvement and navigation of the rivers; but with us the necessity exists, in addition, for the control of the actual consumption of the water in the interests of all. The principle which calls for this joint control to enjoy the rivers equally obtains with even greater force in regard to irrigation than to navigation. Our rivers are not only the means of communication between the colonies through which they run, but they are the great fertilizers for their joint benefit. It is not simply a question of having them as the means of communication and navigation; they are the only great fertilisers of the continent, and to us it is a question almost of life and death.

Sir EDWARD BRADDON: How are you going to divide them?

Mr. GORDON: I would leave it to the Commonwealth Parliament to say what is fair between the colonies. To continue the absolutely unfair and intolerable position which exists at present is opposed to the practice of all civilised nations. I appeal to Sir Edward Braddon, who knows a great deal of international law and the customs of most countries, whether the present position can be described as anything but discreditable. The rivers are the natural highways and fertilisers of the whole of that part of the continent through which they run-the channels of God. To stop them at their fountain-heads, or to exhaust them during any part of their course, while they have other colonies to serve, is to act not only against the comity which should prevail between colonies under the same Crown, but to act also against natural justice. You cannot honestly refit a claim to do this upon possession or upon any narrow words in the New South Wales Constitution or upon the abstract law. If the members of this Convention are prepared to trust our mutual interests to the Federal Parliament they are acting in the true spirit of Federation. What have members to be afraid of? Either they know that they are holding that to which they have no right under the comity which should govern these colonies, or they are afraid to trust the federal authority. We have had eloquent appeals from some members to trust the Federal Parliament, to act in a federal spirit. Let them shew that they have not been mere empty words. To leave the matter as it now stands, to leave South Australia threatened by injustice is nothing less than monstrous. I am not binding myself to the exact words of this motion. All I want to see is fair play between the colonies and to break up the intolerable position which at present exists.

Mr. MCMILLAN: Had you not better confine your motion to the Murray?

Mr. GORDON: I am always willing to accept suggestions, and I know the hon. member will do what is fair.

Mr. REID: We have had the use of the Murray for a good many years.

Mr. GORDON: The hon. member was not here when I read the correspondence, which showed the intentions of New, South Wales and Victoria. We are threatened specifically with the menace that we shall not have the water very long.

Mr. CARRUTHERS: The hon. member has quoted authorities to show what is the international law on this subject, but unfortunately in Australia we have a state of affairs which is perhaps without parallel in any other country in the world. Our rivers are of a totally different character to the rivers in any known portion of the world, and we shall have, to at large extent, to make a law unto ourselves. The moment we attempt to apply the old [start page 803] world laws of riparian rights we begin to deal with our rivers in a way that will like them useless. There-in the old world-they have rivers which

flow all the year round, large and permanent streams. Here they have no continual flow, with the exception perhaps of the Murray. They are only running streams, four or five months during the year. Take the Darling and the Murrumbidgee, they do not flow all the year round; with regard to the other rivers, the waters in them are absolutely necessary to be used in conjunction with the land if we are to have any settlement on the land. If you decide that these great rivers of Australia shall be conserved for navigation purposes, you may bid goodbye to putting the people on the land. Every sup of water will be required for the thirsty soil, to enable people to occupy the land profitably. I maintain that in the course of less than perhaps a hundred years we shall find that these rivers aimed at in this resolution-the two tributaries of the Murray-will be for portions of the year absolutely drained dry. It will be more profitable to the people than to have them as streams for ships to ply up and down. What is the use of navigation on these rivers if you have the people driven away from settlement, and you have no goods to carry? As far as New South Wales is concerned, this matter cannot be approached from any sentimental point of view, and it cannot be governed by precedents derived from old countries of the world where the conditions are not similar to ours. There are 140,000,000 of acres of land in New South Wales which depends for its waters on the tributaries of these streams. That 140,000,000 acres to-day sustain practically a mere handful of people, and it is by the development of that great and rich territory that we hope to have the teeming population of the future. But if you shut out from the people the source of the water supply you shut off the possibilities of development in the future. So far as we are concerned, and I think that all reasonable men will admit it, land communication can be just as profitably carried on as water communication, and navigation is a matter of secondary importance. The matter of importance is to get the people settled, to increase the productiveness of the soil by promoting increased population, not by increasing the facilities for navigation, but by increasing the facilities for closer settlement. But the moment you hinder us from using the water that moment you hinder that settlement. We have got to trust to our own State, not to Federation, for the moment we hand over the control of these rivers we bring in an authority which will not be so much in sympathy with the aims and desires of the New South Wales people to settle its people on the land as the local authority, and we shall never persuade the people of New South Wales to accept a Federation which hands over the great arteries of our colony to another power, even though that power be one in the authority and influence of which we share. I have had many instances during the last three years which would perhaps open, the eyes of those who look at this matter from a mere theoretical standpoint. Only a few days ago, on one of the tributaries of the Murray, the billabong running from Albury down to Jerilderie for several miles was dry. The only water practically was that conserved by the construction of a dam. A time of drought was on. Stock were perishing from want of water. The settlers below the dam, just like the South Australians here, were crying out that the flow of water was impeded. They set to work and cut the dam to let the water out, and in twenty-four hours there was no water in the billabong. What they thought would benefit them was a suicidal policy. It takes an immense body of water before you can satisfy the soil itself, and the tributaries, if not dammed up would, in many parts of the year, contain no water at all. I can give another instance. There is another tributary of the Darling-the Warrego. For [start page 804] six months of the year it is practically a dry bed, and you can drive across it.

Mr. FRASER: There is the Paroo, too.

Mr. CARRUTHERS: On the Warrego water is conserved in flood-time by dams. These dams have been cut, and the water has disappeared in the course of a few hours. It is not the water that is used by the New South Wales people, by the stock-owners or the settlers, which deprives the Murray of its flow, but that water which mysteriously but surely percolates into the hidden streams of Australia, that water which disappears by evaporation, and which no amount of legislation can retain. That is the water, which if we could retain it, would be employed to supply the requirements of humanity, and which would be used for navigation. The hon. member's aim is manifest. It is to give to South Australia not riparian rights for the use of the water for fertilising the soil, but to give her rights so that she may carry on navigation, so that she may have an increased flow of trade. Well, we are not prepared, for the sake of seeing the trade of our colony go through South Australia, to inflict a death blow on every settlement on what we rightly consider to be perhaps the best land in our colony. We have looked that land up for twenty-eight years against any closer settlement, because we hoped

during that period to devise some scheme by which we can so utilise the water that we can place men there in occupation of small holdings. We have at present the greatest expert of the British Empire, Colonel Home, engaged in reporting on some system of irrigation, and, notwithstanding all the objections that may be put to me, I say it will be a distinct boon to Australia-federated or not-if the supply of water in the Darling can be used by those occupying the land. There will be just as full benefit derived from that as would be derived if the water were left in the river. Again, if hon. members study the geography of New South Wales they will see that we have a number of lakes which are fed by the overflow of the Darling. If we choose to shut off the openings of these lakes we can diminish the supply of water in the Darling to such an extent as to render it only navigable for half the period that it is now navigable. A federal law may, by preventing the flow of water into these lakes during flood time, cause a greater flow for navigation purposes, but if we could enclose the entrance to these lakes a large area of country could be watered so as to carry half as many sheep again and produce half as much wool again as it does now. There is another instance on the Lachlan, where we constructed the Willandra weir. What was the result? In a district where it had been almost impossible to carry stock to any extent, without going to great expense in conserving water, we dammed the water back for 100 miles, and there has since been a permanent supply of water, and the country carries twice as many sheep as it did before. Increased settlement and increased production on those lands will benefit South Australia, because a great proportion of the traffic will go through the colony. Hon. members may think the amendment will, to some extent, minimise the difficulty, but it minimises the difficulty to this extent-that it concentrates the full force and effect of the sub-section on New South Wales; instead of having the right to interfere with the rivers of Tasmania and West Australia, it will confine the right to the rivers and their tributaries in Now South Wales, right to our Far North; to our New England waterways-the Namoi, the Gwydir, and the McIntyre-and all those rivers where the dams are absolutely essential to the settlement of the country. Federal legislation might be passed prohibiting any interference with the natural flow of the waters. This is a very far-reaching section, which, if passed, will in the future threaten the best interests of the great colony of New South Wales. What does Mr. Gordon, with his [start page 805] double-barrelled amendment, propose? Not to have legislation merely to protect the people lower down the river Murray; but it is within the cognisance of this Committee that the hon. member has proposed that the Federal Government should undertake the work of cutting a deep water channel at the Murray mouth, so that large ships may come in and out of the Murray with freedom, and that if the Federal Parliament does not do this, authority may be given to the local Government to do it He knows that if the channel is cut, the water will flow away much more freely than before, and so be of no benefit to the settlers on the river, but all this is to be done for the benefit of the colony of South Australia only, so that traffic may flow through its territory. So far as Australia is concerned, the old-world law with regard to waterways will never apply. Our rivers were never meant to be roadways for traffic, but to run through this continent to supply our drought-stricken country with water and irrigation, without which we cannot hope to see it carrying a teeming population, with pastoral and agricultural industries flourishing.

Mr. MCMILLAN: This happens to be a very wide subject, which might occupy us here for days. We have heard tonight a very able and exhaustive speech from the hon. member for South Australia-absolutely exhausting, I think, his side of the question. We have heard a speech from the Minister of Lands of New South Wales who has peculiar opportunities of knowing all about this question. Now, the question has been put by these two gentlemen in nearly all its aspects.

Sir WILLIAM ZEAL: It has not, indeed; we have something to say.

Mr. MCMILLAN: I should advise the hon. gentleman who proposed the amendment, if I might respectfully do so, to confine it entirely to the River Murray. In sub-section 33 of the clause we are on now, there is opportunity given for a great deal of federal influence in many matters which cannot be decided by this Convention, and I look forward to the Federal Government as the chief negotiator in all these matters of difference between the different States. But I do not think there is the slightest chance of a single vote being given by the representatives of New South Wales for the larger amendment of the hon. member. I think the question, as before us now, is as broadly and fully stated

as it possibly can be, and I would respectfully ask, for the sake of our time, that we should get to a vote as soon as possible.

Mr. WISE: Hear, hear. Divide.

Mr. DEAKIN: I would not intrude in this discussion, which has practically been narrowed down to a discussion between New South Wales and South Australia, but for the fact that I happened to be the President of the Commission from Victoria which was concerned in the proposed Murray river treaty about which our friend Mr. Gordon has told us so much this evening. I may say that at the time that conference between the two Commissions-the one representing Victoria and the other New South Wales-was held, there had not been, to my knowledge, any previous intention to admit South Australia to it, nor, so far as I was aware at the time, had there been any expression of a desire on the part of South Australia to come into it. The reason why that conference was held between New South Wales and Victoria only was because it dealt with questions relating to the head waters of the Murray, which, so far as we knew, were of no direct interest except to those two colonies. New South Wales has special legal claims to the bed of the Murray, which complicate, though they by no means settle, the question of the riparian rights upon that stream, and it was partly because of this complication that this conference was held. It is perfectly true that [start page 806] the conference arrived at an agreement as to the relative rights of diversion, but it never was contemplated that within the life of living men, or for a long time to come, anything more than a fraction of those quantities ever could or would be diverted. It was simply laid down as a maximum in order, if possible, to establish an equality of benefits as between the two colonies. If the province of South Australia was then omitted it was for the reasons I have given. Afterwards when a request was made by South Australia for a conference we at once cordially and freely assented, and without any reserve, but we felt that it was useless to hold any such conference unless New South Wales was also represented, a colony quite as interested as ourselves. Now, the colony of New South Wales and its various Governments did not see their way to consent to that meeting. They did not ignore the subject. To my knowledge they spent a large portion of the time that intervened in making exhaustive enquiries about the water supply of the Murray basin and what quantity could be used or diverted. They caused researches to be made which had not up till then been made, and without which no determination could be arrived at. Mr. Gordon has stated his case fully and clearly, but he will admit that if there were cast upon him the task of determining how these waters should be apportioned the task would be almost beyond the capacity of man. The position is as Mr. Carruthers has clearly stated. « First » of all, if it be a legal issue, this is practically a question of international law, and though it may be the custom of adjoining nations in the old world, and also in the new, to agree to conferences in regard to the navigation or the use of the waters of rivers, I know of no power to coerce any self-governing colony into holding such a conference. I am not arguing against the reasonableness of the hon. member's claim, nor am I contending that New South Wales in this instance would not be acting a courteous part in agreeing to a conference. It seems to me highly desirable that some friendly enquiry into this matter and into the circumstances surrounding it should be entered upon.

Mr. GORDON: I only want a tribunal to which it may be referred.

Mr. DEAKIN: But if we have a tribunal we must have some general idea of the principles upon which the tribunal is to proceed to try the case. In this instance there is no basis upon which the Federal Parliament could proceed to decide it.

Mr. DOBSON: Have you not said that international law could be applied?

Mr. DEAKIN: No; I do not know of any international law that can deal with this question. I do not remember where it has enforced the purely private doctrine of riparian rights. But if there were any such reference in the old world experience I would go quite as far as my hon. friend Mr. Carruthers in saying that the principles of riparian law are no more applicable to this country than they are to the Western States of America. Almost the whole of the States of America have adopted the common law of England; but some of the Western States of America, where rivers like this are found,

and where exactly the same circumstances of dearth exist as in the Murray basin-in such States as Colorado - they have expressly set aside the common law of England in order to get rid of the riparian law. They have felt that the riparian law of England was so absolutely opposed to every principle of public policy that they have set aside the common law of England rather than be entangled in its meshes.

Mr. DOBSON: That is not the case here.

Sir JOHN DOWNER: Did they not do it on terms that were fair to each other?

Mr. DEAKIN: They did it in the constitution of a new State.

Sir JOHN DOWNER: They grabbed.

[start page 807] Mr. DEAKIN: They colonised. The mother-country "grabbed" this country when she colonised it. But I am not speaking adversely to Mr. Gordon. I am merely showing the difficulties which surround this case. It is impossible to apply the principles of riparian law to the River Murray.

Mr. DOBSON: Do not add to the difficulty, but get us out of it.

Mr. DEAKIN: I am afraid I should require much more time than this Convention could allot me if I were even to offer an opinion on that subject. But I want to show Mr. Gordon the unwisdom of endeavoring to include in the Federal Constitution the settlement of a problem such as this: the acquirement, in point of fact, under this Constitution of a legal right where at present no legal right exists or is enforceable; and, inasmuch as this is the claim of one colony against another, it is a matter for a conference treaty or discussion between those countries, and not a matter that is ripe for reference to a federal authority. No doubt when the federal authority is established there will be a growth of the federal spirit which it; yet but in its germ, and under these circumstances the reasonable and proper application of the hon. member and his colleagues for a conference upon this question would probably be acceded to, and in my individual opinion ought to be acceded to. But I wish to point out the practical reason why riparian law could not be applied to the river Murray. That law, of course, requires that the waters should be allowed to pass undiminished in quantity and unimpaired in quality. This means that the only persons authorised to draw water from the River Murray, which is capable of being so materially - reduced in certain seasons, would be the persons immediately situated at the mouth of that stream, and that practically the only irrigable portion of the Australian continent which is watered by that enormous river would be the low-lying lands surrounding the mouth of the Murray. It would be impossible to withdraw any large quantity of water such as Mr. Gordon has spoken of, and such as may be drawn from the waters or that stream on its remoter watersheds, without the probability in dry seasons of the general body of the river being seriously impaired. This would mean that in order to preserve. riparian law the whole of the waters of the greatest river of the Australian continent-a river, whose waters might periodically be said to be almost worth their weight in gold, would be allowed to flow idly and uselessly to the sea for all time in order that the theoretical riparian rights of the dwellers near its mouth might be conserved. Surely that is an utterly unreasonable and untenable position.

Mr. BARTON: And the ruin of the proprietors of the land through which the river runs.

Mr. DEAKIN: No great benefit will accrue to the proprietors near the mouth of the river, and ruin to all the rest in some seasons. If then riparian law must be set aside other principles can be adopted. The hon. member recognises that there must be some general principles of fairness and equity discoverable in connection with this problem.

Sir JOHN DOWNER: That is all we ever asked for.

Mr. WISE: Railways and rivers must be dealt with together.

Mr. DEAKIN: I agree; as to the ownership of railways I have changed my views since I came to this Convention.

An HON. MEMBER: It is not proposed to touch the railways.

Mr. DEAKIN: Looked upon as highways the railways and rivers should be dealt with together, because one of the chief factors which helps to bring about differential rates is water carriage. If any part of the river, as the hon. member partly implies, though not entirely maintains, in to be retained for navigation only, that can only be done on terms of equity. Mr. Gordon must recognise that the [start page 808] matter is complicated in many ways. There is this fact: New South Wales has spent large sums of money, partly in conserving and partly in distributing its river waters, and also in improving their navigation, by means of which South Australia has benefited. Victoria has spent thousands of pounds in snagging the Murray, to the serious injury of her railway system, and South Australia has obtained practically the whole of the benefit of the improved navigation. The balance is not altogether on one side, as the hon. member seems to think. The two colonies concerned have done something-and, indeed, a good deal-by improving the navigation of the river and its tributaries, without displaying any selfish spirit.

Mr. GLYNN: All the colonies have done something.

Mr. DEAKIN: What South Australia has done, I am not in a position to say; but what she has done has been for her own benefit and the benefit of her railway system. I take it that, in the territory through which this magnificent river flows, there must be federal action, of a kind and upon a scale not contemplated as yet by any colony of this group. The absolute necessities of the drought-stricken inland districts will lead to expenditure upon it in the way of dams, locks, diversions and storages-undertakings which may equal that enormous expenditure which in the United States was incurred at the head of the waters of the Mississippi and Missouri. The Government of the United States has spent enormous sums in improving their navigable streams, and in the future in the basin of the Murray enormous sums will also be disbursed, but whether that will be spent for navigation I am not prepared to say. It might be found advisable in the future to have a joint scheme of navigation and irrigation whereby, while the traffic on the Murray was increased, along the banks of the streams you would have a quantity of produce raised which might recoup us through the railways for some of the expenditure. All that is possible and I think probable in the future, but it can only be carried out by a conjoint authority, and I shall be delighted to see the day when a federal authority is able to grapple with the work. But I venture to submit that this work cannot be commenced or defined in this Constitution, nor can it be commenced by the federal authority for some time until many more data have been accumulated as to the river. We in Victoria have made a pretty close examination of parts of the Murray, and we have discovered that while a very large proportion of the rainfall upon the higher Murray reaches the river that proportion steadily diminishes the more we move down, towards the South Australian border, until finally only a comparatively small proportion of that rainfall actually finds its way into the river. We have also located some places where there are great subterranean losses. Whether they can ever be checked I am unable to say. It is possible that in many parts of the basin some water could be withdrawn and used for irrigation, and yet a considerable proportion of that water would find its way back again into the bed of the river and swell the stream lower down. Until we know something of the physical facts relating to this enormous territory it would be premature in the extreme to attempt to define State rights to its waters. So I say to my friend Mr. Gordon that the very reasonable, proper, and legitimate claim of South Australia for federal action in this matter is one that must be met in the future and must be determined; but I urge him not to submit any premature resolutions. If he embodies his proposal in this draft Constitution it must afterwards be submitted to the people and Parliament of each colony. if he applies for a conference to fully investigate the subject he can also get that by the consent of the people and Government of New South Wales. The object he has in view can be obtained by him [start page 809] directly instead of by the indirect way he proposes, which may imperil Federation in New South Wales.

Sir JOHN DOWNER: We know we cannot get it as it is. They have always refused to do anything about it.

Mr. REID: When was the last request?

Mr. DEAKIN: As far as I know the present Government of New South Wales has never refused to confer on the subject, and the present Government of Victoria has never been asked to confer. If the present Government of South Australia wishes to enter what must be hereafter a great field of federal action, I believe I can say on behalf of the Government of Victoria, although I have not consulted the Premier, that they would probably cordially concur with the proposal to have a conference to see how far even a temporary arrangement can be made. We all know that the Government of New South Wales have obtained the services of a gentleman whom I have not had the pleasure of meeting personally, but whom I heard of during my trip to India seven or eight years ago as one of the most eminent authorities in the Indian Empire on irrigation-and that is the country where modern irrigation has been carried out on a greater scale than anywhere in the world. The New South Wales Government has not obtained the services of that gentleman for nothing, and he in his report on the water resources of the interior will probably indicate to that Government the extent to which it is advisable and possible to utilise river waters for irrigation, and if so how they will require to be controlled by storage and preservation. If so controlled, it may be possible to spare a sufficient quantity to furnish the compensation water required for rendering the greater part of the river as navigable an it is to-day.

Mr. GORDON: It would be so short that the river would be below navigable point.

Mr. DEAKIN: I know that is the opinion of Mr. Jones, but I know that the Engineer-in-Chief of Victoria does not concur. He says that the quantity in the Murray is larger than Mr. Jones calculated. I sympathise with the him member, and feel that the question must be jointly dealt with, and that as there is a comity of nations we must have a comity of colonies. No colony should appeal to its neighbors in vain for just and fair consideration. I adjure him to omit his proposal from the Constitution. There is no reason why some arrangement should not be made between the several colonies before this Constitution can be accepted. The work of collecting data must go on for some time before any colony can risk the loss of any of its rights and privileges-rights and privileges which mean life and subsistence to those inhabiting the arid interior of these colonies. Before the colonies can enter into any intercolonial agreement there must be a far more searching enquiry, and the accumulation of a great many more data than are at present amassed. Before any conference or committee could venture to arrive at a settlement of this great and vexed question-a question which must be settled, but which cannot be settled here-we must be much better acquainted than we are with the needs and possibilities of our vast arid area.


Mr. FRASER: I am loth to waste time, and if there is a desire to take a division, I will sit down.


Mr. FRASER: Then I will not speak.

Mr, GLYNN: I am not going to be bluffed out of this matter. It is all very well for the members for New South Wales and Victoria to talk about shutting up the debate, after they have spoken, but this is a matter of extreme importance to South Australia, and of far more importance than many of the constitutional questions on which some members have spread themselves. Various efforts have been made to settle this question, and, I think, it is about time that we took legislative [start page 810] power to do so. The « first » effort was as far back as 1857, when South Australia and Victoria considered a joint scheme for maintaining the navigability of the River Murray. In 1863 there was a meeting held

in Melbourne by the colonies interested, and the question of the riparian rights in connection with the Murray was discussed. South Australia, Victoria, and New South Wales were represented, and this resolution was arrived at:

That in the opinion of this Conference the commerce, population, and wealth of Australia can be largely increased by rendering navigable and otherwise utilising the great rivers of the interior, such as the Murray, Edward, Murrumbidgee, and Darling, and that the obligation of carrying into effect the necessary works to accomplish these objects devolves primarily upon the respective Governments having jurisdiction over such rivers.

Then, again in 1887 two Commissions sat together, one from Victoria and another from New South Wales, and the result was communicated through the medium of the Press to South Australia. They then decided to divide between them the whole of the waters of the Murray as far as the South Australian boundary.

Mr. REID: How long ago is that? Mr. GLYNN: In 1887.

Mr. REID: And have all the waters been divided?

Mr. GLYNN: It is all very well to talk like that, but schemes are projected which will materially affect the flow of the Murray. These Commissions met, and an effort was made by South Australia to hold a conference with these Commissions, so a Commission was appointed here in 1887. We formed a Commission in 1887, and at the moment our Commission was formed, New South Wales dissolved theirs. You have heard from Mr. Gordon of the efforts made during the sittings of our Commission to get an answer to our demands made on New South Wales. Our report was sent in, and immediately came a letter from Sir Henry Parkes claiming the whole of the waters of the Murray. I think he claimed that, according to the 14th Victoria Act, as subsequently amended, a grant was made to that colony of the waters of the Murray to the point where they entered South Australian territory, and he cautioned South Australia against diminishing the normal level of the river. We were not to interfere with the so-called paramount rights of New South Wales. Mr. Gordon simply asks that power might be given to settle this. Mr. Deakin asks its to wait until something can be done by compromise. I say the time is now, and it is of extreme importance to us. Let us see what was attempted in Victoria. Mr. Deakin, who is an excellent authority on this question, will remember there were schemes contemplated in Victoria which would practically exhaust the whole of the waters of the Murray.



Mr. GLYNN: It is not absurd. I am dealing with a pamphlet published by Mr. Deakin, and in this he showed that the Cavour Canal in Italy had a capacity for irrigating two and a quarter million acres, and its discharge was considerably more than the Murray's. It was about 1,600,000 cubic feet per minute, while that of the Murray at navigation level was 356,000ft. per minute. The Victorian schemes that were contemplated were to irrigate more than 2,250,000 acres.

Mr. DEAKIN: How much?

Mr. GLYNN: The number of acres was considerably over 2,000,000. This is an undoubted fact, and I think the hon. member will agree with me. He will agree with me, too, that not more than 3 per cent, total waterfall on the Darling watershed ever reaches the sea.

Mr. DEAKIN: I know nothing about the Darling.

Mr. GLYNN: What has New South Wales spent in improving the navigation of the Darling?

Mr. REID: A good deal.

Mr. GLYNN: In improving the navigation of the Darling?

[start page 811] Mr. REID: Yes; the Murray and Darling.

Mr. GLYNN: According to the evidence taken in 1887, New South Wales had spent £100,000 on the Darling and Murrumbidgee, and we had spent about £57,000, so there is not a large difference.

Mr. REID: Yours was all on yourself; ours was all on you.

Mr. GLYNN: New South Wales is anxious to bluff us on this point, and you can see the reason for it. Mr. McKinney stated in 1889 - I will quote from his report:

Again the commissioners were in favor of constructing canals from the Murrumbidgee to irrigate two systems of 540,000 and 180,000 acres each, and stated that their engineer, Mr. McKinney, now at the head of the Water Conservation Department of New South Wales, proposed to dam back the waters of the Darling lakes, which feed the river when low. What this damming means may be seen from the statement that lake Menindie alone contributes "so materially to the volume of the river as to prolong by two or three months the period for which navigation is possible."

The fact is simply this, that the Darling overflows into Lake Menindie, and that you can, for an expenditure of about £100, dam up the inlet, and by keeping back this water for irrigation, the reflow into the Darling would be stopped. That is only one of the lakes with which the extensive scheme of New South Wales proposes to deal. Let me show what would be the effect upon Victoria if the scheme advocated by New South Wales is carried out. As I pointed out in 1891:

The New South Wales Commissioners regarded navigation as quite a secondary matter to irrigation. They only considered the possibility of maintaining a constant stream in connection with an extension of the Bourke railway to a lower point than Bourke, so as to direct to Sydney a considerable amount of trade which now goes to adjoining colonies. Though the river is admitted to be the natural highway of settlers on the Darling, who suffer great inconvenience and loss when the water is low, the interests of Sydney are regarded as paramount. . . . . The Commission says that Victoria in proceeding so rapidly with works for water conservation that "in all probability, within a few years from the present time, no quantity of water will reach the Murray, except in high floods, from the Victorian tributaries west of Albury, except the Ovens."

We find New South Wales complaining of the schemes contemplated in Victoria as being likely to interfere with New South Wales, and if I quote from Victorians we find complaints made on behalf of Victoria that if New South Wales goes in for her contemplated schemes Victoria would suffer as much as New South Wales. We in South Australia have also a reasonable cause to complain. Look at the position as regards South Australia. If the navigable depth of the river is not kept up it will practically extinguish our trade down the Murray to the South Australian railways. That trade goes on according to the navigable state of the river. I will give hon. members some figures to show how vital to our trade is the maintenance of the navigable depth of the Murray. In 1884 the imports to South Australia from New South Wales by way of the Murray were £785,000 in value, in 1885, when the river went down, they sank to £101,000 in value; in 1886, when there was an increase in the depth of the river, they were £571,000; and in 1888 again, when the river was low, the imports went down to £101,000. If you carry out even one-fifth of the schemes contemplated in the other colonies you will keep the river continually below the navigable depth, and by doing so you will practically rob South Australia of her trade-that is a very important standpoint.

Sir WILLIAM ZEAL: Will you show how that is?

Mr. GLYNN: I do not want to go at great length into this matter.

Sir WILLIAM ZEAL: It is not a fact.

Mr. GLYNN: I will tell the hon. member that it is.

Sir WILLIAM ZEAL: So will I.

Mr. GLYNN: The depth required to be kept in the river for the purpose of navigation is 4ft, I am speaking from [start page 812] the evidence of experts before the South Australian Commission.

Mr. FRASER: Some boats can run at 2ft.

Mr. GLYNN: The constant depth ought to be about 4ft.

Mr. FRASER: Two feet three inches would do.

Mr. GLYNN: There are some boats, no doubt, with a capacity of 2ft. 3in., but for the purpose of trade they should rely on steamers that have a draught of between 3ft. and 4ft. That is, at any rate, the effect of the evidence given by Mr. Landseer, who is a practical man, and knows more about it than any hon. member of this convention.

Mr. GORDON: He is a large boat owner.

Mr. GLYNN: I am taking an average, and I say if you do not allow for a depth of about 4ft., the use of navigation for the trade between these colonies will be gone. If you carry out one-fifth of the the schemes contemplated you will absorb more water every year than is required for the navigable depth of the river. At some times of the year you can even walk across the Murray at Overland Corner. Mr. Deakin has referred to riparian rights. I ask you are you going to settle this question from the point of international questions, or from the point of view of municipal rights. Mr. Deakin says that you must not touch the riparian question, because our conditions are new. Can it be said that the carrying out of extensive irrigation schemes would not interfere with the flow of the river. If you put State against State, and if you find that a State scheme of irrigation is likely to destroy the navigable depth, on what ground of international law and common sense can you refuse the just right or equity of one State given under the law of riparian rights? New South Wales says it owns the bed of the Murray. The reason the bed was ceded to New South Wales was to give her rights over offenders under the customs laws, and for no other reason. When the mid-channel was the extent of the limits of the riparian owners it was impossible to punish offenders against the Customs laws, because they could not tell in whose territorial jurisdiction the offence was committed. In drawing up the Constitution of New South Wales it was expressly provided that, for the purposes of Customs jurisdiction, the watercourse of the river would be considered to be in the territory of New South Wales. That was put in by the Imperial Parliament without any derogation of the right of the Victorians on the other side of the river. Further, I say, the right to the uninterrupted flow depends not on the ownership of the bed of the stream, but on the ownership of the banks.

Mr. HIGGINS: Hear, hear.

Mr. GLYNN: That is a rule of law which requires no arguing. Members will see it is a matter of great interest to South Australia. If New South Wales carries out her schemes of irrigation and diverts the ordinary flow of the water, we are done so far as navigation is concerned. I think, as Mr. Wise has said, we should work the rivers in conjunction with our railways. It is a question which should be met with some breadth of grasp. It the rivers were taken over by the federal authority, a scheme could be brought about to lock the Darling and Murray, and the receipts could be pooled. I believe that is the scheme which should be adopted. It is a strong scheme to be presented now, and one not likely to be

adopted, but we should give the Federal Parliament power to, as time goes on, deal effectively with this question.

Mr. KINGSTON: Hear, hear.

Sir JOHN DOWNER: I have listened with great interest to the debate on this matter. A little impatience has been shown by the representatives whose colonies are not interested in the question, but it is of great interest to South Australia. The speech of Mr. Carruthers really put the matter very much on the [start page 813] lines which I thought New South Wales would want. For many years we had some correspondence with New South Wales on the subject-it was mostly on my side, because they did not always reply-and we took a good deal of trouble to try and get some sort of understanding, but without any result. But now that I have heard Mr. Carruthers, I do think, if he represents the position which New South Wales takes in the matter, that I understand that position. He says « first » , that you cannot apply the laws which appertain to civilised nations in respect of navigable streams in Australia. He says he admits that by the comity of nations there is, in the countries where civilisation has made any advancement, some sort of understanding that the person above must not steal the water from the person below, but must keep the stream navigable. He says in Australia, with her limited water supply and the limitless separate advantages that might be obtained from irrigation, to preserve the navigability of the stream altogether a different line of consideration and international arrangement ought to be adopted. That line of international arrangement is to be, he says, that the State which is higher up the stream can use the whole of the water for irrigation and leave the other dry right through. If that is not an act of supreme selfishness, in respect of a navigable stream in a country where water is particularly required for every purpose, I have never heard of one. But we have really to go on some principle. I do not want to go the length of the motion of Mr. Gordon. It would be quite enough from my point of view, if we gave the Commonwealth the control of navigable streams running through or on the boundaries of two or more States, so far as the preservation of their navigability is concerned. At all events that would be the least that one could ask for.

Mr. GORDON: Hear, hear.

Sir JOHN DOWNER: That is what would be allowed as a matter of course in every part of the civilised world.

Mr. HIGGINS: Would you include the Darling?

Sir JOHN DOWNER: I am not going into the question of the Murray, or the Darling, or the Murrumbidgee, or any other stream.

Mr. KINGSTON: The names are enough.

Mr. REID: Call it all the catchment area of South Australia.

Sir JOHN DOWNER: I am always glad to hear the interjections of my hon. friend, and they appear to be very amusing to those on his side. They are certainly always very good tempered, and amusing to his friends.

Dr. QUICK: And very much to the point

Sir JOHN DOWNER: And sometimes to the point. We have a question before us that has been a subject of dispute for a great many years, in which assertions of right have been made public-which fortunately nobody has ever tried to exercise-which have produced a great deal of correspondence and also caused a great deal of uneasiness in the minds of people in South Australia; and when we come to the question, as we ought now, of trying to make a lasting union between the colonies, we surely ought to try and prevent the possibility of disputes about this river which must create the greatest misunderstanding in the future. What is the way New South Wales proposes to get over the difficulty?

By simply ignoring it. By promising us a conference, and saying it is quite impossible to put anything in the Bill that will deal finally with this question. South Australia has never asked for anything more than she ought to get. She only wanted an inquiry made to settle finally what she ought to get, and to get it, and have no further dispute. The position which New South Wales and her Committees took was this "You have no right to this as a navigable stream. The general law of nations does not apply in the altered state of circumstances in these colonies; [start page 814] and, therefore, we have to come to a method by which we, higher up, can take all the water, and you have to do the best you can." While this line of argument is very simple, but in which no agreement can possibly be arrived at, it is not at all a line of argument which is calculated to bring about that kindliness of feeling with which we are to carry out the federal idea. And I do ask Mr. Reid, if he can, to help us to settle this question. I am not at all sure that it might not be that the Murray waters could be made more useful for irrigation purposes than for navigation. That is a question I do not wish to make any assertions about one way or the other, but I want something to preserve the right which we have in the navigability and to the use of the waters of the Murray, or, if we are not to have the ordinary right which citizens would have, supposing a stream passed through only one State, then to fall back on the rights which prevail by the comity of nations between foreign States in respect to rivers that pass through their boundaries; or if we are to have a new method applied altogether, through the inapplicability of the old one of settling it in the best way that these matters can be settled-in a way that is fair and just to all-then give the jurisdiction in the four corners of the Bill to the Parliament of the Commonwealth. Why should New South Wales and Victoria have any reason to doubt the Commonwealth? Nothing could be done without an Act of Parliament. Their representation will be much larger in the Federal Parliament. It is only asking for jurisdiction. We do not want to take anything we are not entitled to. We only want security against a stronger power, which we think is right, not only as between friendly colonies, but as between nations, and will be a guarantee of security to us by well understood international law. Surely it cannot be said that we are seeking to obtain any undue advantage when we ask our friends of the other colonies, our brothers, to give us only that which we might ask as a matter of international right against hostile nations next door to us. Let us have it settled now. We can do it by a few words in the Bill, if New South Wales will accept the amendment I suggest. Then I say put it in any form that suits them, which will give the Commonwealth jurisdiction to control the matter.

Mr. FRASER: Section 33 will do it.

Sir JOHN DOWNER: I do not see a single word except the clause we are dealing with now. That has been the difficulty, to get them to refer to it. Where is the difficulty of letting the Commonwealth deal with the question? For my own part I would be willing to accept it in the form I suggested.

Mr. FRASER: It would be a danger to Federation. They would insist upon this.

Sir JOHN DOWNER: That is an old gag. Everyone says if this is not carried or that is not carried Federation will be endangered. I look upon it as a little fit of temper which arises in youth, but which passes away when we get older. I do entreat Mr. Reid, who, judging from his utterances, and his actions, has tried very hard to assist the cause of Federation, I do ask him to try and assist us now. We do not want any precise lines laid down, but we want the Commonwealth to have authority to deal with it. He can limit the lines if he likes, so long as these lines will give the Commonwealth power to give right and justice. But then we must take care that when that is done, all the water is not taken by the people at the upper end of the stream, and lessened for those lower down, till there in none left for those-

Sir WILLIAM ZEAL: That is impossible.

Sir JOHN DOWNER: It might be impossible to take the whole of the waters.

Sir WILLIAM ZEAL: Or to take half of them.

Sir JOHN DOWNER: I do not know.

Sir WILLIAM ZEAL: I will show you presently.

[start page 815] Sir JOHN DOWNER: I do not know, but at all events, for the purpose of bringing the matter to an issue without taking up further time, I move:

To strike out all the words after "navigable" with a view of the insertion of the following words:-"Rivers running through or on the boundaries of two or more States so far as is necessary to preserve the navigability thereof."

The CHAIRMAN: I would suggest that as the two amendments appear to clash, the best way would be-in order that the Committee may have an opportunity of voting on both-for Mr. Gordon to move to insert:

"Navigation on the rivers Murray, Darling, and Murrumbidgee," after the word "of," in line one.

If these words are inserted, the others can be struck out. It they are not inserted, then Sir John Downer can move his amendment.

Mr. GORDON: I withdraw my amendment in favor of Sir John Downer's.

Sir WILLIAM ZEAL: I think my hon friend Sir John Downer unwittingly did the Hon. Mr. Carruthers an injustice, for that hon. member did not speak generally on this question, but only gave a special instance. Mr. Carruthers dealt entirely with the River Darling, and he mentioned a case where Lake Menindie might be made more useful by conserving the flood waters of that river. That illustration does not apply to the waters of the River Murray. From personal observation I endorse all that the Hon. Mr. Carruthers has said, having lived near the locality for many years, and I further state that what he has said about the Willandra billabong is not exaggerated. Before South Australia can claim the exclusive advantages she desires to obtain from the use of the waters of the Murray, what, I enquire, has she done or proposes to do to justify her claim?

Mr. GORDON: We have spent £67,000.

Sir WILLIAM ZEAL: Why, we have spent £670,000 on the Callum reservoir alone, which puts millions of gallons every day down the river that flows into the Murray. There are scores of reservoirs made by the Victorian Government on the various rivers between the Ovens and the Wimmera, at a cost of millions sterling, which provide daily millions of gallons of compensation. water during the summer season for the Murray, thus preventing the river from practically becoming too shallow to be navigable. Has the Government of South Australia paid her share for those improvements? The reservoirs to which I have alluded are conserving water during flood time, and the surplus is passed down the stream in the shape of compensation water to keep the Murray navigable. While two colonies, Victoria particularly, have spent millions in the conservation of water, South Australia has not expended any large sum. The £60,000 to which Mr. Gordon has alluded did not go towards increasing the volume of water in the Murray, but merely increases the facilities of transit. Do hon. members know that during times of flood the River Murray at Echuca is sometimes nearly two miles wide, and that during summer time, when the surplus water is turned back into its natural channel, South Australia gets the advantage of that surplus water? I hope South Australia will join her neighbors in considering the question of the riparian rights of the Murray on a fair and equitable basis; but does she think it fair that she can enter the New South Wales territory and take water that does not belong to her? Is she prepared to pay her fair share for locking and snagging the River Darling, and making it constantly navigable? If she does, no doubt the Governments of New South Wales and Victoria will meet her, but it is idle otherwise to say South Australia has claims on the waters unless she will perform a neighbor's part, and pay her fair share of the necessary improvements.

Mr. SYMON: I think Sir William Zeal has dealt with the subject as though we were engaged in the negotiation of the terms on which South Australia and Victoria should jointly deal with the waters [start page 816] of the Murray. We are only inviting the Convention to empower the Federal Parliament to deal with the subject. When the matter is brought before the Federal Parliament or Executive, then all these questions of compensation in connection with this great reservoir will arise.

Sir WILLIAM ZEAL: There are dozens of them.

Mr. SYMON: Then so much the greater will be the claim of Victoria to compensation. All we are now asking the Committee to say is that this is a matter of federal importance, that the federal authority is competent to deal with it, and that it may be removed from the individual control of the States who have been unable to come to any agreement on the subject. For my part I recognise very strongly the difficulties which have been pointed out in the possible adjustment of the question. There can be no doubt as to the position taken up by Mr. Carruthers, and that many of the rules of the common law and rules of international comity in other countries cannot be justly applied here. Then, if you are separating the question of the navigability you are met with the difficulty of how the volume of water is to be ascertained that is to be passed from one State to another. I hope the amendment in something like the shape proposed by Sir John Downer will be adopted. There can be no question as to the navigability of the river being vital to us, as much so as its use for irrigation and conservation is to the neighboring colonies. If we were foreign and independent States the question of the navigation of the river would have to be settled according to the principles of international comity.

Mr. HIGGINS: It would be done by agreement.

Mr. FRASER: Or settled by arms.

Mr. SYMON: In case of an obstruction to the navigation by one State it might be so settled. Surely, however, we can trust the federal authority by devolving on them the duty of controlling the navigability of the stream. That is all we ask you to do, and it seems to me that, without entering upon questions of great difficulty, no fear need be entertained by either of the colonies concerned as to the fairness with which the Federal Parliament will deal with this question, or the justice that will be meted out. I feel indisposed to go to the length of the amendment which Mr. Gordon « first » put, as I do not think either justice or law would lead us to interfere with the control by New South Wales and Victoria of the rivers which are absolutely necessary for the development of their own country. As far as the Murray is concerned, it is a different question, and I think the interests of the three colonies would be conserved by leaving the control of the rivers as a navigable stream to the Federal Government.

Mr. KINGSTON: I think we are indebted to previous speakers for having devoted so much care and attention to the statement of the South Australian view of the case. I trust that the Convention will not separate before we have framed a Constitution which will render it possible that an existing source of friction may be at once and for ever removed. There is no doubt that, in connection with this particular question there has been a great deal of friction, not to say irritation, between the various colonies which are affected, by what appears to me to be an extravagant use of the head waters of the Murray, to the detriment of those through whose territory the river flows.

Sir WILLIAM ZEAL: That is not as far as the Murray is concerned.

Mr. KINGSTON: I was referring to the Murray as including the tributaries by which it is fed. I know that Sir John Downer at different times devoted a great deal of attention to the subject and corresponded with the Government of New South Wales on the subject with but very little effect. It seems as it our protests or representations in connection with the [start page 817] matter were put quietly away in a pigeon hole; certainly we heard nothing more of it. I am able to take up the history of the question at a later stage. When Sir John Downer had given up any attempt to deal with the question, it fell to my lot to communicate with the Government of New South Wales before the

present administration was formed, and with a similar result. I do not think we were even favored with an acknowledgment, but when the present Government was formed and we heard who was at its head we were sufficiently sanguine to believe that a personal interview with the leader of the Government would be productive of the very best results, and under those circumstances my colleague, Mr. Holder, waited on Mr. Reid and directed his attention to the question, and sought a conference amongst the colonies interested for the purpose of, for once and for all, coming to some reasonable arrangement on the subject. We were met by Mr. Reid with his usual courtesy.

Sir WILLIAM ZEAL: Did you get anything else?

Mr. KINGSTON: We got an assurance that justifies us in pressing this subject on the attention of the Convention. We were told it was not a matter for a conference, but that it should be dealt with by Federation, by a Federal Government and a Federal Parliament.

Mr. REID: The Murray. You never had the assurance to mention the Darling.

Mr. KINGSTON: We were told it is not a matter for a conference, that that is an informal gathering from which nothing results. We were told we would have their assistance in establishing a Federation, that the whole thing would be referred to the Federation, and there would be no more trouble. We have acted on that, and I await with a great deal of interest the explanation of the Premier of New South Wales as to how he will enable the Federation to deal with the matter, for he promised years ago a fair and satisfactory reference of the question.

Mr. REID: I am loth to say anything on a matter which has been canvassed so much; but so many observations have been made by my friends of South Australia in reference to the colony I represent that I really, with an apology to the Convention, must say a few words on the subject. One would think my hon. friends provided the watershed for all the rivers that flow through New South Wales. The fact of the matter is that the rivers to which they have referred are fed by nearly the whole colony of New South Wales, and none of them but one comes to South Australia, and the claim put forward by Mr. Gordon was practically an annexation of New South Wales as a catchment area for South Australia. I know Mr. Gordon is a prince of jesters, and imagine he was entertaining us in his usual bright manner. But Mr. Kingston is of the same idea, and it is necessary for me to point out that South Australia has no more to do with the Darling or the Murrumbidgee than Fiji, and never will have. But I am very glad my friends have come down now to a proposition that we may consider. I would remind my honorable friends that we have spent money on these rivers, with the result that South Australia can use them against our railways, and I have not noticed any offer from South Australia to share in that expense, so we have paid for many years to clear these waterways for the benefit of our friends in South Australia. I am sorry that after our efforts in the scavenging line we should be accused of doing this with South Australian waters. Consequently we are not prepared to give up the control of our own internal rivers, but so far as any rivers which flow between two colonies are concerned I am prepared to meet South Australia in the fairest possible way. I quite admit that they should be subject, as navigation should be, to federal control. But the whole bed of the Murray so far as its boundary in New South Wales is [start page 818] concerned is conferred by Imperial Statute upon New South Wales. Even then we have never asserted our rights, as Victoria has carried out schemes for irrigation without ever asking the favor of our consent to their doing it. Still we never have complained. Several islands in the Murray belonging to New South Wales have been leased by Victoria, but we have not written any warlike despatch upon the matter. That shows the way in which we have been dealing with our neighbors, and it is really discouraging to see South Australia wishing to annex the watersheds of New South Wales. However, they have repented of that, and now they propose to make another annexation which I do not quite understand, and which is almost as objectionable as the other. "Preserve the navigability of the river," they say; that is not easily done. Sometimes rivers in Australia become a chain of waterholes. The Darling over and over again is a mere chain of waterholes, and navigation is impossible. This is a nice task to put upon the Commonwealth, when the water is not there. The Commonwealth will have to bear the burden of the expense necessary to preserve the navigability of the River Murray. The amendment is ambiguous and

objectionable. The true power to give the Commonwealth is the regulation of the navigation of rivers, so far as they form boundaries between States. It goes beyond navigation where there is no water to navigate.

Mr. KINGSTON: Dry channels.

Mr. REID: I believe the Murray above South Australia runs so low as to make navigation impossible. I understand that long before irrigation was thought of in Victoria the Murray was so low that navigation was impossible.

Mr. FRASER: A chain of waterholes for years.

Mr. REID: In fact I believe that these attempts at irrigation really increase the volume of the river, and that were it not for them the flood would pass to the ocean with lightning speed, whereas water conservation has preserved the water for use. I am prepared to give the Commonwealth power as to the regulation and use of water so far as the rivers form boundaries between States.

Mr. GORDON: Or running through States.

Mr. REID: The River Murray is always a boundary between two States, except where it is wholly within South Australia. Pitt Cobbett lays down the law on this matter very shortly:

Where a navigable river lies wholly within the territory of one State dominion and user belong exclusively to that State.

After reading that my hon. friend tried to annex the Darling. That is the strict law with reference to the rivers entirely in New South Wales, and that is the law we intend to apply to you. I know that I would get the strict law if I came into South Australia and kept some of the water back. The second principle laid down in Cobbett is:

Where a river constitutes the boundary between two States the frontier line is the middle of the channel or thalweg; but there is a presumption that both States have a right of user or navigation.

Let me point out this: As to most of the course of the Murray it is a question between Victoria and New South Wales, not one between the States and the Commonwealth, and consequently the Commonwealth would be taking over a matter which has nothing whatever to do with the Commonwealth as a Commonwealth, but only with two States-Victoria, and New South Wales-and perhaps we must add South Australia. In the interests of peace and goodwill I think we should all be prepared to hand over this matter to the Commonwealth, so far as the waters run as a boundary. If it does not form a boundary it is only a question of one State to deal with, and the Commonwealth has nothing to do with it. We do not want any ambiguity. I will support anything like [start page 819] what I have suggested, though it will be placing an arduous task on the Commonwealth, and will involve a number of very troublesome questions.

Mr. MCMILLAN: Is there any other river but the Murray?

Mr. REID: No; and we might almost specify the Murray. The only objection to it is that by and bye if there were any sub-division of States it might happen to apply to other rivers.

Mr. WISE: The Murrumbidgee might be a boundary.

Mr. REID: I am quite prepared to accept any amendment to hand over to the Commonwealth the control of the navigation and use of rivers so far as they form boundaries between States, but not where they are entirely within a colony. But Sir John Downer's question of preserving the navigability of rivers suggests difficulties which nature itself may war against.

Mr. WISE: Divide!

Mr. GORDON: I have heard nothing whatever which appears to me to materially weaken the arguments I have adduced, although what I heard from Mr. Deakin and Mr. Carruthers showed that there are many difficulties to be overcome before a settlement can be properly arrived at. They have pointed out very fairly and clearly that these difficulties do exist, but the fact that we know there are difficulties is no justification for not attempting to find a remedy for them. The federal authority, or some commission to which the matter must be referred, is the real tribunal for such difficulties. Mr Reid has admitted that it is a matter for the Federation to settle. It occurs to me that since it appears to be generally conceded that our railways must not be used by any colony to the injury of the adjoining colony-railways which are artificial means of communication, built at great cost to the colonies-how much more strongly should that principle be true of the rivers, which have cost the colonies practically nothing, except in matters of improvement, and which are natural, not artificial, highways. Why should a State be allowed to use the rivers to the injury of its neighbor? The argument from railways is really in favor of my position. Mr. Reid made some exceedingly witty remarks, as he always does, but most of them were essentially wide of the question. He is, I am sure, really thoroughly ashamed of the position taken up by New South Wales, and tries to put it off with a laugh and a joke-an accomplishment in which he shines, as we all see. But this matter is really too serious, and if we are met here to establish a federal agreement, it is one which must be settled. He offers us thin air-nothing. We are entitled to a mutual share in the navigation and use of the Darling, Murray, and Murrumbidgee, because they are rivers which, having their rise somewhere else, still flow through our colony, and in respect of which-if we are to have fair play at all some such proposal as I attempted to move, or as has been moved by Sir John Downer, must certainly be agreed to.

Question-That the words proposed to be struck out stand part of the sub-section -put. The Committee divided.

Ayes, 24; Noes, 10. Majority, 14.


Abbott, Sir Joseph McMillan, Mr.

Barton, Mr. Moore, Mr.

Braddon, Sir Edward O'Connor, Mr.

Carruthers, Mr. Peacock, Mr.

Clarke, Mr. Quick, Dr.

Deakin, Mr. Reid, Mr.

Fraser, Mr. Taylor, Mr.

FYSH, Sir Philip Trenwith, Mr.

Grant, Mr. Turner, Sir George

Henry, Mr. Walker, Mr.

Isaacs, Mr. Wise, Mr.

Lewis, Mr. Zeal, Sir William


Berry, Sir Graham Downer, Sir John

Brown, Mr. Glynn, Mr.

Cockburn, Dr. Gordon, Mr.

Dobson, Mr. Higgins, Mr.

Douglas, Mr. Kingston. Mr.

Pair-Aye, Mr. Holder; No, Mr. Brunker.

[start page 820] Question so resolved in the affirmative.

Question-That the sub-section stand part of the clause-put. The Committee divided.

Ayes, 10; Noes, 25. Majority, 15.


Brown, Mr. Glynn, Mr.

Cockburn, Dr. Gordon, Mr.

Dobson, Mr. Higgins, Mr.

Douglas, Mr. Kingston, Mr.

Downer, Sir John Symon, Mr.


Abbott, Sir Joseph McMillan, Mr.

Barton, Mr. Moore, Mr.

Berry, Sir Graham O'Connor, Mr.

Braddon, Sir Edward Peacock, Mr.

Carruthers, Mr. Quick, Dr.

Clarke, Mr. Reid, Mr.

Deakin, Mr. Taylor, Mr.

Fraser, Mr. Trenwith, Mr.

Fysh, Sir Philip Turner, Sir George

Grant, Mr. Walker, Mr.

Henry, Mr. Wise, Mr.

Isaacs, Mr. Zeal, Sir William

Lewis, Mr.

Pair-Aye, Mr. Holder; No, Mr. Brunker.

Question so resolved in the negative.

Mr. WISE: I have given notice of a printed amendment to debar the Commonwealth-

Mr. DEAKIN: A new subsection was to be proposed to take the place of this.

Mr. WISE: I do not propose to move the new sub-section which has been printed. Mr. Barton has assured me that this is a matter which the Drafting Committee will take into consideration, and draw a clause to meet the difficulty.

Mr. BARTON: We did not say that.

Mr. DEAKIN: I understood a new subclause would be drafted to take the place of this.

Mr. BARTON: I was under the impression one would be moved.

Mr. WALKER: I propose to add a few words.

The CHAIRMAN: Sub-clause 31 is struck out.

Mr. DEAKIN: Words can be substituted for it.

Mr. ISAACS: I move to insert in its place the words:

Control and regulation of rivers between two States, and the use of the waters thereof.

Mr. BARTON: Say "so far as they form the boundary between two States."

Mr. ISAACS: I think if they are between two States it is the same. I cannot appreciate the difference.

Mr. BARTON: It might not take in their whole course, but only the part which is the boundary.

Mr. ISAACS: I understand Mr. Reid wishes to put under the federal control only such parts of these rivers as form the boundary between two States. I do not quite understand how that is practicable, and I will move it in this form:

The control and regulation of rivers between two States and the use of the waters thereof.

Mr. GORDON: That is a nice little amendment. It means that the Federal Parliament may agree to a compact between New South Wales and Victoria, leaving South Australia out of it

Mr. ISAACS: No. I want to keep the control of the whole of the Murray under the Federal Parliament.

Mr. GORDON: Then if it does that it is in the direction of justice, and I thank the hon. member even for so much, but I thought it was giving the Federal Parliament control of that part of the river which only flows between the two States.

Mr. REID: That was my proposal.

Mr. GORDON: Then it was a proposal which I can only characterise as simply monstrous.

Mr. ISAACS: Perhaps the proposed words do not go as far as I intended. I propose that the whole of a river that flows between two colonies should be under the control of the Federal Government, but not its tributaries. If you will allow me, I will reframe the amendment.

Sir EDWARD BRADDON: I would ask the hon. member whether he means those rivers flowing between two States [start page 821] and constituting the boundary between two States.


Mr. HIGGINS: I understand that the bed of the Murray is in New South Wales, so that you cannot say that the Murray forms the boundary between New South Wales and Victoria. The only way will be to use some expression that it is at the boundary, or perhaps as it is intended only to refer to the Murray, it might be as well to restrict it to that river.

Mr. MCMILLAN: The only other river is the Tweed between New South Wales and Queensland.

Mr. SYMON: We might make it:

The control and regulation of rivers between and through two States.

That would cover the case of the Tweed.

Sir JOHN DOWNER: I would suggest to Mr. Symon that he should put his amendment, and I think Mr. Isaacs must have had it in his mind, because I cannot think that he merely meant to say that the Commonwealth was to have control of the rivers simply as far as they were the boundaries of States, and to have no control over them in their course through the States. Not that I am at all sure but that the Commonwealth would have control of the river simply by the words describing the boundaries of the States. Let them have control of any part of the river and they will have power to deal with it by regulation, and this will do what my Tasmanian and South Australian friends think ought not to be done. We will be content that as between colonies the same rights should exist as would be respected between foreign nations. That is all we have been asking for, and to me it is simply shocking that this is not granted. It is so against the friendly spirit, not to say federal spirit, for friendly States to meet here for the purpose of making a federal union, and for them not to concede to the poorest State that asks for it the rights that one State should give to another. Mr. Isaacs thinks something ought to be done to bring the matter back to a more reasonable basis. If he will amend his motion as suggested by Mr. Symon I think it will meet the case. The effect would be to put the colonies in the same position in which the comity of nations places nations.

Mr. PEACOCK: Keep on talking, Sir John. All the lawyers are preparing amendments.

Mr. GORDON: I have an amendment:

The control of the navigation of the River Murray, and the use of the waters thereof.

Mr. BARTON: I have a further amendment:

To leave out all words after the word "the," for the purpose of inserting the following words: "navigation of rivers so far as they form boundaries between two States."

Mr. GLYNN: But the River Murray is not the boundary between two States. The exact words of the Act 14 Vict., see. 59, are:

The territories therein described as bounded on the north and north-east by a straight line drawn from Cape Howe to the nearest source of the River Murray and thence by the course of that river to the eastern boundary of the colony of South Australia should be erected into a separate colony to be known and designated as the colony of Victoria.

This was explained by a subsequent Act as giving the watercourse to New South Wales. That is the boundary between the States; the banks are the determining point.

Mr. GORDON: Leave out "control and regulation" then.

Mr. WISE: I should like to ask Mr. Gordon whether if his amendment is carried he intends that the Federal Parliament shall make provision to purchase irrigation works in Victoria. Are the representatives of Victoria prepared to hand over all their works to the Federal Parliament? If they are it is just as well that we should know. This matter affects the representatives of Victoria more than it affects any others.

Mr. GORDON: In the Federal Parliament New South Wales and Victoria will [start page 822] have such an overwhelming majority that it is very unlikely that anything unfair to Victoria or New South Wales will pass through very easily. Besides, we can trust the Federal Parliament to deal honorably and fairly in this matter. I believe that it will do what is absolutely fair and just to the colonies.

Mr. DOBSON: I have already given two votes with very much hesitation, and I would like to be spared the anxiety of giving a third vote upon a matter which is very complicated and intricate, and the most far-reaching question with which we have had to deal since we met. What rights has the colony of New South Wales in the waters of the Murray and all the magnificent tributaries which form that large river? If the colony of New South Wales has certain legal rights, and by my vote I am taking away those rights without her consent, I am doing her an injustice. If South Australia thinks she has certain rights, and South Australia is not allowed the full exercise of those rights, because of the prior rights of New South Wales, she has a perfect right to say if we are to federate, if we are going to be one people, and have, as far as possible, unity of interest, "We ask you honestly and straightforwardly-are you prepared to give up some of your rights and vested control of this great river which is the great highway to us as well as to you." From that point of view I think that the South Australian people are not asking anything unfair, and it is that aspect of the question which has already gained my vote on two occasions. Now, I think, however you may trust the Federal Parliament-and I am going to trust it as implicitly as my hon. friends opposite-that Parliament is not competent to deal with this question. That may be belittling the tribunal we are here to erect, but, so far as I can see, this question is too complicated for the Federal Parliament to deal with. Why not have some provision by which the claims of all the States interested in the Murray may be submitted to the Federal Parliament, not for its decision, but in order that it may remit them to the High Court, which is the only body capable of dealing with this complicated legal question.

Mr. DEAKIN: It is not a legal question.

Mr. DOBSON: The only point Mr. Carruthers dealt with was the absolute necessity that New South Wales should have control over those rivers in order to develop her territory. That is exactly the point of view that South Australian people take: that they want the waters of the Murray with which to form a highway and irrigate their desert lands. Now, the point I want answered by some of my legal

friends is this: May New South by constructing enormous irrigation works and cutting channels entirely cut off the flow of these waters before-they enter the boundary of South Australia?

Mr. BARTON: I think not.

Mr. DOBSON: If they have a right to do that it is simply a question for the South Australian Government to say, "Will you give up some of your rights or not?" I do not think we can make a proper settlement of this to-night. Anything we do may work injustice to some one.

Mr. FRASER: There are millions of tons of water going to waste in the Murray and its tributaries because we do not conserve it. The conservation of the water will tend to make the streams more navigable in the dry months. Victoria has spent hundreds of thousands if not millions of pounds in the conservation of water at a time when it would otherwise go to waste. The proper policy is to conserve it where it can be done with the contour of the country, and thus make the river more navigable during the dry months. Millions of human beings could be supported on the banks of these rivers, and it in infinitely more to the interests of the colonies that they should be there. The whole population of South Australia could be put [start page 823] into one corner of the Darling country if the waters were properly conserved and utilised, as in India and other countries. Difficulties of navigation will not arise for 100 years, and the Federal Parliament can deal with them when they do arise. It will be best to let the people of the future deal with this question.

Mr. MCMILLAN: It seems to me that the question has now narrowed down, if we are to come to any practical result, to the question of the Murray River; and I think that is narrowed down to a question of navigation. It seems to me, if you narrow it down to navigation, or introduce the word navigation at all, that you must not only take that part of the Murray which flows between two colonies, but you must take the whole course of the river. I humbly advise that the new clause be confined to the River Murray and the mode of its navigation.

Mr. CARRUTHERS: The Committee may imagine that in voting for this amendment of Mr. Gordon's, they are voting with reference to the River Murray from where it forms the boundary of New South Wales and Victoria to either where it enters the sea or to where it enters South Australia. But there is a great portion of the River Murray far beyond the head of navigation, which waters thousands of square miles in New South Wales.

Mr. FRASER: Hear, hear.

Mr. CARRUTHERS: That is the Tumberumbera, the upper Murray districts, right up to the Monaro and Snowy Ranges. In these districts is the natural watershed where you can construct your enormous works for irrigating on the lower level. We have in no other part so favorable a site for irrigation, because there we have the great help of gravitation. If you hand over the control of the Murray, as the amendment proposes, you do not limit it to the head of navigation, but you also take it right up to its source.

Mr FRASER: Hear, hear.

Mr. CARRUTHERS: You hand over a good asset of New South Wales, who can put it to a far better purpose than merely making the Murray navigable. As Mr. Fraser says, you can irrigate and use the water there as much as you like and hardly interfere with the navigation. I hope the Committee will confine itself to what we are all agreed upon. There is only one river in Australia which divides colonies. Why not expressly confine the division to the Murray from the head of navigation, say Albury, right down to its entrance to the sea, and we will support an amendment of that character.

Mr. TRENWITH: I respectfully submit that the River Murray is a river which has divided colonies in more senses than one, and that seems to me to be a reason why it should be handed over to federal control.

Mr. SYMON: Hear, hear.

Mr. TRENWITH: While the disputes that are continually arising over the proper use of it are possible, the colonies will continue to be divided in that other sense to which I referred. Mr. Wise asked, in connection with some irrigation works whether Victoria was prepared to hand over its irrigation works. It seems to be altogether unnecessary. That is not involved in the resolution.

Mr. GORDON: Hear, hear.

Mr. TRENWITH: Because, if we handed over the control for navigation purposes, and the control of the use of it-it is not to be assumed that the Federal Parliament will act unjustly. It will properly and fairly treat both the navigation and the use of the river. And Victoria will not be afraid to trust the Federal Parliament. But where disputes arise between two or more colonies in connection with the waters of this river the Federal Parliament will be able, it seems to me, in a more unbiased manner to appreciate the difficulties and the interests of the respective colonies. For that reason I will support the resolution as submitted by Mr. [start page 824] Gordon, feeling confident that the Federal Parliament elected by all the States, having only the interests of the whole of Australia to consider in connection with all its legislation, will so control the navigation and use of the waters that injury is done to none of the States.

Mr. O'CONNOR: With a view of testing the opinion of the Committee upon a matter about which we are all agreed, I move in Mr. Barton's amendment:

That all the words after "navigation" be struck out, with a view to adding "of the River Murray from Albury to the sea."

The CHAIRMAN: I wish to point out that the question is "That the words proposed to be struck out stand part of the proposed sub-section." If those words are not struck out then of course the new sub-section as moved by Mr. Gordon will be the substantive question, but if they are struck out then Mr. Barton's amendment will come on for consideration, and Mr. O'Connor's amendment to amend Mr. Barton's amendment will be taken.

Mr. O'CONNOR: It would be a simpler way to withdraw Mr. Barton's amendment. On behalf of Mr. Barton I withdraw his amendment, with the consent of the committee.

Mr. Barton's amendment withdrawn.

The CHAIRMAN: The proposed new sub-section now reads:

The control of the navigation of the River Murray, and the use of the waters thereof.

Mr. O'CONNOR: Then I move:

To strike out the latter part of the sub-clause with a view of adding the words "from Albury to the sea."

Mr. ISAACS: I would point out that that will do no good whatever. To say you shall have control of the navigation means that you shall say what size ships shall be upon it, how they shall sail, to regulate the bridges with relation to navigation, the rules as to loading and unloading, &c. That is utterly useless for the purposes now desired, and those who vote for that will vote for nothing.

Mr. KINGSTON: I must say now that I am altogether disappointed as regards the attitude of this Convention in reference to this river question. There is no doubt whatever that the use of these rivers, both for irrigation purpose's and for the purposes of navigation, is of the greatest value, not only to the

colonies in which these rivers have their source, but to all the colonies through which they flow. What is the position? So far as the divisions which have already taken place allow us to form an opinion of the intentions of this Convention, it appears that although the rights of those lower down stream in the case of foreign nations, even on the least friendly terms, would have been secured by a friendly Convention, yet in the making of a Federal Constitution the recognition of those rights is repeatedly denied by the colonies in which the rivers have their source to those colonies lower down. We are not proposing even now that a treaty should be made once and for all as regards this question. Here we are, in the discharge of our duty, discussing terms of a friendly Federation, and we only ask that all the colonies represented in the Federation should have power to consider and deal with these questions. This, however, is refused us.

Mr. FRASER: You are bringing in colonies that have nothing to do with it.

Mr. KINGSTON: We are trying to bring in all the colonies interested in it; and I utterly dispute the suggestion put forward with a great deal of force and candor by Mr. Carruthers that the colonies in which these rivers have their sources have a right to drain their channels lower down perfectly dry, and leave South Australia no opportunity for the navigation of the stream to which she is rightly entitled, and no opportunity for the use of its waters for irrigation. Is this, the way in which we are to be met? I look at the proposal before the Convention. It savors, to my mind, of an attempt to placate one colony-Victoria-by a partial recognition of those rights with a view to the establishment of something [start page 825] in the shape of an alliance which is denied to a colony lower down in connection with this matter. As regards Victoria they say, "Where the river is between us and not higher up than Albury we will let the Federal Parliament have some power to deal with the question of navigation." This even is a most limited concession, having no reference whatever to the use of the waters of the river for other purposes. Is Victoria going to be satisfied with a concession of this sort?

Mr. DEAKIN: It is not a question between Victoria and New South Wales.

Mr. KINGSTON: It ought not to be. How is it they will only allow the Federal Parliament to deal with this matter as regards the river which runs between Victoria and New South Wales and forms the boundary line? Is it simply on account of its position as a boundary line? After considering the matter to the best of my ability, I think that if it is only intended to give the Federal Parliament such limited power of dealing with this question and settling it in a friendly spirit, it would be infinitely better to leave the matter to the High Court of Australia, which it is proposed to create, and give the court also the power of dealing with our legal rights, which in connection with the use of rivers and streams like the Murray would correspond very closely to equitable rights. It seems to me, as regards the concession now proposed, it is not worth the paper it is written on, and it augurs ill to Federation that the representatives will not trust the Federal Parliament representing all the States, in which Victoria and New South Wales will have a much larger representation than we can have, in connection with this matter in which we feel so deeply, and on which we have sought so long and vainly to obtain a recognition of our rights. It is a pity indeed that the decision we have arrived at has been reached. I hope it may be reconsidered, and that a measure of hope may be held out that the Federal Parliament will be trusted with federal questions of the gravity involved in the use of the waters of the Murray.

Mr. WISE: I agree with the Prime Minister of South Australia that there is grave cause for disappointment, but it is not at the attitude of the representatives of New South Wales, but at speeches like that to which we have just listened. Let me ask the Convention to think what is meant by the assertion that we are giving up nothing. If that is the answer we receive, I hope Mr. Reid will withdraw the offer. The water is as much the property of New South Wales as any inch of its territory. The bed of the river is ours, and we have the power to gather a pretty considerable revenue from wharfage and tonnage dues, the whole length of the boundary between New South Wales and Victoria. That power we have never exercised; and the Prime Minister of our colony has offered to give it over to the Federal Government without receiving one penny of compensation. When that offer is generously made in order to carry out Federation it ought to be received in a federal spirit. It is, however, rejected in the language to which we have listened tonight, as though we were trying to

cheat others out of their rights. On the contrary, we are making a free and handsome gift, and it augurs ill, as the Prime Minister of South Australia has said, if conduct of this sort is to be so received. I have always entertained the view that it is a mistake to give these rivers unless the railways go too. I had intended to vote for the amendment moved by Mr. Reid.

Mr. PEACOCK: Mr. Reid did not move it.

Mr. WISE: Mr. O'Connor has practically moved it for him.

Mr. PEACOCK: No; entirely different.

Mr. WISE: No doubt the Victorians regard the matter in a different light, for they have also used our waters for years and not paid for it.

[start page 826] Mr. DEAKIN: It could be diverted before it reaches the Murray at all.

Mr. WISE: It is admitted we have the right of imposing tolls on navigation.

Mr. GLYNN: No, it is not.

Mr. WISE: I would like to know what vessels could land on the New South Wales shore or sail on her waters without her permission, or refuse to pay tolls, where the bed belongs to us?

Mr. GORDON: You would be acting like a barbarous uncivilised people in doing so,

Mr. WISE: Are we to be asked to give up more, and put all our country at the head of the Murray at the mercy of people whose feelings are such as have been exhibited in the speeches of the representatives of South Australia?

Sir JOSEPH ABBOTT: As members of the Convention desire to get away I shall not detain them long. Possibly I know more about the rivers of New South Wales than any member coming from that colony. I have no hesitation in saying that the South Australian Government have been treated rudely by the Government of New South Wales in reference to communications sent by that Government in times past. I do not wonder, therefore, at the warmth shown by Mr. Kingston, but the attempt to take the control of our rivers was a little too much. The proposed amendment of Mr. Gordon, however, may be fairly accepted, and I shall vote for it. So long as the South Australian Government desired the control of the whole of the rivers in New South Wales, as they did by the earlier amendment, I was entirely opposed to them, but I see no danger to either New South Wales or Victoria in this amendment.

Mr. HIGGINS: I wish to inform Mr. Wise that he is wrong with reference to the statement that because the bed of the Murray is in New South Wales, she has the right to levy dues. In 19 Victoria, chap. 54, sec. 5, it will be seen that it is left to New South Wales and Victoria, by proviso, to make rules for the regulation of the navigation of the river by vessels.

Question-That the words proposed to be struck out at the end of the proposed new clause stand part of such new clause -put. The Committee divided.

Ayes, 23: Noes, 9. Majority, 14.


Abbott, Sir Joseph Henry, Mr.

Brown, Mr. Higgins, Mr.

Clark, Mr. Isaacs, Mr.

Cockburn, Dr. Kingston, Mr.

Deakin, Mr. McMillan, Mr.

Dobson, Mr. Moore, Mr.

Douglas, Mr. Peacock, Mr.

Downer, Sir John Quick, Dr.

Fraser, Mr. Trenwith, Mr.

Glynn, Mr, Turner, Sir George

Gordon, Mr. Zeal, Sir William

Grant, Mr.


Barton, Mr. O'Connor, Mr.

Braddon, Sir Edward Reid, Mr.

Carruthers, Mr. Walker, Mr.

Fysh, Sir Philip Wise, Mr.

Lewis, Mr.

Question so resolved in the affirmative.

Mr. CARRUTHERS: I desire to limit this sub-section now, and I think my friends opposite will concur in this. I desire to limit it so that it will control the river from where it « first » forms the boundary between Victoria and New South Wales down to the sea.

Mr. PEACOCK: So there will be no interference with the tributaries.

Mr. CARRUTHERS: At its source it has, so to speak, several tributaries. There are about a dozen streams, and it is difficult to say which is the Murray. I propose to add these words:

From where it « first » forms the boundary between Victoria and New South Wales to the sea.

Mr. DEAKIN: There is not very much in that. There are several small streams and there is a dispute as to which is the Murray. One is known as the Little Murray. I think the least we can do is to meet New South Wales.

Mr. BARTON: Say:

From Albury to the sea.

[start page 827] Mr. DEAKIN: No; it will be best to meet him.

Mr. REID: That is exactly what I said at « first » , that wherever a river forms a boundary it should be subject to Federal control. When we remember that the whole bed of the Murray is in our colony it is the least you can do to meet Mr. Carruthers.

Sir JOHN DOWNER: If this amendment is carried we are not a bit further on.

Mr. PEACOCK: Better report progress, and we shall know what we are doing.

The CHAIRMAN: The amendment now before us reads:

From where it « first » forms the boundary to the sea.

Mr. GORDON: The point is that it never forms a boundary.

Sir GEORGE TURNER: These words seem very vague and very inconclusive. It may hereafter be contended that the river never does form the boundary at all if it all belongs to New South Wales, that is, unless you fix the boundary definitely.

Mr. REID: Say from Albury.

Mr. TRENWITH: I respectfully submit that the fears appeared to be entertained by my hon. friends Mr. Carruthers and Mr. Reid are altogether groundless. It is assumed that the Federal Parliament may so legislate as to prejudicially affect the people of New South Wales with reference to these head waters. That is an assumption so unreasonable and so altogether improbable that we need not have any fear.

Mr. GORDON: Hear, hear.

Mr. REID: I suppose it is not very unreasonable that we should give you the whole of the river to which we have the statutory right.

Mr. TRENWITH: My friend Mr. Reid has made a very gracious offer when he agrees to forego any claim that New South Wales has within certain limits. I am endeavoring to urge upon him that he may yet extend his graciousness by trusting the Federal Parliament, which will have the interests of all Australia always in its mind, and will certainly in no circumstance order regulations with reference to the Murray, so as to injure New South Wales in connection with the heads of the rivers spoken of. If we say from where the river « first » forms the boundary-and it has been suggested that it does not form a boundary anywhere-I think it will be a mistake. It would be a mistake to limit it anywhere, because there may arise contingencies in which it may be necessary to regulate the water flow. The control should be made as complete as possible. We would surely be justified in handing over such a trivial matter as this.

Mr. REID: Trivial if it does not belong to them, of course.

Mr. TRENWITH: Of course if we are going to stand upon mine and thine-

Mr. REID: Will you hand over the Goulbourn River in Victoria?

Mr. TRENWITH: We have spent an immense sum of public money in irrigation works, and we have no fear that the Federal Parliament will treat us unjustly. I think we are perfectly willing that regulations for its control shall be in the hands of the Federal Government, which is to be created to advance the interest of all the colonies rather than to injure or retard the interests of any of them.

Mr. REID: I should like my hon. friend as a practical man to see that if we are prepared to accept a certain settlement on behalf of New South Wales it is well to secure that assent instead of our determined opposition. The whole of this question has turned on navigation, but beyond Albury nothing turns on what we have been talking about. If the amendment is amended so as to make a definite point from Albury, we will remove any further disputation or opposition. There can be no navigation above Albury.

Mr. CARRUTHERS: I desire to amend my amendment by inserting:

"Albury" instead of "from where it « first » forms the boundary between Victoria and New South Wales."

[start page 828] Mr. DEAKIN: I ask the hon. member not to make that request. The « first » point is definite, and it has the advantage of being the commencement of the boundary between the colonies. The river above that point is practically wholly in New South Wales territory, and it seems to me unreasonable to ask that the river, where it is purely in New South Wales territory, should be placed under federal control. Only the point from where it becomes the boundary is it a proper subject for federal control, and for that reason. Though nothing has been done, and nothing is proposed, something may be proposed to be done to the river above Albury. We are dealing with a principle, and the amendment as framed will be more in accordance with the principle, while it will provide for the future.

Sir JOHN DOWNER: Meanwhile you confirm the title of New South Wales, not only to the bed of the river, but to every drop of water in the river. You give the Commonwealth no control over it, and if in this case for the benefit of the humanity which is centralised in New South Wales, the whole water should be used in their interests, then Victoria, whose territory it bounds, and South Australia, through whose territory it passes, will just have to grin and bear it. It reminds me very much of the old story of a dispute over a beast. When the two men decided that it belonged to both of them, one man said, "I wish to kill my half." We are to have, as a generous concession, the fact that New South Wales retains substantially all she has got, with an admitted right to take away from the river all the water, without which there is no river at all, and to use it for those irrigation purposes of which they properly think so highly, and the Commonwealth is to be able to legislate down below as much as it likes, when there is nothing of any value there to legislate about. I do my friends in both colonies the justice to think that in practice they will not do those things. We give up our share of the river to the Federal Parliament; they give up nothing.

Mr. GORDON: Hear, hear.

Sir JOHN DOWNER: They are to have control over parts of the river which bound Victoria, and which run through South Australia. We have no wish to make anybody pay anything.

Mr. GORDON: Hear, hear.

Mr. CARRUTHERS: That is not proposed.

Sir JOHN DOWNER: We are perfectly satisfied to leave it to the Commonwealth to do everything that is just and right as far as every penny expended by any State to make the river more navigable is concerned. We are not trying to run any game at all. We are asking for what is fair and right, and that the control of these waters and their navigation should be in the hands of the Commonwealth. Then we are met with a so-called generous compromise, which is not only not a compromise, but will be a legislative assertion a conclusive establishment of a right which does not exist now, except it be the right of might.

Mr. KINGSTON: Hear, hear.

Sir JOHN DOWNER: And which would not exist between two unfriendly States under the comity of nations Mr. KINGSTON: Hear, hear.

Sir JOHN DOWNER: But which we are asked now, under the guise of a concession, to formally concede and so legislatively fix for ever. I shall be no party to it. I wish nothing but what is fair and right for New South Wales or Victoria; if they have spent a lot of money and made this river more valuable, that is for the Commonwealth to consider, and if they want the Commonwealth to consider it let them vote to give them that power. I have no fear of the Commonwealth. They seem to have. To assert by a substantive enactment by Act of Parliament that New South Wales has a title, which she never had, to the flow of a river that belongs to all the countries through which it flows, is a thing to which I will not submit. It [start page 829] will be a matter of dispute in the future, and without benefit to New South Wales, through having this exceedingly reasonable clause omitted, the wrong and injustice will be asserted to be right, and a bar will be placed in the way of that fair dealing, which alone can be a proper basis on which we can arrive at an arrangement. I ask for no advantage or concession, nor do I wish to give any. We merely ask them to give us, friendly colonies under the same Crown, what men or nations individually unfriendly with one another would not fail to concede. I support the motion as it stands.

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

Ayes, 18; Noes, 10. Majority, 8.


Abbott, Sir Joseph Lewis, Mr.

Barton, Mr. McMillan, Mr.

Braddon, Sir Edward Moore, Mr.

Brown, Mr. O'Connor, Mr.

Carruthers, Mr. Peacock, Mr.

Deakin, Mr. Reid, Mr.

Fraser, Mr. Turner, Sir George

Fysh, Sir Philip Walker, Mr.

Henry, Mr. Zeal, Sir William


Clarke, Mr. Gordon, Mr.

Cockburn, Dr. Grant, Mr.

Dobson, Mr. Higgins, Mr.

Douglas, Mr. Kingston, Mr.

Downer, Sir John Trenwith, Mr.

Pair-Aye, Mr. Wise; No, Mr. Isaacs.

Question so resolved in the affirmative.

Mr. BARTON: I wish to make an explanation with reference to the division before the last one. My hon. friend Mr. Symon had to go away, and he asked me to pair with him on the amendment. I incontinently forgot the pair. It does not much matter, as there were only five or six "noes" but it is only right that I should explain that I voted by pure inadvertence.

Sir JOHN DOWNER: I hope the subsection will be rejected. As it stands now I consider it is a re-affirmance of a very bad law, both internationally and domestically, and I can only hope that as this subject was introduced for the purpose of making a concession to South Australia, and as South Australia is very clear that she will be worse off under this supposed concession than she is at the present time, the sub-section will be rejected. We shall at all events stand as we were before, and not affirm legislatively that we have received a concession. Mr. Carruthers made a speech in which he asserted with transparent clearness the right of New South Wales to take whatever water was in their territory whether we had a right to it or not. His selfishness on behalf of his colony is so clear that one does not want to discuss the subject. On behalf of the representatives of South Australia-I think I may speak on behalf of my fellow representatives-they wished this subject to be introduced to obtain a settlement of a long-vexed question which they, as true-hearted federationists, feared in the future may be a constant source of trouble. However, we refuse to admit that any concession at all has been made by the colonies from which we asked and expected it.

An HON. MEMBER: Did you expect it?

Sir JOHN DOWNER: We did expect that they would treat us no worse than if we had been enemies instead of friends. They have taken a position which instead of making our position stronger renders it weaker. I hope that both the New South Wales and Victorian representatives, who profess to be giving a concession, will accept the assurance that we have had none, and will not assist in putting us in a worse position than before. I hope this will be struck out.

Sub-section agreed to.

Sub-section 32 read and agreed to.

Sub-section 33 read and agreed to.

Sub-section 34 read and agreed to.

Sub-section 35 read and agreed to.

Clause 51-The Parliament shall, subject to the provisions of this Constitution, have exclusive powers to make laws for the peace, order, and good government of the Commonwealth with respect to the following matters:

[start page 830] I. The affairs of the people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorise legislation with respect to the affairs of the aboriginal native race in any State.

II. The government of any territory which by the surrender of any State or States and the acceptance of the Commonwealth becomes the seat of Government of the Commonwealth, and the exercise of like authority over all places acquired by the Commonwealth, with the consent of the State in which such places are situate, for the construction of forts, magazines, arsenals, dockyards, quarantine stations, or for any other purposes of general concern:

III. Matters relating to any department or departments of the Public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth:

IV. Such other matters as are by this Constitution declared to be within the exclusive powers of the Parliament.

Mr. DEAKIN: I have now the opportunity of pointing out to the Drafting Committee, as already instructed by the Constitutional Committee, at my instigation, that they ought to look into the question as to whether the « first sub-section, giving power to the Federal Government to regulate the trade and commerce of the Commonwealth, does not take away unintentionally from the several States the power, which each of them undoubtedly possesses at the present moment, of regulating and of absolutely prohibiting the importation of alcohol and opium or other imports calculated to be injurious to the State. Such powers exist in each colony at the present time. There are a series of American decisions which decide that power to regulate trade and commerce with other countries, having been given to the federal authority, it is not in the power of any State to do so, without an Act of the federal authority, authorising them to prohibit. In the decision of Brown v. Maryland, 12 Wheat., page 419, it was determined that the State of Maryland had no power to prevent the introduction of goods from abroad the sale of which was prohibited in the State. In a later case Bowman v. the Chicago and North Western Railway Company, 125, U.S.L.R., page 465, the importation from, one State to another, that is to say, from a State in which there was no prohibition to a State in which there was, was held not to be capable of prohibition, for the same reason that it was an interference with the sole power of Congress to regulate trade and commerce. In the historical case of Lesiey v. Hardin, 135, U.S.L.R., 100, it was decided that liquor introduced as an original package imported from abroad could be sold in a prohibition State in the original package. In consequence of this the Wilson Act was passed in 1890, by which the Federal Parliament re-endowed the several States with power to prohibit the introduction of alcohol or opium even if in original packages.

Mr. BARTON: The Drafting Committee were of opinion that the clause about-

Mr. GRANT: I draw attention to the state of the House.

The house having been constituted,

Mr. BARTON: It is now twenty minutes to 12, and I do not propose to sit until 12 o'clock, but we have sufficient time to deal with the subsection.

The CHAIRMAN: The only question which can be dealt with, and that is by special leave, is sub-section 1.

Mr. BARTON: If we carry that I will report progress. The point Mr. Deakin has raised will come in more properly with regard to the sub-section dealing with the freedom of trade. The Drafting Committee will frame a clause if Mr. Deakin will move it.

Sir GEORGE TURNER: I desire to ascertain the meaning of the word "country." Supposing Queensland and Western Australia do not come into the Federation, they are not State;. Are they countries?

Mr. BARTON: Yes.

[start page 831] Sir GEORGE TURNER: I very much doubt it. Would it not be better to insert the word "colony."

Clause as amended agreed to.

Progress reported.


Mr. REID: It would be a great convenience to myself if the financial clauses were taken on Monday, as I am afraid I will have to leave on Wednesday. I think it would be more satisfactory to the Convention if I were present during the discussion.

Mr. BARTON: There is nothing until the end of the part which need cause debate except clause 51. Then there are two or three clauses dealing with the Royal assent and such matters which are formal. That will take us to the end of the chapter, and I then propose to postpone the part dealing with the Executive Government and the judiciary, and that will bring us to the financial clauses.

Mr. REID: That will suit me very well.


The Convention, at 11.45 p m adjourned until Monday, at 10.30 a.m.