Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
1898 Australasian Federation Conference
Go To First Hit

Download PDFDownload PDF

The text of this document has been electronically scanned from an original print copy. Freedom from errors or omissions cannot be guaranteed.

[start page 1722]


Petitions-Order of Business-Commonwealth of Australia Bill.

The PRESIDENT took the chair at thirty-five minutes past ten o'clock a.m.


Mr. REID presented petitions from certain bank's trading in New South Wales, and from the Sydney Chamber of Commerce, praying the Convention to preserve the existing right of the Queen's Australian subjects to appeal to Her Majesty from decisions of the local courts.

The petitions were received.


Sir JOHN FORREST (Western Australia).-I desire to suggest to our honorable leader (Mr. Barton), if he can conveniently arrange it, that the more important questions should be submitted before those questions which are not so important. I regret to say, as I have already said, that I will have to leave on Wednesday next, and I should like to have an opportunity of voting on some of the remaining important clauses. I desire also to suggest to honorable members that if they have proposed amendments of clauses they should give notice of them. I should be sorry if, after clauses had been decided in a certain direction, the decisions of the Convention were reversed after we leave, if that would not have occurred had the representatives of Western Australia, who have to take their departure next Wednesday, been able to remain here. Although I know I am asking what I have no right to ask for, still I may point out that we have been here a long while, and that we who represent Western Australia occupy a different position from other members of the Convention who are members of Governments, Western Australia being so far away. I hope that the leader will be able to arrange the business so as to meet the wishes of the representatives of Western Australia, to some extent at any rate.

Mr. BARTON (New South Wales).-I take it that such a course as my right honorable friend has suggested is more one for the Convention to consider than for me. The Convention is the best judge of the relative importance of the various clauses of the Bill. One can quite understand, as an illustration, that Sir John Forrest would not like to leave Melbourne without having an opportunity of taking part in the discussion with reference to dead-locks. Perhaps that is one of the most important matters that will be reconsidered. I can quite understand his position, and sympathize with him in it; but it is really a question for the Convention itself to determine.

Sir JOHN FORREST.-The Convention will follow you in the matter.

Mr. BARTON.-When the clauses dealing with Money Bills were taken early at Adelaide, in order to accommodate my right honorable friend, there was a specific motion on the subject, which was put to the Convention and carried. I would suggest to him that if he desires to take any such course as that, he might now give notice for to-morrow in reference to any clauses which he wishes to be considered before others. I think it would be rather too much to ask me to take upon myself to judge what, in the view of the Convention, would be the relative importance of the clauses. That is so much a matter for the Convention to determine that it would be rather impertinent for me to make any assumption on the point.

Mr. HOLDER.-Could not we sit late to-night and push on?

Mr. BARTON.-We might sit to-night, but I do not think that that would give Sir John Forrest the assistance he wants.

Sir JOHN FORREST.-Perhaps the ordinary orders will do.

Mr. BARTON.-If the honorable member will say what clauses his mind is most exercised about, perhaps the Convention will meet his wishes in the matter.

[start page 1723] Sir JOHN FORREST.-The dead-lock clause, for one.

Mr. BARTON.-Well, any amendments I have to propose on the reconsideration of clauses before that are not, speaking for the Drafting Committee and myself, perhaps very serious-not such as would take a long time to settle. Some of them are almost drafting amendments, but still such as involve consulting the Convention as to the policy of those amendments. I am not aware of any intention to re-open any clause which will take a long time, except that Sir George Turner wishes to re-open clause 9, to again consider the question of each state being made one electorate in elections to the Senate; and also clause 24, in reference to the question of the quota; and, of course, both those provisions come before clause 56A-the dead-lock clause. It may be that the Convention would look favorably on a motion of the kind I have suggested if Sir John Forrest gave notice of it now.

Sir JOHN FORREST.-We will see how we get on.

Mr. ISAACS (Victoria).-Sir George Turner desires to re-open other clauses in addition to those mentioned by the leader of the Convention, for instance, the clause relating to bounties and other questions.

Mr. BARTON.-But the clause relating to bounties will come on later than the dead-lock clause.

Mr. ISAACS.-Yes, but I do not want any misapprehension to get abroad that Sir George Turner wishes to confine reconsideration to the matters mentioned by the leader of the Convention.

Mr. BARTON (New South Wales).-I understand that Mr. Reid desires to reopen the rivers question.

Mr. REID.-I am getting my amendments printed.

Mr. BARTON.-The question of rivers comes before the question of deadlocks, and if Sir John Forrest is anxious to get the dead-lock question considered before the rivers question and other questions which also precede it in order, and some of which may take a little time, I think his best course is to give notice of motion on the subject. There are circumstances which we all understand that might cause many honorable members of the Convention to look with favour upon a proposal of that kind.

Sir JOHN FORREST.-The rivers question is perhaps just as important as the question of dead-locks.


The Convention then resolved itself into committee of the whole for the further consideration of the Commonwealth of Australia Bill.

Discussion (adjourned from the previous day) was resumed on Mr. Holder's proposed new clause (see pages 1717-18).

Mr. SYMON (South Australia).-My honorable friend (Mr. Holder) began his speech by indicating that he was moved to submit his new clause by three considerations. One was that there was the grave objection entertained by many people to the Constitution we are framing that over all was the influence of the High Court. Now, I am not sure that that represents accurately anything in the nature of an objection that is entertained by people in any of the colonies. On the contrary, it seems to me that, instead of there being-at least amongst a section-a feeling that the Constitution is overspread by the High Court, or any of the courts, there is a desire that we should still further multiply the courts which are to concern themselves with this Constitution, and the institutions to be established by it, for, instead of having enough courts, we are to have one more-the Privy Council-by way of appeal from the Federal High Court, which, my honorable friend thinks, overspreads this Constitution. My honorable friend said that there would be necessarily a great many questions of law in connexion with the working of this Constitution, and he referred, in support [start page 1724] of that statement, to some expressions made use of by Professor Harrison Moore, with regard to the employment which would thereby be found for the lawyers. My honorable friend having stated that, proceeded to move his amendment, which will not in any possible particular lessen the evils (if they are evils) to which he called attention. He proposes, under this amendment, that every question in relation to the validity of laws, either of the state or of the Commonwealth-those laws having first passed through the crucible of investigation by the High Court-shall, by the cumbrous and expensive method of seeking to get rid of the decision which may have been pronounced by the tribunal appointed under the Constitution, be submitted to a referendum of the people.

Sir JOHN DOWNER.-Laws altering the Constitution.

Mr. SYMON.-First of all, I take leave to deny that any body of people in Australia, whose voice is entitled to any weight, will so misunderstand the position of the High Court in this Constitution, in relation to questions of ultra vires, as to think that, instead of being an advantage, it will be a positive disadvantage to them when the union is consummated. The High Court is really and most properly appreciated and understood as being the guardian of the interests of the states as well as of the interests of the Commonwealth; as the protector of the freedom of citizens as well as of the rights of the states. They understand that it might be possible, but for the intervention of the High Court, for the Commonwealth to pass laws that interfered with the rights and with the integrity of the states constituting the Commonwealth, and that it might also be possible, on the other hand, for the states to pass laws which would to a certain extent infringe upon the rights of the Commonwealth. The High Court is to occupy the position of arbiter between the two-it is to be the daysman that is to go between the states on the one hand, and the Commonwealth on the other. It is for that purpose that the High Court has been established. If there is too wide a power in regard to disputes upon questions of encroachment under legislation, if it is considered that the High Court might frustrate the object of the Constitution, then the remedy is not to increase the expense in remedying the difficulty, but to sweep away the High Court altogether, and to say that we will rest content with some other method of adjusting the differences between the constituent parts of the body politic of the Commonwealth. Now, sir, my honorable friend's amendment only needs to be examined by the light of what we have already provided in the Bill in order to secure its prompt rejection. My honorable friend put it that he did not wish this amendment to establish a court of appeal in the ordinary sense in regard to decisions of the High Court. But it must amount to one of two things. This reference to the mass of the people must be either in the nature of a court of appeal from the decisions of the High Court, or simply an alternative method of amending the Constitution by authorizing what has been called in question.

Mr. HOLDER.-That is what it is.

Mr. SYMON.-My honorable friend accepts the latter description. Now, sir, of course in either case it means an expenditure. This referendum-which as proposed here is a kind of lop-sided referendum, as I shall show in a minute-means an expenditure, superadded to all the cost and delay of

litigation, of £30,000 or £40,000 or £50,000, which a referendum to the people of the Commonwealth is estimated to cost.

Mr. HOLDER.-And which any alteration of the Constitution must cost.

Mr. SYMON.-I will come to that in a minute. I shall not overlook that consideration. If this referendum is to be in the nature of a court of appeal, the proposal will be constituting the people-the [start page 1725] mass of the people-a court of appeal against the decision of the tribunal which they themselves had constituted.

Mr. HOLDER.-That is absurd; you are setting up a man of straw in order to knock it down.

Mr. SYMON.-My honorable friend's whole proposal is a man of straw, and I am endeavouring to treat it as such, in order that the slightest wind may knock it over. We know that the same difficulty arose in Switzerland, where it was sought to constitute the Federal Assembly a court of appeal from the decision of the High Court. For some years-between 1848 and 1875-the experiment was tried, but it was found to work so detrimentally to the best interests of the people of Switzerland that they repealed it, and placed the High Court of Switzerland above political influence, and above the control of what was a political tribunal.

Mr. HOLDER.-Hear, hear.

Mr. SYMON.-Of course, I know that my honorable friend assents to that. I know that he would not be so lost to every sense of propriety as to suggest that there should be an appeal from the High Court to the Federal Parliament, or to any state Parliament in regard to a state law; but I am pointing out that some honorable members may not take the view my honorable friend takes as to the amendment of the Constitution, and they may be prepared to take the view that it will be well to have some other tribunals body introduced with a view of controlling the decisions of the High Court in matters considered to be matters of public policy. Therefore, I do not point out the case of Switzerland because my honorable friend thinks we could do the same here, because such a step would be abhorrent under our Constitution. The next point is that this is an amendment to secure an amendment of the Constitution in case the Federal High Court, which is the body in whom we repose the custody and care of our liberty from all kinds of legislative and executive encroachments, decides, in regard to a particular law of the Commonwealth, that it is ultra vires. If the question is of sufficient importance to warrant an amendment of the Constitution, let the Constitution be amended under the provision of clause 121 in the ordinary constitutional way. Why not? But if the matter be not of sufficient importance, why are we to be put to the enormous expense of from £30,000 to £50,000 for a referendum on some matter which is of not sufficient importance for it to be proceeded with in the ordinary way? Then my honorable friend-of course being driven to find some reason why we should adopt this method rather than the method we have all agreed to up till now under clause 121-says there would be a saving of time. Now, what would be that saving of time? Under this provision, should the High Court decide that a particular law is ultra vires, my honorable friend proposes that the Executive Government should be able to come down to the Federal Parliament with a resolution, which has to be carried by absolute majorities in both Houses, in exactly the same way as a Bill which might be introduced under the clause providing for amendments in the Constitution. The only time that would be saved would be any possible diminution of time involved in the difference between carrying these resolutions and carrying a Bill directed as far as possible to the same object. The saving of time would be a mere bagatelle. Is it worth while purchasing that saving by disorganizing the whole of our method-cumbrous as some think it is-of amending the Constitution? The game is not worth the candle. It is not worth considering for a moment, seeing that the method prescribed in this amendment is absolutely identical with the method provided in regard to ordinary amendments of the Constitution.

Mr. HOLDER.-Purposely identical.

Mr. SYMON.-Then what is the use of debating it? This amendment may be described as another means of spending [start page 1726] £30,000 or £50,000 on a referendum, without the safeguards which should be essential in every possible proposal for amendment of the Constitution, in a debate upon the different stages of the Bill. The machinery we have got with regard to amendments of the Constitution would be as effectual and more satisfactory than what is proposed in this amendment. I agree that if this means anything it means neither more nor less than an amendment of the Constitution. Mr. O'Connor, in a very pregnant interjection made in the course of Mr. Holder's speech yesterday, said-"How would you deal with the case of a Bill going in substantially the same direction and dealing with the same subject-matter?" Mr. Holder replied that he would leave it with the Drafting Committee to frame a provision to deal with cases of that kind. But the objection entirely dissolves the whole ground on which the honorable member bases his amendment, because it would have the effect, as I think Mr. Glynn interjected, of introducing into the Constitution the legislation which was called in question by the Federal High Court.

Mr. LEAKE.-It is also retrospective in its effect.

Mr. SYMON.-That is the point I was coming to, and I am much obliged to the honorable member for calling my attention to it. But I do not wish to elaborate the point, because it must be seen that the proposal has that vice. In addition to that, what does my honorable friend (Mr. Holder) do? We all of us have the interests of the states at heart; but my honorable friend leaves the state law to be declared ultra vires. Under this proposal you are to protect the laws of the Commonwealth in an extraordinary and burdensome way, but not the state laws, which the High Court may declare to be ultra vires. Why should not the people of the states have a similar power of saying that their law is perfectly good, and that they want it? That is what I meant by saying that this is a lop-sided arrangement. If you want to amend the Constitution, amend it; but if you are dealing simply with a law declared to be ultra vires, then I say that the states should be treated equally with the Commonwealth, and it should be open to their particular citizens to say whether or not they approve of the proposed alteration of the law. But you would introduce the greatest complication into the Constitution by doing anything of the kind. An amendment of the Constitution is a matter of grave importance, and to say that a Commonwealth law declared to be ultra vires by the High Court is to be placed in a different position, and is to be treated in a special way, in which a law of a state declared to be ultra vires is not treated, is grossly unfair. You must, to be just, deal with both the states and the Commonwealth upon the same method in regard to alterations of the Constitution.

Mr. HOLDER.-Will you support me if I put that in?

Mr. SYMON.-My honorable friend should not ask me to support such a proposition as that, because he knows that I would do nothing of the kind; but I say that if his proposal is to be adopted with regard to the laws of the Commonwealth, it is unjust that the states should not be treated in the same way. I say that the states and the Commonwealth should have the same advantage in this respect.

Sir JOHN DOWNER.-And why confine it only to questions of ultra vires?

Mr. SYMON.-Exactly. Why not say, that all laws of the Commonwealth shall be valid in all respects, and that all laws of the states should also be valid? Then we should get into a nice pickle. If a law is of vital and serious consequence to the Commonwealth, and is declared to be ultra vires by the High Court, there is under the Bill an appeal to the people, by means of the provision for amending the Constitution. Let that appeal be made, and let the Constitution be amended; but do not let us introduce, a further [start page 1727] opening for expense, and also for injustice, by an inefficient means of really amending the Constitution, but which at the same time will leave unredressed the grievances which may exist on the part of the state. I therefore hope that this amendment will be rejected as altogether unnecessary, and as cumbrous and expensive; and as not even having the colour of bringing about the redress of difficulties, which my honorable friend stated at the outset, because the provision is not one which will have the effect of diminishing the possibilities of litigation under

this Constitution. No one more deeply sympathizes with the object of the clause than I do, but some more effectual way must be devised to deal with this question. This, instead of being an improvement, will be a distinct blemish on the Constitution we have to frame.

Mr. ISAACS (Victoria).-I agree with Mr. Symon that there are difficulties raised which are almost insuperable against the clause as it stands. There is not a single point in which more facility is given for amendment of the Constitution than already exists in the Bill. You want under this clause, as you want under the 121st clause, an absolute majority of both Houses. You also want a majority of the states voting, and a majority of the people voting.

Mr. BARTON.-An absolute majority of both Houses directing a referendum, not for passing a law.

Mr. ISAACS.-But they have already passed a law, and I take it that if you can get an absolute majority of both Houses directing the referendum, there is no practical difference between that and an absolute majority again passing the law. Because they virtually passed the law as far as they could. Therefore, it seems to me there is no advantage gained from the stand-point of desiring a better means of getting an amendment of the Constitution. Then, I feet that it is open to the destructive criticism that it makes the law retrospective, and after the court, possibly the Privy Council, has decided that the law is ultra vires, and people have acted on that decision, being compelled to, act on that decision, or being compelled to refrain from acting on the decision of the court, as the law is positive or negative; then we should have under this referendum a law made operative as from the time of its original passing, and penalties, both personal and pecuniary, might be incurred through no fault of the individuals who had incurred them. That seems to me to be a defect to which we cannot close our eyes.

Mr. WISE.-Besides, it would punish everybody who took the advice of a man who interpreted the law properly.

Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to act, or refrain from acting. That is a position which none of us would willingly get into, and the retrospective action is wrong. I quite sympathize with the moving spirit that actuated Mr. Holder, because I feel, as I said before, that our means of amending the Constitution are lamentably defective. It is an attempt by Mr. Holder to prevent the strict interpretation of the law from running counter to public opinion, even public opinion which may be definitely expressed by means of a referendum. Complaints have been made, as we know, in America that the Supreme Court is master of the Constitution; that there is no appeal from it, and that the means of amending the Constitution to get rid of any particular decision, which time and circumstances have made utterly contrary to the feelings of the nation, are practically irremediable. I should say, in reference to the so-called safety-valve that has been provided in America, even that one stigmatized as being only tolerable because it avoids a worse state of affairs, namely, swamping the Supreme Court, is a mode which I find Mr. Dicey refers to and does not reprove. In the last edition of his work on the Constitution, 1897, pages 166 and 167, he actually points out without disapproval, and, in fact, with [start page 1728] a certain amount of approbation, the possibility of appointing more Judges to the Supreme Court; the new Judges being, as he says, lawyers who share the convictions of the ruling party. When we see that state of things referred to in such terms by so eminent and impartial a writer as Mr. Dicey, we must not lightly treat the considerations brought forward by Mr. Holder and dismiss them from our minds. I agree that the mode he suggests is one which we can hardly follow. If it were proposed that a law passed by both Houses, and thus expressing what is desired by public opinion-and by some strict construction of the Constitution that desired end has been found impracticable-and that, both Houses having agreed to that law, it should be competent for the Executive, upon an absolute majority of either House, to send it to a referendum of the states and the people, I could understand that a better remedy was provided, because you would have the states protected on the original vote passing the Bill, and again in the referendum. If that course were adopted, I think this clause could be framed so as to give us a better position than we, have under the Bill. But if we agree in the first instance that both Houses should

pass the Bill, as we must, and then require both the Houses to refer the Bill to the people and the states, who are to pass it, we shall not get one bit further than what we have got under the 121st clause. Unless the honorable member is willing to amend his clause in that respect, we should only complicate matters, and if retrospective operation were given to it we should be lending ourselves to what would be, quite unintentionally on the part of the honorable member, a gross injustice.

Mr. BARTON.-What is the honorable member's suggestion?

Mr. ISAACS.-The adoption by an absolute majority in either House of Legislature, instead of by both Houses. It presupposes both Houses have passed the Act; that the Act is declared to be invalid; that subsequently public opinion has been found to be of such a nature as to press for an adoption of such a law, and it is impracticable, because the Constitution does not admit of it. Then either House must pass by an absolute majority a resolution, and the Executive must refer the law to a dual referendum of the states and the people. A double protection would be given, and that would ease the minds of a great many people, not only in this colony, but, I dare say, in New South Wales, as to the question of an amendment of the Constitution. It does not touch the question of deadlocks in ordinary legislation, but only the amendment of the Constitution, and would go far to pave the way for a better understanding on the subject than we now possess.

The CHAIRMAN.-I may shorten the debate if I point out that the amendment suggested by Mr. Isaacs would be tantamount to an alteration of the decision already arrived at in clause 121. In that clause it is decided that majorities of both Houses are necessary to alter the Constitution. If Mr. Isaacs' amendment were carried it would negative that proposition, and I do not think we can do that at this stage.

Mr. ISAACS.-I should like to mention one consideration which has not perhaps occurred to your mind. I understood the decision was that, if the two Houses came into conflict, the question should be referred on a motion passed by absolute majorities of both Houses. But this is not a question of conflict between the two Houses, but where the two Houses have agreed, and the Supreme Court has said that it is outside the Constitution. That seems to me a totally different question, when the two Houses may not be in conflict, but either House may pass this resolution, and then the Executive can refer it. I think that is a great distinction.

The CHAIRMAN.-I would point out that clause 121 says that the provisions [start page 1729] of the Constitution shall not be altered except in the manner following-that is, by an absolute majority of the Senate and of the House of Representatives. That seems to me to be conclusive.

Mr. BARTON (New South Wales).-I share in the objections which so many honorable members have offered to this clause. I certainly hope that I shall not be taken to be speaking simply as a lawyer, and with a desire that this Constitution should be under the law and lawyers, when I express my objections to it. I agree with what has been said to the effect-although there is a great weight to be attached to Mr. Holder's argument-that the clause will operate as an appeal from the High Court to a popular authority-an appeal to an authority which, at any rate, is not a competent authority on a question of law. As to the question of making a law, the people ultimately are no doubt the best authority, but on the question as to the reading of a law they can scarcely be the best authority. There is a difficulty in this clause which also presents itself to me-that is, it works only one way. Where a law has been decided by the High Court to be ultra vires, by this appeal to the people it may be decided to be intra vires of the Constitution from the beginning. Take the case of a law which the High Court decides to be within the Constitution, and which the people have a very strong opinion is outside the bounds of the Constitution, and that the court has been wrong there. Now, if it is right to make a clause of this kind operate for the purposes of appeal in the one case, it is equally right to make it operate for the purposes of appeal in the other.

Mr. ISAACS.-That is not necessary. The people have it in their power to repeal an Act if they do not like it.

Mr. BARTON.-In this case the object is to enable the people to make valid that which under the Constitution is invalid. If you make the clause work one way, what reason is there for not making it work the other? With reference to the general effects of the clause, it seems to be clear that where the High Court has wrongly decided a matter to be intra vires of the Constitution, you provide no sort of way of dealing with it excepting by repeal. It may be that repeal is the easiest method. This amendment is intended to get rid of the decision of the High Court, which may be perfectly correct in law. I do not think that is a course which will commend itself to our general sense and experience as being desirable. I know that we are providing for new conditions, and there is weight to attach to every argument which relies upon the novelty of these conditions. But still I do not think that this is a course which should commend itself. If you take the case of any decision of the High Court that a law is ultra vires-and the position would be worse if Mr. Isaacs' amendment were adopted-having got that decision from the authority you yourselves have set up as the ultimate arbiter, within your own bounds at any rate, on questions of constitutional law, you then say that the finding of that tribunal may be rendered nugatory just as the Executive, having a majority in Parliament, may choose by submitting it to the people. It may be assumed that the Executive will feel the popular pulse before they do it. The conclusion then is, that you deliberately weaken that will be the effect, although it may, not be the intention-the authority of that tribunal. Would not such a provision operate very badly? I quite see that the Hon. Mr. Holder has not submitted his clause with the view of taking the appeal from the High Court to the people on a matter of law. All I am arguing is, that the effect of the clause would be the same as if he had done so. There is not much difference between saying, as is said in this clause, that when the High Court has decided a matter to be ultra vires you may remit it to the people, who may determine that it is within the powers of the Constitution, which would be a reversal in one sense of the decision of the High [start page 1730] Court, and saying boldly, and at once, that if the High Court declares the law to be ultra vires the people may decide that it is intra vires.

Mr. SYMON.-It is a matter of form.

Mr. BARTON.-Yes, the difference between these two procedures is simply a matter of form. In the clause the words are used "and the law shall be conclusively deemed to have been intra vires of this Constitution from the passing thereof." The peculiarity of this part of the clause is very striking, because the words I have read follow these words-"and if approved as therein provided the Constitution shall be deemed to have been enlarged." If the Constitution is to have been deemed to have been enlarged for that contingency it is only because the law was ultra vires. If you carry that further and say that it is intra vires, what do you want with any enlargement? It is quite inconsistent. It amounts to saying that the Constitution has been enlarged, and that is only necessary if the law was ultra vires. And yet it is followed by the words-"and the law shall be conclusively deemed to have been intra vires," which is to decide that the High Court was not right but wrong.

Mr. KINGSTON.-That is like the passing of a Validating Act.

Mr. BARTON.-No; a Validating Act does not put things in that way, and I say that that is an objection of more than form. When you say that the Constitution shall have been deemed to have been enlarged, you decide that the Constitution requires amendment in that particular, but when you say that the law shall be conclusively deemed, to have been intra vires from the passing thereof, then you decide that the Constitution does not require amendment. There is very considerable not only ambiguity, but contradiction in the proposal. What are we asked to authorize the people to do-to decide that the High Court was right? In which case their decision could only have effect if it operate as an enlargement, or to decide that the High Court is wrong, in which case the Constitution is sufficient from the beginning. We ought to know which road we are to take before we vote on the clause. It seems tome that the objection there is a strong one, and that it requires some answer. I shall not now repeat the arguments adduced by other honorable members against the clause. That is unnecessary. But I do say that I have not been at all convinced that it is our duty to adopt the clause.

Mr. ISAACS.-There is one additional difficulty, which my honorable friend (Dr. Quick) has suggested. The Constitution would be deemed to be enlarged by the passing of a law, but if you wanted to alter or amend it you could not do so.

Mr. HOLDER.-That is the point Mr. O'Connor mentioned last night.

Mr. BARTON.-That is to say that, the law having been passed, and the Constitution having been enlarged, the Constitution has been amended.

Mr. ISAACS.-That is all. You could not alter a word of it.

Mr. BARTON.-No, you would have to take the question of whether the Constitution was really amended or enlarged; but the decision might mean that the Constitution did not require enlargement at all.

Mr. HOLDER (South Australia).-I will deal with the speeches in the order in which they were given. I note that, although the Hon. Mr. Symon said that the matter was not worthy of a moment's consideration, he proceeded to talk for about half-an-hour about it, and his speech consisted mainly in setting up bogies that were not in the amendment, and knocking them down again after they had sufficiently frightened the Convention. I need say no more about these bogies, because they were not present in my mind, and they do not appear in the amendment. I am obliged to the Hon. Mr. Isaacs for the speech he delivered, which shows that the feeling of which I have a [start page 1731] knowledge is also within his knowledge the feeling that the Constitution we are framing is somewhat too rigid, that the modes of amendment are few and difficult, and that greater ease of expression of the popular will would be an advantage. I am pleased to have the recognition which the honorable and learned member gives of the fact that these views are not confined to South Australia. As to the particular points raised both by Mr. Isaacs and the Hon. Mr. Barton, I want to say this: That what is contemplated is actually an amendment of the Constitution. It is not intended to be an amendment by a side-wind, but an amendment with all the necessary delay and all the necessary expense which it is contemplated any such amendment should involve. I did not imagine for a moment that I was going to make a short cut to any amendment of the Constitution by which damage might be done to either state or national interests. I think that I have duly safeguarded both state and national interests, while providing a speedier method of altering the Constitution. So far as the objection raised by the Hon. Mr. Barton on the matter of a law being declared ultra vires is concerned, there is no idea of submitting to the popular verdict any legal decision of the High Court or of any court. When the Parliament determines under this clause to refer any matter to the people they accept the verdict of the court as being true and right. If they do not accept it their course will not be to refer it to the people, but to send it to a court of appeal. The fact that they do refer it to the people shows that they recognise that the matter was outside the powers of the Federal Parliament, and that they seek to have those powers enlarged. The form of words adopted means this-that the enlargement of the Constitution is to be somewhat dated back. It is to be retrospective, not in the sense of a challenge, but rather the reverse, of the decision of the court. The enlargement of the powers is made retrospective cover the particular question at issue. With regard to the last point mentioned by Mr. Isaacs, on the suggestion of Dr. Quick, I referred to it yesterday evening when replying to an interjection from the Hon. Mr. O'Connor. I can conceive of almost no case where the enlargement of the Constitution would not be sufficiently clear and definite in its outline to enable anything to be done which might be required in the future. I will take a case as illustrating the general trend of the amendment. Supposing such a case occurs as occurred recently in the United States, and that an Income Tax Bill is passed by the Federal Parliament. It is discovered-though I do not think it could be under our Constitution, I am merely discussing it as an illustration-that the Federal Parliament has exceeded its powers. The High Court or some other competent court rules to that effect. The conviction of the Federal Parliament is that the people intended that they should have this power, and that it is owing to an oversight or to a technical defect in the law that they have not the power. Now, two courses may be taken. They may rely on clause 121. In that case the Bill which has been passed by the Federal Parliament, and declared ultra vires by the High Court, would be laid aside, and a measure would be introduced for the amendment

of the Constitution. That measure would have to be passed by both Houses, and a vote of the people taken upon it. If the vote was given in the affirmative, a new Bill would have to be brought in providing for the income tax. The first law would be absolutely set aside, and a very considerable delay would take place, although the popular will had all along been in its favour, and the popular belief was that the making of such a law was within the powers of the Federal Parliament. My clause would shorten matters very much. As soon as the court declared the Bill to be ultra vires the Federal Parliament could [start page 1732] refer the matter to the popular vote. If the vote was given in the affirmative, then that law would have been from its first passage intra vires. The enlargement of the Constitution enabling the Federal Parliament to pass an Income Tax Bill would be dated back to the time when the Bill was first passed, and it would have been all along the law of the land. The financial arrangements of the whole Commonwealth, which might have been made on the faith of that Income Tax Bill being intra vires, would not be upset, as they would be if a new Bill had to be introduced. I am afraid that there is only too much force, however, in the suggestion of the honorable and learned member that my proposed new clause-I did not see it before-is in conflict with clause 121. I will therefore forestall any declaration to that effect upon the part of the Chair by asking leave to withdraw my amendment. I hope, a little later on, after consultation perhaps with the honorable and learned member, to bring forward a proposal which will not be antagonistic in its terms to clause 121, and which will tend to make the amendment of the Constitution in accordance with the popular will as speedy a process as possible.

Sir EDWARD BRADDON.-Does the honorable member think that if an appeal were made to the people to upset the judgment of the Supreme Court, the case could be so clearly put before the electors that they would be able to give an intelligent verdict upon it?

Mr. HOLDER.-I should not dream for an instant of asking the people to consider, much less to either confirm or reverse, any decision of any competent court, because I do not think that they would be competent to pronounce an opinion in regard to such a matter. But I would allow the people to say-"The Supreme Court is right, and to cure the defect in the Constitution which has been sprung upon us we want to see it enlarged, so that another similar decision will be impossible." I do not propose to ask the people to adjudicate upon the decisions of the Supreme Court, but I wish to give them power to enlarge the Constitution in accordance with the decision of the Supreme Court.

Mr. Holder's proposed new clause 121A, was, by leave, withdrawn.

Preamble:-Whereas the people of [here name the colonies which have, adopted the Constitution] have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established: And whereas it is expedient to make provision for the admission into the Commonwealth of other Australasian Colonies and possessions of Her Majesty: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by the authority of the same, as follows:-

Mr. GLYNN (South Australia).-I beg to move-

That the following words be inserted after the word "Constitution" (line 2):-"humbly relying upon the blessing of Almighty God."

I wish to move the insertion of this form of words in the preamble, because I think that it embodies the spirit of the nine suggestions in regard to this matter made by the various Houses of Parliament which have considered the Draft Constitution. The words I wish to insert are simple and unsectarian. They are expressive of our ultimate hope of the final end of all our aspirations, of the great elemental truth upon which all our creeds are based, and towards which the lines of our faiths converge. They will, I think, recommend the Constitution to thousands to whom the rest of its provisions may for ever be a sealed book. If our whole ceremonial life is not touched with insincerity and its symbols are not empty and vain, if there be a reality greater than we can grasp at the back of all our aspirations; a

mind as eternal as time, and infinite as space, to which the phenomena of the world and our lives are but a passing phase; if the invocation of the Divine blessing and sanction upon the many occasions of our [start page 1733] daily life is not a mere empty formality we cannot, at the moment of entering into a union so full as this of the possibilities of good and evil, of contentment or regret-of, in the words of Jeremy Taylor, felicity or lasting sorrow-refuse to give expression to the central fact of all our faiths. In an affirmation of pure reverence and submission such as this, the adherents of all creeds, sinking their differences of form and method, can join, and will find the spirit of toleration in them growing strong under a sense of their common aim. It will thus become the pledge of religious toleration. We may be met again by mere considerations of propriety. We may be told that everything has its appropriate time and place, and that words of faith should not be embedded in the preamble of an Act of Parliament. But I would point out that this objection proves too much, and, if pushed to the full limit of its application, would deprive half the offices and courtesies of life of their highest significance. The stamp of religion is fixed upon the front of our institutions, its letter is impressed upon the book of our lives, and that its spirit, weakened though it may be by the opposing forces of the world, still lifts the pulse of the social organism. It is this, not the iron hand of the law, that is the bond of society; it is this that gives unity and tone to the texture of the whole; it is this, that by subduing the domineering impulses and the reckless passions of the heart, turns discord to harmony, and evolves the law of moral progress out of the clashing purposes of life. In these days of too-often dying ideals, when thoughts that once would burn are chilled by the besetting touch of commonplace; when utility seems the measure of virtue, and the greater passions pale under the searching rays of reason; when affection, love, duty, the divine but reckless instincts of patriotism, have been expressed in the language of metaphysics, or become the subjects of mental pathology; when the ardour that fires our noblest aims is damped by a calculating cynicism, and the glow of poetry goes out before the glare of materialism; it is well that we should set in our Constitution something that may at times remind us of ideals beyond the counter, and of hopes that lift us higher than the vulgar realities of the day. I speak not as one whose mind is braced beyond the measure of his neighhours by an adamantine faith, or any of those consolations that come from the larger hope. Say what we will, there are moments, short though they may be, when the puzzle of life and destiny staggers the sense, when the shadow is cast and obscures the vision, and the best of us feel our weakness and loosening grip of the unseen. Then it is that the symbols of faith and reverence attest their power and efficacy, and brace the reeling spirit with a recovered sense of the breadth and continuity of man's consciousness of an inscrutable Power ruling our lives. This is the basic principle, the central theme, of all our creeds and dogmas-the great elemental truth, in which all their differences disappear. Let us, then, in no spirit of Pharisaism-for we speak as much for others as for ourselves-fix in the Constitution, this mark of the Omnipotent, this stamp of the Eternal, this testimony of feeling, or it may be but of desire, in which faith may find a recommendation, and doubt discover no offence.

The CHAIRMAN.-I would call the attention of the members of the committee to the fact that a number of amendments have been suggested by various Houses of Legislature which are in effect of a similar nature to the proposal of the honorable member (Mr. Glynn). I would, therefore, suggest that any honorable member wishing to bring the amendment into conformity with the language of any of these parliamentary suggestions should move an amendment upon it inserting the words suggested by the Houses of any of the colonies. All these suggestions are [start page 1734] practically of the same effect, though expressed in different words.

Mr. HIGGINS (Victoria).-In Adelaide I voted against the insertion in the preamble of a form of words proposed by the honorable member (Mr. Glynn), and it is with regret that I shall have to repeat that vote-at the present time, because the Constitution contains no provision to obviate the had effect which the insertion of these words will have. I am glad that I am so far justified in my opposition to the proposal made by the honorable member in Adelaide by the fact that no Assembly and no person has suggested the insertion of the words which were then proposed to be inserted by the honorable member. Those words were utterly inappropriate. I freely admit that the words which he now proposes to insert are not quite so objectionable, though I still think that the amendment could be improved upon. I say frankly that I should have no objection to the insertion of words of this kind in the preamble, if I felt that in the Constitution we had a sufficient safeguard against the passing of

religious laws by the Commonwealth. I shall, I hope, afterwards have an opportunity, upon the reconsideration of the measure, to bring before the Convention a clause modified to meet some criticisms which have been made on the point, and if I succeed in getting that clause passed it will provide this safeguard. I shall have an opportunity then of explaining how exceedingly important it is to have some such safeguard. There is no time for me now to go into an elaborate history of this question so far as the United States of America are concerned. I have investigated it with a great deal of care, and I can give the result of my investigations to honorable members, who, I hope, will not believe that I would misled them if I could help doing so with regard to the effect of what has taken place there. Because they had no words in the preamble of the Constitution of the United States to the effect of those which the honorable member (Mr. Glynn) wishes to insert, Congress was unable to pass certain legislation in the direction of enforcing religion. There was a struggle for about thirty years to have some words of religious import inserted in the preamble. That struggle failed; but in 1892 it was decided by, the Supreme Court that the people of the United States were a Christian people.

Mr. BARTON.-That decision was followed practically by the decision that they were a Christian people.

Mr. HIGGINS.-Yes. That decision was given in March or February, and four months afterwards it was enacted by Congress that the Chicago Exhibition should be closed upon Sundays, simply upon the ground that Sunday was a Christian day. The argument was that among a Christian nation you should enforce Christian observances.

Mr. BARTON.-Could they not have closed the exhibition on Sundays without that enactment?

Mr. HIGGINS.-I think the honorable and learned member will hear me out in this, that there is nothing in the Constitution of the United States of America, even indirectly, suggesting a law of this sort. No doubt, the state of Illinois could have passed such a law, because it has all its rights reserved. But there was nothing in the Constitution enabling the Congress to pass. a law for the closing of the exhibition Sunday. As soon as ever those parties who had been working for the purpose of getting Sunday legalized throughout the United States found that decision given in February, 1892, that "this is a Christian nation," they followed it up quickly, and within four months there was a law passed for the closing of the exhibition on Sunday.

Mr. WISE.-Was that held to be constitutional?

Mr. BARTON.-It has not been challenged yet.

[start page 1735] Mr. HIGGINS.-It has been in force for five and a half or six years, and it was struggled against, as my honorable friend will know. There was a strong monetary interest against it, and they, no doubt, took advice, but I will say frankly that I am not aware that it has been held to be constitutional. I understand though that there has been no dispute among the legal men in that country as to its being constitutional. Honorable members will hardly realize how far the inferential powers have been extended in America. I should have thought it obvious, and I think Mr. Wise will agree with me, that the Congress had no power to pass a law of that sort.

Mr. WISE.-I admit that your statement puts a very different complexion on the matter.

Mr. HIGGINS.-I hope it does, because it will become a very important matter. I should have thought that it was not within the scope of Congress to pass a law, no matter how righteous, to close the exhibition on Sunday, but I find, on looking to a number of decisions in the United States, that it has been held again and again that, because of certain expressions, words, and phrases used in the Constitution, inferential powers are conferred upon the Congress that go beyond any dreams we have at present. I know that a great many people have been got to sign petitions in favour of inserting such

religious words in the preamble of this Bill by men who know the course of the struggle in the United States, but who have not told the people what the course of that struggle is, and what the motive for these words is. I think the people of Australia ought to have been told frankly when they were asked to sign these petitions what the history in the United States has been on the subject, and the motive with which these words have been proposed. I think the people in Australia are as reverential as any people on the face of this earth, so I will make no opposition to the insertion of seemly and suitable words, provided that it is made perfectly clear in the substantive part of the Constitution that we are not conferring on the Commonwealth a power to pass religious laws. I want to leave that as a reserved power to the state, as it is now. Let the states have the power. I will not interfere with the individual states in the power they have, but I want to make it clear that in inserting these religious words in the preamble of the Bill we are not by inference giving a power to impose on the Federation of Australia any religious laws. I hope that I shall be excused for having spoken on this matter. I felt that it was only fair that honorable members should know that there is a damer in these words, if we are to look to the precedent of the United States. I will help honorable members in putting in any suitable words provided that we have sufficient safeguards.

Mr. LYNE.-Will you explain, before you sit down, where the particular danger is?

Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealth powers which ought to be left to the states. The point is that we are not going to make the Commonwealth a kind of social and religious power over us. We are going into a Federation for certain specific subjects. Each state at present has the power to impose religious laws. I want to leave that power with the state; I will not disturb that power; but I object to give to the Federation of Australia a tyrannous and over-riding power over the whole of the people of Australia as to what day they shall observe for religious reasons, and what day they shall not observe for that purpose. The state of Victoria will be able to pass any Sunday law it likes under my scheme. It can pass any law of that sort now; but surely it is a proper thing for a state, and it is not a proper thing for the Commonwealth, to exercise this power. I feel that honorable members who value state rights reserved [start page 1736] to the states, who value the preservation of the individuality of the states for state purposes, will agree with me that it is with the state we ought to leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory laws are left to the state. Those laws provide for a certain number of hours of rest, and that employes shall not work on Sundays, and so forth. If we leave the factor laws to the state we should also leave this question of the observance of Sunday to the state. I will not take it from them. At the same time, I am not going, no matter what the consequences are, to help to intrust this power to the Commonwealth. I want the people of the different states to manage their own affairs as well as they can. I may say frankly that I, rightly or wrongly, am one of those who think that the Christian or religious observance is no good if it is enforced by law. I am one of those who think the religious observance is of no value unless it is the outcome of a man's own character, and the outcome of a man's own belief.

Mr. SYMON.-You do not want to keep it always stuck up in the form of a sentence in your bathroom.

Mr. HIGGINS.-My learned friend, I believe, is staying at the Melbourne Club, and I am glad that they have taken the opportunity to inculcate sound doctrine upon him.

Mr. WALKER.-Is not there an acknowledgment of the Almighty in the schedule of the Bill? Is not this perfectly consistent with the schedule

Mr. HIGGINS.-No; I think the honorable member will see that a recital in the preamble to the Constitution is a very different thing from an oath which may be taken in a court of justice or anywhere else.

Mr. DOUGLAS.-You will find that you can make an affirmation without referring to Almighty God. Any person can make an affirmation who has no belief in Almighty God.

The CHAIRMAN.-I do not think the honorable member is in order in making a speech.

Mr. HIGGINS.-I thank the honorable member for being disorderly under the circumstances. I think there is a good deal of force in what he says, but I also see this, that the taking of an oath in a court of justice or on taking office is quite a different thing from having in a well thought-out preamble to a Constitution any reference to religious belief.

Mr. WALKER.-It is prescribed in the schedule.

Mr. HIGGINS.-That may be, but a schedule is quite a different thing from a preamble.

Dr. QUICK (Victoria).-I have no doubt that the Convention ought to thank the honorable member (Mr. Higgins) for the warning he has thought fit to give; at the same time, I, for one, see no cause for fearing that any of the dangers he has suggested will arise from inserting these words in the Bill. He has said that under the American Constitution, in which no such words as these appear, certain legislation has been carried by Congress forbidding the opening of the Chicago Exhibition on a Sunday. If under a Constitution in which no such words as these appear such legislation has been carried, what further danger will arise from inserting the words in our Constitution? I do not see, speaking in ordinary language, how the insertion of such words could possibly lead to the interpretation that this is necessarily a Christian country and not otherwise, because the words "relying upon the blessing of Almighty God" could be subscribed to not only by Roman Catholics and Protestants, but also by Jews, Gentiles, and even by Mahomedans. The words are most universal, and are not necessarily applicable only to Christians. I see no reason whatever for fearing that any danger will arise from placing the words in the preamble. This is a Constitution in which certain powers are conferred on the Parliament of the [start page 1737] Commonwealth. I do not know that the placing of these words in the preamble will necessarily confer on that Parliament any power to legislate in religious matters. It will only have power to legislate within the limits of the delegated authority, and the mere recital in respect to the Deity in the preamble will not necessarily confer on the Federal Parliament power to legislate on any religious matter. Whatever may have been the legislation of Congress as to the Chicago Exhibition, there may be reasonable grounds for doubting as to whether it may not be ultra vires. Mr. Higgins has vaguely alluded to certain words and expressions in the Constitution of the United States. I do not know what those words are which could have justified such legislation, but in reference to this Bill I challenge any one to point out any clause which would justify the Federal Parliament in legislating on any religious matter. If there is such a clause in the Bill, then by all means strike it out or modify it, but, until Mr. Higgins can point to a clause in the Bill which will authorize the Federal Parliament to legislate on religious matters one way or the other, his apprehension as to dangers is altogether without foundation, and it should not in any way influence this committee in deciding on the question whether we should put in the preamble words simply recognising the existence of Almighty God and that reverential feeling to which the Deity is entitled. I hope that after due consideration, and in face of the strong recommendations of all the Parliaments of Australia, and the numerous and influential petitions which have been presented to the Convention by the inhabitants of Australia, honorable members will give more respect to the Parliaments and the people of Australia than to the warning held out by Mr. Higgins.

Mr. BARTON (New South Wales).-Before the amendment is put, I should like to say a few words in explanation of the position I hold. I am quite aware that since it was debated in Adelaide there has been considerable argument and a certain degree of warmth about this matter. Just as I thought that the mover of the amendment in Adelaide, which amendment was defeated, might well not press it to a division, so I had hoped that we should have had no amendment of this kind moved here. If such an amendment is to be made, I will say, at the outset, that the form of this one is the least objectionable which could be devised, for my friend (Mr. Glynn) consulted the Drafting Committee about the form of the amendment, and, so far as they in that capacity could offer any opinion, they thought it was as good a form as could be put in. But, with regard to the substance of the matter, I have all along thought that it is, to a certain extent, a danger to insert words of this kind in the preamble. Mr. Higgins

has clearly put before us the difficulty which arose in the United States-a difficulty which arose out of a decision without any such words in the Constitution, which led to a decision and an enactment, and which it is probable we do not want to see arising under our Constitution. My honorable friend (Dr. Quick) has argued that if, in the absence of any such words in the Constitution of the United States such things could happen as have happened under that Constitution, our case will be no worse if we put words of this kind into the preamble of the Constitution of the Commonwealth. I am rather of the contrary opinion to that of my honorable and learned friend. I think that if there is a danger of a body of religious laws being passed or of decisions being given by a court, without words of religion in the forefront of the Constitution, in its very preamble, that danger, by every consideration of experience and common sense, would be increased by putting in an express amendment which might be construed as a peg on which to hang such further decision or such further enactment. The court, I know, in the case that was [start page 1738] in question, went outside the Constitution for its material. It referred to the Declaration of Independence, which was the precursor of the Constitution that had been entirely swept away by the Constitution of the United States. It referred to the grants to the planters and to those who had taken up the plantations in America, as well as to the charters and enactments under which they were governed. The court referred to all those things, and to every piece of paper on which it could lay its hands, for the purpose of deciding that the United States was a religious nation, and inasmuch as these expressions, which were dug up by the court in grants, were used as much under a Catholic as under a Protestant regime, but under no other regime, they then decided that the United States were not only a religious nation, but also a Christian nation. Now, I think that those matters are better left in the hands of the states. The states have certain plenary powers, which we do not wish to cut down, except so far as may be necessary for the purpose of federal government. The states have power to impose Sunday observance laws. Each state-and it is only of states that the Commonwealth will be composed-has power to regulate these things within its own territory, and the territories of the states together make up the sum of the territory of the Commonwealth. So that there is power in existence to deal with these matters without duplicating that power. The danger is, if we are to pay any attention to the decisions in the United States, that the thing that was done in the United States is more likely to be done here if we duplicate that power, because the result will be a conflicting body of laws dealing with religious matters and the observance of the Sabbath. Now, I do not look on that prospect with any degree of pleasure; I do not think that that will be a state of things which will be desirable under our Constitution. I have no desire to add anything further, except that I do not wish to be understood as withdrawing from the opinion I expressed at Adelaide, but the views I expressed there, in opposition to a similar amendment, may have perhaps received some confirmation from the facts as to the United States enactments and decisions which Mr. Higgins has brought forward in the course of this debate, and which were. mentioned partly by me some days ago, when speaking on another clause. I do not think there ought to be the slightest acrimony of any kind in a debate on this subject. It is really a pity that we have to vote on such a subject, but I feel quite sure that it will be debated in a spirit entirely reverential on both sides. For myself, I hope I have not introduced a word which would enable any one to say that I have dealt with this matter in any factious or party spirit, and any idea of faction or party must be eliminated from these proceedings. If a division is called for-and I must say that I do not like divisions on these questions-I shall, as a matter of consistency, vote as I did before, if Mr. Glynn persists in his amendment. At the same time, I must admit that I shall recognise the good intentions and high motives by which those who seek to introduce a declaration of this kind into the Constitution are actuated.

Mr. LYNE (New South Wales).-Having moved, in the New South Wales Parliament, a motion somewhat similar to the one now moved by Mr. Glynn, I took considerable interest in, and paid great attention to, the remarks which were made by Mr. Higgins, and I may say that I would not hesitate for a moment, if I thought there was any menace to the powers of the states in adopting this proposal, to vote in opposition to the way I voted previously on the subject. But I cannot see that there is any menace to the states at all, or that any power will be taken from the states by inserting this amendment in the preamble of the Constitution. As one honorable member-I think it was Dr. Quick-said, certain actions have been taken by the states in [start page 1739] Congress where there is no mention of the Supreme Being in the preamble or in the Constitution at all; and, if we leave this amendment out of

the preamble, that power will be much the same as it is in the states. Now, all we do by this amendment is to define something more definite than has evidently been defined in the Constitution of the states. Remembering that the Federal Parliament will represent the various states to a very great extent, I think that anything that might be feared in the way Mr. Higgins suggested could be put on one side at once. Moreover, I recognise this fact-that the insertion of this amendment will assist very materially in the acceptance of the Constitution. It may be, and probably is, a matter of sentiment-I suppose none of us pretend to be actuated on a question of this kind other than by sentiment-but I feel convinced that the insertion of this amendment in the preamble will influence a large number of votes in favour of this Federation Bill. Not having heard anything to shake my belief that that will be so, I shall adhere to the vote that I gave on a previous occasion.

Mr. DOUGLAS (Tasmania).-When this subject was broached in Adelaide, I took the opportunity of stating that I could not see the utility of inserting these words in the preamble of the Commonwealth Bill, and my opinion has not in anyway altered up to the present time. I should like to know what is the object honorable members have in view in desiring the insertion of these words? Do these words convey to the public mind any particular idea that their insertion in the preamble of this Bill would make us a religious people? The words in question are "humbly relying on the blessing of Almighty God." Now, do not we all rely upon the blessing of Almighty God in our daily transactions? Certainly. But do we set forth that fact in all our letters and documents by which we communicate with one another? Certainly not. No doubt the supporters of this amendment desire to make the public believe or fancy that they will become a religious people if such words as these are put into the preamble of this Bill. Do we do this at the present time in our ordinary legislation? Do not we all know that it is a mockery that the House of Commons at the present time commences its sittings, day by day, by having prayers read in that assembly? The Speaker of the House of Commons reads the Lord's Prayer before proceedings are commenced, but it has crown into such a farce that nobody attends the House until the prayer is over. Do we want to introduce that system here?

Mr. PEACOCK.-It is done here.

Mr. DOUGLAS.-I believe that there are still some legislative assemblies in Australia where they commence the day's proceedings by reading the Lord's Prayer. It was originally done in Tasmania, but it was soon found out to be a perfect piece of mockery, and abandoned.

Mr. ISAACS.-Do not you have any reference to the Supreme Being in the Governor's speech in Tasmania?

Mr. DOUGLAS.-We used to have the Lord's Prayer read in the Legislative Council, but it became a matter of such indifference that the custom was given up. I do not know whether you have it in your Parliament in Victoria.

Mr. PEACOCK.-Yes; in our Legislative Council the President reads the Lord's Prayer.

Mr. DEAKIN.-And nearly all the members know it now.

Mr. DOUGLAS.-When any honorable member became a candidate for the position of a representative of his colony in this Convention, did he go down on his knees and pray Almighty God to confer a blessing on him in order that he might secure a position here? Of course, we all have these good feelings in our minds when legislating here, as is shown when we come to anything which suggests brotherly feeling or action, and, therefore, why insert these words in the preamble to the Bill?

[start page 1740] What is the object of inserting these words? Is it to make the people believe that they will be more religious if the words are inserted? Shall we be more religious if we put them in? Will it have any effect whatever upon us? Why, it is all nonsense-a sham and a delusion-like many other things that have taken place here! I presume that I am ordinarily as religious as any member of this Convention,

but I do not make a parade of it. I take my Sunday walks, but I do not do as the Quaker did, who said to his assistant-"John, if you have sanded the sugar and wetted the currants, you can now come in to prayers."

Mr. WALKER.-It was not a Quaker who said that.

Mr. DOUGLAS.-Well, it was somebody like the honorable member, then.

The CHAIRMAN.-Order.

Mr. DOUGLAS.-The honorable member presents a large petition, praying for the insertion of this amendment, and thinks he has done a great deal of good to the community by so doing. Now, does that do any good at all? Do we pay any attention to it? Dr. Quick says we all have some religious views, and even Hindoos and Mahomedans-although I presume there are very few Mahomedans here-even religious Hindoos and religious Mahomedans would not apply the words of this amendment in the same sense as we apply them, nor are they applied in the same sense by Christians of one character and Christians of another. And we know that there are at least about 120 different descriptions of Christians, and, it may be, many more. The insertion of these words would be a mockery, and that is the reason I voted against their insertion before. I want to be sincere, and I do not want to make the people believe by going into the street and saying-"I am a religious man," that, therefore, I am a religious man.

Mr. PEACOCK.-They would not believe you if you did.

Mr. DOUGLAS.-A man's actions and not his words denote what he is, and hypocrites in religious circles do more harm to religion than is done by persons outside religious circles. I oppose this amendment because I believe it will minister to, hypocrisy to put these words in the Bill. I sincerely and truthfully believe in the Almighty Power, but I do not wish to introduce any reference to that Power in the preamble to this Bill. You do not introduce it in your ordinary Acts of Parliament, and, therefore, why should you want to introduce it now? You know what happens in the House of Commons in England, as I have told you, and surely you do not want the same farce to be enacted here. I agree with our leader that we had better leave these things alone. I hope with him that a division will not be taken on this subject. Let every member of the Convention give his voice on the question; but let it end there. I do not think it is a matter in which, in a community like ours, a body like this Convention, which has been brought here for a particular purpose, should interfere. We should be travelling out of the range of the purpose for which we were sent here by inserting such words in the preamble to this Bill. If the question goes to a division, I shall vote against the amendment.

Sir JOHN DOWNER (South Australia).-I desire to say just a few words, because I think there is a more serious question involved than the mere insertion of the words of this amendment. I am sure that we all listened with great pleasure to the speech of Mr. Higgins on the subject. He reminded us of the decision in America that the Christian religion is a portion of the American Constitution, and of the enactments that were passed in consequence. I do not know whether it has occurred to honorable members that the Christian religion is a portion of the English Constitution without any decision on the subject at all. It is part of the law of England which I should think we undoubtedly brought with us [start page 1741] when we settled in these colonies. Therefore, I think we begin at the stage at which the Americans were doubtful, without the insertion of the words at all, and I would suggest to Mr. Higgins to seriously consider whether it will not be necessary to insert words distinctly limiting the Commonwealth's powers.

Mr. HIGGINS.-There are words printed in an amendment to that effect.

Sir JOHN DOWNER.-I feel more strongly than ever that that ought to be done, because I can very well understand the way in which the very persons who are presenting petitions and asking for

this recognition would resent the consequences if they found that the religious control was taken away from the state and put into the Commonwealth. For my own part, I think it is of little moment whether the words are inserted or not. The piety in us must be in our hearts rather than on our lips. Whether the words are inserted or not, I think they will have no meaning, and will have no effect in extending the power of the Commonwealth; because the Commonwealth will be from its first stage a Christian Commonwealth, and, unless its powers are expressly limited, may I legislate on religious questions in a way that we now little dream of.

Mr. REID (New South Wales).-I desire simply to say that I strongly support the position of Mr. Glynn.

The amendment was agreed to.

The preamble, as amended, was agreed to.

The title of the Bill was agreed to.

The CHAIRMAN.-The question now is that I report the Bill, with amendments.

Mr. BARTON (New South Wales).-Before the Bill is reported, with amendments, I would like to mention one matter, and to obtain an expression of the opinion of the committee upon it. There is a little difficulty which has arisen because of the order to print the Bill showing the amendments. That involves very careful and undivided attention on the part of the Clerk of the Convention (Mr. Blackmore), and the difficulty that arises is this: Unless he has some time during which the Convention is not sitting to facilitate the printing of the Bill, as ordered to be printed yesterday, with the amendments in the form in which honorable members would like to see them before the Convention entertains the question of the reconsideration of clauses, the Bill in that form will not be ready till Friday morning. Honorable members can easily understand that with night sittings, and sittings up to five o'clock in the afternoon, the time of the officers of the Convention has been closely occupied. They have to do more work than perhaps many of us know of after the hours of the sittings of the Convention. A print of the Bill can be obtained by half-past ten o'clock to-morrow morning, if the Convention does not sit this afternoon, and honorable members will then have the Bill in a form showing the amendments that have been made both by the Convention and in drafting. They would thus, of course, be able to deal with the question of the reconsideration of clauses much more conveniently, as they would have the Bill as it left the Convention in Sydney, and the Bill as it stands now, on the right and left hand pages respectively. Mr. Blackmore says that if the Convention doer, not sit this afternoon he will be able, by keeping the printers at work all night, to have the Bill in that shape by half-past ten o'clock to-morrow morning. I would put it to the committee whether that would not be the more desirable course to take. I am very sorry to have to make this suggestion, especially because of my honorable friend (Sir John Forrest); but I put it to the Convention whether it would not be more desirable to have the Bill to-morrow morning at half-past ten, by not sitting further to-day, than not to be able to have it till Friday. If we sit this afternoon Mr. Blackmore cannot attend to the [start page 1742] preparation of the Bill in the way I have mentioned. I would ask the committee to indicate whether it is desired we should adjourn now, or whether they wish to go on to-day and to-morrow reconsidering clauses without their being in proper form in our hands.

Sir JOHN FORREST.-Have we not the print of the Bill as far as it was agreed to in Sydney?

Mr. BARTON.-We have had that all the time before us; but since the Bill was dealt with in Sydney a number of clauses have been amended. While we have been sitting here, a large number of amendments have been made. Some clauses have gone out entirely; others have been altered very much in their scope; and in dealing with the question as to whether a clause as it now stands in the Bill should be reconsidered, it obviously would be more convenient to see before us the clause as it actually now stands, otherwise some confusion may arise.

Sir JOHN FORREST.-Could we not deal with the dead-lock clause? The deadlock clause has not been altered.

Mr. BARTON.-I am reminded, as an illustration of what I mean, that there was an amendment to be proposed by Sir John Forrest in clause 48, that after the words "this section shall not apply" there should be added the words "to the office of any Minister of the Crown in any state." I understand that the position now is that since we sat in Sydney that matter has been decided in such a way that the amendment is unnecessary and could not be put. As a matter of fact, I believe it has been put in as a drafting amendment. I regret exceedingly that there should be any occasion whatever for our delaying our work even for two or three hours; but when the question is one of choosing between a course which will facilitate the proceedings and a course which will rather tend to confuse honorable members I must say that my own opinion, at any rate, is in favour of not sitting this afternoon, in order that we may have the print of the Bill as quickly as possible.

Mr. HOLDER (South Australia).-I hesitate to express any lack of concurrence with the views of our leader; but as it appears that the chief, and indeed the only, reason why we are unable to go on is that the services of the Clerk are required elsewhere, I would ask would it not be possible for Mr. Blackmore to render those services elsewhere, and for the Assistant Clerk to perform the work at the table, so that we may be able to proceed with the discussion of some matters which might be dealt with this afternoon?

Mr. BARTON (New South Wales).-I have ascertained that Mr. Blackmore cannot get this Bill in print by to-morrow morning unless he has the assistance of the Assistant Clerk. It requires the undivided attention of both to achieve that result. In answer to the question of Sir John Forrest just now, as to whether we could not go on with the dead-lock clause, I may say that I myself would be delighted to be able to do so; but the difficulty presents itself that you cannot go on with the proceedings of the Convention without the officers at the table, and if we are to have a print of the Bill tomorrow morning, it is necessary that both clerks should be engaged on the Bill.

Sir JOHN FORREST (Western Australia).-It seems to me that the Convention is at the mercy of the officers. Supposing they were both ill for two or three days, should we have to adjourn? I really think some plan should be adopted so that the delegates-many of them from distant colonies-should be able to get on with their work. Surely it is possible to make an arrangement by which certain clauses might be discussed this afternoon.

Mr. BARTON.-I only wish we could.

Sir JOHN FORREST.-The delay does not matter to some honorable members perhaps, but it matters a great deal to us from Western Australia. I really think there ought to be some means by which we could discuss the dead-lock clause, for [start page 1743] example, to-day. I do not suppose we could come to a decision on it to-day-it is not likely we could do so-but, at any rate, we might discuss the question. I appeal to the honorable the leader to try and devise some plan by which this proposed adjournment may be avoided.

Mr. LYNE (New South Wales).-I have felt-and I dare say other members of the Convention have felt-that, not having kept an accurate record of the amendments as we have gone along, I scarcely know how the various clauses have been amended, and I think it would shorten very much the debate on some of those clauses if we could get a print of the Bill showing accurately what we have done. I spoke to the honorable the leader of the Convention about that matter the other day, and if we cannot get such a print until Friday morning, providing we sit this afternoon, I would certainly recommend that we adjourn over this afternoon, so as to get the print to-morrow morning. I think we will save time by doing that. There are many things in the Bill, perhaps, as it now stands, which may obviate the necessity for considering some of the matters that have been deferred. Under these circumstances, I think we ought to adjourn over this afternoon.

Mr. KINGSTON (South Australia).-Sir Richard Baker, I have such knowledge of your capacity as Chairman, that I am prompted to ask if you think the temporary absence of the clerks from the table would prevent the satisfactory transaction of the business of the committee?

The CHAIRMAN.-In answer to the question of the right honorable member (Mr. Kingston), I would say that if the Government of Victoria has some gentleman to place at the disposal of the Convention who can write a fair hand, I think we can go on without the clerks for to-day.

Mr. ISAACS (Victoria).-I can only say, on behalf of the Government of Victoria, Mr. Chairman, that we shall only be too happy to help you in any way if it is considered desirable for the Convention to sit this afternoon.

The CHAIRMAN.-I would now suggest that, inasmuch as this is an arrangement which throws a good deal of burden upon me, some matters of minor importance might be considered this afternoon before I finally report the Bill. There are four such minor matters. First of all, there is the name of the Commonwealth, in connexion with which an amendment has been submitted by Mr. Symon. Secondly, there is the question of citizenship, in regard to which notice of several amendments has been given. Thirdly, there is the question of the power of the Commonwealth to legislate concerning religious questions; and, fourthly, there is the amendment proposed by the Right Hon. Sir George Turner in reference to the federal capital. If we could dispose of those four matters, at any rate, this afternoon, we should have made some advance. I will now put it that the following clauses be reconsidered-

Mr. SYMON (South Australia).-Mr. Chairman, will you allow me to suggest that it would be rather inadvisable to put the whole of the clauses that are suggested for reconsideration together. The four subjects you have mentioned may involve a very great deal of, debate. At least, some of them may; and if we are to have this clean reprint to-morrow or on Friday morning-

The CHAIRMAN.-We shall have it to-morrow.

Mr. SYMON.-We shall either be in the middle of a debate upon one of the matters recommitted, and have to continue that debate, or be reduced to a state of confusion. I venture to suggest that one clause be taken at a time, and then, if we find that there is more than sufficient time to get through one point before we get the clean print of the Bill, we can take the next.

[start page 1744] The CHAIRMAN.-We cannot do that according to our standing orders. The amendment that can be proposed is on the question that I report the Bill to the full Convention, with amendments.

Mr. BARTON (New South Wales).-The question can be put separately as to each clause on the question that the clauses be recommitted. Upon the motion that you, sir, report the Bill to the House I will, if it meet with the view of the committee, move as an amendment that the clauses you have specified be recommitted.

Mr. SYMON (South Australia).-A great body of drafting amendments have been introduced into the Bill by the Drafting Committee. They are not all formal. We have come to the stage when we have to consider them.

The CHAIRMAN.-No, they are in the Bill.

Mr. SYMON.-But we are now going to reconsider the Bill.

The CHAIRMAN.-No; only two or three clauses in it at present.

Mr. SYMON.-I submit that each honorable member who wishes a clause to be reconsidered should be able to move that that clause be reconsidered, on the lines, you, sir, have suggested. For instance, I have a matter for reconsideration in clause 3. I think I should be able to move that that clause be reconsidered and when my amendment is disposed of then some other honorable member can move a similar motion with regard to the next clause for reconsideration. But I point out that if we move the reconsideration of a whole body of clauses at once, we shall get into a perfect muddle, because it is stated that we shall have a reprint of the Bill to-morrow morning, and we do not know at what stage of the discussion we shall be at that time. The whole thing will, therefore, get into a confused state. We have a multitude of amendments to reconsider, and unless we have some sort of regularity it will be a strain upon honorable members to keep their attention on the work we are engaged upon. Therefore I suggest that you should call upon some honorable member to move that a particular clause be reconsidered.

The CHAIRMAN.-There is no difficulty whatever. I think the honorable member does not exactly understand the position. It is this: On the motion that I report the Bill with amendments an amendment can be moved to reconsider certain clauses. Then, when that is done, I shall report the Bill to the Convention. Then this committee will have finished and done with the Bill altogether, and it will be for the Convention-the whole House-to say whether or not they will recommit the Bill or any portion of it. There is no difficulty about the procedure, nor will any confusion arise.

Mr. ISAACS (Victoria).-May I ask if what you have stated, sir, goes as far as this: That we can ask for any clauses already dealt with to be reconsidered?


Mr. ISAACS.-Then we could ask to take a clause for the purpose of reversing any decision already given?


Mr. ISAACS.-That is news to me. I did not know that that was so under the rules of the South Australian Parliament.

Mr. DOBSON.-Are you not going to reverse the decision as to bonuses?

Mr. ISAACS.-We are going to try, but I did not know that we could do it at this stage. I thought the only means of doing what we desire was when the Bill was reported to the Convention, when I thought that we should have to, ask the Convention to recommit the clause in question. I am therefore a little bit taken by surprise as to the procedure. I quite agree with my honorable friend (Mr. Symon) that it is impossible to know exactly where we are until we have not only a clean print of the Bill in our hands, but have also had some little opportunity of reading it. I have gone as carefully as I can through the amendments circulated by the Drafting Committee, and I [start page 1745] have had them incorporated in my own copy of the Bill.

Mr. SYMON.-You have been more industrious than most of us have been.

Mr. ISAACS.-But I am still somewhat unable to consider these amendments without reference to the whole Bill. I think we should be able to reconsider the clauses with reference to the Bill as a whole, and we shall have to get a clean print of the Bill, and have some little time to read it, before we can do that with confidence. I have no doubt that you, sir, will be able to pursue the same course in the future as you have pursued in the past, and not restrict us too much to bare technicalities, but that you will allow us to thrash out the questions that come before us in the way in which they should be thrashed out. I hope that nothing will be hurried. I feel that we are in this position: That we ought not, especially in view of the enormous distance that seems to separate some of us on some vital questions,

to do anything to close up the whole matter, and send the Bill to the people with the absolute certainty of its being rejected-in some quarters, at all events.

Sir WILLIAM ZEAL.-Rubbish!

Mr. FRASER.-That statement is not a very wise one to make.

Mr. ISAACS.-Well, I am going to be very frank indeed with this committee.

Sir WILLIAM ZEAL.-You wish to make political capital out of it.

The CHAIRMAN.-This debate is irregular. I have said that I will act without the clerks if certain small matters are gone on with, but if larger matters are to be gone into, I shall have to withdraw that offer.

Mr. ISAACS.-Perhaps I have been drawn into a discussion that is, to a certain extent, irrelevant. However, I wish to say that I can only treat in the way it deserves to be treated, and the way the rest of the community will treat it, such a remark as has just been made.

Sir WILLIAM ZEAL.-The public can judge you.

Mr. ISAACS.-I know that no weight is attached to such remarks.

Sir WILLIAM ZEAL.-Not to remarks of yours.

Mr. ISAACS.-But the time has come when we should not lay ourselves open to the charge by our fellow delegates of not expressing our mind fully and clearly, and we should devote ourselves to making the Bill such a measure as will commend itself to the sense of the people for their acceptance. We ought not to do anything which will be hurried, and which will make the Bill impracticable. Therefore, I hope that something will be done to give us a further opportunity of reviewing what has been done; and, as I said before, the Government of Victoria will be most happy to assist the Chairman in providing any necessary clerical assistance.

Mr. REID (New South Wales).-I think that if we adopt the suggestion which you have made, Mr. Chairman, it will be a very wise expenditure of the rest of the day; but I suppose it is understood that our adoption of that solution will not in any way prejudice our rights in regard to moving any subsequent amendments in the same clauses of the Bill?

The CHAIRMAN.-After the Bill is reported, any clause can be recommitted.

Mr. REID.-To put the matter pointedly-because my case will be that of others-on clause 3 I intend to propose an amendment. The fact that we only discuss the one matter referred to in clause 3 now will not prejudice my right of moving a further amendment on the clause hereafter?

The CHAIRMAN.-Not in the slightest degree.

Mr. REID.-Then I think that every one's rights are fully preserved.

The CHAIRMAN.-The right honorable gentleman will see that the Convention, as a whole, committed this Bill to the committee of the whole House for consideration, and the full Convention is not [start page 1746] supposed to know what goes on in committee. The committee will report what they have done to the Convention, and it is for the Convention to recommit any clause they like.

Mr. HOLDER (South Australia).-I quite agree with my honorable and learned friend (Mr. Symon) that it will be a mistake to recommit four subjects at once, with a view of employing the time

of this Convention. These four subjects might occupy four days. Therefore, it will be far better, if we can do so, to reconsider simply one subject at a time.

Mr. BARTON.-If the discussion upon these subjects lasts over to-morrow, it will be all the better for honorable members who wish to read the Bill through.

Mr. HOLDER.-Would it not be better to reconsider one of these matters at a time, and then the Chairman could again Put the question that the Bill be reported, and another clause could be recommitted as an amendment upon that? Then the Chairman could again put the question that the Bill be reported, and a third » clause could be recommitted. Is not that possible?

The CHAIRMAN.-I am afraid that the procedure suggested by Mr. Holder is not possible unless we suspend the standing orders. I shall, if it be the wish of the Convention, put the question that clause 3 be recommitted forthwith, and if that be carried I will put the other clauses which have been mentioned. If we have not finished the discussion to-morrow, it is entirely in the hands of the committee as to what course they will adopt.

Mr. LYNE (New South Wales).-If the course suggested by the Chairman is adopted, perhaps the leader will say whether we shall be able to get a copy of the clean print of the Bill to-morrow, or if we shall have to wait until the following morning? My objection to this course of procedure was because it was stated that if we went on to-day we should not get a clean print of the Bill until Friday.

Mr. BARTON.-That was what I was informed at first.

Mr. LYNE.-I am anxious to get on as rapidly as possible; but I do not desire to delay the obtaining of a clean print of the Bill.

The CHAIRMAN.-I understand that the clean print will be here at half-past ten o'clock to-morrow morning. I only made the suggestion which I have made in order to let the committee decide some minor matters upon which the time to-day might be profitably expended.

Mr. BARTON (New South Wales).-I will ask honorable members to allow the question to be put now, so that we can get on to the first recommitted clause. It, is obvious, I think, from what has been stated, that the rights of honorable members to move further amendments in the clauses which will be recommitted will not be forfeited.

Clause 3 was recommitted for the purpose of considering the question of the name of the Commonwealth; clause 52 was recommitted for the purpose of considering the question of Commonwealth citizenship new clauses to replace clauses 109 and 110, omitted, were ordered to be considered; and clauses 118 and 120A were also recommitted.

The CHAIRMAN.-The clause now before the committee is clause 3, which has been, recommitted for the further consideration of the name.

Clause 3.-It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honorable Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of [here name the colonies which have adopted the Constitution] (hereinafter severally included in the expression "the said colonies") shall be united in a Federal Constitution under the name of "The Commonwealth of Australia"; and on and after that day the Commonwealth shall be established under that name.

Mr. SYMON (South Australia).-I beg to move-

That the words "The Commonwealth of" (line 10) be struck out.[start page 1747] That will leave the clause to provide simply that the colonies shall be united in a Federal Constitution, under the name

of "Australia." Now, my honorable friend (Dr. Cockburn), earlier in the present « session , moved in this direction in connexion with a later clause, but it was pointed out at that time that that clause did not deal specifically with the name, that the clause now under reconsideration dealt with that subject, and that the amendment he then proposed could be more properly dealt with under this clause. Now, honorable members will recollect that in Adelaide I moved in the same direction. On that occasion there was a very short debate, and not wishing to press the matter exhaustively then, but rather to leave it until after the Bill had been before the public and the Legislature, pursuant to the Enabling Act, I did not on that occasion press the matter to a division; but I wish to tell honorable members that I intend to press the question to a division on this occasion. I only desire to utter one or two sentences, because it seems to me the matter is so plain that any one who will consider it for a moment will agree with my view, and that it will be unnecessary for me to occupy a long time in commending it, as I do, to the acceptance of honorable members. I wish to clear away the misconception in the first place that I have any objection whatever to the word "Commonwealth," or to the use of the word "Commonwealth," in this Bill. I have no objection to that where it is confined to the expression of the political Union. In the preamble honorable members will find that what we desire to do is to unite in one indissoluble Federal Commonwealth-that is the political Union-"under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established." Honorable members will therefore see that the application of the word Commonwealth is to the political Union which is sought to be established. It is not intended there to have any relation whatever to the name of the country or nation which we are going to create under that Union. The second part of the preamble goes on to say that it is expedient to make provision for the admission of other colonies into the Commonwealth. That is, for admission into this political Union, which is not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do not propose to interfere with that in the slightest degree. The first clause says-”This Act maybe cited as the Commonwealth of Australia Constitution Act." I assent to all that. Then comes clause 3, which says it shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honorable Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of the colonies enumerated shall be united in a Federal Constitution under the name of-I say it ought to be "of Australia." Why do we want to put in "the Commonwealth of Australia"? We are there by our Constitution giving the name to our country, and, to the united people who are to be established as a nation under the Constitution. By what name, I would like to ask honorable members, will they call this Federal Union? It will be called by the name Australia, whether we like it or not.

Sir EDWARD BRADDON.-The Dominion of Canada is called Canada, and why object to this?

Mr. SYMON.-I cannot understand why honorable members should be afraid to put in the Constitution the name by which the country will be known. Sir Edward Braddon very properly reminds me that, in the case of the Dominion of Canada, Dominion is no part of the name, and it is known as Canada. Then, why not say it in the Constitution?

[start page 1748] Sir EDWARD BRADDON.-There is no occasion to put it in the Constitution.

Mr. SYMON.-Why not call it by the name by which it is to be known? We are embedding in this Constitution a name for this country which is not intended to be used. The name we intend to use is Australia, and that is the name we are entitled to use. If we are as patriotic as I believe we all are, we ought to provide that the country shall be called Australia. We do not want a double-barrelled name, and such a mouthful as the Commonwealth of Australia, or the Dominion of Australia. The political Union is the Commonwealth, the name of our country is Australia. That is the name we should emblazon on the very, forefront of this Constitution, and no other. What possible objection can there be to it? We know quite well that in the United States of America they did not, in their Constitution, call themselves the republic of the United States.

Mr. ISAACS.-If Queensland does not come into the Federation, will she not be a part of Australia?

Mr. SYMON.-If she does not come in she will not be part of the political Union of Australia. We can recall the fact that some years ago it was sought by the oldest colony of the group to appropriate to itself the name of Australia.

Mr. ISAACS.-As a geographical expression.

Mr. SYMON.-It might be a geographical expression, but, so far as we are concerned, we hope and believe-it is our aspiration-that the whole of the Australian colonies, from sea to sea, will be united under this Constitution. If any one of the states stands out she must continue to be known by her state name, as distinguished from Australia, which will represent the Federal Union.

Sir WILLIAM ZEAL.-She will still be in Australia.

Mr. SYMON.-She will be within the continent, but not within the Union.

Sir WILLIAM ZEAL.-You cannot legislate her out of existence.

Mr. SYMON.-Nobody is attempting to do that.

Sir WILLIAM ZEAL.-You are.

Mr. SYMON.-The honorable member misapprehends the position, and I invite him between now and to-morrow morning to consider it with more care. I was not dealing with the geographical position at all. We all admit that we are dealing with the political Union.

Mr. FRASER.-But if it is not a Union of Australia through Queensland not joining, how will the case stand?

Mr. SYMON.-We will call ourselves Australia, and we will not interfere with her calling herself Queensland.

Mr. FRASER.-Other parts of Australia might not join.

Mr. SYMON.-We will not be interfering with any other part of Australia-we hope that there will be no other part out. But we have to give the name which we believe to be the most appropriate to our country, and that name is Australia. That is the name we are giving it under the Bill, except that word calling it the Commonwealth. I am not objecting to "Commonwealth." Commonwealth is the name I prefer for the political Union, because it is not a republic. I prefer it to Dominion, or anything else, if we want to describe a political Union. When you are calling your country the Commonwealth of Australia you are using an absolutely senseless redundancy of expression, when the word "Australia" is all you want.

Mr. FRASER.-We have got accustomed to it.

Mr. SYMON.-Are we not more accustomed to the word "Australia"?

Mr. FRASER.-Not; in this way.

Mr. SYMON.-Do not we value the name of Australia a great deal more than Commonwealth? Surely we do.

Mr. FRASER.-There is nothing in it.

Mr. SYMON.-Mr. Fraser says there is nothing in this, but Mr. Douglas says [start page 1749] there is, and I agree with him that it is a mistake to put in the word "Commonwealth" in this place. You may use any expression to define the political Union; you may call it Dominion, Commonwealth, or anything else, but when you come to give the name to the nation which you wish to establish you do not want a double-barrelled name-you want Australia or United Australia.

An HONORABLE MEMBER.-That would be a double-barrelled name.

Mr. SYMON.-Not double-barrelled in that sense. It would get rid of the point that Mr. Isaacs has referred to. At any rate, I prefer the simple name, Australia. We are all proud of it, so let us put it in the Bill. It is the name everybody will wish to call the Commonwealth by when this Federal Union is accomplished. We do not speak of the Kingdom of England, and the United States of America was not called the Republic of the United States of America. Their Constitution describes it as the United States of America. It was essential to put in the words "of America," because America comprises a great many other countries besides the United States.

Mr. SOLOMON.-Suppose Western Australia stood out, what would happen?

Mr. SYMON.-The position would be that we should be the United States of Australia, and Western Australia would be as she is now.

Mr. SOLOMON.-That would be a very funny anomaly.

Mr. SYMON.-Where is the anomaly? Does not my honorable friend see that if Western Australia and Queensland stand out they will be outside of the Commonwealth of Australia?

Mr. SOLOMON.-Commonwealth is the principal portion of the term.

Mr. SYMON.-No, you might call it the three united colonies of Australia.

Mr. FRASER.-Supposing Western Australia and Queensland united, there would be two Commonwealths.

Mr. SYMON.-Then they would have to find another name. I do not believe for a moment that those colonies will stand out. But supposing that they do, and if we call ourselves Australia, that will be an additional reason to them to come into the original and more triumphant Union. It will be an inducement to them to join, because otherwise they will not only part with their inheritance in a great country, but their inheritance in its name.

Mr. LYNE.-Does the honorable member think it is worth fighting about?

Mr. SYMON.-I do. My honorable friend, like myself, is proud of Australia and of the name, and I want to see the name Australia, without any prefix or anything of that kind, inserted in the Constitution. I am just as proud of Australia as I am, in other respects, of England.

An HONORABLE MEMBER.-Scotland, you mean.

An HONORABLE MEMBER.-What about Ireland?

Mr. SYMON.-I include Scotland; and Ireland comes in for a share of my affection; but I do want the name “Australia." It is a beautiful name it is more beautiful in itself than the name "Commonwealth" in this connexion. Whilst I am agreeable to have the political designation retained-and I have no objection in the wide world to that-I want the name of the country to be established in the Bill, so that the nation shall be described by the name which we shall call it.

Dr. COCKBURN (South Australia).-This is a different question to the one which was raised before. When Mr. Symon proposed the motion in Adelaide he proposed to eliminate the "Commonwealth" altogether, which is a different proposal to what he is now making. I think the motion now moved is the correct one, and will recommend itself to a large majority of the Convention, just as the proposition formerly made by Mr. Symon to strike out "Commonwealth" was rejected by a large proportion of the Convention. It is not proposed in any way to alter the name by which the political [start page 1750] entity is to be known-it is to be still the Commonwealth of Australia; it is simply the question of the title of the country. It is only right that this this should be Australia, a simple name, so that if any state stands out of the Union, and any one says he is a citizen of Australia, it should not be necessary to ask him whether he comes from the Commonwealth or from a dissenting colony. The Commonwealth should be synonymous with Australia, and with that view I support the proposal.

Question-That the words "The Commonwealth of" proposed to be struck out stand part of the clause-put.

The committee divided-

Ayes ... ... ... 21

Noes ... ... ... 19

Majority against Mr. Symon's amendment ... ... 2


Berry, Sir G. Kingston, C.C.

Braddon, Sir E.N.C. Lyne, W.J.

Brunker, J. N. O'Connor, R.E.

Carruthers, J.H. Peacock, A.J.

Deakin, A. Quick, Dr. J.

Downer, Sir J.W. Reid, G.H.

Fraser, S. Solomon, V.L.

Fysh, Sir P.O. Walker, J.T.

Hackett, J.W. Zeal, Sir W.A.

Higgins, H.B. Teller.

Isaacs, I.A. Barton, E.


Briggs, H. Grant, C.H.

Brown, N.J. Hassell, A.Y.

Clarke, M.J. Henry, J.

Cockburn, Dr. J.A. Holder, F.W.

Crowder, F.T. Howe, J.H.

Dobson, H. Leake, G.

Douglas, A. Lee Steere, Sir J.G.

Forrest, Sir J. Moore, W.

Glynn, P.M. Teller.

Gordon, J.H. Symon, J.H.

Question so resolved in the affirmative.

The clause was agreed to.

[The Chairman left the chair at three minutes past one o'clock p.m. The committee resumed at five minutes past two o'clock p.m. The Clerk of the Legislative Assembly of Victoria (Mr. W.V. Robinson, C.M.G.) acted as Clerk of the Convention during the remainder of the sitting.]

Clause 52 (Powers of the Parliament).

Dr. QUICK (Victoria).-I beg to move-

That the following new sub-section be inserted after sub-section (21):-

XXIA. Commonwealth citizenship.

I propose to confer upon the Federal Parliament the power to deal with the question of Commonwealth citizenship. I have looked through the Bill very carefully, and I do not see the slightest allusion in it to a federal citizenship. We are creating a new political organization, entirely different from that of the states and from that of the even wider political organization-the empire. I do not think that this Constitution should touch the question of state citizenship, or in any way define the power of the states Parliaments in dealing with the qualifications of state citizenship, and of its incidence, its rights, and its liabilities. I have also given notice of a proposed clause defining Commonwealth citizenship, but I will not refer to it at the present time, although it might hereafter be inserted. It defines what constitutes Commonwealth citizenship, but it would not in any way dispense with the desirability or necessity of conferring on the Federal Parliament some power to deal with the question of state citizenship. This sub-section will stand entirely upon its own merits, and without reference to any cast-iron definition which may or may not be inserted in the Constitution. It will confer upon the Federal Parliament the power of defining the qualifications of Commonwealth citizenship, the mode of acquiring those qualifications, and also the mode of losing those qualifications. The Constitution would not be complete unless it had in it some such provision. It is quite true that in one of the earlier clauses of the Bill it is stated that, upon the passing of the Constitution, the people of the various colonies of Australasia joining in the Constitution are to be created a Federal Commonwealth under the Crown.

Mr. DOBSON.-Does not that create them citizens?

[start page 1751]

Dr. QUICK.-No, it does not in any way define citizenship. It refers to the people without in any way defining or stating the mode of ascertaining who are the people. If the word "people" in this earlier section is to be considered as giving the test of citizenship, then all the people within the jurisdiction of the Commonwealth of all races, black or white, or aliens, will be considered members of this new political community. What I want to see inserted in the Bill is a constitutional definition of citizenship.

Mr. HIGGINS.-Not in the Bill.

Dr. QUICK.-I want to see either a constitutional definition in the Bill or the power conferred on the Federal Parliament to define what constitutes citizenship. If that be done, then of course there will be two citizenships within this United Australia. There will be the citizenship of the state in which a person resides, the rights and duties of which will be determined by the laws of the state, and there will be the wider federal citizenship, the rights and duties and incidence of which will be defined by the Federal Parliament. In submitting this proposal, I am not without precedent, because I find that in most of the great Federal Constitutions of the world, there is provision in express terms in the instrument itself for the ascertainment and determination of a common citizenship. In the Constitution of the German Empire, Article 3, there is this provision:-

There shall be a common citizenship for all Germany.

What we want is a common citizenship for the whole of this Australian Commonwealth. Then Article 4, section 1, says-

Under the supervision and legislative control of the empire shall be the right of citizenship.

That corresponds with the section which I propose to add to clause 52. Article 43, section 1, of the Swiss Constitution contains this provision:-

Every citizen of a canton is a Swiss citizen.

That acknowledges a citizenship higher than the citizenship of the canton. It acknowledges in express terms a citizenship of the Federation.

Mr. SYMON.-Would not every citizen of a state be a citizen of the Commonwealth?

Dr. QUICK.-No; there is no such provision in the Constitution. In the Constitution of the United States which preceded the amendments, there is a distinct recognition of the United States citizenship, because, although it does not create a citizenship in express terms, still, in the clauses relating to the qualifications of the President, there is a proviso that no person shall be qualified to be elected as President unless he has been a citizen of the United States for a certain number of years. Then, in referring to the qualifications of senators, there is a proviso that no person shall be a senator, or shall be elected a senator, unless he is a citizen of the United States of a certain number of years standing. So, also, with reference to the office of member of the House of Representatives, it is provided that no person shall be a member of the House of Representatives unless he be a citizen of the United States of a certain number of years standing. There is no express provision that there shall be a common citizenship of the United States.

Mr. GLYNN.-Yes, in Article 14.

Dr. QUICK.-I am about to come to that. When Article 14 was agreed to all doubts upon the question of federal citizenship were completely and for ever removed, because it is therein provided that-

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

Before that article was passed there was some doubt as to the origin of the United States citizenship referred to in the clauses I have mentioned relating to the qualifications of a resident senator and member [start page 1752] of the House of Representatives. It was then contended that the United States citizenship proceeded from or originated in the state citizenship. But the 14th article did away with the doctrine of the origination of the federal citizenship in the state citizenship, and provided for the distinct creation of a federal citizenship apart from and independent of the state citizenship, and made the federal citizenship the avenue to the state citizenship by the provision that all natural-born and naturalized subjects of the United States should be citizens of the United States and, qua citizens of the United States, citizens of the states in which they resided. That article places the matter beyond all doubt, and furnishes a precedent, combined with the provisions in the other Constitutions to which I have referred, which I think we ought to follow in the Constitution we are now preparing. We ought either to place in the forefront of this Constitution an express definition of citizenship of the Commonwealth, or empower the Federal Parliament to determine how federal citizenship shall be acquired, what shall be its qualifications, its rights, and its privileges, and how the status may hereafter be lost.

Mr. SYMON.-You had better define it in the Constitution.

Dr. QUICK.-I am disposed to think that there ought to be something in the nature of a definition in the Constitution. In my mind, a reasonably approximate definition would be that which I have drafted, to the effect that all persons resident in the Commonwealth, being natural-born or naturalized subjects of the Queen, and not under any disability imposed by the Federal Parliament, should be citizens of the Commonwealth. That is not a complete definition, it is only an approximation of what I consider a definition. The conditions of citizenship seem to me to be that the citizen shall be either a natural-born or naturalized subject of Her Majesty the Queen, and resident within the Commonwealth, and that he shall not be under any disability imposed by the Federal Parliament. Such a disability might be imposed under the clause which we put into the Bill some time ago, empowering the Federal Parliament to deal with foreign races and undesirable immigrants. The Federal Parliament is empowered to declare that these races shall be placed under certain disabilities, among which might be that they shall not be capable of acquiring citizenship. The definition which I have suggested would not open the door to members of those undesirable races, and it would empower the Federal Parliament to exclude from the enjoyment of and participation in the privileges of federal citizenship people of any undesirable race or of undesirable antecedents. I hope that this proposal will not be opposed and denounced in the manner which has become somewhat fashionable in the Convention. Every generalization which is brought forward to interpret the Constitution, and to set forward more plainly the advantages that it is supposed will accrue from the union, if it goes an iota beyond what is absolutely or technically necessary, is denounced as a proposal to placard the Constitution. I hope that a proposal to define federal citizenship and the status of members of this new political organization will not be pooh-poohed, and spoken of as a proposal to placard the Constitution. In my opinion, there are certain substantial rights and advantages which would accrue from the placing in the Constitution of an expressed recognition of the federal citizenship. The Constitution empowers the Federal Parliament to deal with certain external affairs, among which would probably be the right to negotiate for commercial treaties with foreign countries, in the same way as Canada has negotiated for such treaties. These treaties could only confer rights and privileges upon the citizens of the Commonwealth, because the Federal Government, in the exercise of its power, [start page 1753] could only act for and on behalf of its citizens. Therefore, it is desirable that the Constitution should define the class of persons for whom these rights and privileges would be gained. By placing in the Constitution a definition of citizenship, or by providing for its creation, we do not interfere with the citizenship of the states, which I propose to leave exclusively within the jurisdiction of the states themselves, nor do we interfere with that wider relationship which affects us all as subjects of Her Majesty and members of the great British Empire. We are affected by this relationship by virtue of our position as British subjects. It is, however, a relationship entirely different from that which will be

created by this Constitution. A citizenship of the Commonwealth will, of course, be much narrower than our subject-ship of the empire. In my opinion, it would be a manifest imperfection in the scheme of union not to make provision in some shape or other to enable the Federal Parliament to deal with and legislate upon the subject of membership of the Commonwealth. Without in any way dealing with the questions to which reference is made by the other amendments and clauses on the notice-paper, and without in any way suggesting that federal citizenship should come into conflict with state citizenship, or that state citizenship should overlap federal citizenship, I propose to give to the Federal Parliament power to deal with this important question. Without such a provision as I wish to insert, I think the Constitution would be manifestly defective.

Mr. O’CONNOR (New South Wales).-I am sure that the honorable member will have no reason to apprehend that the exceedingly important question which be has raised will not be properly dealt with. We all recognised, when we were dealing with clause 110, the extreme importance of the question which has been raised. I am entirely in sympathy with my honorable and learned friend as to the necessity for dealing with this question, but I think that it would be a mistake to deal with it in the way he proposes. I think it would be a mistake to give to the Federal Parliament the power of determining the qualifications of citizenship under the Commonwealth. In my opinion, the honorable and learned member's quotations from the other Constitutions all bear out the principle that in the making of a Constitution that which gives the right of citizenship and which includes citizenship is defined. Let me for a moment consider the proposal to give this power to the Federal Parliament. The Federal Parliament could do nothing in the way of defining the qualification of citizenship or the rights of citizenship beyond the limits of the Constitution. Now, you may regard the citizen from two points of view. In the first place, as regards his rights as a member of the Commonwealth, and in the second place, as regards his rights as a member of the state. The latter aspect seems to me much the more important. But let us take first his position in regard to the Commonwealth. Under the power which you have given to the Federal Parliament to make laws regulating immigration and aliens, you embrace every possible set of circumstances under which any person may enter the bounds of the Commonwealth. As you have power to prevent any person from entering any part of the Commonwealth, you have also the power to prevent any person from becoming a member of the Commonwealth community. There is no territorial entity coincident with the Commonwealth. Every part of the Commonwealth territory is part of the state, and it is only by virtue of his citizenship of a state that any person within the bounds of the Commonwealth will have any political rights under the Constitution. Of course, when I speak of a state, I include also any territory occupying the position of quasi-state, which, of course, stands in exactly the same position.

Mr. WISE-Is that clear?

[start page 1754] Mr. O’CONNOR.-If the territory does not stand in the same position as a state, it is admitted to political rights at the will of the Commonwealth, and upon such terms as the Commonwealth may impose. Every person who has rights as a member of the Commonwealth must be a citizen either of some state or some territory. It is only by virtue of his citizenship of a state or of a territory that he has any political rights in the Commonwealth.

Mr. WISE.-Before the 14th amendment was passed it was very much questioned whether a citizen of Washington had any rights at all, because Washington was only a territory.

Mr. O’CONNOR.-Yes; but what the honorable and learned member says really supports my argument. The thirteen original states occupied a very small portion of the area now forming the United States of America, and of course the question might arise as to what the position of a person who is not resident of or a citizen of any state, but a resident of a territory, might be in relation to the Commonwealth. But I do not think that that question will arise here, because we cannot imagine, I think, any portion of the Commonwealth becoming a territory now, unless it has been a state at one time-unless it is some portion of a state which has been ceded to the Commonwealth, and in the cession to the Commonwealth there is no doubt that care will be taken to define what the rights of the

residents of the territory would be in regard to the political rights of the Commonwealth. It appears to me quite clear, as regards the right of any person from the outside to become a member of the Commonwealth, that the power to regulate immigration and emigration, and the power to deal with aliens, give the right to define who shall be citizens, as coming from the outside world. Now, in regard to the citizens of the states-that is, those who are here already, apart from these laws-every citizen of a state having certain political rights is entitled to all the rights of citizenship in the Commonwealth, necessarily without a definition at all.

Mr. DOBSON.-Would not every voter be a citizen? One man, one vote.

Mr. O’CONNOR.-Exactly. The only rights which citizens have, as regards the Commonwealth, are political rights; there are no other rights I know of as yet. I have not heard any other rights mentioned. All those political rights are given by virtue of the person being resident in a state. It is only by virtue of such residence that he becomes entitled to those rights. So far as the power of the Commonwealth to legislate is concerned, the Commonwealth, under the two powers I cited, can regulate who shall be citizens of the state coming from outside, but the Commonwealth cannot interfere with the rights of those residents of the state who are entitled to political rights, and no such clause as the honorable gentleman proposes to put in can give them any such rights. Suppose, for instance, it should be thought desirable to insert some provision in a Bill passed by the Commonwealth that the rights of all citizens of the Commonwealth should be equal in regard to the ownership of land through every state, or that the rights of the citizens of other portions of the Commonwealth should be equal in regard to the ownership of mines or the right to mine, or take any other privilege or right which you may think fit; to make any general rule of that kind would be to interfere with the autonomy of the states. The states have, under the Constitution, already an absolute right to deal with everything except that which is taken away from them, and unless you place in the Constitution some distinct definition of equality of citizenship throughout the states or of some rights which a citizen of the Commonwealth will have through the states you cannot do it by legislation of the Commonwealth afterwards. Taking these two branches, which [start page 1755] must include every point of view from which you can regard this question of citizenship-that is to say, the rights of those who enter from outside, or the rights of those who are here already, the Commonwealth has abundant power to legislate as regards those who come from outside, and it cannot legislate, even if you put such a power as this in, as regards those who are here already.

Mr. DEAKIN.-Do you say that this sub-section gives an extension of the power, then?

Mr. O’CONNOR.-I say it cannot. I have said already that, in regard to those coming from outside, you have quite as much power as you can possibly require; you have the amplest power. As regards those who are here already, if the giving of any right of citizenship infringe on the rights of a state you cannot do that; you cannot take away the right of a state by implication in that way. Therefore, I am driven to the conclusion that it would be an incomplete way of effecting the honorable member's object to simply give this power over to the Commonwealth.

Dr. QUICK.-It would not interfere with state rights, as you suggest. It is only intended to deal with Commonwealth rights, not state rights.

Mr. O’CONNOR.-What Commonwealth rights are there?

Dr. QUICK.-Rights conferred by the Constitution.

Mr. O’CONNOR.-If they are political rights, they are conferred already by virtue of a person being an inhabitant of a state entitled to certain political rights, in such state. The honorable member cannot intend to give a different right to a citizen politically under the government of the Commonwealth from the right of a citizen of any state. The rights are coterminous-coincident-and the political rights of every citizen of the Commonwealth who is within the Commonwealth arise by virtue of his being a citizen of a state.

Dr. QUICK.-Who is a citizen of the Commonwealth? You do not define who he is.

Mr. O’CONNOR.-I have said already that I have no objection to some definition being given in another clause, laying down who shall be citizens of the Commonwealth for what it may be worth, and I can see one point of view in which there may be some reason for it. What I am pointing out now is that this proposal does not enlarge in any way the right to deal with the question, because the rights of the states politically are absolutely secured by the Constitution in its present form. But I see no objection to some kind of a definition being given of the rights of citizenship, that is to say, that every citizen of a state shall be a citizen of the Commonwealth, for this reason, that I can see one aspect in which new rights are given to the whole Commonwealth, that is to say, rights which they hold as members of the Commonwealth. The right to appeal to the courts of the Commonwealth is a new right. For instance, at the present time a resident of New South Wales cannot sue a resident of Victoria, except by going through a certain process, and getting judgment, and having that enforced, but be cannot sue him directly.

Mr. ISAACS.-He may go to Victoria and do it.

Mr. O’CONNOR.-That altogether depends on where the cause of action arose.

Mr. ISAACS.-If you get your defendant you can sue him.

Mr. O’CONNOR.-I know that there are circumstances under which you can do it, but we all know that there are circumstances under which, although you may have the clearest possible claim against a person, you cannot sue him, from the difficulty of the citizen of one colony suing a citizen in the courts of another colony.

Mr. HIGGINS.-Is there any difficulty about trusting the Federal Parliament in this matter?

[start page 1756] Mr. O’CONNOR.-I have said that I do not see that such a trust in the Federal Parliament would be effective. I sympathize with the honorable member's view, but I think it will be carried out by some kind of definition of citizenship, and I was pointing out the only aspect in which it appears to me it might be desirable to have some such definition, and that is, you are creating new rights to citizens of the Commonwealth as citizens of the Commonwealth in regard to your courts. You establish courts for the Commonwealth, and every citizen of the Commonwealth is entitled to the use of those courts.

Mr. HIGGINS.-Who is he?

Mr. O’CONNOR.-That is what has to be defined. A citizen of the Commonwealth is at present any person who has political rights which the Constitution gives him, which he gets by virtue of being a resident of a state. That is exactly the reason upon which the citizenship definition in the American Constitution stands.

Mr. HOLDER.-Would it not avoid difficulty to leave the Federal Parliament to define it from time to time?

Mr. O’CONNOR.-That really gives no power whatever. It does not carry out the honorable member's object, because the power to deal with persons coming from outside, in regard to their being members of the community, is given in the powers to deal with immigration and aliens. The power to deal with citizens of states is limited by the rights of the states at the present time, and if you want really to have a definition which gives some right and some entity to a citizen of the Commonwealth, as different from a citizen of a state, I think you ought to do it in some way by definition.

Mr. ISAACS.-When the Constitution America was framed, they did not think it necessary to define a citizen.

Mr. WISE.-And they got into great trouble in consequence.

Mr. ISAACS.-They found it necessary to introduce the definition by an amendment of the Constitution.

Mr. O’CONNOR.-That, the honorable member knows well, was caused by the intrusion of the negro question. You will find in dealing with this question of the definition of citizenship, that you will have to be very careful in your definition, because it would be rather too limited a definition to confine it only to persons who are natural-born or naturalized subjects, unless you are dealing simply with the political aspect. I think it would be better if reconsideration was given to clause 110, under the head of "States." I think it is in that place that the consideration of this matter should come.

Dr. QUICK.-That has been rejected.

Mr. O’CONNOR.-I think that clause was rejected a little hastily. There are very good reasons why it should be reconsidered from the point of view which has been put by the honorable member.

Dr. QUICK.-That only deals with interstate citizenship, not federal citizenship.

Mr. O’CONNOR.-The only kind of citizenship it is necessary for you to deal with is a citizenship of that kind.

Mr. WISE (New South Wales).-As one of those who strenuously denied that there was a necessity to define federal citizenship, I entertain some doubt, as Mr. O'Connor does, whether this proposal really meets the difficulty. I feel, as he does, that to confer on the Parliament the power to deal with federal citizenship does not give them the power to define the citizenship. They can only act within the limits of the Constitution, and, inasmuch as it might be necessary in defining the citizenship to trench in some way on the rights of the state, or to limit in some way the citizenship of the state, or to make certain consequences follow from being citizens of the state, it might be held that the matter is open to doubt, that any definition passed by virtue of this proposal would be ultra vires. I apprehend that the very much better course will be to withdraw the amendment, and to discuss the question on clause 110, when [start page 1757] a clear definition can be put in which will deal with this matter thoroughly. For reasons which I will not mention, because the whole matter will have to be discussed, I feel that it is absolutely necessary for the Bill to contain a definition of citizenship, but whether this will do it or not is open to doubt. I would ask the honorable member whether he has really considered the objections put forward by Mr. O'Connor? It appeared to me, from some of his interjections, that Mr. O'Connor's argument was not appreciated by him.

Mr. HOWE (South Australia).-As usual, there are conflicting ideas among the legal fraternity, and really it is very difficult for laymen to come to a conclusion.

Mr. REID.-There is no dispute amongst blind men.

Mr. HOWE.-That has been the cause of the delay in this Convention in coming to conclusions. We have eminent men whom we respect and esteem, and it is only necessary for one eminent lawyer to make a proposition to cause another lawyer to rise and try, to knock it down.

Mr. REID.-As a jury, you look on and decide.

Mr. HOWE.-I heard legal gentlemen admit the other night that they had confused each other, so that this is some revenge, so far as I am concerned. But I will put one practical point to this Convention. It seems to me that in building up this nation we say that in Federated Australia

commerce shall flow free and untrammelled from the centre of the Commonwealth to its circumference, and I say that it is not right for a state to have the power of declaring that any citizen within that state shall be penalized because he happens to have property in one state and resides just over the border in another state. Why should a special imposition be placed on him? Are we going to allow any state to treat a resident citizen of Federated Australia as an absentee, merely because he owns property in one state and resides in another? Of course it is quite right that his property should pay the impost levied on property in that state, but he should not be penalized because he happens to reside in another state. Such a thing would be an injustice, and no true federation can exist if this distinction between citizens of the Commonwealth is maintained. The Federal Parliament should have power to disallow any such restriction if any state seeks to place it on any citizen of the Commonwealth.

Mr. HIGGINS (Victoria).-I confess the idea was new to me before Dr. Quick gave notice of his proposal, but it occurred to me, when we were dealing with clause 110, that there was need of some power to deal with Commonwealth citizenship, and the only question is as to whether Dr. Quick's mode of doing this is sufficiently good or not. I understand that Mr. O'Connor and Mr. Wise are in favour of this proposal in principle, and it is a mere interpretation of what I think are ordinary words as to whether Dr. Quick's amendment will meet the requirements of the case. Clause 52 provides that-

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:-

Then follows a long list of matters, in which Dr. Quick proposes to insert "Commonwealth citizenship." So that the amendment means that the Parliament shall have power and authority to make laws for the peace, order, and good government of the Commonwealth with respect to Commonwealth citizenship. Who, unless he were a lawyer-I appeal now to the sympathies of Mr. Howe-could ever think that the Parliament could not make a law stating what Commonwealth citizenship shall be? Of course, there have not been any reasons given as to why this amendment should not be inserted. Mr. O'Connor, as the [start page 1758] draftsman in charge of the Bill at the present time, is naturally diffident and timid about inserting this new proposal without full consideration, but, although I listened carefully to what he and Mr. Wise said on the subject, I failed to find any reasonable doubt in the speech of either of those gentlemen. Of course, if the object which Dr. Quick has in view can be more clearly attained by an amendment on his proposal, I shall vote for the alteration, but I believe in having the fewest possible words for this purpose, and Dr. Quick has put his amendment in two words, "Commonwealth citizenship."

Mr. KINGSTON.-He might strike out one word, and leave it "citizenship."

Mr. HIGGINS.-All I want is to leave the hands of the Federal Parliament free, so that, if it thinks fit, inasmuch as it has power to deal with alien races, it should also have power to deal with Commonwealth citizenship. I shall support the amendment.

Mr. GLYNN (South Australia).-I shall have to oppose Dr. Quick's amendment, although I would really go further than he intends. His object is to have a common citizenship, and he proposes to define that in a proposed new clause, 120A, which reads as follows:-

All persons resident within the Commonwealth, being natural-born or naturalized subjects of the Queen, and not under any disability imposed by the Parliament, shall be citizens of the Commonwealth;

and he now wants to give power to Parliament to vary that subsequently.

Mr. ISAACS.-It is not clause 120A that he is proposing now.

Mr. HIGGINS.-It is his amendment in clause 52-to insert "Commonwealth citizenship" as a new sub-section.

Mr. GLYNN.-I am quite aware of that, but what I want to understand is whether Dr. Quick will propose the insertion of clause 120A, and also put it in the power of the Parliament to vary the Commonwealth citizenship under clause 52? That is the point about which I am doubtful. But I desire to point out that Dr. Quick is not going as far as they have gone in America or Germany. There is a common citizenship both of the Commonwealth and of the states in America. Citizenship of the Commonwealth carries with it citizenship of the states, and the Constitution provides that immunities and privileges enjoyed by the citizens of a particular state shall be equally shared, when in that state, by the citizens of all the other states. Now, the German Constitution makes a declaration that there must be a common citizenship. It does not state that the Parliament of Germany will have the power of providing for a citizenship of the empire, but that there must be a common citizenship of the whole empire, and that the privileges which are given in one part of the empire would apply right through the whole empire. That is to say, there is a Commonwealth citizenship and a state citizenship running the one with the other-a perfect equality of rights. All that is done in Germany is that Article 3 of the Imperial Constitution declares that there shall be a common citizenship for all Germany, and that the rights of the individual citizens of any state must be extended to the individual citizens of any other state as long as they come within the jurisdiction of the former state; but the German Constitution also provides that Parliament-and here is the distinction-may define what the conditions of that common citizenship are to be. The Constitution declares that there must be a common citizenship, but it leaves the determination of the particular terms of that citizenship to the Parliament. That is different from the proposal of Dr. Quick.

Mr. KINGSTON.-You want citizenship of the states and citizenship of the Commonwealth to be uniform?

Mr. GLYNN.-Yes; but it had better be provided for by a separate clause as in America. All persons born in the United [start page 1759] States are citizens of the Commonwealth and of the states in which they reside.

Mr. HIGGINS.-But we need not jump before we come to the stile. We can leave citizenship to be settled afterwards by the Federal Parliament.

Mr. GLYNN-But I want to prevent the Federal Parliament having power to cut down citizenship. By adopting this amendment you will really limit the effect of the provision which Dr. Quick desires to insert as clause 120A. If you here empower Parliament, from time to time, to limit the Commonwealth citizenship, you will prevent us subsequently enacting in the Bill that Commonwealth citizenship shall be state citizenship, or vice versa, because you are putting it in the power of Parliament to say what citizenship is to be, although you may subsequently attempt to provide that the citizenship of the state shall be the citizenship of the Commonwealth, and vice versa. If you adopt this amendment you will not thereby declare, as in Germany, in Article 3, that-

There shall be a common citizenship (indigenat) for all Germany, and the members (citizens or subjects) of each state of the Confederation shall be treated in every other state thereof as natives, and shall consequently have the right of becoming permanent residents; of carrying on business; of filling public offices; of acquiring real estate; of obtaining citizenship; and of enjoying all other civil rights on the same conditions as those born in the state, and shall also have the same usage as regards civil and criminal prosecutions and the protection of the laws.

Mr. KINGSTON.-What do you suggest as a proper parallel here? To what extent would you go?

Mr. GLYNN.-I would provide by proposed clause 120A, or by an amendment of it, that there shall be a Commonwealth citizenship.

Mr. KINGSTON.-What definition do you suggest?

Mr. GLYNN.-The American definition-that all persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the Commonwealth and of the state in which they reside.

Mr. KINGSTON.-Would you make it "born or naturalized" in Australia?

Mr. GLYNN.-I would probably suggest that; but at present I am not saying what ought to be done when we come to deal with proposed clause 120A. I am only pointing out that if you adopt this amendment you will be tying your hands as to what you will subsequently do when dealing with clause 120A. You cannot put it as an addition to the Constitution if you vest the power of varying it in the Parliament. I hope Dr. Quick will not insist on putting this into clause 52, but will stick to his proposed clause 120A, in connexion with which he will have support.

Mr. ISAACS (Victoria).-I hope we shall agree to Dr. Quick's proposal. I do not consider the case of Germany or the United States and the question of inserting a definition of citizenship in this Constitution as at all analogous. What they were doing there was this: They were creating a new sovereign state, above which, of course, from the very nature of the case, there was no superior. In connexion with the creation of a new state a sovereign State-they felt it necessary in Germany to make some provision for an Imperial citizenship. As to the United States, they omitted, although creating a sovereign State, to define what was citizenship of that new State-the nation-and they found it necessary, certainly through the negro question, to define at a later time what a citizen was. But here we do not stand in the same position. We have the citizenship of the British Empire on the one hand, and the citizenship of the state on the other. What we want to do is, not to insert a definition of citizenship of the Commonwealth in the Constitution, but to give power to the Parliament to provide against any contingencies which may arise, but which are out of our range of vision at present. We wish to provide for that possible case, and at the [start page 1760] same time not to create a definition either too extensive or too narrow. What we should do, therefore, is to follow the course proposed by Dr. Quick, and simply insert power to legislate with regard to Commonwealth citizenship. If that is found to be unnecessary, it will never be acted upon, but, if it is found to be necessary, it can be acted upon to the extent of the necessity; and the definition can also be altered if it is found on trial to be either too wide or too narrow. I have, therefore, much pleasure in supporting the proposal.

Mr. KINGSTON (South Australia).-I shall also support the amendment of Dr. Quick, and I trust that it will be carried. I cannot conceive that in the adoption of legislation on this subject Parliament would do aught else than make the definition uniform and of general application. If there was any necessity for making that clear, the insertion of the words "uniform citizenship of the Commonwealth" would accomplish that, but I hardly think it is necessary. I am impressed with the importance of taking power as occasion arises to define what shall constitute citizenship of the Commonwealth; and the Bill at present is altogether deficient in regard to giving any power to the Commonwealth Parliament to legislate on this subject. It seems to me it is a very difficult matter, and one with which we should not attempt to deal here, but rather should refer it to those who, when necessity arises to adopt some legislation on the subject, will have all the facts before them, and may reasonably be supposed to be able to make the best provision for the purpose in connexion with the subject. My honorable friend (Mr. Glynn) referred to the principle which he said obtained, I think, in Germany, where only native-born Germans, or those who are naturalized in the empire, are admitted to the privileges of citizenship. I asked in the course of his remarks how would that apply to citizens of the Commonwealth. It is a very difficult thing to deal with. If you provide that only those shall be citizens of the Commonwealth who were born in it or have been naturalized, you will undoubtedly be putting too strict a limitation on citizenship. It would be simply monstrous that those who are born in England should in any way be subjected to the slightest disabilities. It is impossible to contemplate the exclusion of natural-born subjects of this character; but, on the other hand, we must not forget, that there are other native-born British subjects whom we are far from desiring to see come here in any considerable numbers. For instance, I may refer to Hong Kong Chinamen. They are born within the realm of Her Majesty, and are therefore native-born British subjects.

Sir EDWARD BRADDON.-Are British treaty ports British territory?

Mr. KINGSTON.-Hong Kong is undoubtedly a British possession, and a Hong Kong Chinaman is undoubtedly a native-born British subject. Thus, honorable members will see what difficulties might arise if the privileges of citizenship of the Commonwealth were extended to all British subjects. If that were done, we should be landed in a difficulty against which it is well to provide. I think the very best, thing under all the circumstances is to do-what is recommended by Dr. Quick, and give to the Federal Parliament power to, legislate on this subject as occasion arises. I have no fear whatever but that they will make wise provisions on the subject-provisions uniform throughout the Commonwealth-for extending to all British subjects those privileges which they ought to possess, while at the same time safeguarding the rights of the Commonwealth.

Mr. O’CONNOR (New South Wales).-I would like to point out to Dr. Quick that he proposes to give a power to the Commonwealth to legislate in regard to a matter which is not mentioned from the beginning to the end of the Constitution. The word "citizen" is not used from beginning to end in this Constitution, and it is now proposed to give power to legislate regarding citizenship.

[start page 1761] Mr. KINGSTON.-It was in the Bill.

Mr. O’CONNOR.-There is no portion of the Bill which gives any right of citizenship, or points out what citizenship is.

Mr. HIGGINS.-The word "citizen " occurred in clause 110, although it is now struck out.

Mr. O’CONNOR.-The words in clause 110 do not define any right of citizenship; they prevent certain restrictions upon it. I would point out to Dr. Quick that he is proposing to give a power to regulate or describe rights of citizenship, when we really do not know at present what is meant by a citizen. I confess I do not know what the honorable and learned member means by that term. Does he mean only the political rights which you give to every inhabitant of a state who is qualified to vote, or does he go beyond that, as the American decisions have gone, and describe every person who is under the protection of your laws as a citizen? The citizens, the persons under the protection of your laws, are not the only persons who are entitled to take part in your elections or in your government, but every person who resides in your community has a right to the protection of your laws and to the protection of the laws of all the states, and has the right of access to your courts. If you are going to define citizenship for the purpose of giving these rights, you must say clearly what you mean by citizenship. You leave it to the Federal Parliament to say what citizenship is; and I think there is a great deal in what Mr. Glynn says, that we must not hand over to the Federal Parliament the power to cut down the rights the inhabitants of these states have at the present time. If we do not know what you mean by citizenship-

Mr. ISAACS.-Commonwealth citizenship.

Mr. O’CONNOR.-Exactly. But if we do not know what you mean by citizenship-whether you mean to restrict it to political rights or to the right of protection under your laws, which every person, whether a naturalized subject or a person for the time being resident in one of these communities, possesses-we may drive the Federal Parliament into some difficulty, in which it is not at all unlikely that some cutting down of what we believe to be the rights of citizenship may take place. I would point out that under the Bill the power of dealing with aliens and immigration gives an abundant right to the Commonwealth to protect itself, and, of course, the right of defining citizenship will have to be exercised with due regard to any laws which might be made regarding the position of aliens. I would ask my honorable friend (Dr. Quick) to say if he has considered how far he means the Federal Parliament to go in the definition of citizenship, and what he means by citizenship? Because, unless

we have a clear idea of that, it seems to me that we are handing over to the Federal Parliament something which is vague in the extreme, and which might be misused.

Mr. TRENWITH (Victoria).-The honorable member who has just sat down has assumed a possible difficulty that I cannot conceive is likely to occur. He assumes that unless we define clearly what we mean by citizenship, the Federal Parliament may take such action as will infringe some liberties which we now possess, and which we ought to possess. When we remember that we have provided in the Constitution that both Houses of Parliament shall be elected on the broadest possible franchise, it seems to me to be utterly impossible to conceive that such a Parliament will proceed to infringe any of the liberties of the citizens. But it may be necessary for many reasons to declare some form of citizenship, and if such a necessity arises, Dr. Quick's proposal empowers the Federal Parliament to deal with it. If it be found that there is no necessity to legislate-that citizenship is sufficiently clearly defined, without any definition by Act of Parliament, by the usage of the Commonwealth, then no legislation for that purpose will be passed. But it certainly [start page 1762] does seem that for the purpose of dealing with the varied conditions which prevail here, and the various sorts of men we have in these colonies, there should be a clear provision in the Constitution empowering the Commonwealth to decide what is to constitute that other citizenship that we are creating. We know pretty clearly what constitutes a citizen of Great Britain. We know what constitutes a citizen of our various states. But we are at present creating a dual citizenship-retaining the rights of citizenship which the inhabitants already possess, and, in addition, conferring what I think most people will be even more proud of, the citizenship of the Commonwealth of Australia. For that reason I think it extremely desirable that there should be a power on the part of the Commonwealth Parliament to define what is to constitute Commonwealth citizenship. I confess I was afraid of this clause when I first saw it. I was afraid that possibly it might lead to an Act of the Commonwealth infringing the right of a state to deal as it thought fit with the citizens within its borders, so long as it did not infringe upon that broader citizenship of the Commonwealth. But, on looking into the matter, it seems to me to be clear that the power given by this clause is a power that need not necessarily be used, and when it is used is only a power to define that greater and broader citizenship of the Commonwealth-a power which the Federal Parliament should have, and will obtain by the adoption of this proposal.

Mr. SYMON (South Australia).-I only wish to say a word or two about this proposal. I think that Dr. Quick will probably see that his amendment may be raising a very serious difficulty on the one hand, or else that it is unnecessary on the other. I quite agree with him as to the necessity under some circumstances of giving some definition as to what shall be a citizen of the Commonwealth, but underlying the whole of that is this fundamental principle: That the citizens of the states are the citizens of the Commonwealth. That is the fundamental principle we must have regard to, and I ask my honorable friend to say whether a citizen of the Commonwealth is not a citizen of the state? I have no objection whatever to some definition being inserted similar to that which appears in the United States Constitution defining what shall be a citizen. My honorable friend himself has an amendment on the paper with that object in view, but if you are to insert this provision to give the Commonwealth Parliament power to deal with citizenship of the Commonwealth, you are giving it a power which might induce it to declare that some particular set of citizens in the state should Dot continue any longer to be citizens of the Commonwealth, or to enjoy the rights and immunities of the citizens of the Commonwealth.

Mr. TRENWITH.-That is so highly improbable that it is scarcely worth while considering it.

Mr. SYMON.-My honorable friend (Mr. Trenwith), whose views I have listened to and to whose opinions I have always paid great attention, asks in what way the Commonwealth can interfere with the citizenship of the Commonwealth. We have specifically empowered the Commonwealth to deal with the question of aliens.

Mr. WISE.-Either this clause will be utterly ineffective or it will give the Federal Parliament power to outlaw certain persons.

Mr. SYMON.-Mr. Trenwith has said he was not at first inclined to support this amendment, and I think that if he gives it further consideration he will feel that it is utterly unnecessary to do so, and that it is unwise to put into the hands of the Commonwealth Parliament a power which might be likely to be exercised, as my honorable and learned friend (Mr. Wise) has said, for the purpose of outlawing citizens of the state who are citizens of the Commonwealth. Of course the Federal Parliament would not do such a thing as [start page 1763] that, and, therefore, it seems to me that it is unnecessary to put in such a power. Is there any person whom the Federal Parliament, by virtue of this provision, could make a citizen of the Commonwealth who would not already be a citizen of a state? You cannot do it. There is nothing to which this can possibly apply. You have given the Federal Parliament power to deal with the question of aliens, immigration, and so on, to prevent the introduction of undesirable races. Under that provision you enable the Federal Parliament to legislate within certain limits, and in a certain direction. Under that they may, within those limits, take away, or they may restrict, the rights of citizenship in a particular case. That is what we intend them to do. I am not going to give carte blanche to the Federal Parliament to say who shall and who shall not be citizens. The object of all who are represented here is that the Union of these states is of itself to confer upon the citizens of the states the rights of citizens of the Commonwealth.

Mr. HIGGINS.-You may depend upon it that the states will see that this is kept up.

Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that the Commonwealth will seek to derogate from it, but I will not place a power in the hands of the Commonwealth which will enable them to derogate from it, and if that is not done it will be merely a dead letter. Is there any citizen of the Commonwealth who is not already a citizen of the state? State citizenship is his birthright, and by virtue of it he is entitled to the citizenship of the Commonwealth. When you have immigration, and allow different people to come in who belong to nations not of the same blood as we are, they become naturalized, and thereby are entitled to the rights of citizenship.

Sir EDWARD BRADDON.-They are citizens if they are British subjects before they come here.

Mr. SYMON.-That is a point I do not wish to deal with. But they become citizens of the states, and it is by virtue of their citizenship of the states that they become citizens of the Commonwealth. Are you going to have citizens of the state who are not citizens of the Commonwealth?

Mr. KINGSTON.-In some states they naturalize; but they do not in others.

Mr. SYMON.-Then I think they ought to. The whole object of legislating for aliens is that there should be uniformity.

Sir EDWARD BRADDON.-They would not have that in the Federal Council.

Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under the operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled to be a citizen of the state? There ought to be no opportunity for such discrimination as would allow a section of a state to remain outside the pale of the Commonwealth, except with regard to legislation as to aliens. Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the dual citizenship. That does not affect the operation of this clause at all. But if we introduce this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those who say that it is putting on the face of the Constitution an unnecessary provision, and one which we do not expect will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship of this Commonwealth in any way or exclude anybody [start

page 1764] from it, and let us do that with precision and clearness. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the right of depriving me of citizenship. I put this only as an argument, because no one would anticipate such a thing, but the Commonwealth Parliament might say that nobody possessed of less than £1,000 a year should be a citizen of the Federation. You are putting that power in the hands of Parliament.

Mr. HIGGINS.-Why not?

Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this Constitution on a foundation that we understand, and we mean that every citizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth shall have no right to withdraw, qualify, or restrict those rights of citizenship, except with regard to one particular set of people who are subject to disabilities, as aliens, and so on. Subject to that limitation, we ought not, under this Constitution, to hand over our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the amendment will not be accepted.

Dr. COCKBURN (South Australia).-I think the Commonwealth should keep in its own hands the key of its own citizenship. Some colonies are somewhat colourblind with regard to immigration, other colonies may be somewhat deficient in their ideas as to naturalization. If we place in the hands of any state the power of forcing on the Commonwealth an obnoxious citizenship, we shall be doing very great evil to the Commonwealth. This power should be in the hands of the Commonwealth; it should itself possess power to define the conditions on which the citizenship of the Commonwealth shall be given; and the citizenship of the Commonwealth should not necessarily follow upon the citizenship of any particular state.

Mr. BARTON (New South Wales).-We have provided in this Constitution for the exercise of the rights of citizenship, so far as the choice of representatives is concerned, and we have given various safe-guards to individual liberty in the Constitution. We have, therefore, given each resident in the Commonwealth his political rights, so far as the powers of legislation and administration intrusted to the Commonwealth are concerned. Let us consider the position. Before the establishment of the Commonwealth, each subject is the subject of a state. After the Commonwealth is established, every one who acquires political rights-in fact, every one who is a subject in a state, having certain political rights, has like political rights in the Commonwealth. The only difference between the position before the institution of the Commonwealth and afterwards is that, so far as there are additional political powers given to any subject or citizen, be has the right to exercise these, and the method of exercising them is defined. So far the right of citizenship, if there is a right of citizenship under the empire, is defined in the Constitution. Now, each citizen of a state is, without definition, a citizen of the Commonwealth if there is such a term as citizenship to be applied to a subject of the empire. I must admit, after looking at a standard authority-Stroud's Judicial Dictionary-that I cannot find any definition of citizenship as applied to a British subject. No such term as citizen or citizenship is to be found in the long roll of enactments, so far as I can recollect, that deal with the position of subjects of the United Kingdom, and I do not think we have been in the habit of using that term under our own enactments in any of our colonies.

Mr. HIGGINS.-You had it in the Draft Bill.

Mr. BARTON.-Yes; but the term has since disappeared, and it disappeared owing to objections from members of the Convention. I am inclined to think that the Convention is right in not applying [start page 1765] the term "citizens" to subjects residing in the Commonwealth or in the states, but in leaving them to their ordinary definition as subjects of the Crown. If, however, we make an amendment of this character, inasmuch as citizens of the state must be citizens of the Commonwealth by the very terms of the Constitution, we shall simply be enabling the Commonwealth to deal with the political rights of the citizens of the states. The one thing follows from the other. If you once admit that a citizen or subject of the state is a citizen or subject of the Commonwealth, the power conferred

in these wide terms would enable the Federal Parliament to deal with the political rights of subjects of the states. I do not think the honorable member intends to go so far as that, but his amendment is open to that misconception.

Mr. HOWE.-Trust to the Federal Parliament.

Mr. BARTON.-When we confer a right of legislation on the Federal Parliament we trust them to exercise it with wisdom, but we still keep as the subject of debate the question of whether a particular legislative right should be conferred on the Federal Parliament. When you give them the right then you may trust them to exercise it fully.

Mr. HOWE.-And wisely.

Mr. BARTON.-If the honorable member's exclamation means more than I have explained, then the best thing to do is to confide to the Commonwealth the right of dealing with the lives, liberty, and property of all the persons residing in the Commonwealth, independently of any law of any state. That is not intended, but that is what the expression "Trust the Federal Parliament" would mean unless it was limited by the consideration I have laid down. I am sure Dr. Quick will see that he is using a word that has not a definition in English constitutional law, and which is not otherwise defined in this Constitution. He will be giving to the Commonwealth Parliament a power, not only of dealing with the rights of citizenship, but of defining those rights even within the very narrowest limits, so that the citizenship of a state might be worth nothing; or of extending them in one direction, and narrowing them in another, so that a subject living in one of the states would scarcely know whether he was on his head or his heels. Under the Constitution we give subjects political rights to enable the Parliament to legislate with regard to the suffrage, and pending that legislation we give the qualification of electors. It is that qualification of electors which is really the sum and substance of political liberty, and we have defined that. If we are going to give the Federal Parliament power to legislate as it pleases with regard to Commonwealth citizenship, not having defined it, we may be enabling the Parliament to pass legislation that would really defeat all the principles inserted elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is not what is meant by the term "Trust the Federal Parliament."

Mr. HIGGINS.-You give the Federal Parliament power to naturalize.

Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of the British Empire. Have we not done enough? We allow them to naturalize aliens. That is a power which, with the consent of the Imperial authority, has been carried into legislation by the various colonies, and, of course, we cannot do less for the Commonwealth than we have done for the colonies.

Mr. KINGSTON.-Such legislation is only good within the limits of each state.

Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person has as a British subject-the right of personal liberty and protection under the laws-is secured by being a citizen of the states. It must be recollected that the ordinary rights of liberty and protection by the laws are not among the subjects confided to the Commonwealth. The administration of [start page 1766] the laws regarding property and personal liberty is still left with the states. We do not propose to interfere with them in this Constitution. We leave that amongst the reserved powers of the states, and, therefore, having done nothing to make insecure the rights of property and the rights of liberty which at present exist in the states, and having also said that the political rights exercisable in the states are to be exercisable also in the Commonwealth in the election of representatives, we have done all that is necessary. It is better to rest there than to plunge ourselves into what may be a sea of difficulties. We do not know to what extent a power like this may be exercised, and we should pause before we take any such leap in the dark.

Dr. QUICK (Victoria).-I understood that, under the Federal Constitution we are creating, we would have a dual citizenship, not only a citizenship of the states, but also a citizenship of the higher political organization-that of the Commonwealth. It seems now, from what the Hon. Mr. Barton has said, that we are not to have that dual citizenship; we are to have only a citizenship of the states.

Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike subjects of the British Crown.

Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more comprehensive, and nobler than that of the states, I would ask why is it not implanted in the Constitution? Mr. Barton was not present when I made my remarks in proposing the clause. I then-anticipated the point he has raised as to the position we occupy as subjects of the British Empire. I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of that federal citizenship, we were not in any way interfering with our position as subjects of the British Empire. It would be beyond the scope of the Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen. I see therefore nothing unconstitutional, nothing contrary to our instincts as British subjects, in proposing to place power in this Constitution to enable the Federal Parliament to deal with the question of federal citizenship. An objection has been raised in various quarters-as by the honorable and learned members (Mr. O'Connor and Mr. Wise)-to the effect that we ought to define federal citizenship in the Constitution itself. I have considered this matter very carefully, and it has seemed to me that it would be most difficult and invidious, if not almost impossible, to frame a satisfactory definition. There is in the Constitution of the United States of America a cast-iron definition of citizenship, which has been found to be absolutely unworkable, because, among other things, it says that a citizen of the United States shall be a natural-born or naturalized citizen within the jurisdiction of the United States, and it has been found that that excludes the children of citizens born outside the limits of this jurisdiction. That shows the danger of attempting definitions, and although I have placed a proposed clause defining federal citizenship upon the notice-paper, the subject, seems to me surrounded with the greatest difficulty, and no doubt the honorable and learned members (Mr. Wise, Mr. O'Connor, and Mr. Symon) would be the first to attack any definition, and would be able to perforate it. In my opinion, it would be undesirable to implant a cast-iron definition of citizenship in the Constitution, because it would be better to leave the question more elastic, more open to consideration, and more yielding to the advancing changes and requirements of the times.

Mr. WALKER.-Is not a citizen of the state, ipso facto, a citizen of the Commonwealth?

Dr. QUICK.-It required the 14th amendment to place that beyond doubt in the American Constitution. In the [start page 1767] proposition which I have put before the Convention I do not desire at all to interfere with state citizenship. I leave that entirely to the states. In my opinion, it is in no way desirable to trench upon state citizenship. But I think we are entitled to place in the Constitution a provision empowering the Federal Parliament to deal with the incidence of Commonwealth citizenship, its mode of acquisition, the status it confers, and the manner in which it may be lost. It has been suggested by, I think, the honorable and learned member (Mr. Glynn), that a definition of citizenship should be accompanied by something in the nature of inter-state citizenship, that is, that the citizens of one state should be entitled to all the privileges and immunities of the citizens of another state. But I would point out that such a provision would be inconsistent with an amendment already placed in the Constitution. We have already eliminated interstate citizenship, upon the ground that it might interfere with the right of each state to impose disabilities and disqualifications upon certain races. I am sure that the Federal Parliament would not be able, under the provision which I wish to insert, to legislate in regard to state citizenship or to in any way enlarge the Commonwealth rights or privileges at the expense of the rights of the states. The power of the Federal Parliament could only be exercised in regard to the privileges and rights contemplated by the Constitution itself. I may point out roughly some of the rights which are contemplated by the Constitution. There is the right to assert any claim which a citizen might have upon the Government, the right to transact any business he might have, the right to seek the protection of the Government, to

share its offices, to engage in its administrative functions, to have free access to the ports of the Commonwealth and to its public offices and courts of justice, to use its navigable waters, and to all the privileges and benefits secured by the Commonwealth for its citizens by treaties with foreign nations. In my earlier remarks I did not enumerate more than the last of these rights. When the Federal Government is negotiating with foreign nations, say for treaties of commerce, and certain rights and privileges are obtained thereby for the citizens of the Commonwealth, it ought to be able to point to a definition of Commonwealth citizenship. I am amazed at the force and the consistency with which technical objections are being raised against every proposal calculated to improve and popularize the Constitution. One would imagine that this was to be a mere lawyers’ Constitution, and that everything that seems to go beyond mere legal literalism must be rejected. Again, I ask are we to have a Commonwealth citizenship? If we are, why is it not to be implanted in the Constitution? Why is it to be merely a legal inference? It is all nonsense to say that the Commonwealth Parliament is going to cut down and reduce the state citizenship. It will only deal with federal citizenship. Why should not the Federal Parliament be able to deprive any person who broke the Commonwealth laws of the Commonwealth citizenship? Would not that be within the functions and jurisdiction of the Commonwealth Parliament? I think that it would be strictly within its functions. If we are not to provide for this Commonwealth citizenship, what will be the position of those residing in territories which may hereafter be created? The honorable member (Mr. Walker), among others, is desirous that a certain portion of territory shall be set apart as within the exclusive jurisdiction of the Commonwealth for a federal capital. That is a view which I share with him. But I ask what will be the civic status of the inhabitants of the federal territory? I hope that the provision which I have brought forward will be dealt with by the Convention, not from a strictly legal aspect, but from the broad and [start page 1768] comprehensive point of view from which we have been accustomed to deal with it when upon the public platform we have informed our people that by federation they will be placed upon a higher plane of citizenship. I would ask is a provision of this kind to be rejected merely upon technical grounds?

Mr. SYMON (South Australia).-I think we ought to protest against its being suggested that any of us are opposing this provision upon technical grounds. This is a very much larger question, and it is a question deserving of all the earnestness and energy which the honorable member (Dr. Quick) has thrown into its discussion. But when he submits as a reason for carrying the provision that it should not be dealt with as a lawyers' question, and one dealing with the rigid legal interpretation of the Constitution, I venture, with great respect and emphasis, to dissent from his position. This is a matter which goes to the very foundation of the Constitution which we are framing. At the very root of the proposed Union is the invitation to the citizens of the states to join the Federation, and to obtain, as their reward, citizenship of the Commonwealth. My honorable and learned friend has enumerated a number of things which might or might not be done under this provision. Will he tell me whether it is not a fact that the Federal Parliament could, under this provision, take away the citizenship which might be obtained by joining the Union?

Mr. ISAACS.-Under other clauses of the Constitution, the Federal Parliament could take away the franchise from any one.

Mr. SYMON.-The honorable and learned member is now dealing with another matter. Would not the provision which is now before us confer upon the Federal Parliament the power to take away a portion of this dual citizenship, with which the honorable and learned member (Dr. Quick) has so eloquently dealt? If that is the case, what this Convention is asked to do is to hand over to the Federal Parliament the power, whether exercised or not, of taking away from us that citizenship in the Commonwealth which we acquire by joining the Union. I am not going to put that in the power of any one, and if it is put in the power of the Federal Parliament, then I should feel that it was a very serious blot on the Constitution, and a very strong reason why it should not be accepted. It is not a lawyers' question; it is a question of whether any one of British blood who is entitled to become a citizen of the Commonwealth is to run the risk-it may be a small risk-of having that taken away or diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am willing to do it in everything

which concerns the working out of this Constitution, but I am not prepared to trust the Federal Parliament or anybody to take away that which is a leading inducement for joining the Union.

Question-That the proposed new sub-section (31A) be inserted-put.

The committee divided-

Ayes ... ... ... 15

Noes ... ... ... 21

Majority against Dr. Quick's amendment ... ... 6


Berry, Sir G. Howe, J.H.

Braddon, Sir E.N.C. Isaacs, I.A.

Carruthers, J.H. Kingston, C.C.

Cockburn, Dr. J.A. Lyne, W.J.

Deakin, A. Peacock, A.J.

Hackett, J.W. Trenwith, W.A.

Higgins, H.B. Teller.

Holder, F.W. Quick, Dr. J.


Briggs, H. Henning, A. H.

Brown, N.J. Lee Steere, Sir J.G.

Brunker, J.N. Lewis, N.E.

Crowder, F.T. O'Connor, R.E.

Dobson, H. Reid, G.H.

Downer, Sir J.W. Symon, J.H.

Forrest, Sir J. Venn, H.W.

Fysh, Sir P.O. Walker, J.T.

Glynn, P.M. Wise, B.R.

Grant, C.H. Teller.

Hassell, A.Y. Barton, E.


Ayes. Noes.

Solomon, V.L. Clarke, M.J.

Gordon, J.H. Leake, G.

[start page 1769] Question so resolved in the negative.

The CHAIRMAN.-The next question is Mr. Higgins' proposed new clause in lieu of clause 109, which was struck out.

Mr. HIGGINS (Victoria).-I was not aware that this clause would come on so soon; but, inasmuch as I have spoken to the words in the preamble so recently, I think I shall be able to save honorable members the infliction of a long speech on this subject. My idea is to make it clear beyond doubt that the powers which the states individually have of making such laws as they like with regard to religion shall remain undisturbed and unbroken, and to make it clear that in framing this Constitution there is no intention whatever to give to the Federal Parliament the power to interfere in these matters. My object is to leave the reserved rights to the states where they are, to leave the existing law as it is; and just as each state can make its own factory laws, or its own laws as to the hours of labour, so each state should be at full liberty to make such laws as it thinks fit in regard to Sunday or any other day of rest. I simply want to leave things as they are. I do not want to interfere with any right the state has. I merely want to make it clear that, having inserted in the preamble of the Constitution certain words which, 'according to United States precedents, would involve certain inferential powers, there is no intention on the part of the Convention to confer even inferentially these powers on the Federal Parliament. I want, in this respect, as I said, to preserve the states' rights intact, but upon my former amendment I went too far, according to the views of the members of the Convention, and, therefore, I am only going to the extent of making it clear that the Commonwealth Parliament is to have no such power. I went too far on my former amendment, inasmuch as I said that neither a state nor the Commonwealth was to have this power. I did that because the then existing clause 109 only referred to a state, and provided that-

A state shall not make any law prohibiting the free exercise of any religion.

Well, I did not know that the Convention was willing to go so far as it has gone, and strike out the whole of that clause as to the state. However, it has done so. I beg to move the insertion of the following new clause to replace clause 109 already struck out:-

The Commonwealth shall not make any law prohibiting the free exercise of any religion, or for the establishment of any religion, or imposing any religious observance, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

I may state that most of this clause, with regard to the making of laws, is already in the American Constitution, either in the original Constitution or by way of an amendment of the Constitution. In the Constitution of the United States there is a provision that the Federal Parliament is not to make any law prohibiting the free exercise of any religion, and there is also a clause, the very first amendment of the Constitution, that the Federal Parliament is not to make any law for the establishment of any religion. In the original Constitution you will find also a clause to the effect that there is to be no religious test required as a qualification for any post or office. The only difficulty, therefore, is in respect of these words about imposing religious observances, and that part, as I have already indicated this morning, is rendered necessary by the inclusion in the preamble of our Constitution of words which they have not got in the American Constitution. But in consequence of a decision of the United

States in 1892, which went to the effect that the United States of America form a Christian nation, the courts have held that the United States are able to make laws for the purpose of imposing Sunday observance all over the Commonwealth. I say, then, in brief, that I merely want to preserve to the individual states the [start page 1770] absolute power of regulating all observances of this sort. They have the power as it is. They can make any factory laws they like, and I want to make it clear that there cannot be an overriding Commonwealth law which will interfere with the power the states now have. Therefore, I have moved this new clause.

Mr. REID (New South Wales).-If my honorable friend could point out in the Bill any subject allied with religion which would make it necessary to put such a clause as this in the Bill, I would vote with him.

Mr. HIGGINS.-The preamble.

Mr. REID.-That can only be amended by reference to the people.

Mr. BARTON (New South Wales).-I feel some hesitation about voting for this proposed new clause. It was proposed originally in clause 109 that-

A state shall not make any law prohibiting the free exercise of any religion.

Well, that clause has been struck out. It was decided that we should not prevent any state from making a law prohibiting the free exercise of any religion. That was done partly on the ground that we did not desire to interfere unnecessarily with the states. But clause 109 was struck out on the more solid ground, that there was no likelihood of any state ever prohibiting the free exercise of any religion-that there had been nothing of the kind in the past, and that there was not the slightest reason to expect the occurrence of any such thing in the future; that the more the institutions under which we live expanded, the less likelihood there was of any religious persecution of any kind. Now, if we hold that view with regard to the state, why should we not hold it in regard to the Commonwealth? If that is the reason which makes us strike out a clause prohibiting any state from making any law prohibiting the free exercise of any religion, why should we not hold that as a valid and sufficient reason against inserting any clause prohibiting the Commonwealth from making any law prohibiting the free exercise of any religion? If we feel secure from religious persecution under the Parliaments and the Governments of the states, what reason have we to fear that we shall be subject to religious persecution under the Federal Parliament, which it is supposed will be superior in character to the Parliaments of the states? If the fear does not exist in the one case-and we think so little of it as to cause us to strike out clause 9, as we did-why should we entertain the same fear with regard to the Commonwealth any more than we entertain it in regard to the states?

Mr. WISE.-You might say the same thing as to Congress.

Mr. BARTON.-Certainly there is a decision in the United States to the effect that it is a Christian nation. What does that decision amount to? Is it not really a decision based on the fact that the institutions of England, under the common law, are Christian institutions, which, so far as they are not interfered with by any written Constitution, belong to citizens of the United States, as having been brought over by them as British subjects, and kept by them from that day to this? If that is the ground of the American decision, which I suspect it is, the same thing applies in some of these colonies. Decisions have been given to the effect that there colonies are Christian communities. I remember a case in which that doctrine was expounded at length by the late Chief Justice Martin, of New South Wales. Now, if the colonies are Christian communities, the common law of England will apply to the Commonwealth, except so far as this Constitution alters that law; and if it is part of the common law of England that we shall be regarded as a Christian community, what fear is there of our suffering any dangers of the kind indicated in the amendment, simply because we are a Christian community? I do not see any danger of the [start page 1771] kind to be anticipated. I think that because we are a Christian community we ought to have advanced so much since the days of State aid and the days of

making a law for the establishment of a religion, since the days for imposing religious observances or exacting a religious test as a qualification for any office of the State, as to render any such dangers practically impossible, and we will be going a little too far if we attempt to load this Constitution with a provision for dangers which are practically nonexistent.

Mr. HIGGINS.-That is the question-are those dangers non-existent?

Mr. BARTON.-I do not think the fact that we may be held by law to be a Christian community is any reason for us to anticipate that there will be any longer any fear of a reign of Christian persecution-any fear that there will be any remnant of the old ideas which have caused so much trouble in other ages. The whole of the advancement in English-speaking communities, under English laws and English institutions, has shown a less and less inclination to pass laws for imposing religious tests, or exacting religious observances, or to maintain any religion. We have not done that in Australia. We have abolished state religion in all these colonies; we have wiped out every religious test, and we propose now to establish a Government and a Parliament which will be at least as enlightened as the Governments and Parliaments which prevail in various states; therefore, what is the practical fear against which we are fighting? That is the difficulty I have in relation to this proposed clause. If I thought there was any-the least-probability or possibility, taking into consideration the advancement of liberal and tolerant ideas that is constantly going on of any of these various communities utterly and entirely retracing its steps, I might be with the honorable member. If we, in these communities in which we live, have no right whatever to anticipate a return of methods which were practised under a different state or Constitution, under a less liberal measure of progress and advancement; if, as this progress goes on, the rights of citizenship are more respected; if the divorce between Church and State becomes more pronounced; if we have no fear of a recurrence of either the ideas or the methods of former days with respect to these colonies, then I do suggest that in framing a Constitution for the Commonwealth of Australia, which we expect to make at least as enlightened, and which we expect to be administered with as much intellectuality as any of the other Constitutions, we are not going to entertain fears in respect of the Commonwealth which we will not attempt to entertain with respect to any one of the states. Now, we have shown that we do not intend these words to apply to our states by striking out clause 109. That might be a provision that might be held to be too express in its terms, because there may be practices in various religions which are believed in by persons who may enter into the Commonwealth belonging to other races, which practices would be totally abhorrent to the ideas, not only to any Christian, but to any civilized community; and inasmuch as the Commonwealth is armed with the power of legislation in regard to immigration and emigration, and with regard to naturalization, and also with regard to the making of special laws for any race, except the aboriginal races belonging to any state-inasmuch as we have all these provisions under which it would be an advisable thing that the Commonwealth, under its regulative power, should prevent any practices from taking place which are abhorrent to the ideas of humanity and justice of the community; and inasmuch as it is a reasonable thing that these outrages on humanity and justice (if they ever occur) should be prohibited by the Commonwealth, it would be a dangerous thing, perhaps, to place in the Bill a provision which would take out [start page 1772] of their hands the power of preventing any such practices.

Mr. HIGGINS.-Do you think that the Commonwealth has that power under the existing Bill?

Mr. BARTON.-I am not sure that it has not. I am not sure that it has not power to prevent anything that may seem an inhuman practice by way of religious rite.

Mr. HIGGINS.-I want to leave such matters to the states.

Mr. BARTON.-But inasmuch as we have given to the Commonwealth the power of regulating the entry of that class of persons, and the power of regulating them when they have entered, is it not desirable that in that process there shall be left to the Commonwealth power of repressing any such practices in the name of religion as I have indicated? If it be necessary that there should be some

regulative power left to the Commonwealth, then the argument that we should leave the matter to the states does not apply, because we give such a power to the Commonwealth.

Mr. HIGGINS.-Then all crimes should be left to the Commonwealth?

Mr. BARTON.-No; because you do not give any power with regard to punishing crime to the Commonwealth, but you do give power to the Commonwealth to make special laws as to alien races; and the moment you do that the power of making such laws does not remain in the hands of the states; and if you place in the hands of the Commonwealth the power to prevent such practices as I have described you should not defeat that regulative power of the Commonwealth. I do not think that that applies at all, however, to any power of regulating the lives and proceedings of citizens, because we do not give any such power to the Commonwealth, whilst we do give the Commonwealth power with regard to alien races; and having given that power, we should take care not to take away an incident of it which it may be necessary for the Commonwealth to use by way of regulation. I have had great hesitation about this matter, but I think I shall be prevented from voting for the first part; and as to establishing any religion, that is so absolutely out of the question, so entirely not to be expected-

Mr. SYMON.-It is part of the unwritten law of the Constitution that a religion shall not be established.

Mr. BARTON.-It is so foreign to the whole idea of the Constitution that we have no right to expect it; and, as my honorable and learned friend (Mr. Symon) suggests by his interruption, I do not think, whatever may be the result of any American case, that any such case can be stretched for a moment in such a way as to give Congress power of passing any law to establish any religion. I do not suppose that there is a man in Congress who would suggest it; and I have no doubt that the same court that decided that the community was a Christian community would say that the United States Congress had no power to establish any religion. The only part of the matter upon which I have had the least doubt (having become more confirmed in my opinion since I have considered the matter further) is the latter part of the proposal, which is that no religious test shall be required for any place of public trust in the Commonwealth. I do not think that any such test would be required, and the only question is whether it is possible. I have come to the conclusion that it is not possible. Therefore, my disposition is to vote against the whole clause.

Mr. REID.-I suppose that money could not be paid to any church under this Constitution?

Mr. BARTON.-No; you have only two powers of spending money, and a church could not receive the funds of the Commonwealth under either of them.

[start page 1773] Mr. WISE (New South Wales).-I can conceive of no matter more fit for state control than that of religious observance, and, therefore, I am utterly unable to follow the leader of the Convention (Mr. Barton) in his contention. There should not be any opening for doubt as to the power of the Commonwealth to exercise control over any religion of the state. I wish I could share Mr. Barton's optimistic views as to the death of the spirit of religious persecution. But we have seen in our own time a recrudescence of that evil demon, which, I fear, is only scotched and not killed. At any rate, the period during which we have enjoyed religious liberty is not long enough for us to be able to say with confidence that there will be no swinging back of the pendulum to the spirit of the times from which we have only recently emerged. Consequently there is some reason for the alarms which have been expressed by a very large body of people, who have not been represented in this Convention, by long petitions, but who none the less are entitled to be considered when we are framing this Constitution, and who, rightly or wrongly-for my own part, I believe rather more wrongly than rightly-believe that the agitation for the insertion in the preamble of the words which we have inserted to-day is sufficient to cause alarm among citizens of certain ways of thinking, and that there is an interior design on the part of some people in the community to give the Commonwealth power to interfere with religious observances.

Mr. HIGGINS.-We had 38,000 signatures to a petition from the people in Victoria against the inclusion of these words in the preamble.

Mr. WISE.-I am very glad to hear it. That strengthens my argument. if 38,000 citizens of Victoria sent a petition against the inclusion of these words, not because they disapproved of the words in themselves, but because I suppose they were afraid that the inclusion of them would confer upon the Commonwealth some power to legislate with regard to religious observances, I say that fears of that sort should be respected. I know a considerable body of people in New South Wales, who, perhaps, have not made themselves heard in this Convention by petitions, who are actuated by the same alarms. Now, why should we not meet the scruples of these gentlemen as we met the scruples and feelings of another class of the community, when we put the words to, which I have alluded into the preamble? We none of us here believe in our hearts that these words added much to the preamble, but we put them in, as we thought, because they were a just satisfaction of a, certain sentiment. May we not support this on the same ground? May we not say-"We will clear away once and for ever any doubts which you may feel by making it clear that all matters of religious observance and control over religion shall be left to the states to which they naturally belong." Is the fear which is expressed groundless? If it had not been for the speech of Mr. Higgins this morning we might say that the fear was absolutely groundless, and that it was impossible that the Commonwealth should exercise, or seek the power to exercise, any control over religious observances. Yet, when we have the example of the United States, not six years old, I do not think the leader of the Convention can carry the force of conviction to us here, when he asks us to believe that there is no fear whatever of the Commonwealth exercising a power which we cannot believe would be exercised by any state. Supposing the Commonwealth is swayed by some popular feeling, such as swayed Congress in 1892, and some law were passed, say, dealing with Sunday observance, which might reflect the wishes of the majority of the people, but which would be most distasteful and persecuting to a minority. In a matter of religious feeling, a minority are [start page 1774] entitled to the utmost respect and should have their feelings guarded.

Mr. FRASER.-Is not the majority entitled to respect?

Mr. WISE.-Certainly.

Mr. FRASER.-A very small minority might shock the great majority of the people.

Mr. WISE.-Let every one follow his own religious observances without shocking anybody, and do not let him impose his rule on anybody else. I am pointing out that when we have got that example before us, we cannot shut our eyes to the fact that there is something in the argument which has been raised. When we find that the American Constitution took that power, without the words in the preamble which we have inserted to-day-without even the support of that contention which we have given by putting these words in the preamble-we ought to take care to put plainly in the forefront of the Constitution the provision that the Commonwealth shall not interfere in any way with the rights of the states to regulate religious matters. How can it be said that the observance of Sunday in Northern Queensland would shock the people of Victoria? There is no doubt the observance of Sunday is largely a matter of climate, and a great many religious observances are matters of climate. It might be that one rule should prevail in the tropical portion of this country, and another rule in the south. It ought to be made perfectly clear that the opinions of a large number of persons in one portion of the Commonwealth, as to adopting a certain method of observance of Sunday, shall not prevail in other states, and that those persons shall not have it in their power to impose a restraint on people in other districts, and that they shall not be able to impose a uniform method of Sunday observance. There are many other questions of a similar kind that might be referred to. What I fear is that we have not yet any sufficient security against a revival of the feeling which has existed for centuries, but which has not been able to make itself felt during the last 50 or 60 years in British-speaking countries, but which I believe, still exists in the hearts of hundreds and thousands of men only waiting for an opportunity to assert itself. If we put in Mr. Higgins' amendment we shall remove those fears and establish a sound

principle, and, I believe, will commend the Constitution to a very large number of those who at present are doubtful as to its effects.

Dr. COCKBURN (South Australia).-May I ask the honorable member who moved the amendment whether there is any other power the exercise of which is forbidden to the Commonwealth?

Mr. HIGGINS.-I do not think there is an express prohibition.

Dr. COCKBURN.-I think there is not. It seems to me that by making one exception we are introducing a whole atmosphere of ambiguities; that is to say, the Commonwealth at present can only exercise such powers as are explicitly vested in it. If, in addition to that, we forbid the exercise of some power, we leave an ambiguous area between the powers specifically vested in the Commonwealth and the powers forbidden. That opens out a whole circle of ambiguity in this respect.

Mr. HIGGINS.-I think I was wrong in what I just now stated; there is a prohibition with regard to the states in clause 108, and there was a prohibition as to the states in clause 109.

Dr. COCKBURN.-There are many prohibitions with regard to the states. I am very much in sympathy with Mr. Higgins, and if he can point out any case of this kind I would go with him.

Mr. O’CONNOR.-Clause 109 was a prohibition, but it has been struck out.

Dr. COCKBURN.-It seems tome that by passing this provision we shall open the door to the possibility of doubt as to the Commonwealth having more powers than we have vested in it.

[start page 1775] Mr. WISE.-There is a prohibition with regard to interference with trade and commerce.

Dr. COCKBURN.-That is a limitation of power which is wholly vested and explicitly placed in the hands of the Commonwealth. It is simply a limitation of the exercise of its executive power, but this is of a different description. It seems to me that by introducing this clause we shall run the risk of indicating that there is another sphere of powers which, though not specified as belonging to the Commonwealth, are not forbidden.

Mr. HIGGINS.-The 117th clause says that a new state shall not be formed by the separation of territory from a state without the consent of the Parliament of that state. That forbids even the Federal Parliament forming a new state.

Mr. WISE.-Clause 95 provides that preferences shall not be given.

Dr. COCKBURN.-That is a limitation of the executive power, and none of the instances advanced have satisfied me on the point I have endeavoured to lay before honorable members. I see clearly in my own mind that an exception in this respect will throw some doubt as to the whole scope of the powers of the Commonwealth. By inserting these words, it may be decided that there are some powers in the hands of the Commonwealth which are not explicitly recognised and stated.

Mr. FRASER (Victoria).-I entirely agree with our leader in this matter. I do not see that there is any necessity for this clause. We are now a homogeneous people, and the safer plan is to leave us so.

Mr. HIGGINS.-That is what we want to do.

Mr. FRASER.-I am not so very sure about that. If you pass this date all sorts of extraordinary practices may be resorted to that would, as I have already interjected, shock the whole community.

Mr. WISE.-Suppose the Federal Parliament passes a law allowing Sunday newspapers, would the Victorians like that?

Mr. ISAACS.-They would have no jurisdiction.

Mr. WISE.-Yes, they would, if this is struck out.

Mr. ISAACS-Under what clause?

Mr. WISE.-Under the same clause as in America.

Mr. FRASER.-If the Federal Parliament chooses to act in this matter of Sunday newspapers, the people will be cognisant of all that is done.

Mr. WISE.-We do not think them wrong in New South Wales.

Mr. FRASER.-The probability is that a majority of the people of New South Wales think that it is wrong to allow Sunday newspapers, but they have not the courage to put them down. I believe that is the real fact. I believe that the public men of New South Wales, have not the courage to tackle them. That is about the answer to that interjection. If the public men have not courage to deal with these matters, of course the public will follow them in various devious paths. I do not see the necessity for this clause. I hope that we are not going to be driven to accept all sorts of extraordinary proposals simply because of something that has taken place in the United States. We are able to take care of ourselves, and I think the clause would do more harm than good.

Sir EDWARD BRADDON.-What harm would it do?

Mr. FRASER.-It might offend the susceptibilities of a homogeneous people, and in that way cause trouble and difficulty. There would be no danger in omitting the clause, but there may be danger in putting it in.

Mr. SYMON (South Australia).-I beg to move, as an amendment-

That all the words down to "and" be omitted, with a view to the insertion in lieu thereof of the following:-"Nothing in this Constitution [start page 1776] shall be held to empower the Commonwealth to require any religious test as a qualification for any office of public trust under the Commonwealth."

I do not oppose the earlier part of the clause on the same ground as I put before, because I am satisfied in regard to those matters, to which attention was directed when clause 109 was under discussion, that under the ordinary operation of the common law any inhumanities and cruelties could be effectually stopped.

Mr. HIGGINS.-By which Parliament?

Mr. SYMON.-By either the state or the Commonwealth Parliament. I mention that to show that I do not change my view that that part of the clause is objectionable. But I hold strongly that in consequence of the insertion of the new words in the preamble it is desirable that some provision should be made to make it clear that these words are not to overspread the whole Constitution.

Mr. ISAACS.-Would not your view be carried out by leaving the residuum of the clause just as it stands?

Mr. SYMON.-I should have no objection to that, but I think it would be better to say that nothing in the Constitution shall empower the Commonwealth to impose any religious test. I sympathize with

Mr. Higgins in his fear that the insertion of the words we put in the preamble might lead to an impression amongst a larger or smaller section of the community that it would be possible to impose some religious test, and that the sentiment conveyed by the words might overspread the Constitution in some way. My honorable friend desires that there should be something in the nature of a counterblast, for the satisfaction of those who may entertain that apprehension.

Mr. FRASER.-There is no necessity for it.

Mr. SYMON.-There is great force in what Mr. Fraser says, but there are a number of us who, for reasons which do not militate against our deep reverence and the deep faith that may be in us, think that the words inserted in the preamble are, at all events, open to misconstruction on the part of a larger or smaller section of the community. I do not wish to enter into the subject, but I felt that, and it is with a view of getting rid of any apprehension of that kind, and of securing every vote possible for this. Bill, that I think it well to yield to the view that has been expressed so forcibly by Mr. Higgins.

Mr. FRASER.-That is the only argument in its favour.

Mr. SYMON.-It is a strong argument. We have inserted certain words in the preamble, and we should put in as a solatium, if you like, to those holding opinions in opposition to these words, something else on which the may rely.

Mr. DOBSON.-Would not the amendment leave it open to the Federal Parliament to dictate to any state that it should not open its picture galleries and museums on Sunday?

Mr. SYMON.-There, is no power under the Constitution that would enable the Federal Parliament to do that. I am satisfied that it is embodied in the Constitution as a part of the unwritten law that no church establishment shall prevail, and that religious freedom shall be observed.

Mr. KINGSTON (South Australia).-I shall support the amendment in the form in which it has been proposed by Mr. Higgins. There is a great deal of force in the suggestion that, in view of the amendment in the preamble, we should make a declaration of this description in the broadest possible terms, for the purpose of allaying any apprehension that might otherwise be entertained on the subject. As the matter stands at present, the states have full power, if they so desire, to legislate. The Commonwealth will, undoubtedly, also have power to legislate in respect of a matter of this description, so far as the affairs of the people of any race for whom it is necessary [start page 1777] to adopt special legislation are concerned. That power is expressly given to the Federal Parliament, and I have no doubt whatever that in the exercise of it a law might be passed concerning special races, and prohibiting the free exercise of their religion, or imposing something in the nature of a religious test. I do not think that power ought to be given to the Federal Parliament. It is a matter of purely domestic concern, with which the states are particularly qualified to deal. If we carry the amendment in the way in which it is now proposed, we shall secure to the states the power which they at present possess, and which they can be trusted to exercise with an intimate knowledge of all the local circumstances. We shall prevent any unnecessary interference by the Federal Parliament in a matter of domestic concern, and we shall allay those fears which have been referred to by various honorable members. I trust, therefore, the amendment will be agreed to as proposed.

Mr. LYNE (New South Wales).-I voted this morning for the amendment of the preamble moved by the honorable member (Mr. Glynn), but in speaking upon that amendment I said that I had been struck by the remarks of the honorable member (Mr. Higgins), though I did not see how the amendment then before the committee could bring about the results he seemed to think possible. The amendment which the honorable member is now moving will, however, get rid of the possibility of danger. As was said by the honorable and learned member (Mr. Wise), Sunday observance is to a very large extent a matter of climate. In New South Wales we open our museums, our art gallery, and other places of public resort upon Sundays, though I think that in other colonies that is not allowed. It would be hard, however, if a state in the northern part of the continent, where, in consequence of the

extremes of the climate, the people require some recreation upon Sunday were prevented by the Commonwealth from doing what we have done. Then, take the case of Sunday newspapers. We in New South Wales do not object to the publication of newspapers upon Sunday, as the honorable. member (Mr. Fraser) would object here.

Mr. FRASER.-I did not say so.

Mr. LYNE.-That was the conclusion I drew from the honorable member's interjections. However, that is beside the question. What I really want to impress upon honorable members is that it is not a wise thing, where you have a number of states to deal with, to allow the Commonwealth authority to decide how Sunday should be observed. The Commonwealth authority might have that power if this provision were not inserted in the Bill. To my mind, if the proposal of the honorable member (Mr. Symon) were carried, you might as well knock out the whole clause, because it takes the kernel out of it. I hope that the Convention will carry the proposal of the honorable member (Mr. Higgins) as it stands.

Mr. WISE (New South Wales).-I should like, in two sentences, to put forward a matter to which I invite the attention of the honorable and learned member (Mr. Symon). If the arguments which prevailed in, the Supreme Court of the United States in 1892 were to prevail in the Commonwealth Supreme Court, the Commonwealth authority would have an implied power to administer the common law in respect to the observances of Christianity. Of course, I may say at once that I cannot understand the decision of the United States court.

Mr. HIGGINS.-Still it exists.

Mr. WISE.-Yes. Unless the amendment of the honorable member (Mr. Higgins) were carried, the Commonwealth authority might, under the ruling of the Supreme Court of the Commonwealth, have this implied power. For this reason, I appeal to the honorable and learned member (Mr. Symon) to withdraw his amendment, so that we may take a vote upon the clause as it stands.

[start page 1778] Mr. FRASER.-The decision of the Supreme Court might be the opposite to what the honorable and learned member proposes.

Mr. WISE.-Of course it might.

Mr. FRASER.-Why should we interfere at all?

Mr. WISE.-That is what I think. I would leave it to each state to do as it pleases in regard to Sunday observance, but I would deprive the Parliament of the right to make any laws at all upon this subject.

Mr. O’CONNOR (New South Wales).-I hope that the honorable and learned member (Mr. Symon) will not withdraw his amendment. I intend to support it. It appears to me the only provision before us for which there is any justification. I do not know that it is absolutely necessary, but I think that it would be as well for us to have it. With regard to the provision suggested by the honorable member (Mr. Higgins), I think that it would tend to run us into danger rather than, as the honorable member wishes, to enable us to avoid it. Upon the face of the Constitution the Commonwealth has certainly no power whatever to deal with religion, either directly or indirectly.

Mr. HIGGINS.-Will you explain why they have these words in the first amendment of the American Constitution?

Mr. O’CONNOR.-The provisions of the American Constitution in regard to the powers handed over to the Federal Parliament are not nearly so definite as the provisions of our Constitution.

Mr. HIGGINS.-The American Constitution has no recital in the preamble such as we have just inserted in our Constitution.

Mr. O’CONNOR.-Yes. But the amendment of the American Constitution to which the honorable and learned member refers was rendered necessary by the fact that there is not the definite division of powers in that Constitution that we have in our Constitution. I cannot imagine that clause 52 gives any ground from which it could be argued that the Federal Parliament has the right to interfere in regard to the exercise of religion, or to deal with religion in any way.

Mr. KINGSTON.-Except in regard to special races.

Mr. O’CONNOR.-Of course, in regard to special races the Federal Parliament could make any laws it liked, and I think it very desirable that it should have that power.

Mr. KINGSTON.-Would it not be better to intrust this power to the states?

Mr. O’CONNOR.-No, I do not think so. I think that the power to deal with alien races is given as an exclusive power.

Mr. KINGSTON.-It was put back.

Mr. O’CONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it will be exercised. By putting into the Constitution words prohibiting the Commonwealth Parliament from making certain specified laws you create the implication that the Parliament has power to deal in other respects with religious observances. If you looked at the prohibition containing this provision, you will find that it deals expressly with Sunday observance, with the exercise of religion, with the establishment of religion, and with the imposition of religious observances. But it might very well be argued that the closing of places of public amusement on Sundays does not rest upon any of these grounds; and if you inserted a provision of this kind in the Constitution, there would be the strongest possible implication that the Federal Parliament would have the power to legislate in regard to social questions which had a religious aspect other than those expressly excluded from its jurisdiction by this provision. That is the danger you are likely to run into by putting this limitation in the Constitution. The Commonwealth Parliament will have no right whatever to interfere with these matters unless by some implication arising out of a provision of [start page 1779] this kind. With regard to the subject of the amendment of the honorable and learned member (Mr. Symon), there is no doubt that the Commonwealth might have the right to impose any form of oath which it thought fit as a qualification of office. I am quite willing however, that some such provision as the honorable and learned member has suggested should be inserted in the Constitution, so that it would not be possible for the Commonwealth to require a religious test.

Mr. FRASER (Victoria).-I think that if we give the right to an infinitesimal minority to come here and indulge in extraordinary practices, under the pretence that this is a new religion, we may have all the theatres and all the music-halls in Australia open on Sundays. If that is possible we ought to do what we can to provide against it.

Mr. HIGGINS (Victoria).-I want if I can to recommend the Commonwealth Bill and get it carried. But why should we be faced with this difficulty? You have put in the preamble a religious recital which is not in the Constitution of the United States of America, but you have not put in the safeguard against religious intolerance which they have there. I ask honorable members how I shall face that difficulty? There is a grave suspicion evidenced by what I said that there were 36,000 distinct signatures upon this very point. I do not think it is too much for me to say that we ought to reassure those persons. They may be wrong. It may be right, as my friend (Mr. Barton) says, that there is no power by implication in the Commonwealth to pass this law. It may be right as he says, that the Commonwealth ought to have the power. But I only say that it is a state matter, and it should be left to

the states. My honorable friend (Mr. Fraser), with all respect to him, shows the current ignorance on this matter because he will not understand that the state, if my proposal is carried, will have the same power as it has now to stop any theatrical performances on Sunday.

Question-That the words proposed to be omitted stand part of the proposed new clause-put.

The committee divided-

Ayes ... ... ... 22

Noes ... ... ... 19

Majority against Mr. Symon's amendment... ... ... 3


Berry, Sir G. Henry, J.

Braddon, Sir E.N.C. Holder, F.W.

Brown, N.J. Howe, J.H.

Clarke, M.J. Kingston, C.C.

Deakin, A. Lee Steere, Sir J.G.

Dobson, H. Lewis, N.E.

Douglas, A. Lyne, W.J.

Downer, Sir J.W. Trenwith, W.A.

Fysh, Sir P.O. Wise, B.R.

Glynn, P.M.

Gordon, J.H. Teller.

Henning, A.H. Higgins, H.B.


Barton, E. Leake, G.

Briggs, H. Moore, W.

Brunker, J.N. O'Connor, R.E.

Cockburn, Dr. J.A. Peacock, A.J.

Crowder, F.T. Quick, Dr. J.

Forrest, Sir J. Venn, H.W.

Fraser, S. Walker, J.T.

Hackett, J.W. Zeal, Sir W.A.

Hassell, A.Y. Teller.

Isaacs, I.A. Symon, J.H.

Question so resolved in the affirmative.

Question-That Mr. Higgins' proposed new clause be inserted in the Bill-put.

The committee divided-

Ayes ... ... ... 25

Noes ... ... ... 16

Majority for the clause 9


Berry, Sir G. Holder, F.W.

Braddon, Sir E.N.C. Howe, J.H.

Brown, N.J. Isaacs, I.A.

Clarke, M.J. Kingston, C.C.

Deakin, A. Lee Steere, Sir. J.G.

Dobson, H. Lewis, N.E.

Douglas, A. Lyne, W.J.

Downer, Sir J.W. Moore, W.

Fysh, Sir P.O. Peacock, A.J.

Glynn, P.M. Trenwith, W.A.

Gordon, J.H. Wise, B.R.

Henning, A.H. Teller.

Henry, J. Higgins, H.B.

[start page 1780]


Barton, E. Leake, G.

Briggs, H. O'Connor, R.E.

Brunker, J.N. Quick, Dr. J.

Cockburn, Dr. J.A. Venn, H.W.

Crowder, F.T. Walker, J.T.

Forrest, Sir J. Zeal, Sir W.A.

Fraser, S.

Hackett, J.W. Teller.

Hassell, A.Y. Symon, J.H.

Question so resolved in the affirmative.

Mr. BARTON (New South Wales).-I beg to move, Mr. Chairman, that you report progress, and ask leave to sit again.

The motion was agreed to.

Progress was then reported.

The Convention adjourned at two minutes to five o'clock p.m.